Vikash Datta vs Leena Datta

Challenge in this appeal is to the judgment & decree dated 24-9-2015 passed by the Judge, Family Court, Rajnandgaon, in civil suit No.16-A/13 whereby the application filed by the appellant/husband for grant of decree of divorce on the ground of desertion and cruelty, was rejected. The present appeal is by the husband.

The indisputable facts in this case are that the appellant/husband and the respondent/wife were married on 18-1-2009. Out of the wedlock a child was born on 10-5-2010. It is also not in dispute that from 25-10-2019 the wife was residing at her parental home. Case of the husband before the Court below was that after marriage the wife went to her parental home on 2-2-2009 to appear in B.Ed. Examination, thereafter, when she did not return the husband many a time persuaded and called his wife. Subsequently, she came back to join the company of husband in the month of May, 2009. Again on 25-10-2009 she along with her relatives i.e. brother-in-law, sister and mother went back to her parental home and thereafter never returned. The husband further pleaded that the matrimonial ties in between the couple were not cordial and the wife could not adjust herself in the joint family culture. Consequently, it resulted into daily quarrel. The husband also pleaded that the wife extended threat to inculpate the husband and his family members in a false criminal case of dowry. It was further pleaded by the husband that after the wife went to Bhadravati from 25-10-2009 a false report was lodged against him and his family members alleging demand of dowry. In the said case, after enquiry, nothing was found against them and, as such, the report was closed. According to the husband, in the month of July, 2011 he went to take back his wife, but it was refused by her family members. Eventually, a notice was sent to wife to join his company to which she replied that she is being ill treated for demand of dowry and eventually she did not join the company of the husband. Consequently, the petition for divorce was filed by the husband on the ground of desertion and cruelty.

Wife filed her written statement in the case, but she did not adduce evidence and proceeded ex parte.

The trial Court after evaluating the evidence and documents available on record found that the husband has failed to prove the ground of cruelty & desertion and consequently, dismissed the application. Thus, this appeal.

Learned senior counsel appearing for the appellant/husband would submit that the evidence adduced by the husband remained unrebutted. While referring the statement of husband he would submit that reading the evidence would show that the wife has lodged false report with regard to demand of dowry, however, on enquiry, the allegations were not found proved and hence the said report was closed. He would also submit that admittedly in this case the wife left the matrimonial home on 25-10-2009 and thereafter despite several efforts made by the husband she did not return and as a result she has deserted the husband completely with an intention to end the matrimonial ties. He would next submit that learned Court below failed to take into such evidence and appreciate the facts in its true perspective thereby a wrong finding has been arrived. Under the circumstances the appeal filed by the husband may be allowed and the marriage solmenised between the parties may be dissolved by granting a decree of divorce in favour of the appellant/husband.

Learned counsel appearing for the respondent/wife, per contra, would submit that reply of the notice, which was sent to the husband, would show that the wife has never deserted the husband, but, in fact, when she wanted to return to her matrimonial home she was forcibly thrown out and, as such, she could not join the company of the husband. He would further submit that the husband failed to prove the cruelty and desertion by adducing sufficient and cogent evidence. He would also submit that the husband himself misbehaved with the wife and also denied the paternity of child thereby it is the husband who caused cruelty on the wife. According to the learned counsel, since the husband has filed the application for grant of decree of divorce, he ought to have proved the case beyond all reasonable doubt, but he failed to do so. The impugned judgment and decree passed by the Court below is well merited, which do not call any interference.

We have heard learned counsel for the parties at length and perused the record.

Perusal of the record of the Court below would show that the wife proceeded ex parte after filing of the written statement meaning thereby no evidence adduced on behalf of the wife. The pleadings and evidence when are examined husband has deposed that after marriage on 18-1-2009 wife remained in his company for about 10-12 days. On 2-2-2009 she went to her parental home to appear in B.Ed. Examination and thereafter she did not make any effort to return to join the company of the husband. However, due to several efforts of the husband, she came to matrimonial home in the month of May, 2009. Again on 25-10-2009 she along with her relatives i.e. brother-in-law, sister and mother went back to her parental home and thereafter never returned. Cross-examination of the husband with regard to the fact that the wife left his company on 25-10-2009 and is living separately is not rebutted. Apart from this evidence, reply to the notice given by the wife would also show that from 25-10-2009 she is residing at her parental home.

