Bipin Chander Jaisinghbhai Shah Vs.
Prabhawati [1956] INSC 59 (19 October 1956)
SINHA, BHUVNESHWAR P.
JAGANNADHADAS, B.
AIYYAR, T.L. VENKATARAMA
CITATION: 1957 AIR 176 1956 SCR 838
ACT:
Husband and Wife-Divorce-Desertion-Ingredients
of DesertionIntention-Animus Deserendi-Statutory period of separation -Burden
of proof-Bombay Hindu Divorce Act, 1947 (Bom. XXII of 1947), s. 3(1)(d).
HEADNOTE:
The parties were married in 1942 and there
was a child of the marriage. In 1947 the appellant left for England on business
and on his return to India discovered that this wife (respondent) bad been
having amorous correspondence with one M, and taxed her with having developed
intimacy with him. She was unable to give any answer and went to her father's
place on May 24, 1947, on the pretext of the marriage of her cousin which was
to take place in June. On July 15, 1947, the appellant sent a notice to the
respondent through his solicitor in which after mentioning the fact that she had,
left against his wishes stated that he did not desire to keep her any' longer
under his care and protection, and desired her to send the minor son to him.
On July 4, 1951, the appellant instituted the
suit for divorce under s. 3(1)(d) of the Bombay Hindu Divorce Act, 1947, on the
ground that the respondent had been in desertion ever since May 24, 1947,
without reasonable cause and without his consent and against his will for a
period of over four years. The respondent's case that it was the appellant who
by his treatment of her after his return from England had made her life
unbearable and compelled her to leave her marital home against her wishes, 'was
not proved but there was evidence that after the solicitor's notice dated July
15, 1947, was received by the respondent, attempts were made by her father and
his relations to bring about reconciliation between the parties but they failed
owing to the attitude of the appellant. The question was whether the respondent
had been in desertion, entitling the appellant to have a decree for divorce.
Held that, on the facts, though the initial
fault lay with the respondent, her leaving her marital home was not actuated by
any animus to desert her husband but as the result of her sense of guilt, and
as subsequently she was willing to come back but could not do, so owing to the
attitude of the appellant, there was no proof that she deserted him, much less
that she bad harbored that animus for the statutory period, and the appellant's
case must fail.
The essential conditions for the offence of
desertion, so far as the deserting spouse is concerned, are (i) the factum of
separation and (ii) the intention to bring cohabitation permanently to an end
839 (animus deserendi); and as regards the deserted spouse the elements are (i)
the absence of consent and (ii) absence of conduct giving reasonable cause to
the spouse leaving the matrimonial home to form the necessary intention
aforesaid.
Desertion is a matter of inference to be
drawn from the facts and circumstances of each case and those facts have to be
viewed as to the purpose which is revealed by those facts or by conduct and
expression of intention, both anterior and subsequent to the actual act of
separation.
In a suit for divorce on the ground of
desertion the burden is on the plaintiff to prove that the deserting spouse has
been in desertion throughout the statutory period of four years.
Thomas v. Thomas ([1924] P. 194), Bowron v.
Bowron ([1925] P. 187), Pratt v. Pratt ([1939] A.C. 417) and Lang v. Lang
([1965] A.C. 402), referred to.
Quaere, whether the statutory period of four
years specified in s. 3(1)(d) should immediately precede the institution of the
suit for divorce.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 247 of 1953.
Appeal by special leave from the judgment and
decree dated August 22, 1952 of the Bombay High Court in Appeal No. 66 of 1952
arising out of the decree dated March 7, 1952 of Bombay High Court in its
Ordinary Original Civil Jurisdiction in Suit No. 1177 of 1951.
M. C. Setalvad, Attorney-General for India,
Purshottam Tricumdas, T. Godiwala, J. B. Dadachanji, Rameshwar Nath and S. N.
Andley, for the appellant.
C. K. Daphtary, Solicitor-General of India
and Sardar Bahadur, for the respondent.
1956. October 19. The Judgment of the Court was
delivered by SINHA J.-This is an appeal by special leave against the judgment
and decree of the High Court of Judicature at Bombay dated August 22,1952,
reversing those of a single Judge of that Court on the Original Side, dated
March 7,1952, by which he had granted a decree for dissolution of marriage
between the appellant and the respondent.
840 The facts and circumstances of this case
may be stated as follows: The appellant, who was the plaintiff, and the
respondent were married at Patan on April 20, 1942, according to Hindu rites of
the Jain Community. The families of both the parties belong to Patan, which is
a town in Gujarat, about a night's rail journey from Bombay.
They lived in Bombay in a two-room flat which
was in occupation of the appellant's family consisting of his parents and his
two sisters, who occupied the larger room called the hall, and the plaintiff
and the defendant who occupied the smaller room called the kitchen. The
appellant's mother who is a patient of asthma lived mostly at Patan. There is
an issue of the marriage, a son named Kirit, born on September 10, 1945. The
defendant's parents lived mostly at Jaigaon in the East Khandesh district in
Bombay. The parties appear to have lived happily in Bombay until a third party
named Mahendra, a friend of the family came upon the scene and began to live
with the family in their Bombay flat some time in 1946, after his discharge
from the army. On January 8, 1947, the appellant left for England on business.
It was the plaintiff's case that during his absence from Bombay the defendant
became intimate with the said Mahendra and when she went to Patan after the
plaintiff's departure for England she carried on "amorous
correspondence" with Mahendra who continued to stay with the plaintiff's
family in Bombay. One of the letters written by the defendant to Mahendra while
staying at the plaintiff's flat in Bombay, is Ex. E as officially translated in
English, the original being in Gujerati except a few words written in faulty
English. This letter is dated April,1947, written from the plaintiff's house at
Patan, where the defendant bad been staying with her mother-in-law.
This letter had been annexed to the plaint
with the official translation. It was denied by the defendant in her written
statement. But at the trial her counsel admitted it to have been written by her
to Mahendra. As this letter started all the trouble between the parties to this
litigation, it will have to be set out in extenso hereinafter. Continuing 841
the plaintiff's narrative of the events as alleged in the plaint and in his
evidence, the plaintiff returned to Bombay from abroadon May 2O, 1947. To
receive him back from his foreign journey the whole family' including the
defendant was there in Bombay. According to the plaintiff, he found that on the
first night after his return his bed had been made in the hall occupied by his
father and that night he slept away from his wife. As this incident is said to
have some significance in the narrative of events leading up to the separation
between the husband and the wife and about the reason for which the parties
differ, it will have to be examined in detail later. Next morning, that is to
say, on May 21, 1947, the plaintiff's father handed over the letter aforesaid
to the plaintiff, who recognised it as being in the familiar handwriting of his
wife. He decided to tackle his wife with reference to the letter. He handed it
to a photographer to have photo copies made of the same. That very day in the
evening he asked his wife as to why she had addressed the letter to Mahendra.
