http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 50  

PETITIONER: LACHMAN UTAMCHAND KIRIPLANI

       Vs.

RESPONDENT: MEENA alias MOTA

DATE OF JUDGMENT: 14/08/1963

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA SINHA, BHUVNESHWAR P.(CJ) DAS, SUDHI RANJAN (CJ) SUBBARAO, K. DAYAL, RAGHUBAR

CITATION:  1964 AIR   40            1964 SCR  (4) 331  CITATOR INFO :  R          1972 SC 459  (5)

ACT: Husband and wife-judicial separation-Desertion without just- cause-offer  to return to matrimonial home must be shown  to be  bona  fide-Petition for  judicial  separation-Burden  of proof-Hindx Marriage Act, 1955 (25 of 1955), s. 10(1)(a).

HEADNOTE: Where an application is made under s. 10(1)(a) of the  Hindu Marriage Act, 1955, for a decree for judicial separation  on the  ground  of  desertion, the legal  burden  is  upon  the petitioning  spouse  to  establish  by  convincing  evidence beyond   any   reasonable   doubt   that   the    respondent intentionally  forsook  and  abandoned him  or  her  without reasonable cause.  The petitioner must also prove that there was desertion throughout the statutory period and there  was no  bona fide attempt on the respondent’s part to return  to the matrimonial home and that the petitioner did not by  his or her action by word or conduct provide a just cause to the other   spouse  to  desist  from,  making  any  attempt   at reconciliation   or  resuming  cohabitation;   -but   where, however,  on the facts it is clear that the conduct  of  the deserted  spouse has had no such effect on the mind  of  the deserting spouse there is no rule of law that desertion ter- minates by reason of the conduct of the deserted spouse. 332 An  offer to return to the matrimonial home after  sometime, though  desertion  had started, if genuine and  sincere  and represented  his or her true feelings and  intention,  would bring to an end the desertion because thereafter the  animus deserendi would be’ lacking, though the factum of separation might continue; but on the other hand, if the offer was  not sincere and there was in reality no intention to return, the mere  fact  that  letters were written  expressing  such  an intention would not interrupt the desertion from continuing. Bipin Chander laisinghbhai Shah v. Prabhawati, [1956] S.C.R, 838,  Dunn  v.  Dunn, [1948] 2 All E.R. 822  and  Brewer  v. Brewer [1961] 3 All E.R. 957, relied on.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 50  

The  parties were married in 1946 at Hyderabad in Sind  (now in  Pakistan)  and a child, a son, was born  in  1947.   The married  life  of  the couple was not as  harmonious  as  it should  have  been and it soon transpired that much  of  the trouble  arose out of the fact that while the appellant  and his  parents  appear  to  have  been  of  an  orthodox   and conservative outlook and bent of mind the respondent and her parents  apparently did not set much store by orthodoxy  and were  liberal and modern.  As a result of the  partition  in 1947  the parties had to leave Sind.  The appellant and  his parents stayed in a house in Bombay, while the  respondent’s parents  went to Poona.  The appellant’s complaint was  that the  respondent  was frequently going away to  her  parent’s house.   On  February  26, 1954, the  respondent  left’  the appellant’s  house  and  went to Poona.   The  evidence  was conflicting as to whether she obtained the permission of the appellant ’before going to Poona, but the facts showed  that after  that  date  the respondent did not  go  back  to  the appellant’s  house.  The appellant along with a friend,  Dr. Lulla,  went  to  Poona  with  a  view  to  bring  back  the respondent.   The  evidence  as to what  transpired  at  the interview with the respondent was somewhat conflicting,  and the  appellant’s case was that the respondent  intimated  to him her fixed determination not to go back to him.  On  July 7, 1954, the respondent along with her father went abroad to the Far Eastern countries, for the purpose of recouping  her health,   according  to  her.   Before  going   abroad   the respondent  had  to go Bombay for getting the  passport  and going  through  the  formalities; and while  there  she  was staying in a house very near the appellant’s but she did not visit  him  nor  see  their child.   On  learning  that  the respondent  had  gone abroad without intimation  to  him  he cabled  to her asking her to come back immediately  but  the respondent  did  not  do so as required  by  the  appellant. There  was  some correspondence’ about the  matter  and  the respondent  continued to say in her letters that  she  would soon  come back to his place.  By his letter dated April  1, 1955,  the  appellant used strong  language  passing  severe strictures  against her conduct &id in her continuing to  be abroad  without  obeying his instructions.   The  respondent replied by letter dated April 12, 1955, saying: "As soon  as my. 333 health has completely improved I shall, of course come  back to  you  and to our son." After this there  was  no  further correspondence  between the, parties.  In April,  1956,  the respondent  returned  to  India but she did not  go  to  the appellant’s  home nor did meet him.  On September 20,  1956, the  appellant  filed  the  present  petition  praying   for judicial separation under s. 10(1)(a) of the Hindu  Marriage Act, 1955.  The respondent’s defenses to the petition, inter alia,  were that she never left the appellant’s  matrimonial home  with  the intention of breaking it and  that,  in  any case,  the appellant charged her falsely with immorality  in his letter dated April 1, 1955, and so she was justified  in living separately. Held  (Subba Rao, J. Dissenting), (1) that on the facts  the respondent left the appellant’s matrimonial home On February 26,1954,  with the intention of permanently,  breaking  it up, and thatsuch desertion continued during the requisite period of two years. (2)  that  the appellant’s letter of April 1, 1955, did  not con stitute an interruption of the respondent’s desertion by its  being  a  just cause for her to remain  away  from  the matrimonial home; and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 50  

(3)  that,  in consequence, the appellant was entitled to  a decree  for  judicial separation under s.  10(1)(a)  of  the Hindu Marriage Act, 1955. Per  Subba  Rao,  I.-(1)  Where  a  spouse  seeks   judicial separation on the ground of desertion a heavy burden lies on him  or her to prove four essential conditions,  namely  (1) the factum of separation, (2) animus deserendi, (3)  absence of his or her consent, and (4) absence of his or her conduct giving reasonable cause to the deserting spouse to leave the matrimonial  home.  The offence of desertion must be  proved beyond  any reasonable doubt and as a rule of  prudence  the evidence of the petitioner shall be corroborated. (2)  The  expression  "includes the wilful neglect"  in  the explanation  to  s. 10(1) of the Hindu Marriage  Act,  1955, does  not enlarge the scope of the word desertion so  as  to take  in by definition the conscious neglect on the part  of that   offending   spouse  without  the   requisite   animus deserendi;  it  does not introduce a new concept  in  Indian law,  but   is   only  an affirmation  of  the  doctrine  of constructive  desertion in English law.  The ingredients  of desertion  as well as constructive desertion are  the  same, though  in one case there is actual abandonment and  in  the other there is expulsive conduct.  The said doctrine is  not rigid  but  elastic  and  without  doing  violence  to   the principles  governing it, it can be applied to the  peculiar situations that arise in an Indian society and home. (3)  Sections  9  and  10 of the  Act  deal  with  different subjects  and  s.  9  does  not  throw  any  light  on   the construction of the expression "without reasonable cause" in the  explanation to s. 10.  Whether there was  a  reasonable cause or not in a given case could 334 be   decided   only  on  the  evidence  and   the   peculiar -circumstances of that case. (4)  In  the present case, the evidence was clear  that  the respondent left her matrimonial home with the permission  of her husband and his parents and that it was not possible  to infer  from  the  evidence  given  by  Dr.  Lulla  that  the respondent  decided to abandon the appellant.   The  letters demonstrated  beyond any reasonable doubt that the wife  did not demonstrated beyond band with the requisite animus,  but on  the  other hand, showed her willingness to  go  over  to Bombay  as soon as she regained her health.  In view of  the false allegations made by the appellant in his letter  dated April  1,  1954,  in which he charged  the  respondent  with unchastity  and leading a fast and reckless life, from  that date  the desertion, if any, on the part of  the  respondent came  to an end and from that date the appellant was  guilty of desertion.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 292 of 1961. Appeal from the judgment and decree dated July 16, 1959,  of the Bombay High Court in Appeal from the Original Decree No. 802 of 1957. j.   C. Bhatt and N. N. Keswam, for the appellant. C.   B.  Agarwala, C. M. Mehta and V. j. Merchant,  for  the respondent. August 14, 1963. The Judgment of B. P. Sinha, C.J., S. K.Das, Raghubar Dayal and N. Rajagopala Ayyangar,jj. was  delivered by  Ayyangar,  J.  Subba  Rao,  J.  delivered  a  dissenting opinion. AYYANGAR  J.-This is an appeal against the judgment  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 50  

High  Court of Bombay reversing the judgment and  decree  of the  City  Civil  Court  at Bombay by  which  a  decree  for judicial separation granted by’ the trial judge was reversed and  it comes before us on a certificate of fitness  granted by the High Court under Art. 133(1) (c) of the Constitution. The  appellant,  the husband, filed a petition in  the  City Civil  Court,  Bombay,  under  s. 10(1)  (a)  of  the  Hindu Marriage Act, 1955 (which we shall hereafter refer to as the Act), praying for a decree against the respondent, his wife, for judicial separation on the ground that in terms of  that provision she had "deserted" him for "a continuous period of not   less   than  two  years  immediately   preceding   the presentation  of his petition".  The petition was  presented on September 20, 1956, and the material allega 335 tion  was  that the wife had left the  matrimonial  home  on February  26, 1954, and had not thereafter come back to  him and that this constituted "desertion" within the meaning  of the provision just cited.  The learned trial Judge held that the  appellant  had established to the satisfaction  of  the Court that the respondent-wife had left the matrimonial home with  the intention of permanently breaking it up  and  that such desertion continued during the requisite period of  two years  and  in consequence granted the decree  for  judicial separation, as prayed for.  The wife preferred an appeal, to the  High Court and the learned judges disagreeing with  the finding of the learned trial judge that the leaving, by  the wife,  of  the matrimonial home was with  the  intention  of deserting  the appellant, reversed the decree of  the  trial judge and directed the dismissal of the appellant’s petition with costs.  It is the correctness of this reversal that  is canvassed in the appeal before us. Even  at the outset we might state that the decision of  the appeal  does not depend so much on any substantial  question of  law  but rather on an appreciation of the facts  on  two matters on the basis of which the learned Judges of the High Court  have  decided  the case against  the  appellant:  (1) whether  the appellant had established that  the  respondent had an irrevocable determination to break up the matrimonial home when she admittedly left the petitioner on February 26, 1954, and did not return to him thereafter, it being  common ground  that  the  onus of proving this  to  the  reasonable satisfaction  of  the Court was on the  appellant,  and  (2) whether  the  respondent  had a justifiable  cause  for  not returning  to the husband the existence of  which  prevented her   admitted  absence  from  the  matrimonial  home   from constituting  "desertion" as to serve as the foundation  for an  order for judicial separation under s. 10(1) (a) of  the Act. Before,  however, dealing with these two points  which  from the  crux  of  the matter in dispute in the  appeal,  it  is necessary to summarise, briefly, the history of the  married life of the parties.  The parties are Sindhi Hindus of  the: Bhai  Bund community.  The appellant is a practicing  doctor while the respondent is said to have had read up to the High school classes.  While the appellant’s father and his family were people of but moderate 336 means, the respondent’s father was a very affluent business- ,Man-his   business   spreading  over  almost   the   entire South  .East  Asia.  He had business  houses  in  Singapore, Dakarta,  ,Hong  Kong,  Manila  etc.   Besides,  while   the appellant and his parents appear to have been of an orthodox and  conservative outlook and bent of mind,  the  respondent and  her  parent’s  apparently did not  set  much  store  by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 50  

orthodoxy,  and were liberal and modern.  It looks to us  as if  it is possible that the trouble between the spouses  was in part at least due to these variations. The  parties  were  married at Hyderabad  in  Sind  (now  in Pakistan)  on November 11, 1946.  The appellant  was  living with his father and mother and his two sisters and after her marriage  the respondent commenced to live with him in  this household.   The parties are not agreed as to whether  their marital life was happy even to start with, for while it  was the case of the husband that the same was unhappy even  from the  very beginning, the respondent’s version was  that  for the first month or so her relationship with her husband  was happy,  but  nothing much turns on this  because  from  soon thereafter both of them agree in saying -that they were  not pulling  on  well together.  It is not necessary  either  to tract  the  source of the friction between  the  spouses  or narrate  the  incidents  which  are  related  in  connection therewith  as they are hardly relevant for the  decision  of the  real  points  arising in the appeal.   The  only  other circumstance to be noted in connection with the early period of  their  married life was that on July 19,  1947,  a  son, Ashok, was born to the respondent who, it may be  mentioned, is now living with the appellant. It  is common experience that in some cases, the birth of  a child puts an end to minor misunderstandings and  bickerings between   the  spouses,  for  the  parties  concentrate   on lavishing in common their love on the child and thus the two are  brought together but in the case on band, it  does  not seem  to have had this effect and the relation  between  the parties  does not appear to have been smoothened by  Ashok’s birth.  With the partition of the sub-continent the  parties migrated to India. The appellant, his parents and his two sisters who were  all living  with  him  moved  over  to  Bombay  along  with  the respondent and their young child but apparent- 337 ly. the accommodation which they could ’then secure was  pot sufficient  for  this  large family, and  as  a  result  the appellant took the respondent, his child and his two sisters to Colombo and left them in the care of his maternal  uncle, one  Narian  Das,  to  stay  there  till  he  could  find  a sufficiently  commodius  home  in  Bombay.   The  respondent stayed  for  a  very short time at Colombo  and  though  she admitted that she was treated with kindness and affection by this uncle, apparently all was not well in the  relationship between  the appellant’s sisters and the  respondent.   What emerged  out  of  this was that  she  left  Colombo  without informing  either Narian Das or the appellant and came  over to  India.   She  came to Poona  and  Lonavala  and  started staying with her mother who was there.  There is a complaint by  the  appellant  against her leaving  his  uncle  without informing him and on the other hand there is a complaint  by the  respondent  about the way in which  her  sisters-in-law behaved  towards tier ,but we pass over these incidents  and the respective cases ,as, not having any material bearing on the  points  at issue in the appeal.  The  appellant  having come  to  know  of her ,arrival at Lonavala,  it  is  common ground  that he went there and induced her to come over  and stay with him at ,Bombay.  This was sometime towards the end of January, 1948. The  period from January, 1948, to 1954 might be dealt  with together.   During this period she was staying most  of  the time with the appellant at Bombay but his complaint is  that she used to leave him very often and that pressure had to be exerted or inducements offered to get her back to Bombay  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 50  

stay  with  him.   This  is,  -of  course,  denied  by   the respondent  whose story is that every time it was  with  his consent  that  she went and that she came back  of  her  own accord.   It is not, however, necessary to decide  which  of these  versions is correct, though the learned  trial  judge who had an opportunity of seeing these two as witnesses  was inclined to accept the version of the husband in respect  of any matter on which he, was contradicted by his wife.  It is only necessary to add that though during these 4 or 5  years or so, the parties were living together most of the time the relations between them had not become normalised.  Be- 338 sides,  it might be mentioned that the relationship  between the parents of the two spouses were also strained and  simi- larly the relationship between the appellant and his  wife’s parents  as  also between the respondent  and  her  husbands parents. We next come to a crucial event.  On February 26, 1954,  the respondent left the appellant’s house at Bombay (Colaba) and went  to Poona.  She was taken from the house by her  father who had come there in the evening and she traveled with  him to poona by train.  It is the case of the appellant that the respondent  left  his  home  with  the  main  items  of  her jewellery  and clothes without the knowledge and consent  of himself and his parents and at a time when there was no  one in the house except a maid-servant and that he came to  know of  the respondent’s departure only from  the  maid-servant, when he later returned to the house.  On the other hand,  it is the case of the respondent that she left the house  after permission had been obtained by her father from her  father- in-law and after she herself had obtained the permission  of her  husband and that at the time of the departure when  her father  came to take her, her  father-in-law,  mother-in-law and the appellant were all present in the house and that the jewels etc., were given to her by her mother-in-law who bade her  good-bye and wished her a happy journey.   The  learned trial   judge  accepted  the  appellant’s  story  that   the respondent  did not seek or obtain anyone’s  permission  for quitting  the house and that she left the house without  the knowledge  or  consent ’of anyone.  The materiality  of  the acceptance  of the appellant’s version stems from  the  fact that in order to ’constitute desertion the withdrawal of the deserting spouse from the matrimonial home should be without reasonable  cause  and "without the consent or  against  the wish  of  such party" [vide Explanation to s. 10(1)  of  the Act].   On  the other hand, the learned Judges of  the  High Court  were inclined to accept the wife’s version  that  she had  the  consent  of her husband to leave  the  home.   For reasons  we  shall  set out in its proper place  we  are  in agreement with the learned trial Judge and do not share  the views of the learned judges who accepted the wife’s  version of  this  event.   We shall, however,  revert  to  it  after comple- 339 ting the narrative of the events leading up to the filing of the petition. It  is the case of the appellant that he came to know a  few days  after  her leaving him that his wife  was  staying  at Poona  with  her  parents.  According  to  his  evidence  he considered  that, having regard to the manner in  which  his wife left him, no useful purpose would be served by any trip of  his to Poona to persuade her to come back.  It  was  his further case that a friend of his-one Dr. Lulla, an M.R.C.P. of  London who was employed as a doctor in a hospital  in  a suburb of Bombay-suggested that the two of them go to  Poona

