Shaktipada Mahato vs Smt. Chandana Mahato

Heard learned senior counsel for the appellant. The Matrimonial Suit No. 248 of 09 instituted by the appellanthusband for a decree of divorce on

the grounds of cruelty and desertion in terms of Section 13Â (1) (i-a) (i-b) of the Hindu Marriage Act has been dismissed vide impugned judgment

dated 10.12.2012 decree dated 17.12.2012 rendered by the Principal Judge, Family Court, East Singhbhum, Jamshedpur. Â

2. Respondent has not appeared despite valid service of notice. On 12.2.2018 it was brought to our notice that the respondent-wife is contesting the

Criminal Revision No. 840 of 2012 before this court which has been filed by the husband aggrieved by the maintenance granted in a proceeding u/s

125 of the Code of Criminal Procedure Code. Learned Single Judge by order dated 16.11.2017 had directed the parties to face mediation and settle

the dispute amicably. The matter was adjourned with observation that if she is already appearing through her counsel in criminal revision it would be

proper that she enters appearance in the present appeal. Learned Counsel Mr. D.K.Karmkar who is representing the wife in the said criminal revision

also informed this Court on 18.4.2018 that the counsel representing the respondent-wife in the learned court below was communicated for her

appearance in the present appeal. However, even though, the matter was adjourned on 20.6.2018, respondent did not appear. It therefore appears that

she is not interested in contesting the case.Â

3. Petitioner pleaded that marriage between the parties was solemnized as per Hindu rites and rituals on 5.5.2004 . They lived together and a girl

child was born out of the wedlock on 14.August, 2005. Respondent however always used to insist upon him to live separately from his family and to

live as Gharjamai in her parents’ house which was unacceptable for the petitioner. This caused annoyance in the mind of the respondent and she

started misbehaving with the petitioner and his family members. She abused the petitioner and his family members and threatened to lodge false cases.

She was taken back by her uncle with an assurance to return within a fortnight to ensure that the marital issues were resolved but she did not come

back. Petitioner made several attempts to bring her back but in vain. He sent a legal notice on 21.12.2005 asking her to return to the matrimonial home

to lead a happy conjugal life but she did not accede. Petitioner lodged a matrimonial suit No. 130 of 2006 for restitution of conjugal rights on 4th July,

2006. The Suit was however dismissed on 20.1.2009. He further stated that respondent and her daughter have been granted maintenance in Misc.

Case No. 07 of 2007.He alleged cruelty at the hands of the respondent. She had also deserted him since 5.11.2005. Despite his best efforts, restitution

of conjugal rights could not take place. Respondent had withdrawn from the society and was unwilling to resume conjugal life. Finding no alternative,

the instant suit was filed.   Â

4. Respondent-wife through her written statement pleaded that the suit is not maintainable in law. All the averments and allegations were disputed

and denied. She alleged neglect on the part of the petitioner. She also alleged that on the advice of his mother and family members, petitioner used to

beat her as nothing had been paid in marriage. They were demanding Rs. 2 lacs and on refusal thereof she was physically and   mentally

tortured. The torture started on 6.5.2004 and continued till her ouster from the matrimonial house. She also made a serious allegation that petitioner

insisted upon her to have physical relationship with his friends and on refusal was subjected to torture. She was forced to leave the matrimonial home

on 7th August, 2005Â in an advance stage of pregnancy. She came to her paternal house with the help of neighbour and gave birth to the female

child on 14th August, 2005. Expenses whereof were borne by her parents. She further stated that petitioner had been convicted for the offence U/s

498 A of the IPC by the learned court of SDJM and sentenced for three years in Complaint Case C/1 No. 966 of 2006. A G.R. case was also

registered on allegations of assault upon the respondent and his mother. This showed acts of cruelty on the part of the petitioner and for these reasons

the matrimonial suit for restitution was also dismissed. She denied having deserted petitioner from 5.11.2005 and alleged that it was he who ousted her

from his house on 7th August, 2005. Despite their best efforts petitioner and his parents were not inclined to take her back. As such, it is the petitioner

who treated her with cruelty and she has not deserted him. The suit should therefore be dismissed.    Â

5. Based on the rival pleadings of the parties the following issues were framed by the learned Family Court.Â

(I)Â Is the suit maintainable ?