She at first denied having written any letter and asked to see the letter upon
which the plaintiff informed her that it was with the photographer with a view
to photo copies being made. After receiving the letter and the photo copies
from the photographer on May 23, the plaintiff showed the defendant the photo
copy of the letter in controversy between them at that stage and then the
defendant is alleged to have admitted having written the letter to Mahendra and
to have further told the plaintiff that Mahendra was a better man than him and
that Mahendra loved her and she loved him. The next important event in the
narrative is what happened on May 24, 1947. On the morning of that day, while
the plaintiff was getting ready to go to his business office his wife is
alleged to have told him that she had packed her luggage and was ready to go to
Jalgaon on the ostensible ground that there was a marriage in her father's
family.
The plaintiff told her that if she had made
up her mind to go, he would send the car to take her to the station and offered
to pay her Rs. 100 for her expenses. But she 884 refused the offer. She left
Bombay apparently in the plaintiff's absence for Jalgaon by the afternoon
train. when the plaintiff came back home from his office, he "discovered
that she had taken away everything with her and had left nothing behind".
It may be added here that the plaintiff's mother had left for Patan with his
son some days previously.
Plaintiff 's case further is that the defendant
never came back to Bombay to live with him, nor did she write any letters from
Jalgaon, where she stayed most of the time. It appears further that the
plaintiff took a very hasty, 'if not also a foolish, step of having a letter
addressed to the defendant by his solicitor on July 15, 1947, charging her with
intimacy between herself and Mahendra and asking her to send back the little
boy. ,The parties violently differ on the intent and effect of this letter
which will have to be set out in extenso at the appropriate place. No answer to
this letter was received by the plaintiff. In November, 1947, the plaintiff's
mother came from Patan to Bombay and informed the plaintiff that the defendant
might be expected in Bombay a few days later. Thereupon the plaintiff sent a
telegram to his father-in-law at Patan. The telegram is worded as follows:"Must
not send Prabha. Letter posted. Wishing happy new year".
The telegram stated that a letter bad been
posted. The defendant denied that any such letter bad been received by her or
by her father. Hence the original, if any, is not on the record. But the
plaintiff produced what he alleged to be a carbon copy of that letter which
purports to have been written on November 13, 1947, the date on which the
telegram was despatched. An English translation of that letter is Ex. C and is
to the following effect:Bombay 13-11-47 To Rajmanya Rajeshri Seth Popatlal
& others.
There is no letter from you recently. You
must have received the telegram sent by me today.
Further, this is to inform you that I have
received information from my Mami (mother) that 843 Prabha is going to come to
Bombay in 3 or 4 days. I am surprised to hear this news; Ever since she has
gone to Jalgaon, there has been not a single letter from her to this day. Not
only that, but, although you know everything, neither you nor any one on your
behalf has come to see me in this connection. What has made Prabha thus
inclined to come all of a sudden! After her behaviour while going to Jalgaon
for: the marriage, (and after), her letter to Mahendra and her words.
'He is better than you-Has feeling for' me
and I love him' and all this, I was afraid that she would not set up a house
with me. Hence when my mother gave me the news of her return, I was surprised.
I have not the slightest objection to the
return of Prabha, but if she gives such shameless replies to me and shows such
improper behaviour, I shall not be able to tolerate the same. If she now really
realises her mistake and if she is really repenting and wants sincerely to
come, please make her write a reply to this letter. On getting a letter from
her, I shall personally come to Patan to fetch her. Kirit is young. For his
sake also, it is necessary to persuade Prabha.
Further, I have to state that I have so far
kept peace. I have made efforts to call back Prabha. Please understand this to
her my final effort. If even now Prabha does not give up her obstinacy, I am
not responsible and (then) do not blame me.
Well, that is all for the present. Kirit must
be bale and hearty. My new year's greetings to you all. Please do assign to me
such work-as I can manage.
Written by Bipinchandra" The plaintiff
stated that be received no answer either to the telegram or to the letter. Two
days later, on, November 15, the plaintiff's father addressed a letter to the
defendant's father, which is Ex. D. This letter makes reference. to the
defendant's mother having, talked to the plaintiffs mother about sending the
defendant I to Bombay and to the fact that the plaintiff bad sent a telegram on
November 13, and ends with the expression of opinion by the plaintiff's father
844 that it was "absolutely necessary" that the plaintiff's consent
should be obtained before sending the defendant to Bombay. This letter also remained
unanswered. According to the plaintiff, nothing happened until May, 1948, when
he went to Patan and there met the defendant and told her "that if she
repented for her relations with Mahendra in the interests of the child as well
as our own interests she could come back and live with me". To that the
defendant is said to have replied that in November, 1947, as a result of
pressure from her father and the community, she had-been thinking of coming to
live with the plaintiff) but that she had then decided not to do so. The
defendant has given quite a different version of this interview. The second
interview between the plaintiff and the defendant again took place at Patan
some time later in 1948 when the plaintiff went there to see her on coming to
know that she had been suffering from typhoid,. At that time also she evinced
no desire to come back to the plaintiff. The third and the last interview
between the plaintiff and the defendant took place at Jalgaon in April-May,
1949. At that interview also the defendant turned down the plaintiff's request
that at least in the interests of the child she should come back to him.
According to the plaintiff, since May 24,
1947, when the defendant left his home in Bombay of her own accord, she bad not
come back to her marital home. The suit was commenced by the plaintiff by
filing the plaint dated July 4, 1951, substantially on the ground that the
defendant bad been in desertion ever since May 24, 1947, without reasonable
cause and without his consent and against his will for a period of over four
years. He therefore prayed for a decree for a dissolution of his marriage with
the defendant and for the custody of the minor child.
