Perumal Naicker vs Sithalakshmi Ammal

Ramaswami, J.—This is an appeal preferred against the order of the learned 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 lather 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 11-8-1945. They lived together as husband and wife for a few months. Then differences arose between them as

regards properties left by Sitalakshmi''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 brother 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 1943 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 6 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 (A); Towel v. Powel'', 4 Cal 260 (B) BTM; ''Blanc

v. J. Glance'', AIR 1915 L B 71 (V 2) FB (C); Bai Appibai Vs. Khimji Cooverji, ''Street v. Street'', AIR 1935 Mad 541 (V22) (SB) (E)

''Ramswarup v. Devkumari'', AIR 1950 EP 317 (V37) (F); ''Rajalakshmi v. Jambulinga'', AIR 1956 Mad 195 ((S) V 43) (G); ""Kuppanna v.

Palani Animal'', AIR 1955 Mad 47 (V42) (H). 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 Edn. sets out what constitutes desertion at pages

104-105 as follows:

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 Sw & Tr 231 (I); Ward v. Ward, (1858) 1 Sw & Tr 185 (J) per

Cockburn C.J. Desertion has also been defined as ''the cessation of cohabitation brought about by the fault or act of one of the parties''; Frowd v.

Frowd, 1904-p. 177 at p. 179 (K), 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; & that state of things may be desertion by the husband of the wife; Per Lord Merivale in

Pulford v. Pulford, 1923 P. 18 at p. 21 (L) approved in Sotherden v. Sotherden, 1940 P. 73 at P. 73 (M) per Slesser L. J. See; Lane v. Lane,

1951 P. 284, (N) per Lord Marriman, p.

Tolstoy''s Law and Practice of Divorce and Matrimonial Causes 2nd Edn. at pages 34-35 summarises what constitutes desertion as follows:

Desertion is the cessation of cohabitation brought about by She 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

''Williams V. Williams'', 1939 P. 365, at p. 369 (O); ''Pardy v. Pardy'', 1939 P. 288, at p. 302 (P); ''Spence v. Spence, 1931 1 All ER 52 (Q).

There must also be absence of consent on the part of the deserted spouse, as consent vitiates the idea of desertion).

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 also desertion

for one spouse to abandon the other, so it is also desertion for one spouse to cause the other to live separate & apart. Jackson v. Jackson, 1924-

P. 19 at p. 23'' (R).

The person who intends bringing the cohabitation to an end whose conduct in reality causes its termination Edwards v. Edwards, 1948 P. 268 (S)-

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 a common place that he must be taken to intend her to do so whatever words he may have used, commits the act of desertion

Sickert v. Sickert, 1899-P. 278.(T); Thomas v. Thomas, 1924-P. 194 (U); Bowron v. Bowron, 1925-P. 189 (V).

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: Charter v. Charter,

(1901) 65 J. P. 246 (W). 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.

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 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; Buchler v. Buchler, 1947-P. 25 (X).

Baydon in his Practice and Law in the Divorce Division (4th Edn) 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 Cohen v. Cohen, 1940 AC 631 at D. 645 (Y): 1924 P. 19 at p. 23 (B); 1923-P. 18 at p. 22 (L). In its essence desertion is

the forsaking or abandonment by one of the spouses of the other; the Question whether the spouse has been deserted by the other is a question of

fact R v. Leresche, 1891 2 QB 418 (Z); - Corroboration is usually required: Williams v. Williams 1932 147 LT 219 (Zl), Joseph v. Joseph, 1915-

P. 122 (Z2); Brown v. Brown, 1898 79 LT 102 (23), desertion and desertion without cause are the same offence 1904-P. 177 (K).

It is a primary obligation of spouses to live together and to maintain that which was described in the Ecclesiastical 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 willfully 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 Williams v. Williams, (1864 3 Sw & Tr 547 (Z4); R v. Leresche (Z) (supra),

Jackson v. Jackson (R) (supra), Pulford v. Pulford (L) (supra), contrast 1924 P. 194 (U); with Pratt V. Pratt), 1939 AC 417 (Z5) and compare

Papadopoulos v. Papadopoulos (No. 2) 1936-P. 108 (Z6) with Spence v. Snence, 1939 1 All ER 52 (Z7) the acts draw their significance from

the purpose with which they are done as revealed by conduct or other expressions of intention 1924-P. 194 at p. 199 (U), and when the facts are

in any manner equivocal the Court is required to draw from them inference 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 1939-P. 288 (P); 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 (Z8); Gatehouse v. Gatehouse, (1867) 1 P & D 331 (Z9), 1923 P. 18 (L).