This necessarily leads us to examine the evidence whether or not there was any sufficient reason existed not to join the company of the husband. Accordingly, the evidence was examined. The evidence of the husband would show that the legal notice (Ex.P/1) has been sent to the wife in the month of November, 2012. In such notice the husband called upon the wife to join the company of husband with a time line with a note that if she do not join, he would be constrained to file an application for divorce before the competent Court. The wife instead joining the company of the husband, sent a reply to the said legal notice. In such notice the fact that wife is living separately from husband since 25-10-2009 is established. Incidentally, the allegations are also attributed that during pre-marriage talks though there was an understanding that no demand would be made for dowry, but the mother of the husband uttered that the elder daughter-in-law brought a bike. Further the reply notice would show that the allegations have been made that she was ill treated by the in-laws as she was being humiliated for the reason that she did not brought any dowry. The document (Ex.P/8) is a report made to the police at Chandrapur by the wife in respect of allegation of demand of Rs.10,000/- for motorcycle and Rs.20,000/- towards delivery expenses by the husband and his family members. There is no evidence on record to show that such demand was ever investigated and proved.

We are, therefore, inclined to draw inference that only bald allegations of demand of dowry were made to make a platform to not to join the company of the husband. The wife was living separately since 25-10-2009 so whether she deserted the husband to find out the same the principle as laid down by the Hon’ble Supreme Court were perused.

In the matter of Bipinchandra Jaisinghbai Shah v Prabhavati AIR 1957 SC 176 the Supreme Court observed and discussed about “What is desertion?”. Para 10 of the said dictum is quoted below for ready reference :

(10) What is desertion? "Rayden on Divorce" which is a standard Work on the subject at p. 128 (6th Edn.) has summarised the case-law on the subject in these terms:-

"Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party".

The legal position has been admirably summarised in paras 453 and 454 at pp. 241 to 243 of Halsbury's Laws of England (3rd Edn.) Vol. 12, in the following words:-

"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. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases.

Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, 'the home'. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion. The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition or where the offence appears as a cross-charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence".

Thus the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandon the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion.' For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (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. 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 co-exist. 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 year period and the Bombay Act prescribes 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 decides to come back to the deserted spouse by a bonafide offer of resuming the matrimonial some 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 any 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. In this connection the following observations of Lord Goddard, C.J. in the case of Lawson v. Lawson(1) may be referred to:-

"These cases are not cases in which corroboration is required as a matter of law. It is required as a matter of precaution...............

Applying the aforesaid principles to the facts of the case at hand would show that the husband made several attempts to bring back the wife, but for some reason or the other the wife refused to join his company. The marriage was solemnised between the parties on 18-1-2009 and after 10-12 days of marriage i.e. on 2-2-2009 she went to her parental home to appear in B.Ed. Examination. Subsequently, on the efforts of husband she joined his company in May, 2009 and thereafter, left the matrimonial home on 25-10-2009 and started residing at her parental home. The divorce petition was filed in 2013. There is nothing on record to show that any effort was made by the wife to go back to the company of husband despite efforts were being made by him and till today they are residing separately. The husband though served notice to the wife to join his company in the year 2012 and also mentioned that if she does not join he would be constrained to file a petition for divorce, but all went in vain and eventually the wife stayed back in her parental home abandoning the company of husband. Therefore, the essential condition of desertion i.e. the factum of separation; and the intention to bring cohabitation permanently put to an end was at the behest of wife. The absence of consent and absence of conduct can also be inferred. Therefore, the only ground of allegation that there is demand of dowry and she was being ill treated in her matrimonial home will not fortify the issue to draw inference in favour of wife that there were sufficient reasons not to join the company of husband.

Under the aforesaid facts and circumstances of the case, we are of the opinion that the wife herself abandoned the company of husband without any plausible reason. Consequently, the ground of desertion appears to be proved.

In the result, the appeal is allowed and the impugned judgment and decree dated 24-9-2015 passed by the trial Court is set aside. The marriage solemnised between the parties on 18-1-2009 is dissolved by decree of divorce.

There shall be no order as to cost(s).

A decree be drawn accordingly.