Perumal Naicker vs Sitha Lakshmi Ammal

Ramaswami, J.—This is an appeal preferred against the order of the leaned Subordinate Judge of Tuticorin in O. P. No. 31 of 1951.The case for the

appellant husband Perumal Naicker established through the evidence of himself and his father P. W, 2 and another Sankarasubba Naicker and Exs. A-1 to A-4

is as follows:

The respondent Sithalakshmi is the appellant Perumal Naicker''s father''s sister''s daughter. They were married on 11th August 1945. They lived together as

husband and wife for a few months. Then differences arose between them as regards properties left by Sithalakshmi''s mother. The husband claimed those

properties to be transferred jointly in the name of the husband and the wife. But the wife arranged to effect division of those properties between herself and her

brothers in 1946. The wife filed a criminal case against the petitioner''s father in C. C. No. 264 of 1946 on the file of the Sub Magistrate''s Court at Tuticorin for

an offence under S. 424 I. P. C, in respect of certain jewels. The husband''s father was discharged: see Ex. A-1. The husband filed O. S. No. 151 of 1946

against the wife for division and separate possession of a half share of the lands belonging to the wife. The husband''s father filed another suit O. S. No. 37 of

1946 against the wife''s brothers as regards an iron safe etc. The two suits were eventually compromised in terms of Ex. A-2. The decree provides that the

husband and the wife were to enjoy the properties standing in the name of the husband jointly; that the husband and the wife were to have no right of alienation

of those properties by one without the other, that the husband was to manage the properties, that the husband and the wife were to live together as husband and

wife, that if there was no amicability between them, the husband was to have no right in the wife''s properties and the wife should have no right of maintenance

as against her husband. In this petition under S, 5 (i) (c) of the Madras Act VI of 1949 the husband''s contention is that his wife did not come and live with the

petitioner (husband) in spite of the compromise decree under Ex. A-2, that she is living with her brothers and that hence he is entitled to dissolution of marriage

on the ground of desertion.

The respondent wife''s case as spoken to by her and Pechimuthu Konar examined as R. W. 2 is as follows: She was ever ready and willing to go and live

with her husband, that she is even now willing to live with her husband, that the husband never asked her to come and live with him, that he did not show any

inclination to take back the wife though she sent word through people expressing her desire to go and live with him, that the husband is not willing to take her

back because of some congenital defect in one of her legs, that the husband chose to take her as his wife on account of avarice for her properties, that this

petition is filed with a view to get another girl married by the husband and there is no desertion on the part of the wife entitling the husband to get the marriage

dissolved.

The short point for determination is whether the ingredients of desertion by the wife have been established by the husband.

The Indian case-law on the subject is thoroughly sparse [e.g., Wood v. Wood 3 Cal. 485.Fowle v. Fowle 4 Cal. 260.Glancy v. Glancy 31 I.C. 264 Bai

Appibai Vs. Khimji Cooverji, Roi (bari) Stree Vs. Rassinga Naik and Another, Ram-swarup v, AIR 1950 E.P. 317. Rajalakshmi v. Jambulinga 68 L.W. 152.

Kuppanna v. Palani Ammal 68 L.W. 467, In fact we have to derive assistance from the English case-law on desertion under the Matrimonial Causes Act and

the matrimonial offence of ''''abandonment"" under the Indian Divorce Act of 1869.

In regard to matrimonial offences and desertion under the English Act, Latey on Divorce (14th Edition) sets out what constitutes desertion at pages 104-105

as follow:

There is no judicial definition of desertion that can be applied to meet the facts of every case, but it is in essence the abandonment of one spouse by the other

with the intention of forsaking him or her without just cause. To constitute desertion, the acts relied on must have been done against the will of the person setting

up desertion: Thompson v, Thompson (1858) 1 S. & T. 231. Ward v. Ward (1858) 1 S. & T. 185. per Cock-burn, C. J. Desertion has also been defined as

''the cessation of co-habitation brought about by the fault or act of one of the parties'': Frowd v. Frowd (1904) P. 177, 179, per Sir F. Jeune, P. Desertion is

not the withdrawal from a place, but from a state of things. The husband may live in a place, and make it impossible for his wife to live there, though it is she and

not he that actually withdraws; and that state of things may be desertion by the husband of the wife: Per Lord Merrivale in Pulford v. Pulford (1923) P. 18, 21.

approved in Sotherden v. Sotherden (1940) P. 73, 76. per Slessor, L.J. See Lane v. Lane (1951) P. 284. per Lord Merriman, P.