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 50  

and  try  to induce the respondent to come back  to  Bombay. This  proposal,  he says, he accepted and the  appellant  as well as Dr. Lulla who has been. examined as a witness on his side  have  testified to the fact that in the last  week  of May,  1954, both of them went to Poona one evening, met  the respondent at her parents’ house and appealed to her to come back to Bombay to live with the appellant.  According to the evidence  of both these witnesses, the respondent, when  re- quested  to  come back to Bombay, stated that  she  was  de- termined  never again to come back to her  husband’s  house. The  respondent  denied  the entire story  and  stated  that neither  the  appellant  nor Dr. Lulla ever  came  to  Poona during  her  stay there, nor of course ever talked  to  her. The  learned trial Judge who had the opportunity  of  seeing Dr. Lulla in the box entertained a very favorable opinion of his respectability and credibility and accepted in toto  his evidence  that  the respondent intimated to  him  her  fixed determination  not  to come back to the appellant.   In  the background  of  the  previous history  of  the  relationship between  the parties and the manner in which the  respondent left,  the husband’s home on February 26, 1954, as found  by the  trial Judge, he recorded a finding that the  factum  of desertion  which  was  not in  dispute  was  accompanied  by "’animus   deserendi’   which   had   been    satisfactorily established by the declaration she made to the appellant and his  friend.  The learned Judges of the High Court were  not disposed  to differ from the learned trial judge as  regards the  reality of the visit to Poona of Dr. Lulla  accompanied by  the  appellant and their meeting the  respondent  there. They were, however, not in- 340 clined  to  attach  any value to Dr.  Lulla’s  testimony  as regards the statement made by the respondent because of  two factors: (1) the time lag between May, 1954, when he met her and  April, 1957, when he gave evidence; the learned  judges were  inclined to hold that the witness could  not  properly remember  correctly the dialogue after that interval  ;  (2) the  fact  that Dr. Lulla could not reproduce  verbatim  the questions put to the respondent and the answers she gave was considered  by them as a circumstance  which  would  detract from  the  acceptability  of,  the  evidence  regarding  the matters  about  which  he deposed.  For  these  reasons  the learned  Judges  found  that though  Dr.  Lulla  might  have visited  the respondent in May, 1954, as spoken to  by  him, there  was  no  proper  proof  before  the  Court  that  the respondent  had given expression to a determination  not  to return  to  the  husband.  We shall  deal  later  with  this appreciation  of Dr. Lulla’s evidence and the weight  to  be attached  to  it,  but,  to  continue  the  narrative,   the respondent  left  India for Singapore on July 7,  1954,  and returned  from  abroad in April, 1956.  During  this  period there  has been some correspondence between the  parties  by way   of  telegrams  and  letter  which  have   considerable relevance on the issues involved in the case and the  points in controversy between the parties. Before,  however, referring to the events of that  period  a few more incidents which happened prior to the departure  of the  respondent  from  India have to be  noticed  After  Dr. Lulla’s meeting the respondent at the end of May, 1954,  the next event of some importance is that the respondent and her father came to Bombay during June, 1954, for the purpose  of the  respondent obtaining a passport to enable her to  leave India.   At  that  time,  it  is  common  ground,  that  the respondent stayed with her paternal uncle-one Tola Ram-whose house  was in Colaba and about five minutes’ walk  from  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 50  

appellant’s residence.  It is the case of the appellant that when  the respondent and her father came over to  Bombay  in June they stayed there for about a month.  This however,  is denied  by  the respondent and her father who say  that  the duration  of  their stay at Bombay at Tola Ram’s  house  was only for a little over a fortnight.  It 341 matters  little  which version is correct but one  thing  is clear  that notwithstanding the admitted stay in Bombay  for two  weeks  or more she never went to  her  husband’s  house either to see him or even to see her son, Ashok, then a  boy of about 7 years.  The learned Judges of the High Court have not  adverted  to this circumstance which  we  consider  has material  bearing in deciding between the rival versions  as to whether the respondent did or did not leave the husband’s home  with his permission and consent and the  blessings  of the  parents-in-law.   It is also to be noticed,  and  about this  there is no dispute, that in the application  for  the passport  and  in  the  passport  itself  it  was  not   the appellant’s  name  or address that was given as  her  Indian residential  address  but that of Tola Ram  in  Colaba.   As stated earlier, the respondent left Bombay by air for abroad on . July 7, 1954.  Before taking off she was in Bombay  for nearly 24 hours before the plane’s departure.  It is not  in dispute that even then, she did not visit her husband or her child though she was staying at Tola Ram’s. From  Bombay the respondent reached Singapore by air and  it is  admitted that she sent no intimation or  information  to the  appellant either regarding her departure, the place  to which  she  had gone or the proposed duration of  her  stay. The  appellant having come to know through other sources  of the  respondent  having  gone  to  Singapore,  sent  her   a cablegram on the 20th July reading :               "Extremely surprised at your suddenly secretly               leaving   India  without  my   knowledge   and               consent.  Return immediately first plane".. to which the respondent replied also by a cablegram "Returning within a few months". These  telegrams would, at least, make one thing clear  that the  appellant’s  case  that  he had  no  knowledge  of  the respondent  leaving  India was not an after-thought  and  is probably  true.  On receipt of this telegram dated the  23rd July the appellant replied the next day "You must return immediately". of  course, the respondent did not return but her  case  was that she replied by a letter dated August 2, 1954.  There is a controversy between the parties as to whether 342 this  letter was really written at all, or if  written,  was posted  and to the proper address.  It is,  however,  common ground, and found by both the Courts, that the appellant did not receive any letter from the respondent bearing that date or  written  at about that time or with the  contents  which according  to  her were the contents of  that  letter.   The learned  trial  judge  was inclined to  the  view  that  the respondent  did write a letter on that date but he  was  not satisfied  that the copy which she produced which  has  been marked  as Ex. 4 in the case represented either a true  copy of  it  or  carried  the  contents  of  that  letter.    He, therefore, discarded Ex. 4 from consideration.  The  learned judges  of the High Court on the other hand, took  the  view that a letter was written by the respondent on that date and they were prepared to accept her story that the original  of that letter which was stated to be in manuscript-written  in her  own  hand,. was copied from the  typescript  which  she

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 50  

produced  and  which was marked as Ex.  4.  The  evidentiary value of that letter was stated to consist in its disclosure of  the  state  of mind of the respondent  and  the  learned judges  held that its contents indicated the  readiness  and willingness  on  the  part of the  respondent  to  join  her husband  and therefore negatived any animus to desert or  to continue  the  desertion, if there was  any  such  intention originally on her part.  We shall reserve the discussion  of the  evidentiary value of this letter to a later  stage  but shall here merely set out the material parts of it:               "I  really feel surprised why you want  me  to               return  to Bombay by first plane  without  any               reason.               Dear, I was particularly pained to read that I               have  suddenly  and secretly  left  the  place               without  your consent.  What has prompted  you               to  write  this I really  do  not  understand.               Dear,  how comes this change.  You know I  was               not keeping good health and considerably  gone               down in spirit and weight for reasons which  I               do  not  like to discuss here  since  You  are               fully aware.  It was you who suggested that  I               should  go over and stay at my father’s  place               and  at  your suggestion I did  so.   You  are               fully aware that I was accompanying my  father               to Singapore for a few months for a change and               you gave consent.  As soon 343 as I feel better I shall return to Bombay." The  appellant  not having received this letter (if  it  was written)  and  not having received any reply  to  his  cable dated  July  24, 1954, asking the respondent to  return  im- mediately  to India, was, according to him,  hearing  stones that she was moving from place to place.  He thereupon’ sent her  a cablegram on February 24, 1955, and addressed  it  to both  her  Singapore and Djakarta addresses as  he  was  not quite sure as to where exactly she was.  That telegram  read :               "Since your secret departure you not  replying               my  telegrams, letters.  Myself shocked.   You               wandering different countries leading reckless               life   spoiling  my  reputation.   Your   most               disgraceful behaviour ruining my life."               At  the  time  the  cable  was  received   the               respondent  was still at Singapore and on  the               26th she replied by cable :               "Your allegations in your cable dated 24th not               correct.  Cannot understand your attitude.   I               have  departed  with your  knowledge  with  my               father because of ailing health due to reasons               you  are well aware.  Keeping quiet life  with               my  parents.  Have not received your letter  ;               only  telegrams  which have  been  replied  by               cable and letter."               and  to  this the appellant  replied  also  by               cable:               "Your  telegram dated 26th  February  contains               all   foul  lies.   Myself  shocked  at   your               fabricating  false  stories  to  justify  your               secretly   quitting  home  and   flouting   my               repeated instructions." But  even  before the receipt of this last  cable  from  the appellant  the  respondent wrote to him a letter  from  Sin- gapore dated March 3 in which, after setting out the text of the cablegrams exchanged, she made a positive assertion that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 50  

she  wrote a, letter to him on August 2, 1954.  The rest  of the  letter was concerned with inviting him to  come  abroad and stay with her and her father at Hong Kong to which place she said she was leaving the next day and    she    promised him real pleasure if he stopped working for his parents  and commenced having pleasure with the respondent     in     her father’s house.  After the dispatch of  this  letter on  the 3rd of March the respondent received    the appellants cable in which he reiterated his 344 allegation that she had left his house secretly and  without his knowledge and was thereafter flouting his instructions., On  March  10,  1955, she sent him a cable  from  Hong  Kong refuting  this allegation and adverting to  the  invitation’ contained in her letter dated March 3, 1955, she, said.               "Why  don’t you come out of Bombay  house-hold               atmosphere  and  see  for  yourself.    Cannot               understand, what you mean by flouting repeated               instructions." The  letter of the 3rd was dispatched by the  respondent  by registered  post and when this was received as well  as  the cables  from the respondent, the appellant wrote in reply  a letter sent by registered post dated April 1, 1955, in which he  passed severe strictures against her conduct and in  her continuing abroad without obeying his instructions.  We shall have to deal in somewhat great detail   with the contents of this letter.  Ordinarily read it might  seem  to  indicate  that  the  appellant  was charging the respondent with improper behaviour even amount- ing  to  sexual immorality.  While in the  witness  box  the appellant specifically repudiated that he intended any  Such imputation  and, in fact, made it clear that he was  neither basing his petition on any allegation of immorality nor that he  ever  intended to impute any such conduct to  her.   The learned  trial  judge  accepted  this  explanation  of   the appellant  and interpreted the letter as the outpourings  of an  angry  and grieved husband and was not,  therefore,  in- clined  to  read the expressions used  therein  as  imputing unchastity to her.  On the other hand, the learned judges of the  High  Court  analysed  the  text  of  the  letter   and considered   that  it  clearly  made  false  and   unfounded imputations  of  unchastity on the respondent and  for  that reason they held that even if the respondent be held to have had an animus deserendi when she quitted her husband’s  home on  February 26, 1954, and continued to retain that  animus, still  having regard to the false and malicious  amputations of  unchastity  made by the appellant in  his  letter  dated April 1, 1955, they held that she had justifiable cause  for not  returning to him thereafter and this formed one of  the prime grounds for directing the dismissal of the appellant’s petition  for judicial separations We shall have to  discuss these  conflicting views and the different  -interpretations of this letter, in the light of the 345 evidence  adduced  in  the case when dealing  with  it.   We shall, however, pass this over for the present and  continue the narrative. The  respondent received this letter while she was still  at Hong  Kong.   But the next day she left for Manila  and  she replied  from the latter place on April 12, 1955.  The  main points  made in this reply were : (1) She left the house  of the  appellant with the consent of himself and his  parents, (2)  The  reason  for her leaving Bombay to  stay  with  her parents  was  that her health was poor and  -she  wanted  to recoup  it by a trip abroad.  The stay abroad was  therefore

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 50  

only for the improvement of her health., (3) The reason  for her  vacationing with her parents being for the  improvement of her health and for no other-not for leading the gay  life which was suggested in the appellant’s letter dated April 1, 1955.  She added : "As  soon as my health has completely improved I  shall,  of course, come back to you and to our son." This, was the  end of  the  correspondence between the parties.  It  is  common ground that she did not inform the appellant as to when  she would  be returning to India which was in April, 1956.   Nor did  she  inform  the appellant after  her  arrival  in  the country,  nor did she go to his home-Bombay-to meet  him  or her  son.  just  about  the  time  some  relations  of   the respondent  were vacationing for the summer in  Kashmir  and she  accompanied  them  there and spent the  summer  in  the valley.  No communications passed between the appellant  and the respondent during this period either.  It was after this that  the  petitioner filed the petition out of  which  this appeal arises, on September 20, 1956.  After the  respondent was served with notice of the petition some attempt was made to effect a reconciliation but it is not necessary to notice this because if there had been desertion, as required by law and  the duration of that desertion amounted to  two  years, the terms of s. 10(1) of the Act are satisfied and the  fact that thereafter the guilty spouse repents or recants is  not by  itself  a ground for refusing the relief  to  which  the injured spouse is entitled (Compare s. 23(1) of the Act). From  the  above narration it will be seen  that  there  are three points of contested fact on which the decision 2 3 -2 S. C. India/61 346 of this appeal would turn : (1) whether the respondent  left the appellant’s home on February 26, 1954, with his  consent or  whether she did so without such consent., (2)  What  was the  intention  or animus of the respondent-in  leaving  her matrimonial  home, and in regard to this the interview  with Dr.  Lulla and the other matters to which we  have  referred earlier  and  which transpired before  the  respondent  left India on July 7, 1954, would have relevance., (3) The proper interpretation  of the letter of April 1, 1955, writ-ten  by the   appellant  to  the  respondent  and  whether  in   the circumstances   of   the   case  it   would   afford   legal justification  for  the respondent’s refusal  thereafter  to return  to the matrimonial home, and to these  questions  we shall immediately address ourselves. Before  doing so, however, it might be convenient  to  refer briefly  to  the law on the topic.  The  relevant  statutory provision  may first be set out.  Reading only  the  portion that is material s. 10(1) enacts               "10.  (1) Either party to a  marriage  whether               solemnized before or after the commencement of               this  Act,  may  present  a  petition  to  the               district  court  praying  for  a  decree   for               judicial  separation  on the ground  that  the               other party-               (a)   has   deserted  the  petitioner  for   a               continuous  period of not less than two  years               immediately preceding the presentation of  the               petition ; or" This sub-section is followed by an Explanation which runs :               "Explanation.-In this section, the  expression               ’desertion’,  with its grammatical  variations               and  cognate expressions, means the  desertion               of  the petitioner by the other party  to  the               marriage without reasonable cause and  without

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 50  

             the consent or against the wish of such party,               and  includes  the  willful  neglect  of   the               petitioner   by   the  other  party   to   the               marriage." The  question as to what precisely  constitutes  "desertion" came  up  for consideration before this Court in  an  appeal from Bombay where the.  Court had to consider the provisions of  s.  3(1) of the Bombay Hindu Divorce  Act,  1947,  whose language is in pari material with that of s. 347 10(1)  of the Act.  In the judgment of this Court  in  Bipin Chander v. Prabhawati(1) there is an elaborate consideration of  the several English decisions in which the  question  of the  ingredients  of  desertion  were  considered  and   the following  summary of the law in Halsbury’s Laws of  England (3rd Edn.), Vol. 12, was cited with approval :               "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  ob-               ligations  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.               The  position  was thus further  explained  by               this Court:               "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,  (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........               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  descrendi.  The offence  of  desertion               commences when the fact of separation and (1)  [1956] S.C.R. 838. 348               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."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 50  

