Rajalakshmi Ammal vs W. Jambulinga Mudaliar

Rajagopalan, J.—This is an appeal against the order and decree of the learned District Judge of Changeups under S. 5 (3) of Madras Act VI of 1949 directing dissolution of the marriage between the appellant and her husband, the respondent in appeal. The ground on which the husband as petitioner sought and obtained the dissolution was that his wife had, "without just cause, deserted him for a continuous period of not less than three years immediately preceding the presentation of the petition " within the meaning of S. 5 (i) (c) of the Act. It was common ground that the appellant and the respondent were married on 26th June 1942. It was only on 5th June 1947, five years after the marriage, that the marriage was consummated. The appellant and the respondent lived together for about a year, but their married life was not happy. She was taken from the respondent''s house on 15th July 1948 by the Zamindar of Chunampet, a common friend of both the families, first to the house of the elder sister of the appellant and thence to her parents house. Conjugal life was not resumed at any time after 15th July 1948 till 4th October 1951, when the respondent in appeal presented his petition for dissolution of the marriage.

Though it may not be very materiel in deciding the main question at issue, whether the appellant deserted her husband without just cause, the contention of the appellant, that the consummation of the marriage was delayed by about five years because her patents could not and so did not comply with the demands of P. W. 2, the mother of the respondent, for the presents she desired to be made to her son. appears to be true even from the evidence of P. W. 2 herself. It was, however, common ground that it was on the intervention of the Zamindar, who found the requisite funds, that the appellant and her husband were brought together on 5th June 1947 to commence their conjugal life.

The petitioner''s version of the circumstances under which his wile left him on 15th July 1948 was set out in paragraph 3 of his petition "During all the time, the respondent ''i.e. the appellant did not live amicably with the petitioner and was often giving him trouble. Finally she left the petitioner''s house on 16th July 1948 and went away to her parent''s house taking away all her jewels and possessions with her and has been living with her parents ever since. Several attempts were made to get the respondent to the petitioner''s house, but all attempts failed and the respondent has without any just cause been staying away from the petitioner ever since 15th July 1948.

The appellant set out in paragraph 7 of her counter the details of the ill-treatment she alleged she was subjected to in her husband''s house affect she took up her residence there, and she averred further" On account of her unhappy and helpless condition, the respondent became miserable and gloomy neglected her toilet and became ill in body and mind. Then, her mother-in-law sent her away on the pretext that her mind had been affected that residence with her parents for sometime would cure her, and that she would be taken back afterwards. The respondent came with her jewels and trunk box containing some of her clothing, her Koorai saree, silver vessels, cots, bureau etc., were left behind.

In paragraph 8 of her statement the appellant alleged: After she came to Cheyyur, she wrote two or three letters to her husband appealing to him to take her back, but there was no response. The averment in paragraph 13 was,

About two months before the petition the respondent''s elder sister''s husband talked with the petitioner to persuade him to take the respondent and the petitioner expressed his willingness to do so.

The learned District Judge found in paragraph 10 of his judgment " The conduct of the respondent clearly proves that she did not intend to go back and that she stayed away from the petitioner willfully for a period of over three years without just and sufficient cause and in paragraph 12 he found that this amounted to desertion which entitled the husband to the relief he asked for.

What the petitioner, respondent in appeal, had to prove to satisfy the requirements of S. 5 (1) (c) of Madras Act VI of 1949 was (1) his wile had deserted him; (2) the desertion was without just cause, and (3) the desertion was for a period of more than three yarest computed back from 4th October 1951, on which date he presented his petition. The burden to prove each of these items lay on him, and whether he discharged that burden is the question for consideration.

In Pardy v. Pardy (1999) 3 All. E. R. 779 at 782, 783 Greene M.R. laid down :

The word '' desertion '' may describe an act, or it may describe a state. 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 desired, but if that animus, supervenes, desertion will begin from that moment, unless, of course, there is consent by the other spouse. Thus a husband who leaves his wife for a business voyage may nevertheless become guilty of desertion without the necessity of a previous return. All that is required to establish desertion in such a case is the presence of a supervening animus discerned (a matter to be inferred from the words and conduct of the deserting spouse), a continuance of the de facto separation, and the absence of consent by the other spouse.