Tolstoy''s Law and Practice of Divorce and Matrimonial Causes (2nd Edition) at page 34-35 summarises what constitutes desertion as follow:

Desertion is the cessation of co-habitation brought about by the fault or act of the deserting spouse. This requires two elements on the part of the deserting

spouse, namely, the fact of separation and the intention to desert, and there will be no desertion unless both elements are present (x)

The simplest example of desertion is where one spouse leaves the matrimonial home and does not return. However, the spouse who physically leaves the other

is not necessarily the deserter, because he may be forced to leave it by the action of the other spouse. Just as it is desertion for one spouse to abandon the

other, so it is also desertion for one spouse to cause the other to live separate and apart, (y). The person who intends bringing the cohabitation to an end and

whose conduct in reality causes its termination (z), commits the act of desertion (a). Thus, where the husband turns his wife out of the home, it is the husband

who becomes the deserting spouse, because it is his action which has caused the separation. This is known as ''constructive desertion''. It is not necessary for

the husband respondent in order to be guilty of constructive desertion actually to turn his wife out of doors; it is sufficient if by his conduct he compels her to

leave the home (b). In constructive desertion the respondent must be shown to have been guilty of conduct equivalent to an expulsion of the petitioner from the

matrimonial home, but it must be of a grave and convincing character and unless the respondent''s conduct can fairly be so described there will be no

constructive desertion even if the petitioner leaves the matrimonial home as a result of it. Lack of consideration, selfishness or even drunken degradation resulting

in the continuous unhappiness of the petitioner is not conduct equivalent to expulsion and is insufficient to constitute constructive desertion, even if such conduct

does in fact drive the petitioner from the matrimonial home (o).

Rayden in his Practice and Law in the Divorce Division.,(4th Edition) lays down the following requisites of desertion at pages 101 and 102:

The Court has refrained from attempting any exhaustive definition of desertion and has deprecated attempts to lay down any general principle applicable to all

cases (a). In its essence desertion is the forsaking or abandonment by one of the spouses of the other; the question whether one spouse has been deserted by

the other is a question of fact (b); desertion and desertion without cause are the same offence (c). It is a primary obligation of spouses to live together and to

maintain that which was described in the Ecclesiestical Courts as consortium vitae, and though circumstances such as the exigencies of business, mutual

convenience, or circumstances not under the control of the parties may suspend the obligation of actual cohabitation, the maintenance of consortium vitae is a

marital duty which, in the absence of consent, cannot be evaded without desertion, unless the conduct of the other party affords justification for a repudiation of

the duty. A husband deserts his wife if he wilfully absents himself from the society of his wife in spite of her wish; desertion may be inferred from certain acts in

one case which in another would not justify the same inference (d); the acts draw their significance from the purpose with which they are done as revealed by

conduct or other expressions of intention (e); and when the facts are in any manner equivocal the Court is required to draw from them inferences of their intent

and purpose; if a state of separation de facto exists during the relevant period, the primary question is whether or not that separation is attributable to an animus

deserendi on the part of the respondent; the existence of such an animus is a matter of inference from the facts of the case (f). For the act of desertion both the

factum of separation and the animus deserendi are required. A de facto separation may take place without there being an animus deserendi, but if that animus

supervenes, desertion will begin from that moment, unless there is consent by the other spouse (g); conversely a separation de facto may have its origin in an act

or acts amounting to desertion which will be continued until it is terminated (h). Termination may take place in various ways, e.g., by the factum of return or by

the execution of a deed of separation or by a supervening animus revertendi coupled with a bona fide approach to the deserted spouse with a view to the

resumption of life together (i). To summaries the matter the act of desertion requires two elements on the side of the deserting spouse, namely, the factum of

separation and the animus deserendi; and on the side of the deserted spouse one element, namely, the absence of consent (j); what is required of a petitioner for

divorce on the ground of desertion is proof that throughout the whole course of the three years the respondent has without cause been in desertion; the deserting

spouse must be shown to have persisted in the intention to desert throughout the whole period, and the Court will not leave out of account the attitude of mind of

the petitioner (k).