The suit was contested by the defendant by a
written statement filed on February 4, 1952, substantially on the ground that
it was the plaintiff who by his treatment of her after his return from England
had made her life unbearable and compelled her to leave her marital home
against her wishes on or about May 845 24, 1.947. She denied any intimacy
between herself and Mahendra or that she was confronted by the plaintiff with a
photostat copy of the letter., Ex. E, or that she had confessed any such
intimacy to the plaintiff. She admitted having received the Attorney's letter,
Ex. A, and also that she did not reply to that letter. She adduced her father's
advice as the reason for not sending any answer to that letter. She added that
her paternal uncle Bhogilal (since deceased) and his son Babubhai saw the
plaintiff in Bombay at the instance of the defendant and her father and that
the plaintiff turned down their request for taking her back. She also made
reference to the negotiations between the defendant's mother and the
plaintiff's mother to take the defendant back to Bombay and that the defendant
could not go to Bombay as a result of the telegram of November 13, 1947, and
the plaintiff's father's letter of November 15, 1947, aforesaid. She also
stated that the defendant and her son, Kirit, both lived with,the plaintiff's
family at Patan for over four months and off and on several occasions. The
defendant's definite case is that she had always been ready and willing to go
back to the plaintiff and that it was the plaintiff who all along had been
wailfully refusing to keep her and to cohabit with her.
On those allegations she resisted the
plaintiff's claim for a decree for a dissolution of the marriage.
On those pleadings a single issue was joined
between the parties, namely,"Whether the defendant deserted the plaintiff
for a continuous period of over four years prior to the filing of the
suit".
At the trial held by Tendolkar, J. of the
Bombay High Court on the Original Side, the plaintiff examined only himself in
support of his case. The defendant examined herself, her father, Popatlal, and
her cousin, Bhogilal, in support of her case that she had been all along ready
and willing to go back to her marital home and that in spite of repeated
efforts on her part through her relations the plaintiff had been persistently
refusing to take her back.
110 846 The learned trial Judge answered the
only issue in the case in the affirmative and granted a decree for divorce in
favour of the plaintiff, but made DO order as to the costs of the suit. He held
that the letter, Ex. E "reads like a love letter written by a girl to her
paramour. The reference to both of them having been anxious about something and
there being now no need to be anxious any more can only be to a possible fear
that she might miss her monthly periods and her having got her monthly period
thereafter, because, if it were not so and the reference was to anything
innocent, there was nothing that she should have repented later on in her mind
as she says she did, nor should there have been occasion for saying 'after all
love is such an affair'." With reference to that letter he further held
that it was capable of the interpretation that she had misbehaved with Mahendra
and that she was conscious of her guilt. With reference to the incident of May
24, the learned Judge observed that having regard to the demeanour of the
plaintiff and of the defendant in the witness box, he was inclined to prefer
the husband's testimony to that of the wife in all matters in which there was a
conflict. He held therefore that there was desertion with the necessary animus
deserendi and that the defendant had failed to prove that she entertained a
bonafide intention to come back to the marital home, that is to say, there was
no animus revertendi. With reference to the contention that the solicitor's
letter of July 15,1947, had terminated the desertion, if any, he held that it
was not well founded inasmuch as the defendant had at no time a genuine desire
to return to her husband. He made no reference to the prayer in the plaint that
the custody of the child should be given to the father, perhaps because that
prayer was not pressed.
The defendant preferred an appeal under the
Letters Patent which was heard by a. Division Bench consisting of Chagla C.J.
and Bhagwati J. The Appellate Bench, allowed the appeal, set aside the decision
of the trial Judge and dismissed the suit with costs. It held that the
defendant was not guilty of 847 desertion, that the letter of July 15, 1947,
clearly established that it was the 'plaintiff who had deserted the defendant.
Alternatively, the Appellate Court held that even assuming that the defendant
was in desertion as a result of what had happened on May 24, and subsequently,
the letter aforesaid bad the effect of putting an end to that desertion. In its
judgment the letter, Ex. E, did not justify the plaintiff having any reasonable
suspicions about his wife's guilt and that the oral evidence of the defendant
and her relations proved the wife's anxiety to return back to her husband and
of the obduracy of the husband in refusing to take the wife back. The plaintiff
made an application to the High Court for leave to appeal to this Court. The
leave asked for was refused by another Division Bench consisting of the Chief
Justice and Dixit J.
Thereafter the plaintiff moved this Court and
obtained special leave to appeal from the judgment of the Appellate Bench of
the High Court.
In this appeal the learned Attorney-General
appearing on behalf of the appellant and the learned Solicitor-General
appearing on behalf of the respondent have placed all relevant considerations
of fact and law before us, and we are beholden to them for the great assistance
they rendered to us in deciding this difficult case. The difficulty is enhanced
by the fact that the two courts below have taken diametrically opposite views
of the facts of the case which depend mostly upon oral testimony of the
plaintiff-husband and the defendant-wife and not corroborated in many respects
on either side. It is a case of the husband's testimony alone on his side and
the wife's testimony aided by that of her father and her cousin. As already
indicated, the learned trial Judge was strongly in favour of preferring the
husband's testimony to that of the wife whenever there was any conflict. But he
made no reference to the testimony of the defendant's father and cousin which,
if believed, would give an entirely different colour to the case.
Before we deal with the points in
controversy, it is convenient here to make certain general of observations 848
on the history of the law on the subject and the well established general
principles on which such cases are determined. The suit giving rise to this
appeal is based on section 3(1) (d) of the Bombay Hindu Divorce Act', XXII of
1947, (which hereinafter will be referred to as "The Act") which came
into force on May 12, 1947, the date the Governor's assent was published in the
Bombay Government Gazette. This Act, so far as the Bombay Province, as it then
was, was concerned, was the first step in revolutionizing the law of
matrimonial relationship, and, as the Preamble shows, was meant "to
provide for a right of divorce among all communities of Hindus in certain
circumstances". Before the enactment, dissolution of a Hindu marriage
particularly amongst what were called the regenerate classes was unknown to general
Hindu law and was wholly inconsistent with the basic conception of a Hindu
marriage as a sacrament, that is to say, a holy alliance for the performance of
religious duties. According to the Shastras, marriage amongst the Hindus was
the last of the ten sacraments enjoined by the Hindu religion for purification.
Hence according to strict Hindu law as given by the Samhitas and as developed
by the commentators, a Hindu marriage could not be dissolved on any-ground
whatsoever, even on account of degradation in the hierarchy of castes or
apostacy. But custom', particularly amongst the tribal and what used to be
called the lower castes recognised divorce on rather easy terms. Such customs
of divorce on easy terms have been in some instances held by the courts to be
against public policy. The Act in section 3 sets out the grounds of divorce. It
is noticeable that the Act does not recognise adultery simpliciter as one of
the grounds of divorce, though cl. (f) renders the fact that a husband
"has any other woman as a concubine" and that a wife "is a
concubine of any other man or leads the life of a prostitute" a ground of
divorce. In the present case we are immediately concerned with the provisions
of s. 3(1)(d), which are in these terms:
3. (1) A husband or wife may sue for divorce
on 849 any of the following grounds, namely:............................................
