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PETITIONER: BIPIN CHANDER JAISINGHBHAI SHAH

       Vs.

RESPONDENT: PRABHAWATI.

DATE OF JUDGMENT: 19/10/1956

BENCH: SINHA, BHUVNESHWAR P. BENCH: SINHA, BHUVNESHWAR P. JAGANNADHADAS, B. AIYYAR, T.L. VENKATARAMA

CITATION:  1957 AIR  176            1956 SCR  838

ACT: Husband and Wife-Divorce-Desertion-Ingredients of Desertion- Intention-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

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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.

JUDGMENT:  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

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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

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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

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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

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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  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

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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

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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

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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 con- cerned:  (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.

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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  occu- pied 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

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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 ulti- 854 mate 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:-

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"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

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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

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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

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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

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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 abandon 863 ing 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

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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 fur- ther  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

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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

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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  April- May, 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".

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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  con- sidered  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

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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  mother- in-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 defen- dant’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  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.  But as  the trouble started on account of the  defendant’s  con- duct, though she is successful in this Court, we direct that each party must bear its own costs throughout. Appeal dismissed. 872