Turning to the requisites of abandonment under the Indian Divorce Act, Forbes in his ""The Law and Practice of Divorce in India "" gives the following at p. 95

:

Desertion means an abandonment and implies an active withdrawal from a cohabitation that exists (n). But this is not an exhaustive definition of desertion. In

order to ascertain whether or not there has been desertion the whole conduct of the parties must be reviewed. Desertion is not a withdrawal from a place, but

from a state of things. What the law seeks to enforce is recognition and discharge of the obligations of the conjugal state. If one party renounces this or, without

the consent of the other, renders it impossible of fulfilment, that is desertion. If he or she has not recognised the duty of cohabitation in the married state,

desertion has arisen. There must be a complete renunciation of that conjugal duty and an intention to put an end to cohabitation, though there is no matrimonial

home and cohabitation as an existing state of things has been suspended by circumstances not under the control of the party (o). ''Desertion'' may be equivalent

to leaving destitute (p).

In order, therefore, to constitute ''desertion'' there must be a cessation of co-habitation and an intention on the part of the guilty party to desert the other.

Sir Henry Rattigan, in his Law of Divorce Applicable to Christians in India (2nd Edition) amplifies this and states at page 139 that there is no definition of

abandonment "" in the Act, but the effect of the definition of ''''desertion"" as implying ""an abandonment against the wish of the person charging it"" is to introduce

into the Indian statute the view adopted by the Court in England in construing the English Act. The following illustrative case-law given regarding as to what

constitutes desertion are worth noting,

Absence, to constitute desertion, must be without the consent, direct or indirect, of the part alleging desertion and against such party''s express wishes: Ward v.

Ward 1S.& T. 185; see also 31 I.C. 264 : 8 L.B.R. 106 (F.B.). There is no abandonment against the wish of the wife where she herself left owing to

intemperate habits of her husband (Ibid). Subsequent conduct cannot transform what was a voluntary separation into desertion by the husband (Ibid).

If after the parties have separated by mutual consent, the husband makes a bona fide offer to resume cohabitation, but his offer is unreasonably refused by the

wife, his conduct in thereafter keeping away from her will not amount to ''desertion'', unless the wife has, subsequently to her refusal of his offer, herself made an

offer to return to him [Keech v. Keech L.R. 1 P. 641: 38 L.J. P. & M. 7.

Although an abandonment to constitute desertion must be against the actively expressed wishes of the other party, a husband none the less ''deserts'' his wife

because he uses expressions to the effect that she has no wish to see him again, when such expressions have been wrung from her by her husband''s misconduct,

if the desertion be otherwise proved [Meara v. Meera 35 L.J. P. & M. 33. Thus, where a wife reproached her husband for his connection with another woman,

and, on his replying that he wished to go away and live with the woman in question, told him that he could go if he liked, but made him swear to return when he

became tired of the other, it was held that the husband, who had never returned, had been guilty of desertion [Haviland v. Haviland 23 L., P. & M. 65. of.

Harriman v. Harriman 1909 P. 123 C.A. at 148. as to question of wife''s consent .

See also Dunn v. Dunn (1948) 2 All. E,R. 822=24. [Buck-nill and Denning, L. J. J., and Pilcher, J.]

Nor does a husband anytheless ""desert'''' his wife because the wife has been compelled by his conduct to leave the house. In all such cases, if the husband

offers to resume cohabitation, the wife is entitled to annex a reasonable condition to her acceptance of the offer, and her refusal to accept the offer except upon

such condition will not deprive her of her right to sue on the ground of desertion : Gibson v. Gibson 29 L J. P. & M. 25. Graves v. Graves 3 S. &T. 350, A

condition that her husband gives up an adulterous connection is reasonable: Alexander v. Alexander No. 51, Punjab Record, 1869.

