L. Ram Sarup Aggarwal vs Dev Kumari

Kapur, J.—This is a defendant''s appeal against the judgment and decree of the learned Senior Subordinate Judge of Ludhiana decreeing to the plaintiff, the wife, maintenance at the rate of Rs. 40 a month as from 8th July 1943 because of the continued desertion by the husband of the wife. Against this decree, the plaintiff also has cross-objected and claimed that she should be paid maintenance at the rate of Rs. 75 a month from 1939.

Shrimati Dev Kumari, plaintiff, was married at Ludhiana to Ram Sarup, defendant, of Jullundur in February 1939. In her plaint she alleged that she lived with her husband after her marriage, but the husband''s father, Ghasitu Ram, made improper overtures to her. The two over-acts complained of by the wife (but not in the plaint) are : (1) that her father-in-law asked her to massage him; and (2) on another occasion he asked her to remove her veil and show her face to him. Of this she made a complaint to her husband who resented this allegation and ill-treated her by giving her beating and "subjecting her to various troubles." In about June 1939, the defendant was transferred to Thal in the district of Kohat and she was sent away to her parents'' house. During his absence, in Kohat, it is alleged, he never wrote to her in spite of the fact that she sent several letters to him including a registered letter. And during all this period she was not maintained by him. In 1942, an attempt was made by her and her relatives to bring about rapprochment between the plaintiff and the defendant, but this did not succeed, and when later on the husband tried to get married again she along with some friends of the family again went to the defendant at Delhi and tried to bring about conciliation. Her brother then left her at her husband''s house at Delhi, but the husband ill-treated her and sent her back soon. She claims Rs. 75 per mensem as maintenance because the husband is getting a salary of Rs. 200 a month.

The defendant, Ram Sarup, admitted that after the marriage he and the plaintiff lived as husband and wife for some days. He denied the allegations made against his father, and he pleaded that after his transfer she left his parents'' home of her own accord, that as a matter of fact from the very beginning the plaintiff never intended to live in his house as his wife and that she insisted that he should live separately from his parents because her parents were poor and she wanted that they should live on his income. He admitted that on 24th June 1943, the plaintiff of her own accord came to his house in Delhi Cantonment, but her intention, according to him, was to defeat his attempt to getting married again, to disgrace and defame him and not to live with him. During those days, he pleads, she persisted in her previous demands and when he did not accept them, she went away. He also pleaded that he was prepared to take her back.

This suit was brought on 24th August 1944, and in February 1945, the defendant tried to have the suit stayed under the Soldiers'' Litigation Act, but in this he did not succeed.

In her statement before issues, the plaintiff said that after her maklana she stayed in her parents-in-law''s house for about one and a half months and during this time she was very badly treated by her father-in-law who had "evil intentions towards" her. She also accused her husband of being addicted to wine and prostitution - an allegation which she had made in the plaint also. The defendant, in his statement before issues, besides repeating some of the pleas that he took in his written statement, stated that the plaintiff stayed with him at Delhi from 24th June 1943 to 8th July 1943, but she came away because the relations between him and her had become strained as she insisted that he, the defendant, must live separately from his parents to which he was not agreeable. Her sole desire, he stated was

that defendant should live separate from his parents for all purposes whatsoever to which the defendant did not agree and that is the cause of this litigation.

It was admitted that he never sent any maintenance to the plaintiff. It may be noticed here that there was no plea of condonation; neither in the written statement nor in the statement before issues. Three issues were framed :

(1) Whether the plaintiff is justified in living apart from the defendant on account of the conduct and the behaviour of the defendant towards as alleged in the plaint ?

(2) If so, is plaintiff entitled to maintenance from the defendant and, if so, at what rate and for what period ?

(3) Relief.

The trial Court found that the defendant was indifferent towards the plaintiff during his stay in Kohat, he absolutely neglected her - neither wrote to her nor sent any money for maintenance and when he came back to Jullundur he did not go to see her at Ludhiana nor did he fetch her to his house. On the occasion of marriage of his sister also the plaintiff was not brought, and, therefore, he found that he had forsaken her - really deserted her. He further found that by her going to Delhi and staying with him, there was condonation of the previous offence of desertion, and, therefore, she was entitled to maintenance only from 8th July 1943, the date on which she was sent back from Delhi by her husband. On these findings he decreed to her maintenance of Rs. 40 per mensem as from 8th July 1943, and against this decree the defendant has appealed and the plaintiff has filed her cross-objections.