(d) that the defendant has deserted the
plaintiff for a continuous period of four years".
"Desertion" has been defined in
section 2(b) in these terms:'Desert' means to desert without reasonable cause
and without the consent or against the will of the spouse".
It will be seen that the definition is
tautological and not very helpful and leads us to the Common Law of England
where in spite of repeated legislation on the subject of matrimonial law, no
attempt has been made to define "desertion". Hence a large body of
case law has developed round the legal significance of "desertion".
"Marriage" under the Act means "a marriage between Hindus
whether contracted before or after the coming into operation of this Act".
"Husband" means a Hindu husband and "wife" means a Hindu
wife.
In England until 1858 the only remedy for
desertion was a suit for restitution of conjugal rights. But by the Matrimonial
Causes Act of 1857, desertion without cause for two years and upwards was made
a ground for a suit for judicial separation. It was not till 1937 that by the
Matrimonial Causes Act, 1937, desertion without cause for a period of three
years immediately preceding the institution of proceedings was made a ground
for divorce. The law has now been consolidated in the Matrimonial Causes Act,
1950 (14 Geo. VI, c. 25 ). It would thus appear that desertion as affording a
cause of action for a suit for dissolution of marriage is a recent growth even
in England.
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 on end without
reasonable cause and without the 850 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 851 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 852 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...............
With these preliminary observations we now
proceed to examine the evidence led on behalf of the parties to find out
whether desertion has been proved in this case and, if so, whether there was a
bona fide offer by the wife to return to her matrimonial home with a view to
discharging marital duties and, if so, whether (1) [1955] 1 All E.R. 341, 342.
853 there was an unreasonable refusal on the
part of the husband to take her back.
In this connection the plaintiff in the
witness box deposed to the incident of the night of May 20, 1947. He stated
that at night he found that his bed had been made in the hall in which his
father used to sleep, and on being questioned by him, the defendant told him
that it was so done with a view to giving him the opportunity after a long
absence in England to talk to his father. The plaintiff expressed his wish to
the defendant that they should sleep in the same room as they used to before
his departure for England, to which the wife replied that as the bed had
already been made, "it would look indecent if they were removed". The
plaintiff therefore slept in the hall that night. This incident was relied upon
by the plaintiff with a view to showing that the wife had already made up her
mind to stop cohabitation. This incident has not been admitted by the defendant
in her cross-examination. On the other hand she would make it out that it was
at the instance of the plaintiff that the bed had been made in the hall occupied
by his father and that it was the plaintiff and not she who was responsible for
their sleeping apart that night. As the learned trial Judge has preferred the
plaintiff's testimony to that of the defendant on all matters on which there
was simply oath against oath, we would not go behind that finding. This
incident by itself is capable of an innocent explanation and therefore has to
be viewed along with the other incidents deposed to by the plaintiff in order
to prove his case of desertion by the defendant.
There was no reason why the husband should
have thought of sleeping apart from the wife because there was no suggestion in
the record that the husband was aware till then of the alleged relationship
between the defendant and Mahendra.
But the wife may have been apprehensive that
the plaintiff had known of her relations with Mahendra. That apprehension may
have induced her to keep out of the plaintiff's way.
The most important event which led to the
ultimate rupture between the parties took place on May 21, 1947, when in the
morning the plaintiff's father placed Mahendra's letter aforesaid in the
plaintiff's hands. The letter which has rightly been pointed out in the courts
below as the root case of the trouble is in its relevant parts in these terms:"Mahendrababu,
Your letter has been received. I have read the same and have noted the
contents. In the same way, I hope, you will take the trouble of writing me a
letter now and then. I am writing, this letter with fear in my mind, because if
this reaches anybody's hands, that cannot be said to be decent.
What the mind feels has got to be constrained
in the mind only. On the pretext of lulling (my) son to sleep, I have been
sitting here in this attic, writing this letter to you.
All others are chitchatting below. I am
thinking now and then that I shall write this and shall write that. Just now my
brain cannot go in any way. I do not feel like writing on the main point. The
matters on which we were to remain anxious and you particularly were anxious,
well we need not now be. I very much repented later on in my mind. But after
all love is such an affair. (Love begets love).
........................................
"While yet busy doing services to my
mother-in-law, the clock strikes twelve. At this time, I think of you and you
only, and your portrait shoots up before my eyes. I am reminded of you every
time. You write of coming, but just now there is nothing like a necessity, why
unnecessarily waste money? And again nobody gets salvation at my bands and
really nobody will. You know the natures of all. Many a time I get tired and
keep on being uneasy in my mind, and in the end I weep and pray God and say, 0
Lord, kindly take me away soon: I am not obsessed by any kind of anxiety and so
relieve me from this mundane existence. I do not know how many times I must be
thinking of you every day................" This letter is not signed by
the defendant and in place of the signature the word "namaste" finds
855 place. The contents of the letter were put to the defendant in
cross-examination. At that time it was no more a contested document, the
defendant's counsel having admitted it during the cross-examination" of
the plaintiff.
She stated that she had feelings for Mahendra
as a brother and not as a lover' When the mysterious parts of the letter
beginning with the words "The matters on which" and ending with the
words "such an affair" were put to her, she could not give any explanation
as to what she meant. She denied the suggestion made on behalf of the plaintiff
in these words:"It is not true that the reference here is to our having
had sexual intercourse and being afraid that I might remain pregnant".
The sentence "I very much repented later
on in my mind" was also put to her specifically and her answer was "I
do not know what I repented for. I wrote some thing foolishly".
Pressed further about the meaning of the next
sentence after that, her answer was "I cannot now understand how I came to
write such a letter. I admit that this reads like a letter written by a girl to
her lover. Besides the fact that my brain was not working properly I bad no
explanation to give as to how I wrote such a letter". She also admitted
that she took good care to see that the. other members of the family, meaning
the mother-in-law and the sisters-in-law, did not see her writing that letter
and that she wanted that the letter should remain a secret to them. Being
further pressed to explain the sentence "We need not be anxious now",
her answer was " I did not intend to convey that I had got my monthly
period about which we were anxious. I cannot say what the normal natural
meaning of this letter would be". She bad admitted having received at
least one letter from Mahendra. Though it would appear from the trend of her
cross-examination that she received more letters than one, she stated that she
did not preserve any of his letters.