Two  more  matters  which have a bearing on  the  points  in dispute  in this appeal might also be mentioned.  The  first relates to the burden of proof in these cases, and this is a point to which we have already made a passing reference.  It is  settled  law that the burden  of  proving  desertion-the "factum"  as  well  as  the  "animus  deserenai  is  on  the petitioner, and he or she has to establish beyond reasonable doubt,  to  the  satisfaction of  the  Court  the  desertion throughout  the  entire  period  of  two  years  before  the petition  as  well as that such desertion was  without  just cause.   In other words, even if the wife, where she is  the deserting spouse, does not prove just cause for her    living apart, the petitioner-husband has still to satisfy the Court that the desertion was without just cause.               As Denning, L.J., observed : (Dunn v. Dunn)(1)               :  "The  burden he (Counsel for  the  husband)               said     was on her to prove just  cause  (for               living   apart).   The  argument  contains   a               fallacy  which  has been put     forward  from               time to time in many branches of the law.  The               fallacy lies in a failure to’ distinguish bet-               ween a legal burden of proof laid down by  law               and  a provisional burden raised by the  state               of  the evidence............ The legal  burden               throughout  this  case is on the  husband,  as               petitioner,  to prove that his  wife  deserted               him without cause.  To discharge that  burden,               he  relies  on the fact that he asked  her  to               join him and she refused.  That is a fact from               which  the court may infer that  she  deserted               him  without cause, but it is not bound to  do               so.  Once he proves that fact of refusal,  she               may  seek to rebut the inference of  desertion               by  proving  that she had just cause  for  her               refusal  ; and indeed, it is usually wise  for               her to do so, but there is no legal burden  on               her   to  do  so.   Even  if  she   does   not               affirmatively prove just cause, the court  has               still, at the end of the case, to ask  itself:               Is the legal burden discharged?  Has (1)  [1948] 2 All.  E.R. 822, 823. 349               the  husband  proved  that  she  deserted  him               without cause?  Take this case.  The wife  was               very  deaf,  and  for that  reason  could  not               explain to the court her reasons for  refusal.               The judge thereupon considered reasons for her               refusal  which  appeared  from  the  facts  in               evidence,  though she had not  herself  stated               that  they operated on her mind.  Counsel  for               the  husband says that the judge ought not  to               have done that.  If there were a legal  burden               on  the wife he would be right, but there  was               none.  The legal burden was on the husband  to               prove  desertion without cause, and the  judge               was  right  to ask himself at the end  of  the               case: Has that burden been discharged?"               This,  in our opinion, is as well the  law  in               this country under the Act. The  other  matter  is this.   Once  desertion,  as  defined earlier, is established there is no obligation on the deser- ted  husband  (taking  the case where  he  is  the  deserted spouse)  to  appeal to the deserting spouse  to  change  her mind,  and the circumstance that the deserted husband  makes no effort to take steps to effect a reconciliation with  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 50  

wife  does  not  debar  him from  obtaining  the  relief  of judicial  separation,  for  once  desertion  is  proved  the deserting  spouse, so long as she evinces no sincere  inten- tion  to effect a reconciliation and return to the  matrimo- nial home, is presumed to continue in desertion. of  course, the  matter would wear a different complexion and  different considerations  would  arise  where before the  end  of  the statutory  period of 2 years or even thereafter  before  the filing  of the petition for judicial separation the  conduct of  the  deserted spouse was such as to make  the  deserting spouse desist from making any attempt at reconciliation.  If he  or  she  so acts as to make it plain  to  the  deserting spouse  that any offer on the part of the latter  to  resume cohabitation  would be rejected, then the  deserting  spouse could obviously not be blamed for not bringing the desertion to an end.  Or again, if before the end of the period of two years  or the filing of the petition his or her  conduct  is such as to provide a just cause for the deserting spouse for not resuming cohabitation, the petition cannot succeed,  for the  petitioner would have to establish that  the  desertion was without just cause du- 350 ring  the  entire period referred to in s. 10(1)(a)  of  the Act: before he can succeed. There  were a few submissions made to us by learned  counsel for the appellant regarding the nature of the "just  cause", particularly  whether  this should amount  to  "cruelty"  or other  matrimonial offence etc., based on a construction  of certain  other provisions of the Act, but as these  have  no substance  and  were  not  persisted  in,  we  consider   it unnecessary even to refer to them. We  shall now proceed to consider the facts in the light  of these  principles  with  a  view to  find  out  whether  the appellant  has proved that the respondent had  deserted  him without just cause for the requisite period.  We start  with the  admitted  circumstance  that the  respondent  left  the husband’s  home on February 26, 1954.  It was not  suggested that  the husband threw her out or that she left because  of any  expulsive conduct on his part.  There is  therefore  no suggestion or case that she left for any justifiable  cause. The  next  question  that would fall  for  determination  is whether  she  left  with his consent.   As  we  have  stated earlier, on this point the learned judges of the High  Court have  recorded  a finding different from that of  the  trial Judge.   The  case of the respondent was that  she  had  the consent  of her parents-in-law and also of the husband,  and she even went to the length of suggesting that it was he who suggested that she might go abroad with her father in  order to improve her health.  Now as to the obtaining the  consent of  the respondent’s parents-in-law, the evidence was  this. The respondents father who was her second witness deposed as follows: There had always been disinclination on the part of the  appellant and his parents in permitting the  respondent to go over to her parents’ place on most earlier  occasions. When  permission was thus sought for such a  purpose,  there had  always been friction and trouble.  In  connection  with his  taking his daughter with him when he intended to  leave India in July, 1954 he sought their permission on more  than two  occasions  but the same was  refused.   Subsequently  a friend  and  a  neighbour of  his  at  Poona--one  Maganmal- promised  to  intercede  with the  appellants  father.   The latter   spoke  to  the  appellant’s  father  and   obtained permission and informed the witness. 351 The  entire story of Maganmal having spoken  to  appellant’s

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 50  

father  and obtained the latter’s permission was  denied  by the  appellant as false and the learned trial Judge was  not inclined  to believe the story as true.  Maganmal  who  gave evidence  as D.W. 3 admitted that he could not claim  to  be any close friend of the petitioner’s father and, in fact, he admitted  to  what might ordinarily constitute  a  state  of unfriendliness between them.  Kanayalal who had married  the appellant’s  sister was the adopted son of one Nanikram  who was stated to have died leaving a will by which he  disposed of  his  properties  in favour of a  trust.   The  trustees, including  Maganmal who was one of the trustees, upheld  the validity  of  the will and claimed the  properties  for  the trust,  but Kanayalal challenged the truth and  validity  of the  will and claimed the property as the heir of  Nanikram. It  was stated by Maganmal that himself and the  appellant’s father became acquainted with each other when they  happened to  meet in connection with this trust estate and  when  the appellant’s  father came to him to sponsor the interests  of his  son-in-law.  This apart, the talk between  himself  and the  appellant’s father as a result of which the  permission is said to have been granted was thus stated by Maganmal  in his evidence:               "I  (Maganmal)  talked  to  the   petitioner’s               father  in  Bombay  in  collection  with   the               securing  of permission for the respondent  at               the  most  for five  months.   I  straightaway               talked  to the petitioner’s father  about  the               securing of the permission for the respondent.               There  was  no other topic  discussed  between               myself and the petitioner’s father.  The  talk               between  myself  and the  petitioner’s  father               took place in the compound of Ishardas  Temple               when I and the petitioner’s father came out of               the  temple.  I took the  petitioner’s  father               aside when I had a talk with the  petitioner’s               father." This  would not be a very credible story, because if to  the requests  of the respondent’s father on two or  three  occa- sions the appellant’s father had refused permission it  does not  stand to reason that to a person situated  as  Maganmal was in relation to him he would have yielded merely  because it  was mentioned by Maganmal.  The learned trial Judge  who had  an  opportunity of seeing Maganmal in the box  was  not impressed with his evidence and for the reasons 352 we  have set out earlier regarding the relationship  between the  appellant’s  father and Maganmal  learned  trial  judge considered  that  the  story of Maganmal  being  deputed  to obtain  permission  and his having obtained  permission  was false.   We  are inclined to agree with  the  learned  trial judge  in  this  appreciation of  the  oral  testimony.   If Maganmal’s   evidence   is   rejected   then   the    entire superstructure of the respondent’s case about the consent of the  appellant’s parents must fall to the ground.   In  this connection there arc a few other matters to mention.  It was common  ground that the appellant’s father was, at the  time of the trial, away at Tokyo on business and he was not in  a position to be examined as a witness.  The learned judges of the  High Court, however, drew an inference adverse  to  the appellant from (1) his not calling his mother as a  witness, and (2) the non-examination of maidservant who was stated to have been in the house at the time when the respondent  left it  on February 26, 1954.  We do not agree with the  learned judges  of  the High Court in the inference  so  drawn.   If Maganmal’s evidence is -rejected, as it must, the father  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 50  

the  respondent  who  supported  the  story  of   Maganmal’s intervention  would not come out with flying colours and  if his evidence as to this part is rejected we consider that it was  not incumbent on the appellant to adduce  the  negative evidence  of  his  mother etc., at the risk  of  an  adverse inference  being drawn against him in the event oil his  not doing so. Besides,  there -.ire some circumstances which lead  to  the inference  that the story spoken to by the respondent  about her  parents-in-law  being  per  sent at  the  time  of  her departure and their loading her with gifts of jewellery  and clothes is not credible.  If really the respondent had  left the  house with the consent and goodwill of the  appellant’s parents  or if as she would have it in some of her  letters, it was the appellant himself who suggested her going  abroad with  her  father to recoup her health. there  could  be  no explanation for the conduct of the respondent in ,not  going over to the house of the appellant during her stay in Bombay in June, 1954, for a fortnight or more when she was there in connection with her passport, and when she stayed admittedly within a few minutes’ walk of the appellant’s place.   There would also be no explanation for 353 her  failure to inform the appellant and his  parents  about her  departure  from  Bombay on July 7, 1954.   It  is  only necessary  to  add that even in the first  cable  which  the appellant  sent her on coming to know of her departure  from India  the  appellant  complained that she  had  left  India secretly  without his knowledge and consent to  which  there was no contradiction in the reply by cable that she sent  on July  22, 1954, though in her later cablegrams  and  letters she asserted that she had such a consent.  There are several other matters which have been mentioned by the learned trial judge,  such  as the discrepancies in the  several  versions that  the respondent spoke to from time to time and  between these  and  the  evidence given by her father  and  that  of Maganmal coupled with her case as set out in the  -pleadings as  circumstances for discarding the entire story as  false, but to these it is not necessary for us to advert in view of the broad features we have pointed out which have led us  to the  conclusion that the respondent did not leave the  house of the appellant with his consent but that she did so of her own accord and without his knowledge. The  next  matter  for enquiry is as  to  the  animus  which prompted  the  respondent to leave  the  appellant’s  house. There was admittedly no incident which led to the  departure from  the matrimonial home which could throw light  on  that question nor is there any contemporaneous declaration of the respondent.  The learned trial judge has set out the history of the relationship of the parties ever since their marriage up  to  1954 as the background in which the  simple  act  of leaving should be viewed for the purpose of determining  the animus with which that act was done.  The learned Judges  of the  High  Court  considered  that this  was  not  a  proper approach   to  the  question.   Without  deciding   on   the correctness  of the approach of the learned trial judge,  we shall  proceed  on the basis that the  learned  judges  were right in discarding the earlier history of the  relationship between  the parties as irrelevant for  determining  whether the respondent in removing herself from her husband’s  house did  or  did not intend her withdrawal to be  permanent  and with  a view to disrupt their marriage and  terminate  their married  life.  We shall consequently confine  ourselves  to the events and matters which trans- 354

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 50  

pired after she left the appellant’s home to determine  what her intention was at the time when she left it. The first matter to which reference must be made is the fact that  after reaching Poona on February 26, 1954,  until  the end  of May of that year she never wrote any letter  to  her husband.   If,  as  we  have found  earlier,  she  left  the appellant’s house without his Consent or even knowledge, the failure  on her part to intimate to him as to where she  had gone  would certainly be a relevant circumstance  indicative of  the animus which impelled her to leave the  home.   This is,  no doubt, a slight circumstance, but she has really  no explanation  to  offer for her silence and  particularly  so when taken in conjunction with the case that she put forward that she left her husband’s place with the blessings of  her parents-in-law  and almost at the suggestion of her  husband in order that her health might improve. The  next  circumstance which, however, is  very  much  more important,  is  her  declaration on the  occasion  when  the appellant and Dr. Lulla visited her at Poona towards the end of  May.   The learned trial judge, as stated  earlier,  has accepted  that Dr. Lulla and the appellant did visit her  at Poona  as spoken to by them and that her story denying  this meeting is false.  The learned Judges of the High Court also did  not accept her denial of the meeting, but they  however refused  to  attach any importance to the  evidence  of  Dr. Lulla for the reason that he was unable to specify the exact words  of the questions put to her and her answers.   We  do not  agree  with the learned judges about the  value  to  be attached to the evidence of Dr. Lulla.  The relevant portion of Dr. Lulla’s evidence runs thus :               "I  told  her (the respondent) to go  back  to               Bombay   and  then  settle   the   differences               whatever they were between the petitioner  and               the  respondent but she said that she was  not               prepared  to go back for ever.  There  was  no               further   talk   between   myself   and    the               respondent.   The petitioner had a  talk  with               the  respondent  first and then I had  a  talk               with the respondent.  I cannot recollect  what               the  petitioner actually told the  respondent.               The respondent did not mention the differences               which  she had with the petitioner’  She  only               stated that she was not prepared to come  back               to the peti- 355 tioner for ever." Now, it will be seen that this evidence is categorical.   It Consists  of two parts: The first is as regards the gist  of the  conversation between the appellant, and the  respondent when they were together.  He admits he was not present  when they talked to each other and it is the question and  answer at   that  stage,  i.e.,  between  the  appellant  and   the respondent that the witness is unable to state to the Court. The second part of the evidence is in relation to the  ques- tions  that he himself put to the respondent.  There is,  no ambiguity  in his evidence either about the questions  which he put nor about the answers which she gave.  The comment of the learned judges that the witness was unable to  reproduce the  exact words of the question put to the  respondent  and the  words  of her answer does not obviously apply  to  this second  part  of the witness’s testimony.  If Dr.  Lulla  be treated  as a truthful witness, and even the learned  judges of the High Court did not express any view to the  contrary, it  is clear that the respondent had specifically stated  to him  that she would never come back to her  husband’s  home.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 50  

There  is  thus clear evidence and satisfactory  proof  that besides  the factum of desertion there was also  the  animus descrendi  at the time when she left the husband’s house  or at least at the time of this meeting -it Poona at the end of May, 1954. The matter does not rest here for there is further proof  of her  animus  afforded by her conduct up to the time  of  her leaving  India  for abroad on July 7, 1954.  We  are,  here, referring to three matters: (1) Her presence in Bombay for a fortnight or for a month, whichever it be, at her uncle Tola Ram’s place five minutes walk from the appellant’s residence and  her  failure  to call on the  appellant  even  for  the purpose  of seeing her boy Ashok; (2) her conduct in  giving her address in India as Tola Ram’s place in the  application for  a  passport  and in the passport itself;  and  (3)  her failure to inform the appellant of her departure from Bombay and  her not calling on him even when she was leaving  India for a stay of a considerable duration abroad. If  then  the  conduct  of the  respondent  was  an  act  of desertion  with  the requisite animus when it  started,  the question next to be considered is whether it continued for 356 the  duration  of two years before the presentation  of  the appellant’s petition under s. 10(1)(a) of the Act to satisfy the  requirements of the statute.  We have already  set  out the correspondence which passed between the parties.  In the first  telegram which was exchanged between them  and  which started  immediately the appellant got information that  the respondent  had left India-towards the end of July,  1954-he required the respondent to return to India immediately.   In her   replies  she  stated  that  she  would   return,   not immediately-we  are  not, here, concerned so much  with  the reasons  which she gave for not so returning-but  after  her health improved.  If her offer to return after sometime  was genuine  and sincere and represented her then true  feelings and intention it cannot be disputed that the desertion would be brought to an end because thereafter the animus deserendi would  be  lacking, though the factum  of  separation  might continue.   On  the other hand, it cannot also  be  disputed that  if the offer was not sincere and there was in  reality no  intention  to return, the mere fact  that  letters  were written expressing such an intention would not interrupt the desertion from continuing.  The question for inquiry  would, therefore,  be  whether these offers by  the  respondent  to return were sincere.  In this connection it is riot  without significance that there are admittedly several occasions  on which  the respondent could have returned to India  but  she did not do so until April 1956.  One of these was when  one. Mr.  Choith Rama relation of the parties-returned to  India. It is admitted by both the respondent as well as her  father that it was possible for the respondent to have returned  to India with Choith Ram but it was stated that she did not  do so  because she had not been invited to some wedding in  the appellant’s   house.   We  consider  this  explanation   not satisfactory or convincing.  If, as -we have found, she  had left  the  appellant’s house without his  consent,  and  she expressed  her determination not to return to him  when  the appellant and Dr. Lulla met her in May in Poona, and when in spite  of repeated assertions in her letters  and  telegrams that  she would be coming back, but she fails so  to  return when she had occasion and opportunity to do so, we  consider that her acts and conduct in failing to return are  entitled to more weight as evidence of her true 357 intention than her assurances contained in her letters.   We