(II)Â Whether the respondent has deserted the petitioner since 5.11.2005 ?

(III)Â Whether the respondent treated the petitioner with cruelty ?

(IV) Is the petitioner entitled to the reliefs as sought for in this suit ? Â

6. Petitioner examined six witnesses namely P.W.-1 Shaktipada Mahato, the petitioner himself, PW-2 Chhotu Prasad Mahato, PW-3 Sanjay Kumar

Mahato, PW-4 Rathu Mahato, PW-5 Ranjeet Kumar Mahato and PW-6 Dhurvapada Mahato in support of his case.  Â

7. Respondent examined four witnesses namely R.W.-1 Rajnikant Mahato, the father of the respondent, R.W.-2 Annapurna Mahato , mother of the

respondent, R.W.-3 Chandana Mahato, the respondent herself and R.W.-4 Neel Kamal Singh in support of her case.    Â

    Petitioner also exhibited the following documents to prove his case:

(i)Â Ext.1 is the certified copy of judgment dated 20.1.2009 passed in Matrimonial Suit No. 130 of 2006;

(ii)Â Ext.2 to Ext. 4 are the depositions of Annapurna Mahato, the mother of the respondent, Rajinikant Mahato, the father of the respondent and

deposition of Smt. Chandana Mahato in Matrimonial Suit no. 130 of 2006 ;Â

(iii) Ext.5 to 7 are the depositions of Smt. Chandana Mahato, Rajnikant Mahato and Annappurna Mahato in Misc. Case no. 07 of 2007;Â

(iv)Â Ext.8 to 10 are the certified copies of depositions of Smt. Chandana Mahato, Annapurna Mahato and Rajnikant Mahato in C/1 case No. 966 of

2006;Â

(v)Â Ext.11 is the certified copy of deposition of Smt. Chandana Mahato dated 03.03.2009 of G.R. case no. 2545 of 2007;

(vi)Â Ext.12 is the certified copy of judgment dated 7.7.2009 passed in G.R. Case No. 2545 of 2007 of the Court of Shri D.C. Awasthhi, J. M.1st

Class, Jamshedpur;

(vii)Â Ext.13 is the certified copy of judgment of C/1 case no. 966 of 2006 of the S.D.J.M., Jamshedpur.

(viii)Â Ext.14 is the certified copy issued by Dr.Maduri Mukherjee dated 17.6.2005;Â Â

(ix)Â Ext.15 is the O.P.D. ticket dated 13.8.2005 issued by the MGM Medical college and hospital;

(x)Â Ext.16 is the birth certificate of Geeta Rani Mahato, the daughter of the petitioner;

(xi)Â Ext.17 is the Bill No. 212 dated 16.8.2005 issued by the Life Medical (Chemist and Druggist);

(xii)Â Ext.18 is the Birth Certificate of Geeta Rani Mahato issued by Sakchi Nursing Home, Jamshedpur;

(xiii)Â Ext.19 is the Prescription dated 9.8.2005 issued by Dr. Manoj Kumar;

(xiv)Â Ext.20 is the Jaccha Bachha Raksha Card dated 16.8.2005 and 20.10.2005 issued by Bharat Sarkar;

(xv)Â Ext.21 is the letter dated 26.10.2005 issued by Female Health Worker Bara Chikra Patamda;

(xvi)Â Ext.22 is the report on examination of Blood dated 25.10.2005 of Chandana Mahato and ;

(xvii) Ext.23 is the certified copy of order sheet dated 18.8.2011 passed in C/1 case no. 3308 of 2009 by Shri B.B.Singh, J.M. at Jamshedpur. Â