She has further admitted in cross-examination
"I have not signed this letter. It must have remained to be signed by
mistake. I admit that under the 856 letter where the signature should be I have
put the word 'Namaste' only. It is not true that I did not sign this letter
because I was afraid, that if it got into the hands of any one, it might
compromise me and Mahendra. Mahendra would have known from my handwriting that
this was my letter. I had previously written one letter to him. That letter
also I had not signed. I had only said 'Namaste"'.
The tenor of the letter and the defendant's
explanation or want of explanation in the witness box of those portions of the
letter which very much need explanation would leave no manner of doubt in any
person who read that letter that there was something between her and Mahendra
which she was interested to keep a secret from everybody. Even when given the
opportunity to explain, if she could, those portions of the letter, she was not
able to put any innocent meaning to her words except saying in a bland way that
it was a letter from a sister to a brother. The trial court rightly discredited
her testimony relating to her answers with respect to the contents of the
letter. The letter shows a correspondence between her and Mahendra which was
clearly unworthy of a faithful wife and her pose of innocence by characterising
it as between a sister and a brother is manifestly disingenuous. Her
explanation, if any, is wholly unacceptable. The plaintiff naturally got
suspicious of his wife and naturally taxed her with reference to the contents
of the letter. That she had a guilty mind in respect of the letter is shown by
the fact that she at first denied having written any such letter to Mahendra, a
denial in which she persisted even in her answer to the plaint. The plaintiff's
evidence that he showed her a photostatic copy of that letter on May 23, 1947,
and that she then admitted having written that letter and that she bad tender
feelings for Mahendra can easily be believed. The learned trial Judge was
therefore justified in coming to the conclusion that the letter betrayed on the
part of the writer "a consciousness of guilt". But it is questionable
how far the learned Judge was justified in observing further that' the contents
of the 857 letter "are only capable of the interpretation that she had
misbehaved with Mahendra during the absence of the plaintiff". If he meant
by the word "misbehaved" that the defendant had sexual intercourse
with Mahendra, he may be said to have jumped to the conclusion which did not
necessarily follow as the only conclusion from them. The very fact that a
married girl was writing amorous letters to a man other than her husband was
reprehensible and easily capable of furnishing good grounds to the husband for
suspecting the wife's fidelity. So far there can be no difficulty in assuming
that the husband was fully justified in losing temper with his wife and in
insisting upon her repentance and assurance of good conduct in future. But we
are not prepared to say that the contents of the letter are capable of only
that interpretation and no other. On the other hand, the learned Judges of the
Appeal Court were inclined to view this letter as an evidence merely of what is
sometimes characterised as "platonic love" between two persons who by
reasons of bond of matrimony are compelled to restrain themselves and not to go
further than merely showing love and devotion for each other. We are not
prepared to take such a lenient, almost indulgent, view of the wife's conduct
as betrayed in the letter in question.
We cannot but sympathise with the husband in taking
a very serious view of the lapse on the wife's part. The learned Judges of the
Appeal Court have castigated the counsel for the plaintiff for putting those
questions to the defendant in cross-examination. They observe in their judgment
(speaking through the Chief Justice) that there was no justification for the
counsel for the plaintiff to put to the defendant those questions in
cross-examination suggesting that she had intercourse with Mahendra as a result
of which they were apprehending future trouble in the shape of pregnancy and
illegitimate child birth. It is true that it was not in terms the plaintiff's
case that there had been an adulterous intercourse between the defendant and
Mahendra. That need not have been so, because the Act does not recognise
adultery as one of the grounds 858 for divorce. But we do not agree with the
appellate Court that those questions to the defendant in cross-examination were
not justified. The plaintiff proposed to prove that the discovery of the
incriminating letter containing those mysterious sentences was the occasion for
the defendant to make up her mind to desert,the plaintiff. We do not therefore
agree with the observations of the appellate Court in all that they have said
in respect of the letter in question.
There can be no doubt that the letter in
question made the plaintiff strongly suspicious of his wife's conduct (to put
it rather mildly), and naturally he taxed his wife to know from her as to what
she bad to say about her relations with Mahendra. She is said to have confessed
to him that Mahendra was a better man than the plaintiff and that he loved her
and she loved him. When matters had come to such a head, the natural reaction
of the parties would be that the husband would get not only depressed, as the
plaintiff admitted in the witness box, but would in the first blush think of
getting rid of such an unloving, if not a faithless, wife. The natural reaction
of the defendant would be not to face the husband in that frame of mind. She
would naturally wish to be out of the sight of her husband at least for some
time, to gain time for trying, if she was so minded, to reestablish herself in
her husband's estimation and affection, if not love. The event of the afternoon
of May 24, 1947, must therefore be viewed in that light. There was going to be
performed the marriage of the defendant's cousin at her father's place of
business in Jalgaon, though it was about five to six weeks from then.
The plaintiff would make it out in his
evidence that she left rather in a recalcitrant mood in the afternoon during
his absence in office with all her belongings and that she had refused his
offer of being sent in his car to station and Rs. 100 for' expenses. This
conduct on the part of the wife can easily be explained as that of a person who
had found that her love letter had been discovered by the husband. She
would-naturally try to flee away from the husband for the time being at least
because she had not the 859 moral courage to face him. The question is whether
her leaving her marital home on the afternoon of May 24, 1947, is only
consistent with her having deserted, her husband, in the sense that she had
deliberately' decided permanently to forsake all relationship with her husband
with the intention of not returning to consortium, without the consent of the
husband and against his wishes. That is the plaintiff's case. May that conduct
be not consistent with the defendant's case that she had not any such
intention, i.e., being in desertion? The following observations of Pollock, M.
R. in Thomas v. Thomas(1) may usefully be quoted in this connection:"Desertion
is not a single act complete in itself and revocable by a single act of
repentance.
The act of departure from the other spouse
draws its significance from the purpose with which it is done, as revealed by
conduct or other expressions of intention: see Charter v. Charter(2). A mere
temporary parting is equivocal, unless and until its purpose and object is made
plain.
I agree with the observations of Day J. in
Wilkinson v. Wilkinson(3) that desertion is not a specific act, but a course of
conduct. As Corell Barnes J. said in Sickert v. Sickert(4): 'The party who
intends bringing the cohabitation to an end, and whose conduct in reality
causes its termination, commits the act of desertion'. That conduct is not
necessarily wiped out by a letter of invitation to the wife to return".
The defendant's further case that she bad
been turned out of the house by the husband under duress cannot be accepted
because it is not corroborated either by circumstances or by direct testimony.