The first point to be considered is whether there was desertion by the husband or it was the wife who has refused to live with her husband. In my opinion, the learned Judge has come to a right conclusion that it was the husband who was guilty of desertion. In her statement as a witness the plaintiff has stated that she was ill treated when she complained to her husband about the misbehaviour of her father-in-law, that she was sent away to her parents home by the husband when he left for Thal and although she did write to her husband, he never replied and he never sent her any maintenance. She also deposed that when she learnt of the intended marriage of her husband, she took a deputation consisting of her brother, Mahasha Kishori Lal, P. W. 5, Diwan Girdhari Lal, P. W. 6 and Chaman Lal, P. W. 3 to ask the girl when the husband proposed to marry, to refuse to marry him and to this she (the girl) agreed. This deputation also went to the husband and requested him to take the plaintiff back but this attempt did not succeed. She then went alone to the husband and stayed for that night in his house against his will. She goes on to say:

I told him (the defendant) that I would die there and will not go defeated and disappointed. I remained there for a fortnight. I tried to bring round my husband, but he proved a stone. My husband then sent me to Ludhiana in company of his peon.

She was cross-examined, but the statement that she had been writing to him at Thal was not challenged.

In support of the deputation having been taken and attempts made to bring about reconciliation, the plaintiff has produced P. W. 3, Chaman Lal, P. W. 6, Mahasha Kishori Lal and P. W. 6, Diwan Girdhari Lal, and there is nothing to show why these witnesses should be disbelieved on the point on which they have deposed, that such a deputation was taken.

Two witnesses have appeared for the defendant, Ghasitu Ram, father of the defendant, D. W. 1 and the defendant himself, D. W. 2. The father has denied that he "approached the plaintiff amorously," but the two definite allegations that she had made that he had asked her to massage him or to remove her veil were not denied by this witness. There is nothing else on which this witness has thrown any very great light. The defendant himself denied that he sent her away, but he admitted that when he came back from Kohat, he never attempted to see the plaintiff at Ludhiana, although he was in Jullundur. He deposed further that when he was going to Delhi he wanted to take his wife with him, but at the Railway Station he was told by her brother that she was in Malerkotla. He says he was anxious to get her to live with him, and he also wrote to her, but she did not come and then he made arrangements to get married again. On the occasion when she came to Delhi, he says, he admitted her to the matrimonial home and gave her the position of a wife including connubial intercourse, but after three or four days she told him that her object was only to defeat his marrying again and in spite of the assurances that he gave her that his parents would not live with him, she left of her own accord and went away to Ludhiana. Questions with regard to resumption of matrimonial relations and agreeing to live separately from the father were never put to the plaintiff in the witness-box, nor were they alleged in the written statement and they appear to me to be an afterthought and this sudden desire to take the plaintiff to Delhi or to renew the matrimonial home seems to be inconsistent with his previous indifference towards his wife or with his conduct later when the plaintiff went to Delhi and is contradicted by the story of the deputation. The defendant''s evidence as a witness is not straightforward, he has made improvements and additions and has prevaricated and I do not consider his evidence to be satisfactory.

The evidence which has been produced shows that the plaintiff after marriage did stay for some time in her husband''s house, there was the misbehaviour of the father-in-law which is corroborated by the fact that before he went to Thal he asked her brother to come and fetch her while he, the defendant, was still at Jullundur. It is not explained as to why the husband was anxious that the wife should go away from his father''s house before he left for Thal. This anxiety of the defendant is only explainable on the allegation which is put forward by the wife.

It is also proved that while the defendant was at Thal he never wrote to the plaintiff in spite of the fact that she had sent a registered letter nor did he ever maintain her or send her any money for maintenance in spite of the fact that he knew that her parents were poor. When he came back from Thal and lived for two months in Jullundur he neither sent for the plaintiff nor did he come to fetch her. There does not seem to be any justification shown for this conduct on his part. He went away to Delhi on his getting an appointment there. If he wanted he could have taken the plaintiff with him to that place, and I refuse to believe that he asked her brother to send her along with him and he gave the reply that is attributed to him. The whole conduct of the wife shows her anxiety to live with her husband who did not reciprocate. When the plaintiff came to know that the defendant was contemplating marrying again she did the best she could stop the marriage by taking a deputation. She also took a deputation of these very persons to the husband in order to effect reconciliation and when she was unsuccessful in this, she forced herself into her husband''s house. I am unable to believe that there was any resumption of connubial intercourse, but even if there was, I do not think that it will make any difference in this case. In spite of the plaintiff''s desire to stay on with the husband, he was unwilling to keep her and sent her back. It is important to note that there is no imputation of immorality against the plaintiff. On the other hand even the defendant has given her the best possible character.