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 1939

P. 288 at p. 302 (P); 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 1939 P. 365 at P. 368 (O); 1925-P. 189 at p. 195 (V). 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 She resumption of life together Ware v. Ware 1942-P. 49 (Z10); 1939 AC 417 (Z5), 1939 P. 365 at pp. 368, 369

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 1939 P. 365 at p. 368 (O), 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 through-cut the whole period, and

the Court will not leave out of account the attitude of mind of the petitioner 1939 AC 417 at p. 420 (Z5), 1940 AC 631 at p. 638 (Y).

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 page 95:

Desertion means an abandonment and implies an active withdrawal from a cohabitation that exists (Fitzgerald v. Fitzgerald, 1869 1 P & D 694 at

p. 697 (Z11), see Bradshaw v. Bradshaw, 1897-P. 24 (Z12). 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 fulfillment that is desertion.'' If he or she has not recognized 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 1923-P. 18 (L); 1899-P.

278 (T); Dunn v. Dunn, 1948 2 All ER 822 at p. 824 (Z13). ''Desertion'' may be equivalent to leaving destitute (Haswell v. Haswell & Sanderson,

(1859) 1 Sw. & Tr. 502 at p. 505 (Z14).

In order, therefore, to constitute ''desertion'' there must be a cessation of cohabitation 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 Edn. 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 is worth noting.

Absence, to constitute desertion, must be without the consent, direct or indirect, of the party alleging desertion and against such party''s express

wishes: (1858) 1 Sw. & Tr. 185 (J); see also AIR 1915 LB 71 (V2) (FB) (C). 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. (1868) IP & D 641 (Z15).

Although an abandonment to constitute desertion must be against the actively expressed wishes of the other party, a husband nonetheless ''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

husband''s misconduct, if the desertion be otherwise proved Meara v. Meara, (1866) 35 LJ P & M 33 (Z16).

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, has been guilty of desertion Haviland v. Haviland, (1863) 32 LJ P & M 65 (Z17) of. Harriman v. Harriman,

1909-P. 123 at p. 148 (Z18) as to question of wife''s consent.

See also 1948 2 All ER 822 (824) (Z13) (Bucknill and Denning L. J J. and Pilcher J.).

Nor does a husband any the less ""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 (1859) 29 LJP

&M 25 (Z19) Graves v. Graves (1864) 3 Sw & Tr 350 (Z20). A condition that her husband gives up an adulterous connection is reasonable: -

''Alexander v. Alexander'', 1869 Pun Re 51 (Z21).

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 : (1864) 3 Sw&Tr 547 (Z4).

Intermittent intercourse usually prevents systematic absence from becoming desertion: Farmer v. Farmer (1884) 9 PD 245 (Z22). But see

Thurston v. Thurston (1910) 26 TLR 388 (Z23); Garcia v. Garcia, (188"") 13 PD 216 (Z24) (husband''s secret liaison with occasional visits to

wife constitutes desertion). A wife is entitled to the society and protection of her husband; the mere fact, therefore, that he has made her a

suitable:-place note allowance is no answer on his part to a charge of desertion Macdonald v. Macdonald, (1859) 4 Sw&Tr 242 (Z25); Yeatman

v. Yeatman. (1868) 1 P&D 489 (Z26). Similarly when a husband has deserted his wife and subsequently visits as husband but as boarder

desertion does not end Kaikhushroo v. Meherbai Tantra, AIR 1946 Bom 211 (V 33) (Z27).

In this connection, two leading English decisions, viz, the well known case of 1939 AC 417 (Z5) decided by the House of Lords and that of

the Court of Appeal in Buchler v. Buchler, 1947 P 25 (Z28), are worth considering. In Pratt v. Pratt (Z5) the parties intermarried in September

1936. 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 1-1-1938. 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 Macmillan 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 reasonable 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 (Z28). 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 and conduct of the party staying on need not have amounted to a matrimonial offence, such as cruelty or adultery. But it

must exceed in gravity such behavior, vexatious & 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:

TO 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: 1951-P. 284 (N), per Lord Merriman P.

The definition of desertion which emerges from consideration of the leading authorities on the subject may be summarized thus: Desertion is the

active or willful 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) willful

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 have not been made out against the wife by the charging party.

Therefore, this appeal deserves to be and is hereby dismissed with costs.