Neither her father nor her cousin say a word about her speaking to them on her
arrival at Jalgaon that she had been turned out of her husband's home. If her
case that she bad been forcibly turned out of her marital home by the husband
had been made out, certainly the husband would have been guilty of
"constructive desertion", because the test is riot who (1) [1924] P.
194.
(3) 58 J. P. 415.
(2) 84 L T. 272.
(4) [1899] P. 278, 282, 860 left the matrimonial
home first. (See Lang v. Lang(1)). If one spouse by his words and conduct
compel the other spouse to leave the marital home. the former would be guilty
of desertion, though it is the latter who has physically separated from the
other and has been made to leave the marital home. It should be noted that the
wife did not cross-petition for divorce or for any other relief. Hence it is no
more necessary for us to go into that question. It is enough to point out that
we are not prepared to rely upon the uncorroborated testimony 'of the defendant
Chat she had been compelled to leave her marital home by the threats of the
plaintiff.
The happenings of May 24, 1947, as pointed
out above, are consistent with the plaintiff's case of desertion by the wife.
But they are also consistent not with the defendant's case as actually Pleaded
in her written statement, but with the fact; and circumstances disclosed in the
evidence, namely, that the defendant having been discovered in her clandestine
amorous correspondence with her supposed paramour Mahendra, she could not face
her husband or her husband's people living in the same flat in Bombay and
therefore shamefacedly withdrew herself and went to her parent's place of
business in Jalgaon on the pretext of the marriage of her cousin which was yet
far off. That she was not expected at Jalgaon on that day in connection with
the marriage is proved by her own admission in the witness box that "when
I went to Jalgaon everyone was surprised". As pointed out above, the
burden is on the plaintiff to prove desertion without cause for the statutory
period of four years, that is. to say, that the deserting spouse must be in
desertion throughout the whole period. In this connection the following
observations of Lord Macmillan in his speech in the House of Lords in the case
of Pratt v. Pratt(2 ) are apposite:"In my opinion 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 (1) [1955] A.C. 402. 417.
(2) [1939] A C. 417, 420.
861, deserting spouse must be shown to have
persisted in the intention to desert throughout the whole period. In fulfilling
its duty of determining whether on the evidence a case of desertion without
cause has been proved the court ought not, in my opinion, to leave out of
account the attitude of mind of the petitioner. 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".
It is true that the defendant did not plead
that she had left her husband's home in Bombay in the circumstances indicated
above. She, on the other hand, pleaded constructive desertion by the husband.
That case, as already observed, she has failed to substantiate by reliable
evidence. But the fact that the defendant has so failed does not necessarily
lead to the conclusion that the plaintiff has succeeded in proving his case.
The plaintiff must satisfy the court that the defendant had been in desertion
for the continuous period of four years as required by the Act. If we come to
the conclusion that the happenings of May 24, 1947, are consistent with both
the conflicting theories, it is plain that the plaintiff has not succeeded in
bringing the offence of desertion home to the defendant beyond all reasonable
doubt. We must therefore examine what other evidence there is in support of the
plaintiff's case and in corroboration of his evidence in court.
The next event of importance in this
narrative is the plaintiff's solicitor's letter of July 15, 1947, addressed to
the defendant, care of her father at Jalgaon. The defendant's cousin's marriage
was performed towards the end of June and she could have come back to her
husband's place, soon thereafter' Her evidence is that after the marriage had
been performed she was making preparations to go back to Bombay but her father
detained her and asked her to await a letter from the plaintiff. The defendant
instead of getting an invitation from the plaintiff to 862 come back to the
marital home received the solicitor's letter aforesaid, which, to say the
least, was not calculated to bring the parties nearer. The letter is in these
terms:"Madam, Under instructions from our client Bipin Chandra J. Shah we
have to address you as under:That you were married to our client in or about
April 1942 at Patan. Since the marriage you and our client lived together
mostly in Bombay and son by name Kirit was born on or about the 10th day of
September 1944.
Our client. states that he left for Europe in
January last and returned by the end of May last. After our client's return,
our client learnt that during our client's absence from India you developed
intimacy with one Mahendra and you failed to give any satisfactory reply when
questioned about the same and left for your parents under the pretext of
attending to the marriage ceremony of your cousin. You have also taken the
minor with you and since then you are residing with your father to evade any
satisfactory explanation.
Our client states that under the events that
have happened, our client has become entitled to obtain a divorce and our
client does not desire to keep you any longer under his care and protection.
Our client desires the minor to be kept by him and we are instructed to request
you to send back the minor to our client or if necessary our client will send
his agent to bring the minor to him. Our client further states that in any
event it will be in the interest of the minor that he should stay with our
client. Our client has made this inquiry about the minor to avoid any
unpleasantness when our client's agent comes to receive the minor".
The letter is remarkable in some respects apart
from antedating the birth of the son Kirit by a year. The letter does not in
terms allege that the defendant was in desertion, apart from mentioning the
fact that she had left against the plaintiff's wishes or that she had done so
with the intention of permanently abandoning her marital duties. On the other
hand, it alleges that "You are residing with your father to avoid any
satisfactory explanation". The most important part of the letter is to the
effect that the plaintiff had "become entitled to obtain a divorce"
and that he "does not desire to keep you any longer under his care and
protection". Thus if the solicitor's letter is any indication of the
working of the mind of the plaintiff, it makes it clear that at that time the
plaintiff did not believe that the defendant had been in desertion and that the
plaintiff had positively come to the determination that he was no longer
prepared to affirm the marriage relationship. As already indicated, one of the
essential conditions for success in a suit for divorce grounded upon desertion
is that the deserted spouse should have been willing to fulfill his or her part
of the marital duties. The statement of the law in para 457 at p. 244 of
Halsbury's Laws of England (3rd Edn. Vol 12) may be usefully quoted:
"The burden is on the petitioner to show
that desertion without cause subsisted, throughout the statutory period.
The deserting spouse must be shown to have
persisted in the intention to desert throughout the whole of the three year
period. It has been said that a petitioner should be able honestly to say that
he or she was all along willing to fulfill the duties of the marriage, and that
the desertion was against his or her will, and continued throughout the
statutory period without his or her consent; but in practice it is accepted
that once desertion has been started by the fault of the deserting spouse, it
is no longer necessary for the deserted spouse to show that during the three
years preceding the petition be or she actually wanted the other spouse to come
back, for the intention to desert is presumed to continue. That presumption
may, however, be rebutted".