 8. The learned family court first took up issues nos. II and III relating to desertion and cruelty in marriage. It proceeded to analyze the evidence

of petitioner’s witnesses and the respondent’s witnesses in the light of the pleadings and decided it in favour of the respondent and against the

petitioner. Petitioner, PW-1 in his examination-in-chief supported the case made out in the plaint. In his cross-examination, he stated that respondent

had lived with him for one and half years only, during which time no case was filed nor was there any panchayati held. However, after the birth of her

female child on 14th August, 2005 she went to her parental home. He accepted his conviction in a case under section 498 A of the IPC at the instance

of the wife. He also stated about Station Diary entry bearing no. 27 of 2004 made by him at Patamda alleging assault by his wife upon his family

members. He denied that on 7th August, 2005 she was driven out of the house. He also denied allegation of demand of Rs. 2 lacs as dowry. He also

deposed that G.R. case no. 2545 of 2007 was lodged by her with allegations of assault.Â

  PW-2 supported the case of the petitioner as made out in the plaint and in his cross-examination stated about the conviction of the petitioner in

Complaint Case no. 966 of 2006. He also deposed that it is not a fact that respondent was ready to live with her husband but due to torture she was

compelled to live outside.Â

  PW-3,4 and 5 also supported the case of the petitioner and they were discharged without cross-examination as no one turned up on behalf of the

respondent.Â

  PW-6 also supported the case of the petitioner. In his crossexamination he deposed that respondent stayed with the petitioner for the period of

one and half years only. She was not driven out of the house rather she left it on her will with all her belongings in 2005. He had not seen the partiesÂ

quarrel.Â

  RW- 1 Rajnnikant Mahato, father of the respondent supported the case of the respondent made through the written statement. He stated that

respondent was thrown out of the house on 7th August, 2005 by the petitioner and his family members for non-fulfilment of demand of dowry when

she was in advance stage of .pregnancy. She gave birth to a female child on 14th August, 2005. He also deposed about the conviction of the petitioner

in Complaint case under section 498 A of the IPC. He further deposed that his daughter had filed four five cases against the petitioner but he did not

know its number. She had been receiving maintenance @ Rs. 1000/- p/m. He in para 19 stated that he had told that if a sum of Rs. 6 lakh would be

paid by the petitioner than she would go to her in-laws house after five years as she is ill and the petitioner is a man of criminal nature. He denied that

he had refused to send his daughter to her in-law’s house and wanted to spoil the life of the petitioner.

   RW-2 Mother of the respondent also supported her case. In her cross-examination she stated that she was ready to send her daughter after

execution of an agreement between the petitioner and respondent as petitioner always assaulted her daughter due to non-fulfillment of demand of

dowry. She also mentioned about demand of Rs. 2 lacs, though she did not remember the date and month of the demand.

  RW-3 respondent fully supported her case in the written statement. She referred to the demand of dowry of Rs. 2 lacs and abuse on refusal

to pay so. She also deposed about cruelty upon her and that she would not be allowed to live in the matrimonial house till the demands were fulfilled.

She was thrown out on 7th August, 2005 in an advance stage of pregnancy. She gave birth to a female child on 14th August, 2005 in Jamshedpur,

expenses of which were borne by her parents. Despite information, petitioner or his parents did not come to see the child. Efforts by her parents to

settle the matter amicably with the help of villagers failed as no reconciliation could be held due to the attitude of the petitioner and his parents. She

referred to the complaint case under section 498 A of the IPC. She further stated that she had no relationship with him after she was thrown out on

7th August, 2005. She also referred to the Maintenance Case No. 7 of 2007 in which a sum of Rs. 1000 /- was awarded as monthly maintenance. She

denied in her cross-examination that she had earlier deposed that on payment of Rs. six and half lacs she would go to her matrimonial house after five

years. Efforts to resolve the problem through panchayati had failed. She denied having made false statements and also denied that it is a fact that her

husband wanted to take her back but she does not want to go with him.Â

 RW-4 who is known to both the parties supported her contention.Â

9. Learned family court proceeded to answer these two issues against the petitioner on the grounds that petitioner was convicted for the charges of

cruelty in marriage in Complaint Case No. C/1 966 of 2006; a G.R. case no. 2545 of 2007 was also instituted for assault against him by the

respondent. Judgment of the learned family court in the Matrimonial Suit no. 130 of 2006 was also taken into account as Ext.1.It also held that it is not

true that the respondent had not shown her intention to go back to her matrimonial house. It also refused to take into account any instances of

cruelty as mentioned by the petitioner as no case was filed in connection with the Station Diary entry No. 27 of 2004. It came to a conclusion thatÂ

respondent had not deserted the petitioner rather she was compelled to live separately since 7th August, 2007 after one and half years of her

marriage. Rest of the issues were also decided against the petitioner and as such the suit was dismissed.Â