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 50  

are not, therefore, prepared to hold that bona fide intended to return to her husband when in her letters and  telegrams, to  which  we  have  already  adverted,  she  expressed  her intention to return to him.  Besides, it would be seen  that even after she returned to India in April, 1956, she did not go straight to her husband’s house or even inform him of her return  to India but on the other hand went away to  Kashmir and  that state of things continued until the  petition  was filed  on  September  20, 1956.  If  nothing  more  happened between the parties it is clear that the petitioner would be entitled  to  the  relief  which  he  sought  as  there  was satisfactory  proof of desertion as defined by  the  statute for the full term of two years. The point, however, that forms one of the major bases of the judgment  of  the learned Judges and which  was  strenuously sought to be supported by Mr. Aggarwala, learned counsel for the  respondent, was based upon the letter of the  appellant dated April 1, 1955, as affording a justification in law for her refusal to come back to join him. Before  proceeding to deal with the contents of  the  letter and  the  other  points urged in relation to  it,  it  might perhaps be useful to set out the legal position in the light of which the entire matter has to be considered.  As  stated by  Scott.   L. J., in Tickler v.  Tickler(1),  quoting  the words of Lord Romer in an earlier decision :               "The question whether a deserting spouse has a                             reasonable  cause  for  trying  to  br ing   the               desertion  to  an end  and  the  corresponding               question  whether desertion without cause  has               existed  for the necessary period must  always               be a question of fact." The question for consideration in such cases is "Is the con- duct of the deserted spouse such as to excuse the  deserting spouse from making  any attempt to put an end to the  deser- tion  or  from attempting any  reconciliation?"  (Vide  also Brewer v. Brewer(1).  The basis of this rule rests on  this, that  such conduct on the part of the deserted spouse  would legally operate as a consent to the existing separation  and would have the effect of absolving the deserting spouse from any obligation to return to the matrimonial home or (1)  [1943]  1  All E.R. 7, 59. (2) [1961] 3 All  E.R.  957, 964. 358 to make amends for her improper conduct, for the  petitioner in a petition for judicial separation grounded on  desertion by the other spouse has to prove that for the period of  two years  specified in s. 10(1) (a) of the Act  the  respondent has without cause been in desertion and that intention  must be  proved to exit through out that period.  If,  therefore, during  that period the respondent has just cause to  remain apart  he or she would not be in desertion and the  petition for judicial separation would fail. It  would be seen that we have here the interaction  of  two distinct  matters  which  have  to  coexist  in  order  that desertion  might come to an end.  In the first place,  there must  be  conduct on the part of the deserted  spouse  which affords  just and reasonable cause for the deserting  spouse not  to seek reconciliation and which absolves her from  her continuing obligation to return to the matrimonial home.  In this  one has to have regard to the conduct of the  deserted spouse.   But  there is one other matter which  is  also  of equal importance, that is, that the conduct of the  deserted spouse  should have had such an. impact on the mind  of  the deserting  spouse that in fact it causes her to continue  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 50  

live  apart  and thus continue the  desertion.   But  where, however,  on the facts it is clear that the conduct  of  the deserted  spouse has had no such effect on the mind  of  the deserting spouse there is no rule of law that desertion ter- minates by reason of the conduct of the deserted spouse.  It appears  to  us that the principle that the conduct  of  the deserted  spouse  which  is proved not to  have  caused  the deserting  spouse to continue the desertion does not put  an end to the desertion appears to be self-evident and  deduci- ble from the legal concepts underlying the law as to  deser- tion.   The position is besides supported by authority.   We might  usefully refer to the following passage in the  judg- ment  of  Willmer, L.J., in Brewer v. Brewer(1)  where,  ex- plaining certain observations of Lord Macmillan in Pratt  v. Pratt (2), he said :               "It remains for consideration however, exactly               what Lord Macmillan meant when he spoke of the               husband  ’making  it plain’ to  his  deserting               wife that he will not (1)  [1961] 3 All.  E.R. 957. (2)  [1939] A.C. 417, 420. 359               receive  her  back.  He cannot have  meant,  I               apprehend,  that a deserting wife is  entitled               to take advantage of any chance statement that               her  husband  may have made,  irrespective  of               whether  it  had any effect on her  mind.   It               seems to me that what Lord Macmillan must have               meant  was  that  a  deserted  husband  cannot               complain  if what he has said or done  has  in               fact  caused hi-, wife to desist  from  making               any   attempt  at  reconciliation  which   she               otherwise  would have made.  If this  view  be               right,  it  becomes obvious at once  that  the               question  whether the conduct of  the  husband               was such .is to bring the wife’s desertion  to               an  end cannot be treated, as counsel for  the               wife  (at  any  rate  at  one  point  of   his               argument)  appeared to invite us to treat  it,               as  an abstract question of law.   It  becomes               necessary   to  consider  the  facts  of   the               particular case, in order to ascertain what in               fact  was  the  impact  on  the  mind  of  the               deserting spouse of anything which was said               or done by the deserted spouse." We should add that this expresses our own view of the  legal position. We shall now proceed to consider the letter of the appellant dated  April 1, 1955, and its significance for the  purposes of  the  defence  of the respondent in the  light  of  these principles.   The questions that arise on this  letter  fall into  two  broad  classes  :  (1)  The  exact  meaning   and construction of the expressions used in the letter, and (2)  its impact on the mind of the respondent. As  to the meaning of the letter the rival  contentions  are these.  According to the appellant the letter was merely the outpourings  of an angry and grievously injured husband  who found  his  wife  persisting in keeping away  from  him  and expressing happiness at her stay in and movement from  place to  place  in  foreign countries.  In  this  connection  the expressions used in the letter were put to the appellant  in great detail during his cross examination and the burden  of his  explanation  was that he never intended to  impute  any unchastity  to the respondent.  It is not necessary  to  set out  the  entirety  of the letter but we would  make  a  few

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 50  

extracts for the purpose of judging whether the letter could bear the interpretation which the appellant asserted was his intention in writing that letter: 360               "They    (the   appellant’s   parents)    have               overlooked  all  your faults and  treated  you               with love and kindness like their own daughter               and  have made all possible efforts  to  raise               you up from your low turpitude and make you  a               decent  woman  It  is  your  perverted   funny               notions  of pleasure giving vent to your  past               and  present associations, both in  India  and               abroad,  that are the root cause of  all  your               evil and irrational deeds. ... Just think  how               often  have  I  counseled  you  against   your               unceasing pleasure hunt which has brought only               shame  and misery to our whole family It is  a               wonder that you find pleasure in leaving home,               leaving  your husband, wandering from  country               to  country, leading reckless life  under  the               guise   of  being  in  the  company  of   your               relations  and  uncles whom you  find  readily               available at every port.  And you have gone SO               far in this direction, that you find  yourself               unable to break your past links and get out of               the  muddle created by you and  seek  pleasure               and  happiness  in your own home  by  being  a               faithful  and devoted wife In spite of all  my               efforts,  you have completely deserted me  and               chosen the path of pleasure and  perversion,at               any cost. You are only looking for some  cloak               to cover your guilt and continue to live  your               life of degradation with impunity. I refuse to               furnish you with that cloak and I refuse to be               drawn into your game." As   we   have  stated  earlier,  the  appellant   expressly disclaimed in  the  witness box that he ever considered  her unchaste  or   that  in that letter or otherwise he  imputed unchastity to  her.  The  learned trial judge  believed  the appellant’s  testimony as to what he intended to  convey  by this  letter  and  was of the view that  the  contents  were reasonably  capable  of  being  understood  in  the   manner suggested by the appellant.  We cannot say that this is  not a possible interpretation of the letter and that it must  be held that it was intended to impute unchastity to the  wife. We must, however, hasten to point out that the intention  of the writer is neither very relevant nor, of course, decisive of  the  matter.   The  question  is  what  the  words  were reasonably  capable  of being understood, and if  they  have been so understood it is no answer that the writer did not 361 intend  his words to have that meaning.  In view of what  we are about to say, it would not be really necessary for us to say  whether,  reasonably understood. the  words  would  not impute  sexual  immorality to the respondent, but  we  shall assume that the learned Judges of the High Court were  right in their interpretation of the. letter and the  insinuations it contained.  The question, however, is how she  understood and what her reactions were. The next question for consideration therefore relates to the impact  of  this letter on the respondent, for it  is  ulti- mately  that that would determine, in the present  case  the legal effect of the conduct of the appellant in  terminating or not terminating the desertion that up to then  continued. As  to this, the position stands thus : The evidence of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 50  

respondent  was that she received the letter at  Hong  Kong, and she stated :               "I  read that a bit.  On the next day  I  left               for Manila. .... There I was appraised of  the               contents of the letter and then I was  shocked               at  the contents of the letter and  my  health               became worse at Manila." The  letter is -stated to have been received in the  evening and  she  was to leave Hong Kong for Manila at 10  a.m.  the next day.  According to one portion of her evidence she read a part of the letter on the day she received it but she  had no time to read the whole letter, but she corrected  herself later  and stated that the entire letter was then read,  but that she understood only a portion of the letter on the  day it  was  received  and the rest of it explained  to  her  in Manila.   It was her cousin--one Khem Chand-who is  said  to have  been asked to read and explain the letter because  she did  not  understand fully its contents.  This was  at  Hong Kong  and  he  read that letter during the  night  after  he returned home from office.  Before he finished reading  that letter  she  said  she went to bed.  He  was  reading,  that letter  till late that night.  She, however, slept by  then. Khem  Chand she said, promised to explain the  contents  the next morning but there was no time 1eft for this as she left for  Manila  that day.  It is apparent from  this  state  of evidence that it did not have very much upon the  respondent or  that she under-stood the letter as really  charging  her with immorality.  It’ is just possible 24-2 S. C. India/64 362 that she understood its contents as merely an admonition ,by the husband at her being away from him and at her conduct in asking him to go over to Hong Kong instead -of returning  to him  immediately,  as  he desired  in  his  telegrams.   She apparently attached not much significance to this letter and that is clear from the way in which she got the letter  read and  explained to her partly at  Hong Kong and the  rest  at Manila.  And this notwithstanding that her father was  there to  assist her in understanding the contents of that  letter and its implications. This  is so far as the oral testimony of the  respondent  is concerned,  but possibly of more significance and of  higher evidentiary  value than the inference to be drawn  from  the statements in her deposition in Court is the reply that  she sent  from Manila to this letter on April 12, 1955.   It  is necessary  to  examine with some care the contents  of  this reply.  It is addressed to him.as ’My dearest husband’.   It consists of five paragraphs.  In the first she  acknowledges as  letter  dated April 1, 1955.  of the  contents  of  that letter those regarding which she deals in the 1st  paragraph are:  (1) his statement that he had not received any  letter from  her dated August 2, 1954 and (2) a denial of the  fact that  she left his house without his knowledge  and  consent and an assertion that he and his parents consented that  she should  go  and stay ’With her relations for a  while.   The second paragraph is again taken up with the same matter  and repeats  (1) that she .did not leave the house  without  his knowledge  and consent, and (2) she left the house only  for reasons of her health.  The third paragraph states that  her health had improved but that she would like to stay a little longer with her parents in order to improve it more and then she  would  return to him and to her "dear son  Ashok".  The next  paragraph  is  concerned with  denying  the  unfounded accusations   contained   in  his  letter  and   these   are characterised  as "merely the product of his  hallucination"

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 50  

and that  she  would ignore them because they are not  based on truth  and  in the final paragraph she ends by  repeating that site was  vacationing  with her parents  only  for  the improvement  of her health and for no other purpose and  lie would kindly allow her to stay with her parents 363 a little longer for her welfare and advantage and she  winds up  the  letter  by assuring him "As soon as  my  health  is completely improved I shall of course come back home to  you and to our son". Now  to  the  question  as to what  is  the  impact  of  the appellant’s  letter on the mind of the respondent.   In  the face of this letter could it be said that she understood the appellant’s letter as a justification for her to stay apart? For this purpose it is not necessary to consider whether she understood  it as imputing unchastity to her or not.  As  we have already pointed out, it is doubtful whether she did so. If it were so it would not be reasonable for her to read the letter  at Hong Kong in part or not understanding  it  there and not attaching any significance to it as an imputation of a  serious character against her morality.  But in  whatever way  she understood it, it is obvious that it did  not  have any  effect on her mind in the matter of persuading  her  or impelling her to stay apart from her husband, for we find in her reply repeated assertions that she intended to come back to  the  husband.   We do not,  therefore,  agree  with  the learned judges of the High Court that the appellant’s letter of  April 1, 1955, would constitute an interruption  of  her desertion  which had commenced from February-May,  1954,  by its  being  a  just cause for her to remain  away  from  the matrimonial home. As  already  stated, the letter of April 12, 1955,  was  the last letter which passed between the parties and though  she stayed abroad for nearly a year thereafter she did not write to  the appellant and even when she came to India in  April, 1956,  she  did not go to her matrimonial home  as  she  had promised to do in this last letter of hers just referred to. A  point similar to the one dealt with by us in relation  to the telegram of the respondent dated June 24, 1955, and  her letter  dated March 3, 1955, arising out of  the  statements contained in them that she intended to return to the husband on  coming over to India and the effect of such a  statement in terminating the desertion has also to be considered  with reference to the promise to return to the husband  contained in  this  letter of hers dated April 12,  1955.  As  already pointed out, if the offer to return was genuine and  sincere and was made with the intention of being 364 kept  and  as indicative of a desire felt to return  to  the matrimonial  home  it  would  constitute  a  break  in   the desertion  and thus disentitle the appellant to  any  relief under  s.  10(1) of the Act because in the face of  such  an intention  the desertion of two years duration could not  be established.  We are, however, satisfied that the  intention expressed  in this letter to return to the husband  was  not genuine  or  sincere.   This is shown beyond  doubt  by  the following  facts: (1) She wrote no letter to  the  appellant after April 12, 1955, right up to the date of the  petition, (2) she did not intimate to him about her arrival in India-a fact strongly suggesting her disinclination to meet him  and to  go  to his house, (3) that even after  she  returned  to India nearly a year after her letter of April 12, 1955,  she did not go to her husband nor was any attempt made by her to contact her husband through friends before the filing of the petition.  The facts therefore and her conduct outweigh  any