Applying those observations to the facts of
the present case, can the plaintiff honestly say that be was all along willing
to fulfill the duties of the marriage and that the defendant's desertion, if
any, continued throughout the statutory period without his consent. The letter,
Ex. A) is an emphatic no. In the first 864 place, even the plaintiff in that
letter did not allege any desertion and, secondly, he was not prepared to
receive her back to the matrimonial home. Realising his difficulty when
cross-examined as to the contents of that letter, he wished the court to
believe that at the time the letter was written in his presence he was "in
a confused state of mind" and did not remember exactly whether he noticed
the sentence -that he did not desire to keep his wife any longer. Pressed further
in cross-examination, he was very emphatic in his answer and stated:"It is
not true that by the date of this letter I had made up my mind not to take her
back. It was my hope that the letter might induce her parents to find out what
had happened, and they would persuade her to come back. I am still in the
confused state of mind that despite my repeated attempts my wife puts me
off".
In our opinion, the contents of the letter
could not thus be explained away by the plaintiff in the witness box. On the other
hand, it shows that about seven weeks after the wife's departure for her
father's place the plaintiff had at least for the time being convinced himself
that the defendant was no more a suitable person to live with. That, as found
by us, be was justified in this attitude by the reprehensible conduct of his
wife during his absence is beside the point.
This letter has an importance of its own only
in so far as it does not corroborate the plaintiff's version that the defendant
was in desertion and that the plaintiff was all along anxious to induce her to
come back to him. This letter is more consistent with the supposition that the
husband was very angry with her on account of her conduct as betrayed by the
letter, Ex. E and that the wife left her husband's place in shame not having
the courage to face him after that discovery. But that will not render her in
the eye of the law a deserter, as observed by Pollock, M. R. in Bowron v.
Bowron(1) partly quoting from Lord Gorell as follows:"In most cases of
desertion the guilty party (1) [1925] P. 187, 192.
865 actually leaves the other, but it is not
always or necessarily the guilty party who leaves the matrimonial home. In my
opinion, the party who intends bringing the cohabitation to an end, and whose
conduct in reality causes its termination, commits the act of desertion: See
also Graves v. Graves(1); Pulford v. Pulford(2); Jackson v.
Jackson(2); where Sir Henry Duke P. explains
the same doctrine. You must look at the conduct of the spouses and ascertain
their real intention".
It is true that once it is found that one of
the spouses has been in desertion, the presumption is that the desertion has
continued and that it is not necessary for the deserted spouse actually to take
steps to bring the deserting spouse back to the matrimonial home. So far we do
not.find any convincing evidence in proof of the alleged desertion by the wife
and naturally therefore the presumption of continued desertion cannot arise.
But it is not necessary that at the time the
wife left her husband's home, she should have at the same time the animus
deserendi. Let us therefore examine the question whether the defendant in this
case, even if she had no such intention at the time she left Bombay,
subsequently decided to put an end to the matrimonial tie. This is in
consonance with the latest pronouncement of the Judicial Committee of the Privy
Council in the case of Lang v. Lang(1) in an appeal from the decision of the
High Court of Australia, to the following effect:"Both in England and in
Australia, to establish desertion two things must be proved: first, certain
outward and visible conduct the 'factum' of desertion; secondly, the 'animus
deserendi' the intention underlying this conduct to bring the matrimonial union
to an end.
In ordinary desertion the factum is simple:
it is the act of the absconding party in leaving the matrimonial home. The
contest in such a case will be almost entirely as to the 'animus'. Was the
intention (1) 3 Sw. & Tr. 350.
(3) [1924] P. 19.
(2) [1923] P. 18.
(4) [1955] A.G. 402, 417.
866 of the party leaving the home to break it
up for good, or something short of, or different from that?" In this
connection the episode of November, 1947, when the plaintiff's mother came from
Patan to Bombay is relevant.
It appears to be common ground now that the
defendant had agreed to come back to Bombay along with the plaintiff's mother
or after a few days. But on this information being given to the plaintiff he
countermanded any such steps on the wife's part by sending the telegram, Ex.
B,aforesaid and the plaintiff's father's letter dated November 15, 1947.
'We are keeping out of consideration for the
present the letter, Ex. C, dated November 13, 1947, which is not admitted to
have been received either by the defendant or her father. The telegram is in
peremptory terms: "Must not send Prabha". The letter of November 15,
1947, by the plaintiff's father to the defendant's father is equally
peremptory. It says "It is absolutely necessary that you should obtain the
consent of Chi. Bipinchandra before sending Chi. Prabhavati". The telegram
and the letter which is a supplement to the telegram, as found by the courts
below, completely negative the plaintiff's statement in court that he was all
along ready and willing to receive the defendant back to his home. The letter
of November 13, 1947, Ex. C, which the plaintiff claims to have written to his
father-in-law in explanation of the telegram and is a prelude to it is
altogether out of tune with the tenor of the letter and the telegram referred
to above. The receipt of this letter has been denied by the defendant and her
father. In court this letter has been described as a fake in the sense that it
was an afterthought and was written with a. view to the legal position and
particularly with a view to getting rid of the effect of the solicitor's letter
of July 15, which the plaintiff found it hard to explain away in the witness
box. Neither the trial court, which was entirely in favour of the plaintiff and
which had accepted the letter as genuine, nor the appellate Court, which was
entirely in favour of the defendant has placed implicit faith in the bona fides
of this letter. The lower appellate Court 867 is rather ironical about it,
observing "This letter as it were stands in isolated glory. There is no
other letter.
There is no other conduct of the plaintiff
which is consistent with this letter". Without going into the controversy
as to the genuineness or bona fldes of this letter, it can be said that the
plaintiff's attitude, as disclosed therein, was that he was prepared to take
her back into the matrimonial home provided she wrote a letter to him
expressing real repentance and confession of mistake. This attitude of the
plaintiff cannot be said to be unreasonable in the circumstances of the case.
He was more sinned against than sinning at the beginning of the controversy
between the husband and the wife.
This brings us to a consideration of the
three attempts alleged by the plaintiff to have been made by him to induce his
wife to return to the matrimonial home when he made two journeys to Patan in
1948 and the third journey in AprilMay, 1949, to Jalgaon. These three visits
are not denied by the defendant. The only difference between the parties is as
to the purpose of the visit and the substance of the talk between them. That
the plaintiff's attachment for the defendant had not completely dried up is
proved by the fact that when he came to know that she had been suffering from
typhoid he went to Patan to see her. On this occasion which was the second
visit the plaintiff does not say that he proposed to her to come back and that
she refused to do so.