10. Learned senior counsel for the appellant has strenuously argued to question the findings of the learned court and its ultimate conclusion in

dismissing the matrimonial suit. Learned counsel has referred to the number of cases lodged by the respondent and her depositions made therein at

different points of time. He has first made reference to her statement in the instant matrimonial suit at para 6 and 17 of her deposition. Reference has

also been made to her statement in the matrimonial suit no. 130 of 2006; Ext.4 para 18 where she stated that she would go to the matrimonial house

only after five years. He has also referred to her statement in compliant case no. C/1 966 of 2006; Ext.8 para 3 in particular where she had made

categorical statement that only after payment of Rs. six and half lacs she would go back to the matrimonial house. Her statement was made on

14.2.2007 in the Complaint Case.  Learned senior counsel has then referred to her statement at para 9 of her deposition in

Misc. Case no. 7 of 2007 (Ext.6) where she had stated that I will go to the matrimonial house after five years. She had however falsely denied

having stated in any other case about demand of Rs. 6.5 lacs to go back to the matrimonial home. Learned counsel has also referred to her

statement dated. 3.3.2009 para 5 in particular made in G.R. case no. 2545 of 2007 where she had again stated that she would go back to the

matrimonial house after five years. Learned senior counsel made specific mention of the exhibits 14 to 22 which are the documents relating to her

treatment between the period 17.6.2005 till 25.10.2005. These medical prescriptions, OPD ticket, Birth certificate of the daughter of the petitioner , bill

of the chemist and druggist dated 16th August, 2005 , birth certificate of Sakchi Nursing Home Ext.18, prescription dated 19th August, 2005 of Dr.

Manoj Kumar Ext.19, Jaccha Baccha Raksha Card dt. 16th August, 2005 and 26th October, 2005 Ext.20, Ext. 21 letter dated 26th October, 2005

issued by Female Health Worker , Bara Chirka, Patamda and Ext. 22 report of examination of blood of respondent dated 25th October, 2005. All went

on to falsify her statement that she had been thrown out of the matrimonial house on 7th August, 2005. Learned senior counsel submitted that as a

matter of fact the respondent was very much in the matrimonial house during the period when the girl was born. Petitioner had taken all efforts to

ensure proper treatment. It is only in November, 2005 that her uncle came with the assurance to bring her back after a fortnight when she left the

matrimonial home. Thereafter she never returned.Â

 Petitioner in fact instituted the matrimonial suit for restitution of conjugal rights on 4th July, 2006 but as a counter blast she instituted the

complaint case under section 498 AÂ of the IPC making false allegations of cruelty in marriage and demand of dowry. Though the appellant has

been convicted by the learned SDJM and the criminal appeal has also been dismissed but the criminal revision filed against the impugned judgment is

pending for consideration before this court where the appellant has raised  good grounds and is hopeful to succeed. Learned counsel submits that

in the complaint case the learned District & Sessions court was pleased to grant anticipatory bail to the petitioner in ABA 586 of 2006 finding that

complaint was filed after filing of matrimonial suit for restitution of conjugal rights. The G.R. case no. 2545 of 2007 arising out of Sitaram Dera case

no. 127 of 2007 relates to an incidents of 8th October, 2007 of assault and snatching of baby girl child from the respondent. However, the learned

court of SDJM did not find any evidence to convict the appellant u/s 341 of the IPC but had erroneously convicted him u/s 323 of the IPC. However,

the appellant has been released on probation. Learned counsel for the appellant submits that the whole conduct of the respondent shows her

irresponsible behaviour and retaliatory stand. If a demand of Rs. 6 lacs is made a condition to the return to the matrimonial home, the state of mind of