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 50  

assertion contained in this letter and they convince us that she  did not entertain any genuine desire to return  to  her husband’s  home when she wrote those words in her letter  to him dated April 12, 1955. It was not contested that if desertion started in  February- May,  1954, as we have found, and was not put an end to  and if no justifiable cause for the continuance of the desertion was  afforded  by the appellant’s letter of April  1,  1955, there was no other defence to the petition of the  appellant under s. 10(1) of the Act. The  result is that the appeal is allowed, the  judgment  of the  High  Court  reversed  and  the  decree  for  judicial, separation  passed by the learned trial judge restored  with costs here and in the High Court. SUBBA RAO J.-I regret my inability to agree.  This appeal by certificate presents a facet of the social and  sociological problem of a young Hindu woman landed by marriage in a joint family  and  of  her  predicament  therein.   As  Rajagopala Ayyangar, J., has traced the course of the litigation, it is not necessary to cover the ground overagain. Two  questions arise for consideration, namely, (1)  whether there  was  desertion by the respondent  without  reasonable cause of her matrimonial home; and (2) whether the appellant had prevented the respondent 365 during  the statutory period from bringing the desertion  to an end.  Before I consider the evidence in the case, it will be  convenient  to notice the relevant aspects  of  the  law pertaining to the doctrine of desertion.  The Hindu Marriage Act,  1955  (Act 25 of 1955), hereinafter  called  the  Act, codified the law in that regard.  The material provisions of the Act read thus : .               Section  10. (1) Either party to  a  marriage,               whether   solemnized  before  or   after   the               commencement  of  this  Act,  may  present   a               petition  to the District Court praying for  a               decree  for judicial separation on the  around               that the other party-               (a)   has   deserted  the  petitioner  for   a               continuous  period of not less than two  years               immediately preceding the presentation of  the               petition.               Explanation.-In  this section, the  expression               "desertion",  with its grammatical  variations               and cognate expressions, means, the  desertion               of  the petitioner by the other party  to  the               marriage without reasonable cause and  without               the  consent  or  against  the  wish  of  such               party,,  and includes the willful  neglect  of               the  petitioner  by  the other  party  to  the               marriage." Under this section a spouse can ask for judicial  separation if the other spouse has deserted her or him for a continuous period of not less than two years.  This provision  introdu- ces a revolutionary change in the Hindu law of marriage.  It is given retrospective effect.  A spouse in India except  in some states, who never expected any serious consequences  of desertion,  suddenly  found himself or herself  on  May  18, 1955, in the predicament of his or her marriage being put in peril.   If by that date the prescribed period of two  years had  run out, he or she had no locus penitential  and  could retrieve  the  situation only by  mutual  consent.   Section 10(1)(a) does not proprio vigore bring about dissolution  of marriage.   It is a stepping stone for dissolution.  On  the deserted spouse obtaining a decree for judicial  separation,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 50  

the  said spouse can bring about divorce by efflux  of  time under  s.  13  (1)  (viii)  of  the  Act.   The   expression "desertion"  came under the judicial scrutiny of this  Court in Bipin Chander jaisinghbhai Shah v. Prabha (1) [1956] S.C.R. 838.                             366 wati(1).  There, the question arose under s. 3 (1)(d) of the Bombay  Hindu  Divorce Act, 1947 (Bom. 22  of  1947).,  This Court,  on  the facts of that case, held that there  was  no desertion.  The said section read : "(1)  A  husband or wife may sue for divorce on any  of  the following grounds, namely.................... (d)  that  the  defendant has deserted the plaintiff  for  a continuous period of four years. "Desertion" was defined in s. 2(b) in these terms:  "’Desert’  means  to desert without  reasonable  cause  and without  the  consent or against the will  of  the  spouse." Sinha,  J., as he then was, speaking on behalf of the  Court after  considering the relevant textbooks and  decisions  on the subject, summarized the law thus, at p. 851               "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  learned judge dealt with the mode of putting an end  to the state of desertion as follows, at p., 852 :               "Hence, if a deserting spouse takes  advantage               of the locus penitantiae thus provided by  law               and  decides  to  come back  to  the  deserted               spouse  by  a bonafide offer of  resuming  the               matrimonial home with all the implications  of                             marital  life, before the statutory  p eriod  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." Based  on that reasoning the learned Judge proceeded to  lay down  the  duty of. the deserted spouse during  the  crucial period 367               "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." Adverting  again  to the burden of proof and the  nature  of evidence required to prove desertion, the learned judge made the following observations, at p. 852 :               "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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 50  

             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." Collating the aforesaid observations, the view of this Court may be stated thus : Heavy burden lies upon a petitioner who seeks  divorce  on  the ground of desertion  to  prove  four essential conditions, namely.’ (1) the factum of separation; (2) animus deserendi; (3) absence of his or her consent; and (4)  absence of his or her conduct ’giving reasonable  cause to the deserting spouse to leave the matrimonial home.   The offence  of desertion must be proved beyond  any  reasonable doubt and as a rule prudence the evidence of the  petitioner shall  be  corroborated.  In short  this Court  equated  the proof  required in a matrimonial case to that in a  criminal case.   I  am bound by this decision.  I  would,  therefore, proceed  to discuss the law from the point reached  by  this Court in the said decision. There is some controversy on the question on Whom the burden of  proof  lies to establish that the deserting  spouse  has just  cause  or  not to leave  the  matrimonial  home.   The judgment  of  this  Court is clear and  unambiguous  and  it throws the burden on the petitioner seeking divorce. This  view  is  consistent with that  expressed  in  leading judgment of English Courts. In Pratt v. Pratt(1) the House of Lords considered the  said aspect. Lord Macmillan stated, at p. 438, thus:               "In my     opinion,  what  is  required  of  a               petitioner for divorce    on  the  ground   of                             desertion  is proof that throughout th e  whole               course of 3 years the respondent [1939] 3 All E.R. 437. 368               has      without      cause      been       in               desertion.....................In    fulfilling               its  duty of determining whether,on  the  evi-               dence,  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". On  the  question  of  just  cause,  Lord  Romer  made  some pertinent  remarks,  at p. 443, which are  relevant  to  the present  enquiry.   There, as here, though  under  different circumstances,   the  deserting  spouse,  the  wife,   after previous  correspondence  did not call on her  husband.   In -that context, Lord Romer observed:               It would, in my opinion, be quite unreasonable               to bold that the respondent, guilty though she               was  of  the serious  matrimonial  offence  of               desertion,  should  be  expected  to   present               herself  at  her husband’s  door  without  any               knowledge  of how she would be received,  ’and               therefore  at the risk of being  subjected  to               the  indignity of having admission refused  by               her    husband    or    by    one    of    his               servants............................It   could

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 50  

             not be expected that she should suddenly  make               an unheralded entry into his house." Though  it was necessary, in order to put an end to her  de- sertion,  for the wife to take some active step towards  re- turning  to the matrimonial home, Lord Romer held  that  she had  taken such steps by writing letters and that  the  fact that ’she. did not physically appear in the matrimonial home did not make is any the less a just cause on her part. In Dunn v. Dunn(1), Denning L.J., as he then was, laid  down the  scope  of burden of proof in such a case, at  P--  823, thus:               "The  legal burden throughout this case is  on               the husband, as petitioner, to prove that  his               wife deserted him without cause.  To discharge               that  burden,  he relies on the fact  that  he               asked her to join him (1)  [1948] 2 All E.R. 822. 369               and  she refused.  That is a fact  from  which               the  court  may infer that  she  deserted  him               without  cause, but it is not bound to do  so.               Once  he proves the fact of refusal,  she  may               seek  to rebut the inference of  desertion  by               proving  that  she  had  just  cause  for  her               refusal  ; and indeed, it is usually wise  for               her to do so, but there is no legal burden  on               her   to   do  so.  Even  if  she   does   not               affirmatively prove just cause, the court  has               still, at the end of the case, to ask itself :               Is the legal burden discharged?  Has the  hus-               band  proved  that she  deserted  him  without               cause?" This  passage brings out the well known distinction  between legal burden and onus of proof.  Legal burden always remains on  the  petitioner  ; and onus of proof  shifts  and  is  a continuous  process.  But, as the learned Lord  points  out, the  court  has to hold on the evidence  whether  the  legal burden  to  establish  desertion  without  cause  has   been established by the petitioner. In Day v. Day(1), the husband petitioned for divorce on  the ground  that his wife had deserted him.  The wife relied  on the  fact  that  the husband committed  adultery  and  that, therefore,  the desertion was not without cause.  The  Court held  that  the burden was upon the petitioning  husband  to prove  that  his adultery was not the cause  of  his  wife’s desertion  and  that he had proved the same,  as  the  facts proved established that she had formed her intention not  to resume  cohabitation  independently of  his  adultery.   The legal position is stated thus, at p. 853 :               "On  the  facts  of  the  present  case   that               involves  the  husband  proving  affirmatively               that  the mind of the wife was not in any  way               affected  by  her knowledge of  the  husband’s               adultery.  Clearly the burden is a heavy  one,               and  doubtless  in many cases it will  be  one               that   a  petitioner  will  not  be  able   to               discharge." In  Brewer- v. Brewer(2), the Court of Appeal explained  the views expressed by Lord Macmillan and Lord Romer in Pratt v. Pratt(1).   Willmer, L.J. after quoting the observations  of Lord Macmillan in Peatt’s casr(3), proceeded to state: (1)  [1957] 1 All E.R. 848. (2)  [1961] 3 All E.R. 957. (3)  [1939] 2 All E.R. 437. 370

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 50  

             "This passage, although not necessary for  the               decision of that case, was expressly  approved               and   adopted  by  Lord  Romer  in  Cohen   v.               Cohen(1),  and must, I think, be  accepted  as               authoritative  having regard to the fact  that               all  the other members of the House  expressed               their concurrence with Lord Romer." The case-law here and in England throws the burden of  proof on  the  petitioning  spouse to  prove  that  desertion  was without cause. Another aspect of the question may now be touched upon.  The definition of desertion under s. 10 of the Act, the argument proceeds,  is much wider than that under the English law  or under the Bombay Act considered by this Court.  Emphasis  is laid upon the following words in the explanation to s. 10(1) of the Act : "includes the willful neglect of the petitioner by the other party to the marriage." The  expression "includes", the argument proceeds,  enlarges the  scope  of  the word "desertion", and takes  in  by  de- finition the conscious neglect on the part of the  offending spouse,  without the requisite animus deserendi.   This  ar- gument,  if  accepted,  would impute  an  intention  to  the Parliament, which was entering the field for the first time, to bring about a revolutionary change not sanctioned even in a  country  like  England where divorce  or  separation  for desertion  had long been in vogue.  We would be  attributing to the Parliament an incongruity, for, in the first part  of the   explanation   it  was  importing  all   the   salutary restrictions on the right to Judicial separation. but in the second  part it would be releasing the doctrine, to a  large extent,  of the said restrictions.  By such  a  construction the legislation would be made to defeat its own purpose.  On the  other hand, the history of the doctrine of  "desertion" discloses   some  limitations  thereon  conceived   in   the interests  of  society and the Parliament by  the  inclusive definition couched in wide language could not have  intended to  remove those limitations.  The inclusive  definition  is only  intended  to  incorporate  therein  the  doctrine   of "constructive  desertion"  known  to  English  law  and  the language  is  designedly  made wide to  cover  the  peculiar circumstances of our society.  In Rayden on Divorce, (1)  [1940] 2 All.  E.R. 331, 335. 371 7th  Edn.,  the  expression    "constructive   desertion" is defined thus, at p. 155 :               "Desertion  is  not  to be  tested  by  merely               ascertaining which party left the  matrimonial               home  first.  If one spouse is forced  by  the               conduct  of the other to leave home it may  be               that  the spouse responsible for  the  driving               out  is  guilty  of desertion.   There  is  no               substantial  difference between the case of  a               man  who  intends to  cease  cohabitation  and               leaves  his  wife, and the case of a  man  who               compels his wife by his conduct, with the same               intention, to leave him.  This is the doctrine               of constructive desertion." Adverting  to  the question of animus in the  case  of  con- structive desertion, the learned author proceeded to  obser- ve, at p. 156, thus :               "It  is as necessary in cases of  constructive               desertion  to  prove both the factum  and  the               animus on the part of the spouse charged  with               the offence of desertion as it is in cases  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 50  

             simple  desertion.  The  practical  difference               between   the   two   cases   lies   in    the               circumstances   which  will  constitute   such               proof,  for, while the intention to bring  the               matrimonial  consortium  to an end  exists  in               both  cases, in simple desertion there  is  an               abandonment, whereas in constructive desertion               there is expulsive conduct." The  ingredients  of  desertion  as  well  as   constructive desertion are the same, namely, animus and factum, though in one case there is actual abandonment and in the other  there is  expulsive  conduct.   Under  certain  circumstances  the deserted spouse may even stay under the same roof or even in the same bed-room.  In our society, it is well known that in many a home the husband would be guilty of expulsive conduct towards his wife by completely neglecting her to the  extent of  denying  her  all marital rights, but  still  the  wife, because  of social and economic conditions, may continue  to live  under the same roof.  The words "willful  neglect"  in the   explanation   were   certainly   designed   to   cover constructive  desertion  in  the English  law.   If  so,  it follows that willful conduct must satisfy the ingredients of desertion  as indicated above.  Hence, the  appellant  could not  take  advantage of the inclusive definition  unless  he established all the ingredients 372 of  constructive desertion, namely, animus, factum and  want of just cause. There is yet another legal contention which may be  disposed of before I consider the facts.  It is based on s.     9  of the Act, which reads :               (1)   when either the husband or the wife has,               without reasonable excuse, withdrawn from  the               society of the other, the aggrieved party  may               apply  by petition to the District Court,  for               restitution  of conjugal rights and the  Court               on  being  satisfied  of  the  truth  of   the               statements  made  in such  petition  and  that               there  is no legal ground why the  application               should not be granted, may decree  restitution               of conjugal rights accordingly.               (2)   Nothing shall be pleaded in answer to  a               petition  for restitution of  conjugal  rights               which  shall  not  be a  ground  for  judicial               separation  or for nullity of marriage or  for               divorce." The contention on behalf of the appellant is that s. 9(2) of the  Act  affords a dictionary for the  expression  "without reasonable cause" and that it shows that reasonable cause in the  explanation could only, be that cause which will  be  a legal ground for the offending spouse to resist the petition by  the  other for restitution of conjugal  rights.   It  is further  contended  that under cl. (2)  thereof  such  legal ground  could only be the legal ground on which there  could be   judicial  separation  or  nullity  of   marriage   and, therefore, the reasonable cause in the explanation to s.  10 should also be only such grounds like cruelty etc.  There is a  fallacy in this argument.  An illustration will bring  it out.   A husband files an application against the  wife  for restitution  of conjugal rights under s. 9 of the Act.   The wife can plead, inter alia, that the husband is not entitled to  restitution of conjugal rights as lie has  deserted  her without reasonable cause.  Section 9(2) of the Act does  not afford  any dictionary for ascertaining the meaning. of  the expression  "reasonable cause".  We have to fall back  again

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 50  

for its meaning on the principles laid down by decided cases and the facts of each case.  That apart, s. 9 and s. 10 deal with  different  subjects-one with restitution  of  conjugal rights and the other with judicial separation.  We cannot 373 import  the provisions of the one into the other, except  in so  far as the sections themselves provide for it.  The  ex- planation  does  not expressly or by  necessary  implication equate reasonable cause with a legal ground for sustaining a plea  against an action for restitution of conjugal  rights. Indeed,  it  is a limitation on one of such  legal  grounds. There  is an essential distinction between the scope of  the two  sections.   The Legislature even in  socially  advanced countries  lean,,  on  the side of sanctity  of  marriage  ; therefore,  under  s. 9 of the Act, our  Parliament  imposes stringent conditions to non-suit a claim for restitution  of conjugal rights.  On the same reasoning, under s. 10 of  the Act, it does not permit separation of spouses on the  ground of desertion except when the desertion is without reasonable cause.   The  expression  "reasonable  cause"  must  be   so construed as to bring about a union rather than  separation. The  said expression is more comprehensive than cruelty  and such other causes.  It takes in every cause which in a given situation  appears to be reasonable to a Court justifying  a spouse to desert the other spouse.  This view is  consistent with the English law on the subject.  In Halsbury’s Laws  of England,  3rd Edn., Vol. 12, the author says, in para.  484, at p. 257 thus :               "Any  matrimonial  offence, if  proved,  is  a               ground  for the other spouse withdrawing  from               cohabitation.   Further  conduct  which  falls               short  of  a  matrimonial  offence,  that   is               conduct not amounting to cruelty or  adultery,                             may excuse desertion." In  Edwards v. Edwards(1) this idea was  succinctly  brought out.   There it was stated that conduct short of cruelty  or other matrimonial offence, might afford cause for desertion. So  too, in an earlier decision in Yeatman v. Yeatman(2)  it was  held  that  reasonable  cause  was  not  necessarily  a distinct  matrimonial offence on which a decree or  judicial separation  or dissolution of marriage could be founded.   I am, therefore. of the opinion that s. 9 of the Act does  not throw  any  light  on the  construction  of  the  expression "without  reasonable  cause"  and that whether  there  is  a reasonable cause or not in a given case (1)  L.R [1950] P. 8. (2 ) L.R.  [1868] 1. P. & D. 489. 374 shall be decided only on the evidence and the peculiar  cir- cumstances of that case. The  result  of the said discussion may be stated  thus  The legal burden is upon the petitioning spouse to establish  by convincing evidence beyond any reasonable doubt that   the respondent abandoned him or her without reasonable     cause. The petitioner must also prove that there was     desertion throughout the statutory period and there was     no    bona fide  attempt  on  the respondent’s part to  return  to  the matrimonial home and that the petitioner did not prevent the other  spouse by his or her action by word or  conduct  from cohabitation.  The expression "willful neglect" included  in the  section does not introduce a new concept in Indian  law unknown  to the English law, but is only an  affirmation  of the  doctrine of constructive desertion.  The said  doctrine is  not rigid but elastic and without doing violence to  the principles  governing it, it can be applied to the  peculiar