The petitioner''s case, which was apparently accepted by the lower Court, was that the appellant''s departure from his house on 15th July 1948 constituted an act of desertion, and that the state of desertion which commenced that day continued without a break for over three years till 4th October 1951. That was the position, the learned Counsel for the petitioner, respondent in appeal, sought to maintain, because there was no proof that there was any further and supervening event from which an animus deserendi on the part of the wife could be inferred.

The factum of separation from 15th July I948 to 4th October 1951 was admitted and was never in dispute. But that is not enough to prove desertion within the meaning of S. 5 (1) (c) of Act VI of 1949. The petitioner had to prove that it was with "animus deserendi that his wife left his house of 15Th July 1948.

If the appellant had left her husband''s house on 15th July 1948 without the consent of her husband, that would of course, be a relevant factor in deciding whether such a departure was with an intention to desert her husband, i.e., with an intention never again to return to the conjugal ford. A pointed out by Lord Macmilan in Pratt v. Pratt (1939) 5 All. L. R. 437, 439, an element (which, in my view.) is inherent in the conception of marital desertion, namely, that the desertion must be persisted in without the consent, and against the wishes, of the deserted spouse". Though the petitioner did not. allege it specifically in paragraph 3 or anywhere else in his petition, that it was without his consent and against his wishes that his wife left him, he deposed at one stage that she left his house without informing him. The appellant as R. W. 1 admitted when she was cross-examined that her husband and his father were not in the house when she left it in the company of the Zamindar of Chunampet. P. W. 2 herself made no reference to her son, but she swore that "finally" when this appellant left "she did not ask her". If the husband consented to his wife leaving the house, failure to take the permission of his mother, P. W. 2, may be of no legal consequence. When the petitioner was finally cross-examined on 6th February 1953 he deposed.

when she left the house I was at home. The Zamindar before then and even now frequently visits us. He told me at that time that be was taking my wife. I told the Zamindar to advise her to behave well when she comes back.

Whether the petitioner liked or not, the idea of his wife leaving for her parent''s house in the company of the Zamindar, it seems clear that it was with the consent of the petitioner that the Zamindar took her that day. At least it should be clear that the petitioner acquiesced in that departure. So, it cannot be said that the appellant separated herself from her husband on 15th July, 1948 against his wishes. It should also be clear that on 15th July, 1948 the parties, at any rate the petitioner and the Zamindar, assumed that the separation would only be of temporary, though of undefined duration; and it was not the case of any one that the appellant had any animus then of her own, independent of what her friend the Zamindar settled was good for her with the consent of her husband. On this evidence, it cannot be held that the petitioner proved that it was with the intention of deserting him, i.e., with the animus deserendi, that his wife left his house on 15th July, 1948. At that time it was assumed by every one that she should return when she recovered her mental equanimity and with the benefit of the advice that she should conduct herself better in her husband''s house. Either of the elements failure to prove that her departure from the house was against the wishes of the husband and failure to prove that when she left the house on l5th July, 1948 she had no idea of ever again returning to her husband, should suffice to show that at its commencement on 15th July, 1948 the separation did not amount in law to desertion.

The petitioner did not plead or prove pacifically that at any time subsequent to 15th July, 1948 the appellant developed the animus descrendi. In fact however, the separation which was consensual at his commencement, continued. As pointed out by Greene M.R. in Pardy v. Pardy (1939) 3 All. E. R. 779, 783. the elements necessary to prove that such a separation did constitute in law desertion presence of a supervening animus deserendi (ii) a continuance of the de facto separation; and (iii) the absence of consent to that separation by the husband. The second of these three items alone was proved in this case.