the respondent can easily be understood. Not only that, the respondent had unfortunately insisted every time that she would return only after a

period of five years. This could hardly show any true intention to resume the conjugal life. The appellant’s conduct has led to a situation where the

entire matrimonial life of the petitioner has completely been ruined. She has left the matrimonial home in November, 2005 with an intention to

permanently forsake the matrimonial relationship. The ingredients of desertion were therefore fulfilled. The respondent’s sustained conduct also

established a case of mental cruelty upon the petitioner which entitles him to seek divorce. There are no chances of reunion between the parties as

all emotional ties have broken .It would be a futile exercise to keep the legal tie of marriage alive by judicial declaration. The marriage has reached a

stage of irretrievable break down. Respondent has refused to appear in the present appeal despite several efforts made though, she has been

contesting the revision case before a coordinate Bench of this court. This in itself is ample testimony of her indifference to the matrimonial relationship

between the parties. As such, on account of her conduct, in fact, no efforts for amicable settlement of the matrimonial dispute could either be made at

the appellate stage also. Learned counsel for the appellant has referred to the judgments rendered by the Apex Court in the case of Savitri Pandey

Vs. Prem Chandra Pandey reported in (2002) 2 SCC 73 on the principles of desertion. He has also referred to the following judgments in the case of:

(1) Geeta Jagdish Mangtani Vs. Jagdish Mangtani reported    in (2005) 8 SCC 177Â

(2) Samar Ghosh Vs. Jaya Ghosh reported  in (2007) 4 SCC  511 &

(3) Malathi Ravi, M.d. Vs. B.V.Ravi, M.D. reported  in (2014) 7 SCC 640  Â

   He submits that such sustained and studied neglect, indifference or total departure from the normal standard of conjugal kindness over a

period of time in itself amounts to cruelty and lack of sensitivity leading to mental cruelty upon the husband /appellant which stands established in the

facts and circumstances of the case. The conviction of the appellant in a case u/s 498A IPC in this background should not be a disentitling factor to

dissolve the marriage when the respondent is responsible for the present state of affairs.Â

11. We have considered the submissions of learned counsel for the appellant at length. We have also gone through the relevant materials on record

as borne out from the record and relied upon by the learned counsel for the appellant. We have perused the impugned judgment as well. The

sequence of facts which have been minutely taken note of in the preceding paragraphs, succinctly summarized, leads to the following inferences: The

marriage between the parties took place on 5th May, 2004. A girl child was born out of the wedlock on 14th August, 2005. Exhibits 14 to 22

specifically referred to in the preceding paragraphs adduced by the petitioner-husband unambiguously go to show that the girl child was born at a time

when the respondent was in the custody of the petitioner and was taking care for her treatment. This on the face of it falsifies the stand of the

respondent that she had been thrown out of the matrimonial house on 7th August, 2005 by the petitioner-husband and that the expenses of the birth of

the girl child born on 14th August, 2005 were borne by her parents.Â

 It was the petitioner /appellant who instituted a suit for restitution of conjugal rights bearing M.T.S. No. 130 of 2006 on 4th July, 2006, in theÂ

back ground when the respondent had not returned to her matrimonial home since November, 2005. However, the respondent lodged a complaint case

bearing no. C/1 966 of 2006 alleging cruelty in marriage and demand of dowry u/s 498A of the Indian Penal Code and Sec 3/4 of the Dowry

Prohibition Act. During the pendency of the Matrimonial Suit No. 130 of 2006, another G.R. case bearing 2545 of 2007 was lodged with allegations

of assault and illegal confinement under section 323, 342 read with section 34 of the Indian Penal Code, in relation to an incidence of 8.10.2007. The

wife alleged that the husband along with two others have tried to snatch away the child. Another case being Maintenance Case No. 7 of 2007 was

also filed by the respondent-wife for maintenance. The deposition of the respondent in these proceedings at different stages are of extreme

significant to be taken note of. In the present matrimonial suit, the respondent made statement that she would not go back to the matrimonial home,

despite undertaking by the husband. She had, however, denied having demanded a sum of Rs. 6 lakh in an earlier deposition that she would go after

five years. In Matrimonial Suit No. 130 of 2006, on the other hand, in her deposition made on 19th August, 2008 at para 18 she had categorically

stated that she would go back to the matrimonial house after five years. Further in the complaint case C/1- 966 of 2006, in her statement made on 14th

