Section 13 (1), Hindu Marriage Act, 1955: Mental Cruelty (Bipin Chander Jaisinghbhai Shah Vs. Prabhawati)

 

 Facts:

The appellant, Bipin Chander Jaisinghbhai, and the respondent, Prabhawati, were married on April 20th, 1942. A son was born to them on September 10th, 1945. Mahendra, a friend of the family came to Bombay and started living with the family in their flat some time in 1946. On January 8th, 1947 the appellant left for England on business. The plaintiff returned to Bombay on May 20th, 1947. The appellant suspected an amorous relationship between his wife and Mahendra because of a letter written by the wife to Mahendra which were given to him by the appellant father. Moreover, there were anomalies in the routine as noticed by appellant created by respondent eg: Setting up bed for the respondent outside of room etc.  The respondent left the appellant’s house on May 24th, 1947 after stating the reason that she is going to her father’s house for a wedding but the respondent never came back to her matrimonial home. Later in November 1947, when the appellant’s mother came back and informed the plaintiff that the defendant is coming back to which the respondent sent a letter to his father-in-law stating that don’t send his wife back. Many more meeting were there between the respondent and plaintiff but they were futile in terms of coming to consensus as to coming back. Hence, the suit was filed by the appellant on the ground of desertion by the respondent.

 

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 wilfully refusing to keep her and to cohabit with her.

 

Issues:

1.     Whether leaving one’s marital home physically is tantamount to desertion?

2.     Does desertion on part of the deserting party subsist when the deserted party refuses to accept the deserting party?

 

Ratio Decidendi:

In the present case we are immediately concerned with the provisions of Section 3, clause (d) of Bombay, 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.

 

In England until 1858 the only remedy for desertion was a suit for restitution of conjugal rights. As stated in Rayden on Divorce, 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 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 is a continuing offence. If a spouse abandons 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. 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.

 

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 there was an unreasonable refusal on the part of the husband to take her back. 

Sickert v. Sickert (1899) P 278, 282): ‘The party who intends bringing the cohabitation to an end, and whose conduct in reality causes its termination, commits the act of desertion’. 

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. 

According to the letters sent by plaintiff, he was not prepared to receive her back to the matrimonial home. In most cases of desertion the guilty party 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.  

 

Judgement:

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 revertendi 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.