The facts which constitute desertion vary with the circumstances and mode of life of the parties. So long, however, as a husband treats his wife as a wife by

maintaining such degree and manner of intercourse with her as might naturally be expected from a husband of his calling and means, he cannot be said to have

deserted"" her: Williams v. Williams 3S. &T. 547. Intermittent intercourse usually prevents systematic absence from becoming desertion: Farmer v. Farmer

(1884) 9 P.D. 245. But see Thurston v. Thurston 26 T.L.R. 388. Garcia v. Garcia 13 P.D. 216. [husband''s secret liaison with occasional vises to wife

constitutes desertion], A wife is entitled to the society and protection of her husband; the more fact, therefore, that he has made her a suitable allowance is no

answer on his part to a charge of desertion : Macdonald v. 4S.& T. 242. Yeatman v. yeat man L.R. I P. 489; 37 L J, P. & M. 37. Similarly when a husband

has deserted his wife and subsequently visits her place not as husband but as boarder desertion does not end: Kaikhushroo Tantra Vs. Meherbai Tantra, .

In this connection, two leading English decisions viz., the well known case of Pratt v. Pratt (1939) A. C. 417. decided by the House of Lords and that of the

Court of Appeal in Buchler v. Buchler (1947) P. 25, are worth considering. In Pratt v. Pratt (1) the parties intermarried in September, 1933. The wife deserted

her husband in August, 1934, but in September, 1936, she wrote him conciliatory letters asking him to have a talk with her. He declined to meet her, and on 1st

January, 1938, petitioned for divorce on the ground of desertion. It was held that the wife''s offer, thus refused precluded desertion and the petition was

dismissed. Lord Macmillian said (at page 420);

What is required of a petitioner for divorce on the ground of desertion is proof that throughout the whole course of the three years the respondent has without

cause been in desertion...If on the facts it appears that a petitioning husband has made it plain to his deserting wife that he will not receive her back, or if he has

repelled all the advances which she may have made towards a resumption of married life, he cannot complain that she has persisted without cause in her

desertion,

Lord Romer said (at page 428) :

The letters, in my opinion, indicate a genuine and honest desire to see and discuss matters with her husband in the hope that this would result in their ''coming

together '' It would, in my opinion, be quite unreasonable to hold that the respondent, guilty though she was of serious matrimonial offence of desertion, should

be expected to present herself at her husband''s door without any knowledge of how she would be received, and therefore at the risk of being subjected to the

indignity of having admission refused her by her husband or one of the servants.

In Buchler v. Buchler, 1947 P. 25 where there is an analysis of the doctrine of constructive desertion the Court of Appeal has laid down the limitations

thereto. In that case Lord Greene, M.R., said (at page 45):

Mere wish to expel, even if it exists, without acts equivalent to expulsion is, in my opinion, insufficient to constitute constructive desertion.

Asquith, L. J. said (at page 45) :

Constructively, the deserter may be the party who remains behind, if that party has been guilty of conduct which justifies the other party in leaving. To afford

such justification the conduct of the party staying on need not have amounted to a matrimonial offence, such cruelty or adultery. But it must exceed in gravity

such behaviour, vexatious and trying though it may be, as every spouse bargains to endure when accepting the other ''for better, for worse''. The ordinary wear

and tear of conjugal life does not in itself suffice.

Again at page 47 :

It may, no doubt, be galling-or, in some sense of the word, humiliating-for a wife to find that the husband prefers the company of his men friends his club, his

newspaper, his games, his hobbies, or indeed his own society, to association with her, and a husband may have similar grievances regarding his wife. But this is

what may be called the reasonable wear and tear of married life, and if it were a ground for divorce, a heavy toll would be levied on the institution of

matrimony.

Mere words of expulsion may amount to constructive desertion if intended to be final and effective: Lane v. Lane (1951) P. 284. per Lord Merriman, P.