February, 2007 being Exhibit-8, at para- 3 of her cross examination she made a categorical statement that she would only go back to the

matrimonial house after payment of a sum of Rs. 6.5 lakh. If the amount is not paid she shall not go back to the matrimonial house. Further in

Miscellaneous Case No. 7 of 2007 in which she deposed on 18th September, 2008, at para-9 she again made a statement (Ext.-6) that she would go

back to the matrimonial house after five years. However, she denied that she had stated about demand of Rs. 6.50 lakh to return to her matrimonial

home in Complaint Case 966 of 2006. Further in her deposition made on 3rd March, 2009 in G.R. Case No. 2545 of 2007Â ( Ext.-11) she again had

stated that she would go back to the matrimonial house after five years once her daughter is old. Her aforesaid statements therefore, gives a clear

indication that there was no real intent to return to the matrimonial home. Existence of animus deserendi therefore appears to have been clearly made

out. This inference is in the background of the undisputed fact that it was the appellant- husband who had instituted the suit for restitution of conjugal

rights on 4.7.2006 before any of these criminal cases and maintenance case were filed by the respondent. The matrimonial suit for restitution of

conjugal rights however, was dismissed perhaps being persuaded by the criminal cases lodged by the respondent-wife alleging cruelty in marriage on

demand of dowry. The appellant has of course been convicted in the complaint case for the charges under section 498A of the I.P.C., has lost onÂ

appeal also. However, Criminal Revision No.1316 of 2015 is said to be pending before this Court. We, do not wish to make any comments upon the

fate of the conviction recorded against him in the complaint case, at this stage. However, one thing is clear that the relationship of the parties had

become completely sour both on account of the conviction of the husband on charges of cruelty in marriage and at the same time the attitude of the

respondent-wife in taking such unreasonable stand in different proceedings between the parties. If a spouse puts a demand of 6.50 lack to return to

the matrimonial home and insists that she would go back only after five years this could hardly be taken to be an intention to sincerely keep the

marriage alive. In the case of Savitri Pandey Vs. Prem Chandra Pandey reported in (2002) 2 SCC 73, the

Apex Court has reiterated the principles relating to desertion in marriage. It is profitable to quote the relevant paragraph nos. 8 and 9 of the

report:- “8. “Desertionâ€, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment ofÂ

one spouse by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of

marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial

obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking

into consideration the concept of marriage which in law legalizes the sexual relationship between man and woman in the society for the perpetuation

of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself,

it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the

views of various authors, this Court in Bipinchandra Jaisinghbai Shah v. Prabhavati held that if a spouse abandons the other in a state of temporary

passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. It further held: (AIR p.p.

183-84,para 10)

 “For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (I)the factum of

separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the

deserted spouse is concerned: (I) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial

home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively.

Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law

those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the

Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the

omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of

inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case

be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by

conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential

question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation

and the animus deserendi coexist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced

without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating

spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has

prescribed a three years’ period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements

must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decide to come back to the deserted

spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after

the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably

refuses the offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the

deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well

settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable

doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is

accounted for to the satisfaction of the court.â€​

Following the decision in Bipinchandra case this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena by holding that

in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and

without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the

factum of separation, and (2) the intention to bring cohabitation permanently to an end ( animus deserendi). Similarly two elements are essential so far

as the deserted spouse is concerned:( 1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the

matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which

may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by

those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.â€​

 For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (I) the factum of

separation and (ii) the intention to bring cohabitation permanently to an end (animus deseredi). Similarly, two elements are essential so far as deserted

spouse is concerned (i) absence of consent and (ii) absence of conduct giving reasonable cause to the spouse, leaving the matrimonial home to form

the necessary intention aforesaid. The petitioner seeking divorce bears the burden of providing these elements in two spouses respectively. From the