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 50  

situations  that  arise in an Indian society and  home.   No inspiration could ’be derived from s. 9 of the Act in  order to construe the scope of the expression "without  reasonable cause"  and whether there is a reasonable cause or not is  a question of fact to be decided on the facts of each case. I shall now proceed to consider the facts of the case.   The main  question is whether the appellant has proved that  the respondent  deserted him within the meaning of the  term  as explained  above.   To ascertain that fact  from  a  correct perspective  it is necessary to notice broadly  the  marital life  of the couple since their marriage.  The appellant  is an  M.B.,B.S.  and a medical practitioner  carrying  on  his profession  in Bombay.  He belongs to a  well-to-do  family, his father being a businessman.  The family is comparatively old-fashioned in habits and customs.  The respondent is  the daughter  of one Vasanmal, a businessman, who had  -branches in Singapore, Hongkong, Jakarta and Manila.  Though he spent most  of. his time in foreign countries in  connection  with his business, he always left his family in India and he used to visit his family in India whenever he could  conveniently do  so.   Though  the  learned  counsel  for  the  appellant attempted  to argue that the members of  Vasanmal’s  family, including the respondent, were leading a fast life, there is no- 375 thing on the record, except some vague suggestions here  and there,  to  support the said argument.  It may  be  accepted that  the respondent’s father is comparatively a richer  man than the appellant.  On November 10, 1946, the appellant and the  respondent were married at Hyderabad (Sind).   On  July 19, 1947, a male child was born to them and was named Ashok. Unfortunately for the couple, their even course of life  was disturbed by the partition of India.  In October, 1947, they had to migrate, as many others did, from Pakistan to  India. Though  the  respondent’s father was  maintaining  a  family house at Lonavla, about 70 miles from Bombay, the members of the appellant’s family including the respondent, went to the Colombo  and  were  staying with  the  appellant’s  mother’s brother.  In or, about December, 1947, the appellant,  along with  his  mother,  left  Ceylon  for  Bombay  leaving   the respondent  and appellant’s sisters in his uncle’s house  at Colombo.  The respondent’s version is that, as her  sisters- in-law  ill-treated  her,  she  was  not  happy  there   and therefore she had to leave that place, along with her child, in January, 1948, to her parents’ house at Lonavla.  At  the end  of January, 1948, the appellant and his mother went  to Lonavla and brought the respondent to Bombay.  At the end of the  first week of February, 1948, the respondent went  back to  Lonavla  and came back to Bombay in or about  August  or September, 1948, and was living with the appellant for about 3  months.  In or about that time, the respondent’s  parents shifted  their residence from Lonavla to Poona  and  settled down  there.   Poona  is about 100 miles  from  Bombay.   In December, 1948, the respondent visited her parents at  Poona and returned back to Bombay in February, 1949.  According to her  from  February  26,  1954,  she  was  living  with  the appellant  in his house at Bombay and she a permitted to  go and  see her parents ; but according to the a  pellant,  she was going now and then- to her parents’ house. Much is  made of  her  frequent  visits to her parents’ home,  but  it  is ignore  that the frequent visits were only made  during  the difficult  days the evacuees were passing through.  But  the fact  remains  that  from 1949 for about  4  years  she  was continuously living with her husband in his house. It is common case that the couple were not happy in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 50  

376 their  married life.  The husband and wife give  their  ver- sions of the reasons for this estrangement.  The husband, as P.W.  1, attempts to throw the blame wholly on the  wife  He says  that the respondent was disrespectful and  indifferent to him, that she was proud and arrogant, that she refused to wear  the clothes which were made for her by his parents  on the  ground that they were made of inferior stuff, that  she was very disobedient and disrespectful to his parents,  that she  used  to leave for her parents’ house  very  often  and sometimes  without  informing him, that she had no  love  or affection  for him, that when she was in her parents’  house she  used to play cards, and drank at the parties  given  by her father, that she did not like to have children and  that she was rude and insulting in her behaviour towards him  and his  parents.  In the cross-examination lie admits that  lie saw  her  drinking  only twice or  thrice  at  her  father’s parties,  but none of his friends saw her drinking  nor  did she  drink  from 1947.  He further admits that  he  saw  her playing cards without stakes, but he had not seen personally her  playing cards after 1946 or 1947.  He admits  that  the relationship between his mother and the respondent’s parents was  not  cordial.  He describes her  acts  of  disobedience thus:               "On  the  next  day of our  marriage,  it  was               customary  that  she should put on  the  saree               which  we  got made for her.  We  had  such  a               saree already prepared.  She refused to put on               such  a  saree saying that the  same  was  too               inferior to be put on by her.  She on many oc-               casions  ordered him to do certain things  for               her.  For example, on one day I told her  that               she  should not spread her sarees on the  sofa               but  she  should keep the sarees  wrapped  and               keep them in a cupboard.  On the next day  the               same thing was repeated, namely, that she kept               her  saree spread on the sofa.  I  called  her               and requested her to wrap it.  She asked me as               to why I should not do the same.  I  protested               and  told her that I was speaking to her in  a               polite  way and why she should order me to  do               things,   whereupon  she  told  me  that   her               friends’ husbands even do boot-polish and  why               I should not do even such trifling things." 377 A  perusal  of his evidence discloses that though he  is  an educated man he belongs to the old, school and takes offence for  the most trivial things which another would ignore.   A perusal  of  his entire evidence also discloses that  he  is highly respectful to his parents and that he was  particular that   his  wife  also  should  be  obedient  to  them   and particularly to his mother.  Though the learned counsel  for the appellant painted the respondent in his opening  address as  a highly sophisticated woman, addicted to all the  evils of drink, dance etc., the evidence of the appellant, even if entirely  accepted, shows that she is not  highly  educated, that  she has not been ad. dieted to any bad habits such  as drink, playing cards, smoking etc., and that she was  living in the family house of her husband, though now and then  she was  going to her parents’ house.  ID the  cross-examination the appellant also stated that he had to take the respondent in  1953  or  1954  to Dr.  Marfatia,  a  psychiatrist,  for treatment, indicating thereby that was under some nervous or mental strain. Now  let us see what the respondent says about her  life  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 50  

her  husband’s  house.   She says that at the  time  of  her marriage  her  father  gave a dowry  of  Rs.  25,000.00  and several  presents and gifts, including clothes  worth  about Rs. 10,000.00, but her mother-in-law was not satisfied  with the amount of dowry given by her father ; that her  parents- in-law would not ordinarily permit her to visit her parents’ house, that whenever such permission was asked for they used to refuse a number of times, but would allow her to go  only once  in  a way ; that she, was abused for  trivial  things, such  as  when  handkerchief’&  were  missing  ;  that   the treatment  of her mother-in-law and sisters-in-law from  the beginning  was  cruel and when they made complaints  to  the appellant,  he used to abuse her; that in Ceylon  also  they ill-treated her; that between 1949 and 1954 she was  allowed to go to her parents’ house only on two occasions, that  is, once  on  the wedding of one of her sisters and  the  second time  on  the  wedding  of  her  cousin  and  during   those occasions  . she stayed with them only for a few days;  that she’" refused permission to go to Poona even when her  uncle died; that her parents-in-law,, not only said many 25-2 S C India/64 378 dirty  things of her but they did not allow her to speak  to her  son ; that when her father-in-law scolded her  son,  he started  weeping and she was scolded for interfering :  that this  incident  happened  in 1953 and that  since  then  her husband  ceased  to  talk  with her  ;  that  she  was  also prevented  by her mother-in-law from doing any work for  her husband  or  for her son, that she was also  beaten  by  her husband  sometimes  ; that she was not allowed  to  see  her child  when  he  was ill; that in 1951 she  heard  that  her husband  attempted to remarry and even asked her to  sign  a paper giving her consent for him to do so that she was  made to sleep on a bench in the drawing room till about the  year 1952  and thereafter on the floor as her  mother-in-law  did not provide her with a bed.  Her evidence discloses that she had  no freedom in her husband’s house, that she was  abused and insulted by her parents-in-law and sisters-in-law,  that she  was not given the usual comforts which she expected  in her  husband’s home, that she was not allowed to look  after her husband and her child, that the husband took the side of his  mother whenever there was trouble between her  and  her mother-in-law.   There  may  be some  exaggeration  in  this version,  but by and large this evidence fits in what  gene- rally  happens in an old-fashioned house where a  girl  with modern  upbringing goes to stay as a daughter-in law of  the house.  It may therefore be accepted that she was lead,rig a miserable life in her husband’s house and she must have been under a terrible nervous strain. What  does the father of the respondent, who was painted  as villain  of the piece, say about this unfortunate  situation in  which  his daughter was placed?  Whatever  may  be  said about  him,  his  evidence discloses that he  is  very  much attached  to  his daughter and he attempted to  do  what  an affectionate father could possibly do in the  circumstances. He supports -the evidence given by his daughter in regard to dowry  and the reluctance of her parents-in-law to send  her to  his  house whenever he requested the them to do  so  and also he speaks to the complaint made to him by his  daughter about the ill-treatment meted out to her by her in-laws  and also  the  want  of cordiality between his  family  and  the family  of the appellant.  I have gone through his  evidence carefully 379 He does not impress me as one who was out to wreck the  life

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 34 of 50  

of  his daughter out of pride or anger, but a loving  father who  tried his best to make her happy and to  reconcile  the couple, if possible.  Whenever there was trouble he tried to persuade them to live together and whenever she was  unhappy he tried to take her to his home and give her the  necessary warmth of love and affection. Neither  the  mother-in-law nor the  father-in-law  nor  the sisters-in-law were examined in the case.  If the mother in- law had been examined, more details could have elicited, but unfortunately she was kept back, in my opinion, for  obvious reasons. The  said  evidence broadly gives the picture  of  the  res- pondent’s unhappy life in her husband’s house and the mental strain she was putting up there. In  those  circumstances  in the month  of  November,  1953, respondent’s  father came to India and was very  anxious  to take her to his house at Poona and thereafter, with him,  to foreign  countries for a short time to enable her to  recoup her  health.   With that object, the father  approached  the appellant’s  family cautiously and through mediators  to  at their  permission.  He says, in his evidence, that after  he came  to India he met the respondent at her husband’s  place of  residence and observed that she was very pale, that  she had lost weight and appeared to be much worried and unhappy. He  asked the appellant and his parents to allow her  to  be taken to Poona, but the permission was not granted.  Two  or three  months  thereafter, he again came to  Bombay  two  or three  times  and made similar requests, but they  were  all turned  down.  On one occasion, the respondent described  to him her miserable condition under her husband’s roof and  be consoled  her that he would get her the permission to  visit him.  He requested one Manganmal to intercede on his  behalf with  the appellant’s father and get his permission to  take the  respondent  to  his house  and  thereafter  abroad  for recoupment  of health.  About a week  thereafter,  Manganmal told  him that he had seen the appellant’s father  and  made the request on his behalf, but the appellant’s father wanted to confer with his wife and so he asked him to see him again a week thereafter.  A week thereafter, he saw the appel- 380 lant’s  father  and repeated the request.   The  appellant’s father requested him to see him 3 or 4 days thereafter.   He went  to  him again, when the appellant’s  father  gave  the necessary permission.  The witness promised to go to him  on February  26, 1954 to fetch his daughter.  He went there  at 4.30  p.m.  on that day and left ,’or Poona  by  the  Deccan Queen at about 5.30 p.m. on the same day.  At the time  when he  went to appellant’s house to fetch the  respondent,  the appellant’s   father  and  mother  were  present,  but   the appellant was not there.  The respondent took the permission of her parents-in-law and accompanied him.  This version  is natural.   It  is unthinkable that a man of  the  status  of respondent’s  father would carry away his daughter from  her husband’s house without taking the permission of her husband or her parents-in-law.  It is not likely that the respondent would  have  run away from the house of her husband  in  the absence  of her husband and parents in-law taking  away  the jewels  with  her  as  was  suggested  on  behalf  -of   the appellant.   There is nothing in the crossexamination  worth the name to belie the version given by this witness.  It was the  most  natural thing any father in the position  of  the respondent’s  father would do in the said circumstances.   I do  not see any Justification to reject his  evidence.   The respondent  in her evidence supports the evidence  given  by her  father and, in addition, she says that on February  26,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 35 of 50  

1954, she took the permission of her husband before  leaving the place.  She asked him to allow her to take-her son,  but lie  refused to give the permission.  It is said that  while she said that her husband was in the house, her father  said that he was not there.  But she clearly says in her evidence that  her husband was in another room and that she  went  to that  room to take his permission.  Obviously,  the  husband was  not willing to face his father-in-law.  Manganmal,  who interceded  on  behalf of the respondent’s father  with  the appellant’s  father,  gives evidence as D.W. 3.  He  is  the Managing  Director  of Chotirmall & Co.,  with  branches  in India and in foreign countries.  He is a friend of the  res- pondent’s  father.   He  corroborates the  evidence  of  the respondent’s  father.  He says in his evidence that he  went to  the appellant’s house and asked his father to allow  the respondent to stay with her father while he was 381 in  India,  as, she had not been to her father’s  house  for years.   In the cross-examination it was suggested  that  he was  not a friend of the appellant’s father, that he,  along with others, was a co-trustee with Kanayalal, a sonin-law of the appellant’s father, of Nanikram’s trust, and that in the dispute that was raised by Kanayalal’s father, Nanikram,  in respect  of the subject-matter -of the trust,  Kanayala  was supporting  his father whereas Manganmal was supporting  the trust.   He admits that he does not claim to be a friend  of the appellant’s father and that there was conflict of  views between him and Kanayalal in respect of the trust, but  adds that on that account there was no lack of cordiality between himself  and  the appellant’s father.  He is  a  respectable witness.   He gave straightforward answers to the  questions put  to  him.  He did, not support the  respondent’s  father completely  in  that  he  did not  say  that  he  asked  for permission for the respondent’s father taking the respondent to  foreign countries.  Presumably the further  request  was made by the respondent’s father himself and not by this wit- ness.   If he had come to lie in the witness-box,  he  would have  added  the  further request also.   There  is  nothing unusual  in  the  respondent’s  father  requisitioning   the services  of  this gentleman in preference  to  others  more close  to  the  appellant’s father, for this  witness  is  a respectable man and very well known to him and in A position and was also willing,, to intercede on his behalf.  I do not see  any reason why the evidence of this witness  should  be rejected. As  against  this  evidence,  the  appellant  says  that  on February  26, 1954, he was not present when  the  respondent left  his  house, that no one, except the  maid-servant  was present  in  the house when the respondent left  the  house, that  in the evening at about 6 O’clock he  discovered  that the respondent had left his house leaving some message  with the maid-servant and taking away all her jewels and valuable clothes.  He further says that he wrote some letters to  his wife soon thereafter, but he did not receive any reply  from her.   But this was denied by the respondent; and  there  is nothing  except  his word for this.  This  is  a  remarkable story.  If his wife had left him when nobody was present  in the house, he would not have taken 382 it so philosophically as he asks us to believe.  On his  own showing,  he  went  to  Poona  only  two  or  three   months thereafter.   He does not even tell us what was the  message that  she left with the maid-servant.  The maid-servant  was not  examined.   Neither his father nor his mother  nor  his sister  were put in the witness-box.  When three  witnesses,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 36 of 50  

the respondent, her father and a friend of her father, defi- nitely  gave evidence that the appellant’s parents were  ap- proached  and that they gave their consent, it was the  duty of  the  appellant to examine them.  No doubt some  sort  of explanation was given that the father was in Japan, but none in  respect  of his mother or the  maid-servant.   When  the burden was upon the appellant to establish desertion, it  is strange indeed that he should have thought fit to keep  back the   best  evidence  from  the  witness-  box.   When   the respondent and her father depose that: they took the consent of  the  appellant’s  parents  and if  the  parents  of  the appellant did not choose to come to the witness-box to  deny it,  a  court ordinarily should accept the evidence  of  the father  and the daughter unless their evidence is  ex  facie unnatural  or  -inherently improbable.  But that  cannot  be said in this case, for what the respondent’s father is  said to have done is the most natural in the circumstances. It  is  said that the City Civil.  Judge had seen  the  res- pondent’s  father,  Manganmal  and  the  respondent  in  the witness-box  and he did not accent their evidence and  that, therefore, the High Court should not have taken a  different view.   On  this aspect of the case, after  considering  the evidence of the witnesses, the High Court says thus               "The parents of the petitioner were  available               to  give evidence in this case. but they  have               not  been  examined: nor has  any  explanation               been  given  why the maidservant with  whom  a               message was left by the opponent when she left               the house, has not been examined in the  case.               We  are  left in this case with the  two  dia-               metrically   opposite  version  of   the   two               interested parties:.......... Having regard to               these  circumstances, we are of the view  that               the  departure of the opponent from the  house               of the petitioner was, if not with his express               permission,  with his consent and  full  know-               ledge   though  such  consent  was  given   on               account, of Some exasperation on his part." I entirely agree with this view.  It is consistent with  the evidence  given by the respondent’s witnesses and also  with the circumstances of the case and subsequent conduct of  the parties.  The appellant and his parents must have given  the consent,  though  not  willingly,  either  because  of   the importunities of the respondent’s father or because of,  the social  pressure put oft them through the intervention of  a respectable   outsider.    But  they  did   not   like   the respondent’s  parents  and therefore they did not  like  the respondent  going  to  their house.   It  was  a  permission reluctantly  given and she was afraid that it would be  wit& draw.-Li.  That is why there was no  correspondence  between the couple during all the days she was staying at Poona  and she did not even meet the appellant or his parents when  she was  boarding the ship at Bombay.  I would  therefore,  bold that  the  respondent  left her matrimonial  home  with  the permission of the appellant and his parents for the  purpose of staying with her father at Poona and thereafter to  leave for foreign countries for short stay to recoup her health. Strong  reliance is placed upon an incident that is  alleged to  have  taken  place  in  May  1954.   According  to   the appellant,  he and his friend, Dr. Lulla, went to  Poona  to persuade  her to come back to his house, but she  definitely told, them that she would never return to his house.  It  is said  that this incident would show that she had decided  to leave  him  permanently.  In the petition this May  incident