The definition of desertion which emerges from consideration of the leading authorities on the subject may be summarised thus :-Desertion is the active or

wilful termination of an existing state of cohabitation without the consent express or implied of the party alleging desertion and against such party''s wish. The

party that voluntarily puts an end to such a state is said to desert. Abandonment or desertion must therefore be (a) wilful and deliberate, (b) without consent

express or implied of the deserted party, (c) against the wish of the party deserted and (d) without reasonable cause.

Bearing these principles in mind if we examine the facts of this case, the learned Subordinate Judge was fully justified in holding that the ingredients of the

matrimonial offence of desertion had not been made out against the wife by the charging party. Therefore, this appeal deserves to be and is hereby dismissed

with costs.

_________________________________________________________________________________________________________________________

(x) Williams v. Williams (1939) P. 365, 369; Pardy v. Pardy (1939) P. 288, 302; Spence v. Spence, (1939) A.E.R. 52. There must also be absence of

consent on the part of the deserted spouse, as consent vitiates the idea of desertion.

(y) Jackson v. Jackson (1924) P. 19, 23.

(z) Edwards v. Edwards (1948) P. 268 (A man must be taken to intend the natural consequences of his acts, and if it is a natural consequence of a man''s direct

treatment of his wife that she leaves him, it is commonplace that he must be taken to intend her to do so whatever words he may have used.

(a) Sickert v. Sickert (1899) P. 278; Thomas v. Thomas (1924) P. 194; Bowron v. Bowron (1925) P. 187.

(b) Charter v. Charter, (1901) 65 J. P. 246; (It is perfectly good law that it is not necessary for the husband in'' order to desert his wife to actually turn his wife

out of doors; it was sufficient if by his conduct he compelled her to leave the house).

(c) Buchler v. Buchler, (1947) P. 25.

(a) Cohen v. Cohen (1940) A, C. 631 at p. 645; Jackson v. Jackson (1924) P. 19, at p. 23; Pulford v. Pulford (1923) P. 18 at

(b) R, v. Leresche (1891)2 Q. B. 418; Corroboration is usually required; Williams v. Williams (1932) 147 L. T. 212; Joseph v. Joseph (1915) p. 132; Brown

v, Brown (1898) 79 L. T, 102,

(c) Frowd v. Frowd (1904) P. 177.

(d) Williams V. Williams (1864) 3 Sw. & Tr. 547; R, v. Leresche (supra); Jackson v. Jackson (supra); Pulford v. Pulford (supra); contrast Thomas v. Thomas

(1924) P, 194, C. A. with Pratt v. Pratt (1939) A. C. 417 and compare Papadopoulos v. Papadopoulos ,(1936) P. 108 with Spencev. Spence (1939) 1 All E.

R. 52. (e) Thomas v. Thomas (1924) P. at p. 199.

(f) Pardy v. Pardy, (1939) P. 288, per Sir Wilfred Greene, M. R. at page 303, in cases where a continuing adulterous connection has been formed during

separation the inference is simple; Basing v. Basing (1864), 3 Sw. & Tr. 516; Gatehouse v. Gatehouse (1867) L. R. 1 P. & D. 331, Pulford v. Pulford (1923)

P. 18.

(g) Pardy v. Pardy (1939) P. at p. 302.

(h) Williams v. Williams (1939) P. 365 at p. 368; Bowron v. Bowron (1925) p. 187 at p. 195

(i) Ware v. Ware (1942) P. 49; Pratt v. Pratt (1939) A.C. 417: Williams v. Williams (1939) P. 365 at pp. 368, 369.

(j) Williams v. Williams (1939) P. at p. 368.

(k) Pratt v. Pratt (1939) A.C. at p. 36420; Cohan v. Cohen (1940) A.C. at p. 368.

(n) Fitzgerald v. Fitzgerald (1869) L.R. 1 P. & D. 694 at p. 697 ; see Bradshaw v. Bradshaw (1897) P. 24.

(o) Pulford v. Pulford (1923) p. 18; Sickert v. Sickert (1899) P. 278 ; 81 L.T.495; Dunn v. Dunn 1948 (2) All. E.R. 822-824.

(p) Haswell v. Haswell and Sanderson. (1859) 1 Sw. & Tr. 502 at p. 505.