All these facts show quite clearly that it was the husband who was guilty of desertion. He had sent away his wife, neglected to maintain her or to keep her in his house. The wife was justified for the cause that she has alleged and proved for not agreeing to stay under the same roof with her husband''s father, and there was no justification for the husband to desert her or to refuse to maintain her all this time. In my opinion, the evidence of the defendant has rightly been rightly rejected by the learned trial Judge.

Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse. See Raydan on Divorce p. 99 (1949 Edn.). Indeed, it is difficult to define desertion in any comprehensive manner. As observed by Lord Merriman, P., in Mummery v. Mummery, 1942 1 ALL. E. R. 553 at p. 555 : (111 L. J. P. 58) :

No Judge has ever attempted a comprehensive definition of desertion and that no Judge would ever succeed in doing so.

Pulford v. Pulford, L. R. (1923) P. 18 at p. 21 : (92 L. J. P. 14), Lord Merriman, P., said : "Desertion was a withdrawal, not from a place, but from a state of things." At p. 101 of Raydan on Divorce it is said :

For the offence of desertion there must be two elements present on the side of the deserting spouse, namely, the factum of separation and the animous deserndi (or intention to bring cohabitation permanently to an end); and two elements present on the side of the deserted spouse, namely, absence of consent and absence of conduct reasonably causing the deserting spouse to form his intention to bring cohabitation to an end.

A person relying on desertion must prove the four elements which I have given above. Desertion is a question of fact and it can be inferred from certain acts. If a separation de facto exists the primary question is whether or not that separation is attributable to an animous deserndi on the part of the defendant. Desertion commences from the time when the factum of separation and the animous deserndi coincide in point of time.

At page 103 of the same book it is said:

It is immaterial that the separation has arisen owing to exigencies of business, mutual convenience, or circumstances over which the parties have no control; if one spouse takes advantage of such an existing separation to manifest an intention to bring cohabitation permanently to an end, the offence is committed. The rule is the same where the parties have separated by agreement for a limited time, and one spouse at the end of that time unjustifiably refuses to return.

Living apart and abandonment constitute desertion.

In this case the circumstances that I have mentioned above prove not only the factum of separation, but they affirmatively show that the defendant intended to bring cohabitation permanently to an end, and from the actions of the defendant, having regard to the principle that every person is presumed to intend the reasonable and probable results of his actions, the proper inference to be drawn is that he did want to desert the plaintiff and has done so. It has been held in Graves v. Graves, (1864) 3 Sw. & Tr. 350 : (33 L. J. Mat. 66) that there is no substantial difference between the case of a husband who wants to put an end to a state of cohabitation and does so by leaving his wife, and that of a husband who, with like intent, is guilty of conduct equivalent to driving his wife away. In this case the husband having the desire and intention to separate his wife sent her away to her parents'' house when he was going to Thal and even if one were to take into consideration the fact that he could not take her to the Frontier Province, the fact that on Ma return he refused to have anything to do with her, is sufficient indication of the fact that he wanted the separation and this amounts to desertion.

Even if he wanted her to come back and the refusal was on her part, in the present case, there is sufficient cause for it as she was unwilling to live under the same roof, where her father-in-law was living because of the latter''s impropriety.

The desertion, it was submitted, was terminated by the husband''s repentance and desire for his wife''s return. But I cannot agree, Desertion is a continuing offence and cannot be obliterated by subsequent offers as to the genuineness of which the wife in this case might reasonably entertain doubts. See Thomas v. Thomas, L. R. (1924) P. 194 : (93 L. J. P. 61).

In this case I am unable to believe that the conduct of the husband is that of a man honestly intending to resume cohabitation with his wife i. e., setting up a matrimonial home. In my opinion, the offer made in Court is a misrepresentation of his real intention and the real and only object of his offer is to evade the consequences which might ensue and to deprive the wife of the remedy which she would be entitled to. See French Brewster v. French Brewster, (1890) 62 L. T. 609.

Under Hindu law also position does not appear to be any different. In Mulla''s Hindu law, p. 610, it is said :

She (the wife) is not, therefore, entitled to separate residence or maintenance, unless she proves that, by reason of his misconduct or by his refusal to maintain her in his own place of residence or for other justifying cause, she is compelled to live apart from him.

It is quite clear that in this case she has made out a justifying cause and desertion by the husband has, in my opinion, been proved as stated above. It is really not a case where she is refusing to live with him, but a case where he has refused to keep her, and furthermore, she is justified in refusing to live in the house where her father-in-law is also living.