findings recorded herein above, it is evident that the allegation of the respondent that she was thrown out of the matrimonial house on 7.8.2005 stands

falsified by the oral testimony as also the documentary evidence on record ( Ext.-14 to 22 discussed above). As per the case of appellant, respondent

was taken away by her uncle in November 2011 with assurance to return within a fortnight but she never came back. The husband's attempt to

restitute the conjugal rights also failed because of the litigation pending between the parties. The stand of the respondent in all these cases, noted

above, indicates that she had no intention to resume the conjugal relationship. It depicted an animus deserendi to bring cohabitation permanently to an

end. That state of affairs continue till date. We may also profitably refer to the case of Samar Ghosh Vs. Jaya Ghosh reported in (2007)4 SCC 511,

on the subject of cruelty. The Apex Court at Paras- 99 to 101 has laid down illustrations which though are not exhaustive but provide enough insight to

situations which may amount to cruelty.

“99. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to

assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case.

The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background,

financial position, social status, customs, traditions, religious beliefs, human values and their value system.Â

100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture

through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of

time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The

prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors

in considerationâ€​.Â

101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which

may be relevant in dealing with the cases of “mental crueltyâ€. The instances indicated in the succeeding paragraphs are only illustrative and not

exhaustive:Â

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to

live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the

parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue

to live with other party. (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner,

indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. Â (iv) Mental cruelty is a

state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to

mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the

spouse.Â

(vi)Â Sustained unjustifiable conduct and behavior of some spouse actually affecting physical and mental health of the other spouse. The treatment

complained of and the resultant danger or apprehension must be very grave, substantial and weighty

(vii)Â Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to

mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii)Â The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset

may not be aground for grant of divorce on the ground of mental cruelty.Â

(ix)Â Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of

divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will

not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because

of the acts and behavior of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental

cruelty.Â

(xi)Â If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of the wife and

similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the

spouse may lead to mental cruelty.Â

(xii)Â Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may

amount to mental cruelty.Â

(xiii)Â Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.Â

(xix) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The

marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of

marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental crueltyâ€​.

 The Apex Court has given several illustrations which provide instances of mental cruelty. It has also been observed that the married life should be

reviewed as a whole and the ill-conduct must be persistent for a fairly lengthy period where the relationship has deteriorated to an extent that because

of the action, behaviour of spouse, wrong party finds it extremely difficult to live with the other party any longer. This may amount to mental

cruelty. A comprehensive appraisal of the entire matrimonial life of the parties is required to be made to come to a conclusion that the situation has

reached a stage where a wrong party cannot reasonably be asked to put up with such conduct and continue to live with the other party. Sustained

unjustifiable conduct and behaviour of one spouse actually affecting the physical and mental health of the other spouse; the treatment complained of

and the resultant danger or apprehension must be very grave, substantial and weighty. Sustained reprehensible conduct, studied neglect, indifference

or total departure from the normal standard of conjugal kindness causing injury to mental health may be grounds of mental cruelty for grant of divorce.

We, however, do not wish to say further on the allegations of cruelty at this stage since the learned court of SDJM, has recorded a finding of

cruelty against the petitioner under section 498A of the I.P.C., which is under challenge in revision before this Court. However, as per the

observations made at sub para (xiv) in the case of Samar Ghosh (supra), where, there has been a long period of continuous separation, it may fairly be

concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the

law in such case does not serve the sanctity of the marriage; on the contrary it shows scant regard for the feelings and emotions of the parties. In the

conspectus of the totality of facts and circumstances, noted above and a review of the married life of the spouses as a whole, since they have been

living separately from November, 2005, it can also be safely assumed that their marriage has irretrievably broken down. The marriage has

become a fiction supported by legal tie. By refusing to sever that tie, the law may not serve the sanctity of the marriage. As such, taking an overall

view of the matter, we are inclined to allow this appeal for the reasons, indicated herein above. The impugned judgment and decree are set aside.

Marriage between the parties stands dissolved. The appeal is allowed. Decree accordingly. Â

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