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 37 of 50  

was  not specifically ’mentioned nor was it stated  that  it afforded  a  cause of action.  There was no mention  of  the appellant  and  his friend Dr. Lulla going to her  and  her, stating  to them that she would never return to  his  house. Before the High Court the learned counsel appearing for  the appellant  did  not seek to rely upon this meeting  2nd  the reply  alleged  to  have been given  by  the  respondent  as furnishing a cause of action for founding a claim for relief of judicial separation.  This incident was relied upon: only in support of the appellant’s case that the respondent,  was intransigent throughout and was unwilling to go back: to the petitioner.   Indeed, the learned counsel appears  to  admit that  the  evidence of the appellant and Dr. Lulla  was  not clear as to what was the precise question asked and                             384 what  was  the  exact answer given by  the  respondent.   It would,  therefore, be seen that this incident did  not  loom large either in the pleadings or in the arguments before the High Court.  But it became a sheet-anchor of the appellant’s case before us.  Let me, therefore, consider this aspect  of the case in some detail. The  appellant  says in his evidence that he went  to  Poona along  with Dr. Lulla towards the end of May 1954,  that  he saw  the respondent at Poona and inquired of her to why  she left  his house secretly and that she told him that she  had decided  not  to  come  back to  him.   This  is  interested evidence  and is inconsistent with my finding that she  left his  house with his consent as well as with the  consent  of his  parents.  His evidence is supported by the evidence  of Dr.  Lulla.  But the respondent contradicts  this  evidence. She   denies  the  incident  altogether.   She  is  also   A interested witness.  Dr. Lulla, as D.W.3, says that he  went to Poona along with the appellant, that the appellant  tiled to  persuade  the  respondent  to come  back  to  him,  that thereafter he also tried to persuade her to come back to the appellant,  but she told them both that she had made up  her mind not to go back for ever.  He is a doctor with a  fairly good practice and a friend of the appellant.  But his cross- examination discloses that he did not ask the respondent why she  left the appellant, that he was with the respondent  at Poona  only for a few minutes, that he could  not  recollect what the appellant told the respondent actually and that she only  stated that she was not prepared to come back  to  the appellant  for ever.  It also shows that they went to  Poona without  any intimation, that they had decided to  meet  her alone,  that they thought that they could persuade her in  a few  minutes’ time to come back to the appellant, and  that, therefore,  when they’ left for Poona they did not make  any arrangements  for the next day, for they expected to  return back  by the midnight train.  This evidence is  attacked  on many grounds.  It is said that Dr. Lulla is a friend of  the appellant  and, therefore, he went to him in getting rid  of his  wife  as the appellant was not happy with her.   It  is pointed  out that if this incident had happened, this  would have  been mentioned in the earlier correspondence,  in  the notice issued and in the plaint 385 filed.  It is also argued that his entire evidence was arti- ficial  and appears to be improvised for the  occasion,  for the  way  he  went about the business  appears  to  be  very casual.   It is asked whether Dr. Lulla, who was going on  a serious attempt of reconciliation, would go to Poona without the  appellant informing the respondent or her  father  that they were coming if his intention was to meet her alone, how did  he expect that her parents would not be there  when  he

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 38 of 50  

went?  And how did he also think that the estrangement  that was  prolonged  could  have  been put an end  to  in  a  few minutes?  If he was serious about it as he pretends he  was, he would have gone there with preparations for a stay of one or  two days after making necessary arrangements in  respect of his professional work.  There is much to be said for this argument.   I  have  come across  in  my  experience  highly respected persons lying, in the witness-box to help a friend or  save  one  from a trouble.  But  the  City  Civil  Judge accepted  his  evidence.   The High  Court  says  about  his evidence thus:               "The learned trial judge appears to have  been               considerably impressed by the testimony of Dr.               Lulla.    He   regarded  Dr.   Lulla   as   an               independent person who was not likely ’to tell               an   untruth  to  support  the  case  of   the               petitioner.   The learned judge also took  the               view,  having  regard  to  the   contradictory               statements   made  by  the  opponent  in   her               evidence  that the testimony of  the  opponent               was  not reliable.  Sitting in appeal it  will               be difficult or us to ignore the  appreciation               of  evidence by the learned trial  judge.   It               must, however, be observed that Dr. Lulla  was               deposing to an incident which took place about               three years prior to the date on which he gave               evidence, and he did not claim to remember the               exact  words  in which the  conversation  took               place between the petitioner and the  opponent               or  between the petitioner and  himself.   Dr.               Jethmqlani,  who  appears  on  behalf  of  the               petitioner,  does not seek to rely  upon  this               meeting  and the replies alleged to have  been               given by the opponent as furnishing a cause of               action  for  founding a claim  to  relief  for               judicial  separation.  ..  ..  ......  in  the               absence of evidence as to what precisely  were               the questions put to and the answers given  by               the opponent, it is difficult to hold, even on               the view that 386               there  was in the month of May 1954 a  meeting               between  the petitioner and Dr. Lulla  on  the               one  hand  and the opponent on  the  other  as               alleged  by the petitioner, that the  opponent               had   in  unmistakable  terms   informed   the               petitioner  and  Dr.  Lulla that  she  had  no               desire   to   return  at  any  time   to   the               matrimonial home." This  finding  appears to me to be  couched  in  euphemistic terms.   Though  the  learned judges were  not  inclined  to disturb  the  finding of the learned trial  judge  that  Dr. Lulla met the respondent along with the appellant, they were not  willing to accept his evidence that she told them  that she  would not return to the matrimonial home for  ever.   I feel  a real doubt whether the appellant and Dr.  Lulla  met the respondent at all.  But let me assume for the purpose of this  case, as the High Court was inclined to  assume,  that they went there.  But Dr. Lulla admits in his evidence  that he  did not remember the exact words used by the  respondent in speaking to the appellant; if so, he could not have  also remembered  the  exact words used by her  in  answering  the appellant’s  question.   Afterall  the emphasis  is  on  the solitary  word  "ever".   The witness  was  speaking  to  an incident  that  took  place about 3  years  before  he  gave

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 39 of 50  

evidence  and in respect of a conversation that  took  place for  a  few minutes.  It is not advisable to rely  upon  his memory  in regard to the words alleged to have been used  by the respondent, particularly when he comes to give  evidence on behalf of a friend when the tendency would be to give the necessary  twist  to  a conversion of which  one  could  not remember  the  exact words.  The High Court as Well  as  the learned Advocate, who appeared for the appellant in the High Court,  did not, rightly, rely upon the phraseology used  in the  alleged  conversation  between the  appellant  and  the respondent.   Even if the incident had taken place, it  fits in  with my earlier finding, namely, -that the  respondent’s father had taken the permission of the appellant’s  parents, though given with reluctance.  The appellant might have  had second  thoughts and intended to go back on the consent  and to persuade the respondent to come back to his home and  not leave  India.  With that intention he might have  taken  his friend Dr. Lulla to Poona, where the respondent was  living. She might have refused to return 387 as  the appellant was going back on his consent.   She  must have been obviously very angry and must have curtly  refused to come back.  Even if she had used the word "ever"-which  I believe is only a gloss added to her statement intentionally or by lapse of memory-it must have been said in a huff.   If every  statement  made  by a spouse in a  huff  in  a  short conversation with her husband were taken in its face  value, many a home would be broken.  I cannot, therefore, give  any value to the evidence of Dr. Lulla.  I would hold that it is very  doubtful whether this incident had taken  place,  that even if it did, the evidence given by Dr. Lulla could not be taken  to be a reproduction of the actual words used by  the respondent,  and that, even if she had used those words,  it was only a statement made in a huff in a short interview and could  not  be taken as a final word on the  subject  as  to compel a court to hold that she deserted her husband without reasonable cause. Some emphasis is also made on her conduct in not meeting her husband or his.parents when she came to Bombay to board  the ship  and also on her not giving her husband’s house as  the address in the relevant papers prepared for the journey.  It was  argued that the place where she was staying  at  Bombay was  very near to that of her husband and it is  unthinkable that she would not have gone there, if she was going  abroad with  permission, to see her husband or his parents  or  her child.   This argument misses the real point.  Here  we  are considering  the case of a wife who was ill-treated  in  her husband’s  house and who, at the instance of her father  and his  friend, got reluctant permission from her  husband  and parents-in-law  and if Dr. Lulla’s evidence were  true,  the appellant went back on his consent and was trying to prevent her  from going with her father.  In such a situation it  is impossible   to  expect  an  unfortunate  woman   like   the respondent to create more unpleasantness to herself by going to her husband’s house before departure and to take the risk of  spoiling  her  planned  holiday.   The  fact  that   her husband’s  address  was  not given in  the  relevant  travel papers  could not be attributed to her, for they  must  have been  prepared  in  usual  course at  the  instance  of  the gentleman  who was helping them in that regard.  If once  it was  accepted  that she deserted  her  husband  permanently, these circumstances 388 may  have relevance, but once it was conceded that  she  was going with the permission of her husband, though unwillingly

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 40 of 50  

given,  this  conduct  would  fall  in  a  piece  with   the respondent’s case.  I would, therefore, not give much  value to  such  circumstances  in  the  situation  in  which   the respondent  was placed.  The respondent left Bombay on  July 7,  1954, for the Far East with her father.  Much  was  made about her leaving India with her father.  IF she had  eloped with a stranger, no doubt that would be a different  matter. But  here  a father was taking his daughter to  give  her  a holiday  so that she may improve her health.  By taking  her away  for short time from the oppressive surroundings  which affected  her health,I do not see any justification for  the comment that she had deserted her husband.  It must also  be remembered that the respondent’s father was not living  with his family in the Far East.  His wife and children have  all along been in India.  He was taking the respondent only  for a  temporary sojourn; and what is wrong in a  father  taking his  daughter for a holiday in those circumstances ?  If  he had  taken the appellant’s or his parents’ consent,  it  was not suggested that there was anything wrong in her so going. If lie or his daughter did not take such a consent, it might be  an improper or an inadvisable thing to do.  But  such  a conduct  in  the  case of a wife  leaving  with  her  father temporarily  to  a  foreign country as  an  escape  from  an oppressive  atmosphere cannot be described as  reprehensible even  by a Hindu society; much less can it be treated  as  a desertion.   It was a natural reaction to  an  extraordinary situation.   She  might have known that  her  conduct  would anger  her husband, but she would not have thought  that  it would be a permanent obstacle in their relationship.  Be  it as  it  may,  I have already found that she  left  with  her father with the consent of the appellant and his father, and that  even if the appellant subsequently retracted from  his consent, her departure might be only improper, but could not conceivably amount to legal desertion. Till  now  I was considering only the  oral  evidence.   But hereafter we come across unimpeachable documentary  evidence which  shows  the attitude of the couple to each  other.   I shall proceed to consider the documentary evidence on the 389 assumption  favourable  to the appellant, namely,  that  he, along  with Dr. Lulla, went to Poona in May 1954,  retracted his permission given earlier, and persuaded her to come back to  the matrimonial home, but she refused to do so and  left with her father for foreign Countries. I  am  definitely  of the view that  in  -,he  circumstances narrated  above  the exact words used by her  could  not  be field to have been proved by the vague oral evidence of  Dr. Lulla  and that, even if she had expressed herself  strongly in  a buff, such expression could not in  the  circumstances -be considered to be decisive of her determination to  leave the matrimonial home for ever.  She left for the Far East on July  7, 1954.  Within a fortnight from that date,  on  July 20,  1954, the appellant gave a cable to the  respondent  to the following effect               "Extremely surprised at your suddenly secretly               leaving India without my knowledge and consent               return immediately first plane."               On July 22/23, 1954, as soon as the respondent               received  the  cable from the  appellant,  she               gave a cable in reply thus               "Returning within few months".               On  July 24, 1954, the appellant gave  another               cable  to  the  respondent  to  the  following               effect :               "You must return immediately."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 41 of 50  

Pausing here for a moment, let me recapitulate the position. If  the  respondent definitely told the  appellant  and  Dr. Lulla  that  she  bad given him up and that  she  would  not return to the matrimonial home, why did the appellant send a cable  telling  her that he was surprised  at  her  secretly leaving India and asking her to return immediately?  And why did  she reply that she would return in a few months?.   The cable  given  by the appellant is more consistent  with  the fact  that neither of them understood that she had left  him for  ever.   Indeed, the cable reflected his  anger  on  her departure along with her father, because, though  permission was  given  earlier, he did not like her  to  go.   Whatever ambiguity there may be, her immediate reply was inconsistent with  her  determination to leave him for  ever,  unless  we assume, as we are asked to do, that the cable ’was a link in the  chain  of the plan conceived by her and her  father  to resist  an action that might be taken by the. husband  in  a court of law.  In July 1954 390 what was the action which the appellant could have taken and what  was  the defence, if such an action  was  taken,  that could be sustained on the basis of this cable?  At that time the Act was not passed.  The Act was passed in 1955 and came into  force  on May 18, 1955.  Therefore,  the  only  action which  the husband could have taken ’Linder the law,  as  it then  stood, was to file a suit for restitution of  conjugal rights,  and  this  cable could not possibly  be  a  defence against such an action.  If she wanted to join him again she could  have  submitted  to the  decree.   The  Bombay  Hindu Divorce  Act,  1947,  may  not  have  any  extra-territorial operation.   Even if it has, four years of desertion had  to run  out  before  she could be divorced; and  there  was  no particular  urgency for her to create any eviedence at  that stage.  To may this cable is destructive of tile case of the appellant that she left him for ever.  His reply cable  also is  only  consistent with the fact that there was  no  break between them. Now,  I  come to a letter dated August 2, 1954,  over  which there  is some controversy, the appellant alleging  that  it was  a forged one and the respondent stating that it was  ,a draft of the letter she sent to her husband.  It reads               " My dear husband,               Darling I received your two telegrams,  copies               of which enclosed herewith.               I  immediately  cabled you that  I  shall  be.               returning within few months, however I  really               feel  surprised  why  you want  me  return  to               Bombay by first plane without any reason.               Dear I was particularly pained to read that  I               have  suddenly  and secretely left  the  place               without  your consent.  What has prompted  you               to write this I really don’t understand.  Dear               how  came  this change.  You know  I  was  not               keeping good health and considerably gone down               in  spirit and weight for reasons which I  (10               not  like to discuss here since you are  fully               aware  of it. It was you who suggested that  I               should  go over and stay at my father’s  place               and  it was at your suggestion that I did  so.               You  were fully aware that I was  accompanying               my father to Singapore for a few months for  a               change and you gave consent As soon as I  feel               better I shall return to Bombay. 391               1  hope  yourself,  Ashok and  all  the  other