No doubt as pointed out by Lord Romer in Pratt v. Pratt (19(sic)9) 3 All. E. R. 437, 442 the husband was under no legal obligation to take any steps to induce his wife to return. In paragraph 3 of his petition, as I have already pointed out, the petitioner averred that several attempts were made to get the respondent to the petitioner''s house, but all attempts had failed. Examined as P. W. 1 the petitioner deposed " After that she never came to my house nor wrote to me sent word through Zamindar asking her to come bats but she did not come.'''' He, however, added "Before the petition was filed I did not send for her nor she expressed her desire to come back ". The petitioner, however, was not consistent. When he was cross examined later, he stated " I did not ask the zamindar to fetch her because her brain was affected." P. W. 2 no doubt said :

On the other hand, I used to ask the Zamindar to get her, He told me that his intervention could be of no use in the matter.

But there was no evidence to show that the Zamindar ever asked the appellant to return to her husband and that she refused. On this evidence, the only reasonable conclusion seems to be that the petitioner failed to prove the truth of what he had alleged in paragraph 3 of his petition.

The appellant as R. W. 1, no doubt, admitted when she was examined :

I told my father that I was willing to go back. He did not write to my husband, They were willing to take me, but I wanted my husband to come and fetch me.

To be used against her, the admission will have to be taken as a whole; only a portion thereof they (i.e. her husband s people) were willing to take her cannot be used against the appellant as proof that despite her husband''s invitation she refused to return to him. The petitioner, as I have pointed out earlier, was not bound in law to ask or invite his wife to end the separation and return to his house. Then he did ask her what he pleaded that he failed to prove. That, of course, in no way affected the legal obligation of consortium which the wife had to discharge. If the failure to discharge that obligation to her husband was with the animus deserendi only then would it constitute desertion the existence of such an intention has to be inferred from the circumstances proved in the case.

The appellant in her turn pleaded that the steps she took to end the separation were frustrated by her husband. The learned District Judge disbelieved her uncorroborated testimony, that she wrote twice during that period asking him to let her return to him and I see no reason to differ from the learned District Judge on this point. The appellant made no attempt to back by any evidence of her own either of her pleas in paragraph 13 of her statement, that her sister''s husband spoke to the petitioner, and that the petitioner then agreed to take his wife back. But when the petitioner was cross-examined he admitted:

We are on good talking terms, He her elder sister''s husband wanted to talk to me about this matter 2 or 3 months before the petition. I replied that I was not prepared to talk to him about it.

That it was at the instance of the appellant that her sister''s husband approached the petitioner was not specifically proved. Neither the appellant''s sister''s husband nor the Zamindar of Chunampet, who could have given useful evidence, was examined.

Possibly attempts were made by persons interested in both the parties to end their separation and bring them together again, without either the appellant or the petitioner taking the initiative. Despite the legal rights and obligations of married life being theirs, they appear to have been pawns in a quarrel between the two families. Each family apparently stood on its dignity or was influenced by what it considered, constituted social proprieties. The wife wanted her husband to take her back; the husband wanted the offer to return to be made by his father-in-law. There was, however, no acceptable evidence to prove that either the petitioner or his wife took any steps themselves to end the separation.

The evidence on record showed that the separation between the appellant and her husband was consensual at its commencement. There was no real evidence to prove that, its continuance was against the wishes of the petitioner the spouse that complained of desertion.

When the petitioner failed to prove that either the factum of his wife leaving his house on 15th July 1943 or the continued separation thereafter amounted in law to desertion, the other questions, whether there was desertion for a period of over three years and whether that desertion was without just cause, cannot arise. It is not separation for over three years or absence of a just cause for such a separation that is relevant; those facts have to be correlated to prove desertion; and the mere separation which was all that was proved in this case did not amount to desertion. In the absence of proof of desertion, the petitioner is not entitled to the relief''s he sought. The appeal is allowed. The order of the lower Court is set aside and the petition will stand dismissed with costs of the appellant in both the Courts.