He only says that she did not express any
desire to come back. That may be explained as being due to diffidence on her
part. But in respect of the first and the third visits the plaintiff states
that on both those occasions he wanted her to come back but she refused. On the
other hand, the defendant's version is that the purpose of his visit was only
to take away the child and not to take her back to his home. It is also the
plaintiff's complaint that the defendant never wrote any letter to him offering
to come back. The wife's answer is that she did write a few letters before the
solicitor's letter was received by the father and that thereafter under her
father's advice she did not write 868 any more to the plaintiff. In this
connection it becomes necessary to examine the evidence of her cousin Babulal
and her father Popatlal. Her cousin, Babulal, who was a member of her father's
joint family, deposes that on receipt of the letter, Ex. A, a fortnight later
he and his father, since deceased, came to Bombay and saw the plaintiff. They
expostulated with him and pleaded the defendant's cause and asked the plaintiff
to forgive and forget and to take her back. The plaintiff's answer was that he
did not wish to keep his wife. The defendant's father's evidence is to the
effect that after receipt of the letter, Ex. A, he came to Bombay and saw the
plaintiff's father at his residence and protested to him that "a false
notice had been given to us".
The plaintiff's father is said to have
replied that they "would settle the matters amicably" He also deposes
as to his brother and his brother's son having gone to the plaintiff. He
further states that he with his wife and the defendant went to Patan and saw
the plaintiff's mother and in consultation with her made arrangements to send
her back to 'Bombay. But before that could be done the telegram, Ex.
B, and the letter, Ex. D, were received and
consequently he gave up the idea of sending the defendant to Bombay without
straightening matters. Both these witnesses on behalf of the defendant further
deposed to the defendant having done several times and stayed with the
plaintiff's family, particularly his mother at Patan along with the boy. The
evidence of these two witnesses on behalf of the defendant is ample
corroboration of the defendant's ,case and the evidence in court that she has
all along been ready and willing to go back to the matrimonial home. The learned
trial Judge has not noticed this evidence and we have not the advantage of his
comment on this corroborative evidence.
This body of evidence is in consonance with
the natural course of events. The plaintiff himself stated in the witness box
that he had sent the solicitor's' letter by way of a shock treatment to the
defendant's family so that they might persuade his wife to come back to his
matrimonial home. The subsequent 869 telegram and letters (assuming that both
the letters of the 13th and 15th November had been posted in the usual course
and received by the addressees) would give a shock to the family. Naturally
thereafter the members of the family would be up and doing to see that a
reconciliation is brought about between the husband and the wife. Hence the
visits of the defendant's uncle and the father would be a natural conduct after
they had been apprised of the rupture between them. We therefore do not see any
sufficient reasons for brushing aside all that oral evidence which has been
believed by the Lower Appellate Court and had not in terms been disbelieved by
the trial court. This part of the case on behalf of the defendant and her
evidence is corroborated by the evidence of the defendant's relatives
aforesaid. It cannot be seriously argued that evidence should be disbelieved,
because the witnesses happened to be the defendant's relatives. They were
naturally the parties most interested in bringing about a reconciliation They
were anxious not only for the welfare of the defendant but were also interested
in the good name of the family and the community as is only natural in families
like these which have not been so urbanised as to completely ignore the
feelings of the community. They would therefore be the persons most anxious in
the interests of all the parties concerned to make efforts to bring the husband
and the wife together and to put an end to a controversy which they considered
to be derogatory to the good name and, prestige of the families concerned. The
plaintiff's evidence, on the other hand, on this part of the case is
uncorroborated.
Indeed his evidence stands uncorroborated in
many parts of his case and the letters already discussed run counter to the
tenor of his evidence in court. We therefore feel inclined to accept the defendant's
case that after her leaving her husband's home and after the performance of her
cousin's marriage she was ready and willing to go back to her husband. It,
follows from what we have said so far that the wife was not in desertion though
she left her husband's home without any fault on the part of the 870 plaintiff
which could justify her action in leaving him, and that after the lapse of a
few months' stay at her father's place she was willing to go back to her
matrimonial home.
This conclusion is further supported by the
fact that between 1948 and 1951 the defendant stayed with her motherin-law at
Patan whenever she was there, sometimes for months, at other times for weeks.
This conduct is wholly inconsistent with the plaintiff's case that the defendant
was in desertion during the four years that she was out of her matrimonial
home. It is more consistent with the defendant's attempts to. get herself
re-established in her husband's home after the rupture in May 1947 as
aforesaid.
It is also in evidence that at the suggestion
of her mother in-law the defendant sent her three year old son to Bombay so
that be might induce his' ,father to send for the mother, The boy stayed in
Bombay for about twenty days and then was brought. back to Patan by his father
as he (the boy) was unwilling to stay there without the mother., This was in
August September 1948 when the defendant deposes to having questioned her
husband why she bad not been called back and the husband's answer was evasive.
Whether or not this statement of the defendant is true, there can be no doubt
that the defendant would not have allowed her little boy of about three years
of age to be sent alone to Bombay except in the hope that he might be
instrumental in bringing about a reconciliation between the father and the
mother. The defendant has deposed to the several efforts made by her
mother-in-law and her father-in-law to intercede on her behalf with the
plaintiff but without any result. There is no explanation why the plaintiff
could not examine his father and mother in corroboration of his case of
continuous desertion for the statutory period by the defendant. Their evidence
would have been as valuable, if not more, as that of the defendant's father and
cousin as discussed above.
Thus it is not a case where evidence was not
available in corroboration of the plaintiff's case. As the plaintiff's evidence
on many important aspects of the case 871 has remained uncorroborated by
evidence which could be available to him, we must hold that the evidence given
by the plaintiff falls short of proving his case of desertion by his wife.
Though we do not find that the essential ingredients of desertion have been
proved by the plaintiff, there cannot be the least doubt that it was the
defendant who had by her objectionable conduct brought about a rupture in the
matrimonial home and caused the plaintiff to become so cold to her after she
left him.
In view of our finding that the plaintiff has
failed to prove his case of desertion by the defendant, it is not necessary to
go into the question of animus revertend on which considerable argument with
reference to case-law was addressed to us on both sides. For the aforesaid
reasons we agree with the Appellate Bench of the High Court in the conclusion
at which they had arrived, though not exactly for the same reasons. The appeal
is accordingly dismissed. But as the trouble started on account of the
defendant's conduct, though she is successful in this Court, we direct that
each party must bear its own costs throughout.
Appeal dismissed.
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