Having regard to the facts which, I hold, have been proved and the law which I have quoted above, I am of the opinion, that the learned Judge was right in holding in favour of the wife in this case.

In the result the appeal fails and is dismissed with costs.

Coming now to the cross-objections, the contention of the respondent that there is no case made out for condonation is justified. There was no plea of condonation in the written statement, no issue was raised and even the plaintiff, when she was in the witness-box, was not cross-examined on this point. On the other hand in Para. 10 of the written statement, the defendant said :

However, on 24th June 1943, she of not own accord came to my house in Delhi Cantonment with the intention of not letting me succeed in my above object (of re-marrying) and stayed there upto 8th July 1943. During the above period I was convinced from her attitude that in reality she had no mind to live in my house as my wife. She went to Delhi simply to disgrace and defame me. Moreover it was her intention that she would take advantage of my absence and take away to her parents'' house whatever things she could lay her hands on.

This is destructive of the case of condonation.

It was contended by Mr. Thapar that even on the case made out by the defendant in his statement as a witness that there was sexual intercourse between the husband and the wife, no case of condonation is made out as there was really no resumption of cohabitation. In Mummery v. Mummery, 1942 1 ALL E. R. 553: (111 L. J. P. 58), a case on which he relied it was observed by Lord Merriman, P.:

Similarly, I doubt whether any Judge could give a completely exhaustive definition of cohabitation, add certainly I am not going to attempt to do so. At least a resumption of cohabitation must mean resuming a state of things, that is to say, setting up of a Matrimonial Home together. That involves, so it seems to me, a bilateral intention on the part of both spouses so to do.

In Rowell v. Rowell, (1900) 1 Q. B. 9 at p. 13 : (69 L. J. Q. B. 55), Lord Russell of Killowen L. C. J., said :

In my judgment, if the Court comes to the conclusion that there was an intention by both parties to come together again, there would be an end of the deed (deed of separation).

Dealing with the case of intercourse he said at p. 14 :

I agree that such acts are strong evidence unless explained; but it is not a necessary conclusion from them that it was intended to put an end to the deed (of separation).

In Mackrell v. Mackrell, 1948 2 ALL E. R. 658, Denning L. J., said at p. 860 :

Reconciliation does not take place unless and until mutual trust and confidence are restored. It is not to be expected that parties can ever recapture the mutual devotion which existed when they were first married, but their relationship must be restored, by mutual consent, to a settled rhythm in which the past offences, if not forgotten, at least no longer rankle and embitter their daily lives. Then, and not till then, are the offences condoned.

He continues :

Reconciliation being the test of condonation, nothing short of it will suffice. The fact that the parties continue to live in the same house or the fact that the guilty party is reinstated in his or her former position is, indeed evidence from which reconciliation may be inferred, but it is by no means conclusive.

A similar rule was laid down in Cook v. Cook, 1949 1 ALL E. R. 384, and Lord Merriman, P., agreed with his previous dictum in Mummery v. Mummery, 1942-1 ALL E. R. 553: (111 L. J. P. 58). Pearce J., observed in that case:

The words ''resumption of cohabitation'' must mean resuming a state of things, that is to say, a setting up of a Matrimonial home together and that involves a bilateral intention on the part of both spouses so to do. That is an important principle....

Relying on these cases I must hold that in this case condonation is not made out and even if the statement of the defendant is taken to be correct that there was resumption of connubial intercourse between the parties at Delhi, that, in my opinion, will not amount to condonation.

The question now arises as to from whom the plaintiff is entitled to her maintenance. She has claimed it from the date that the defendant went away to Thal, that is to say, June 1939. She is only entitled to maintenance within three years from the date of her suit, that is to say, 25th August 1941. The previous claim is barred although because of the defendant''s neglect to maintain her or send her any money for her maintenance, she would be entitled to have that maintenance except for the bar of limitation. Mr. Thapar submitted that Rs. 40 was too small an amount to be awarded to the wife in the circumstances of the case and in the present state of high prices. I am unable to agree. In my opinion, the learned Judge, taking all the circumstances into consideration, awarded Rs. 40 a month, and I do not think that I would be justified in increasing the sum allowed by the trial Judge.

I would, therefore, allow these cross-objections and decree maintenance in favour of the plaintiff as from 25th August 1941 at the rate of Rs. 40 per mensem instead of from the date allowed by the learned Judge. The plaintiff will have her costs of cross-objections in this Court.

Harnam Singh, J.

I agree.