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 42 of 50  

             family  members  are 0. K. Give  my  loves  to               Ashok and Best regards to Mother and Father.               Yours forever,               Meena."               The  respondent, in her  examination-in-chief,               says:-               "I had written a letter dated 2nd August  1954               to  my  husband,  a  copy  whereof  has   been               preserved  by  me, I produce the copy  of  the               letter dated 2nd August 1954." That was not objected to and the copy of the letter was  put in and marked as Ex.  No. 4. In the cross-examination  there is  some confusion, but she broadly stated that  her  father dictated to her the letter, that the said letter was  typed, that  she  copied from that typed letter and that Ex.  4  is that  typed  letter.  The father in  his  cross-examination, deposes  that  the  respondent had written  a  letter  dated August  2,  1954, to the appellant, that he had a  draft  of that  letter and the same was written after consulting  him. The  appellant  denied that he received  that  letter.   The learned City Civil Judge found thus :-               "I  am  not  prepared to hold  that  the  copy               letter  Ex.  4  was  fabricated  subsequently,               because  there  are references to  the  letter               dated 2-8-1954 in subsequent letters addressed               by the respondent to the petitioner." But  he  held  that the appellant did  not  receive  such  a letter.   The trial Court held that the letter not  being  a copy of what was written the respondent to the appellant, it could  not be regarded  is a secondary evidence of the  con- tents of the letter.  But the High Court pointed out that it was  not the case of the respondent that it was a  secondary evidence  of the contents of the letter written by her,  but her  case was that the text of Ex. 4 and the letter  written to  the appellant was the same; and in support of  her  case she  produced the letter from which she had copied  out  the letter she had addressed to the appellant.  Both the Courts, therefore,  held that Ex. 4 was the typed letter from  which the   respondent   drafted  her  letter  to   her   husband. Undoubtedly,  Ex.  4 cannot be a secondary evidence  of  the letter  written  by the respondent to her  husband,  but  it certainly  corroborates her oral evidence that she  wrote  a letter with similar recitals contained in Ex. 4 to her hus- 392 band on the date Ex. 4 bears.  As pointed out by the learned City  Civil  Judge  as  well  as  by  the  High  Court,  the subsequent  letters written by her clearly demonstrate  that Ex.  4  could not have been fabricated  subsequently  and  a letter must have been written by her on August 2, 1954.   In view  of the concurrent findings of fact, I do not think  it is necessary to consider the evidence over again.  I  accept the concurrent findings that a letter dated August 2,  1954, with contents similiar to those in Ex. 4 was written by  the respondent to her husband. It  is  contended that the said letter was  written  at  the instance  of  the  father and on his  dictation  to  furnish evidence in an action that might be brought by the appellant against there spondent.  Let me first take the comment,VI  . Z.,  would a wife write a letter to her husband  in  consul- tation  with her father?  Ordinarily in the case of  married couples  it is true that a wife would not write  letters  to her   husband   after  consulting  her  father.    But   the circumstances  under which the respondent wrote letter  were not  ordinary  ones.  Here, there was  trouble  between  the husband and wife.  The husband, according to the respondent,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 43 of 50  

gave his consent, though reluctantly, for her to leave  with her  father to the Far East, but soon there-after gave   two cables asking her to return immediately. Naturally she would tell  that  fact to her father and seek his  advice  in  the matter of- replying to her husband.  There is nothing  wrong in her father helping her to send a suitable reply, so  that the  husband  may  not be  offended.   The  second  comment, namely,  that  this  ’letter was intended  to  be  a  shield against  a  possible action by the appellant, is  devoid  of merits.  At the time the letter was written the Act had  not come  into  force  and this letter could not  have  been  an answer  to  a  possible action the husband  might  take  for restitution  of  conjugal rights.  There was  no  particular urgency  for her to create evidence on that date  against  a possible action under the Bombay Act, even if it applied  to her.   This letter demonstrates beyond any reasonable  doubt that the wife did not desert her husband with the  requisite animus, but, on the other hand, shows her willingness to  go over to Bombay as soon as she regained her health.  To  this letter no reply was sent by the appellant and he says in his evidence that he did not 393 receive the said letter.  It is very difficult to believe Ms statement.    He  is  obviously  denying  the   receipt   of this .letter a,,; it establishes that she had not the animus to desert him.  On February 24, 1955, he again gave a  cable in the following terms --               "Since your secret departure you not  replying               my   telegrams  letters  myself  shocked   you               wandering different countries leading reckless               life   spoiling   my  reputation   your   most               disgraceful behaviour ruining my life." This  cable  contains  incorrect  statements.   Whether   he received the letter dated August 2, 1954, or not, admittedly he had received the cable given by her.  I have already held that he must have received the letter dated August 2,  1954. He   imputes  to  her  in  this  cable  reckless  life   and disgraceful  behaviour.  Where did he get  this  information that  she was leading a bad life?  In his evidence  he  does not say that she was leading any disgraceful life.  There is nothing  on  the  record to show  that  the  respondent  was leading a bad life, and indeed the appellant admits that she was  not even leading a fast one, she never  danced,  played cards  or  drank, at any rate, according to  the  appellant, from  the  year 1947.  This cable must  have  irritated  any respectable  woman.  Yet on February 26, 1955, she gave  the following cable :-.               "Your allegation,% in your cable dated  twenty               fourth  not  correct  cannot  understand  your               attitude  stop  I  have  departed  with   your               knowledge  with my father because  of  falling               health due to reasons you are well aware  stop               keeping  quiet life with my parents stop  have               not received your letter only telegrams  which               have been replied by cable and letter." This reply is in subdued terms and it shows her  respectable attitude  towards the appellant inspite of his  provocation. Therein  she denies his wild accusations and  restates  that she  went with her father with his consent and that she  had replied  to  Ms cables by cables as well as by  letter.   On March  4,  1955, the appellant gave another  cable  to  her- charging  her with fabricating false stories.  On  March  3, 1955,  before the respondent received the above  cable,  she wrote  a letter to the appellant giving a detailed reply  to his  cables.   Therein she denied that she was  leading  any

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 44 of 50  

reck- 26-2 S.C. India/64 394 less  life and told him that she was either with her  father or uncle and also that she did not receive any letters  from him.  Then she proceeded to state :-               You know darling I being away from the  people               who  despise  me, I have  improved  my  health               considerably,  I wish you could come and  meet               me her outside that suspicious atmosphere  and               you  will know the real pleasure.  I  am  very               lonely  without  you and my son Ashok  who  is               always  with  me in my sleep.  I long  to  see               both  of you and therefore I beg to  come  out               here..  Please do come and do  not  disappoint               me.  You know in your heart that I love you so               much.   This trip outside India will make  you               good and we shall have a very happy life.  You               are working so hard for your parents and never               think of me and your health which as I know is               deteriorating and I also know that you are not               happy.  Darling, I assure you that this change               for  few  months  will  improve  your   health               considerably.  You need good rest to think  on               all your problems of daily life which you  can               do only along and outside the influence of the               people  who are around you.  I hope  you  will               understand  and at least come out here  for  a               change-for  a short period.  I shall  do  what               you  want  me to do, but please,  darling,  do               come; Please give my Charanawandana to  father               and mother and love to Ashok." This letter is criticized on the ground that it was  another attempt to create evidence at the instance of her father and also  on the ground that she asked her husband to come  away from his parents.  To me this letter appears to be an honest attempt  on  the  part of the wife  to  reconcile  with  her husband.  It mentions his troubles and requests him to  come over  the  East  not for any permanent stay but  only  as  a temporary  sojourn  to  recoup his health  and  to  enjoy  a holiday  along with her.  As I have already stated, by  that time the Act was not passed and therefore this letter  could not  have  been written to set up any  defence  against  any possible action by the husband.  I find it very difficult to see  any  sinister motive in this well meant  reply  to  her husband, and particularly after his cable attributing to her reckless life.  After dispatching this letter she received a cable dated March 4, 1955, wherein the appellant attributed 395 to  her the conduct of fabricating false stories.   To  that cable she sent a reply cable on March 10, 1955, denying  the said  allegation and telling him that somebody was  wrecking their  lives  and asking him to come over to  Hongkong.   On April  2,  1955, the appellant wrote a long  letter  to  the respondent  in  reply  to her letter dated  March  3,  1955. Therein he chastised her for making insinuations against his parents,  who had done much for her welfare  and  happiness. Emphasizing  upon  the word "pleasure" in her  letter  dated March 3, 1955, he proceeded to state :-               "’Pleasure’! that, indeed, is the crux of  the               whole  problem.   It is your  perverted  funny               notions  of pleasure giving vent to your  past               and  present associations, both in  India  and               abroad,  that are the root cause of  all  your               evil and irrational deeds."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 45 of 50  

             Pursuing the same idea, he observed:-               "Just  remember my efforts all these years  to                             improve you and make you a happy and contented               wife.   It is a wonder that you find  pleasure               in   leaving  home,  leaving   your   husband,               wandering  from  country to  country,  leading               reckless life under the guise of being in  the               company of your relations and uncles whom  you               find readily available at every port.  And you               have  gone so far in this direction, that  you               find yourself unable to break your past  links               and  get out of the muddle created by you  and               seek  pleasure and happiness in your own  home               by being a faithful and devoted wife."               He  did not stop with that, but  proceeded  to               state "....you have proceeded to Hongkong  and               other   places,  in  defiance  of   my   clear               instruction  to return And, in order to  cloak               all  these evil things you are  now  inventing               dirty   excuses,  evidently  meant   for   the               consumption of the outside world whom you want               to  fool, so that you may be able  to  justify               your disgraceful conduct and continue to  live               your   life  of  "pleasure"  without  let   or               hindrance." What  is  more,  he told her that in  her  letters  she  had fabricated  false  and  malicious stories to  cover  up  her outrageous  conduct  for misleading the outside  world.   He finally  ended  with  the  following  words  expressing  his determination to ignore her further correspondence:- 396               "However, if you still choose to fling further               filth in my face by writing to me such letters               and  telegrams, I shall have no choice but  to               ignore and make no reply to the same.  Inspite               of   all  my  efforts,  you  have   completely               deserted  me and chosen the path  of  pleasure               and  per-version  at any cost.  You  are  only               looking for same cloak to cover your guilt and               continue to live your life of degradation with               impunity.   I refuse to furnish you with  that               cloak and I refuse to be drawn in your game." There is considerable argument on the import of this letter. On behalf of the appellant it is contented that the contents of this letter were nothing more than an emotional  outburst of a deserted husband and that the words used therein should not be understood literally.  It is argued on behalf of  the respondent  that  this  letter  did  not  mince  matters  in attributing infidelity and unchastity to the respondent  and it  communicated  a final determination on his part  not  to have  anything  to  do with her.  The  former  argument  was accepted by the City Civil Court, but the latter  contention had the approval of the High Court.  Shah, J., after reading the relevant portions of the document, came to the following conclusion :-               Whatever may be the protestations made by  the               petitioner  in his evidence before the  Court,               it  is impossible to accede to the  contention               of  Mr. Jethmalani that his letter was  merely               the  outpouring  of an anguished  heart.   The               letter  in no unmistakable terms  charges  the               opponent with infidelity not occasional but  a               persistent  and chosen life of  infidelity-and               also  charges with inventing a scheme  whereby

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 46 of 50  

             she   may  be  able  to  live  that  life   of               infidelity   under  an  appearance  of   being               respectfuly married.  If after this letter the               opponent  was  unwilling  to  carry  out   the               petitioner’s direction and to forthwith go and               live  with him, in our judgment, no fault  can               be found with her." Deasi, J., in his separate judgment wholly agreed with Shah, J. Theappellant is a graduate and it cannot be said that  he does  not  know English.  The terms of the  letter  indicate that  his  standard  of English is rather high  and  he  has sufficient vocabulary at Ms command.  It is not necessary to cover the ground overagain, as I entirely agree 397 with  the  construction laced upon that letter by  Shah  and Deasi,  JJ.  The expressions "outrageous  conduct"  reckless life", "wild ventures", disgustful conduct", "life of  plea- sure",  "past links", "relations readily available at  every port"  and such others found in the letter leave no room  to doubt  that the said expressions were intended to impute  an immoral  and dissipated life to her.  Whether he used  those words  really believeing that. she was such a bad  woman  or whether he used the wild language because he was angry  that she went with her father need not be speculated upon.   What matters  is  that he designedly couched his  letter  without leaving any room for doubt in clear and precise  phraseology and told her that she was a bad woman and, therefore, he had nothing more to do with her.  To such an outrageous  letter, how did the respondent react?  She must have been  extremely offended  as  any self-respecting woman would be.   But  she controlled herself and replied to him by letter dated  April 12, 1955 in a subdued and dignified manner.  After repeating that the appellant and his parents gave her consent to leave with  her father, she again repeated that she left with  her father to improve her health.  She told him that her  health improved  a little and that she would return to him  and  to her  son after sometime.  Adverting to his  fulminations  in his letter she said :               "I  find it unnecessary to reply to the  other               unfounded accusations contained in your letter               because I know and I am sure that the basis of               the same are your hallucinations, of what I am               not.   I deny your charges all over again  and               you  know that they are not true.   I  believe               that the best way is to ignore them since they               are not based on truth."               She ended her letter thus :               "Please do not indulge in misgivings.  As soon               as my health has completely improved, I  shall               of  course, come back home to you and  to  our               son.  " This  letter shows that she was very much offended  and  she was  also  sorry.  She told him in mild words that  all  his accusations  were false and requested him not to indulge  in such  things.   She promised to come as soon as  her  health improved.   Here the arguments advanced by  learned  counsel for the appellant may be noticed. 398 Firstly,  the usual argument, namely, that this  letter  was written to the dictation of her father as a shield against a possible action by the appellant, is repeated ; and  second- ly, this letter indicates that the false accusations made by her husband did not so operate on her mind as to induce  her to  give  up  her idea of coming back  to  him.   The  first argument  calls for the same answer, which I have  given  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 47 of 50  

the context of other correspondence.  There is nothing wrong in  the  respondent consulting her father, who any  day  was more  affectionate to her than the appellant could  possibly have  been.   There is no point in  the  second  contention. This  letter clearly shows that she was highly  offended  by the  false  accusations  ; but she replied  in  a  dignified manner  asking  him  neither to make  nor  to  believe  such accusations.   She  should be unusual woman if she  was  not offended by this letter.  This reply reflects more her self- control  than  her indifference  or  insensitiveness.   This letter, read along with the letter written by the  appellant on April 2, 1955, demonstrates that she was always ready and willing  to  come back to him inspite  of  his  accusations. Some comment is made on the basis of the answers she gave in her  evidence in regard to the manner she got  the  contents explained to her.  Those answers were given in the stress of cross-examination.   Those could not possibly  detract  from the  admitted  facts that she received the said  letter  and gave  her  reply.   The letter and  her  answers  speak  for themselves.   The ingenuity of the  cross-examining  counsel could  not  add to or detract from either.  So  far  as  the letters go, they proved beyond reasonable doubt that however inadvisable  it may be for the respondent to go to  the  Far East  with  her father, she had not the least  intention  of leaving  her husband permanently.  She was always ready  and willing to go back to her husband. On  April  8, 1956, the respondent returned to  India.   The appellant’s  complaint is that she did not inform  him  that she was coming and that she did not come to his house.   The contention  on  behalf of the respondent is that  after  she received  the  letter dated April 2, 1955,  she  was  highly offended and that, therefore, she expected some step on  the part of her husband to meet her or send somebody to take her to his home.  In her evidence she 399 says  that after she arrived in India, her father  spoke  to two  or three persons for rapprochement and one of them  was Kishinchand of Messers.  J. Kimatrai and Kundanmal and  that her  father  told her that Kishinchand had a talk  with  the appellant,  but  the latter refused to take her  back.   She adds  that after her return no efforts were made  either  by her  husband or on his behalf or by his parents to call  her back  to  his house and she thought that somebody  would  be sent  by  her  husband to fetch her  from  Poona  to  Bombay according  to  the  custom.  The  appellant  admits  in  his evidence  that sometime in the month of May or June 1955  he came  to  know that the Tespondent had  returned  to  India. Assuming  that he was speaking the truth, it is  clear  from the evidence that he knew of her return about a month  after she  returned, but presumably he was standing on his  rights and  prestige  and  did  not move  in  the  matter.   It  is suggested  to  her that instead of going  to  her  husband’s house, in April 1956 she went to Kashmir for a holiday.  She admits  that  she  went,  but  explains  that  her  father’s brother’s  children  had holidays and as they  proceeded  to Kashmir,  she  also  accompanied them.  I  do  not  see  any bearing  of this Kashmir trip on the question of  desertion. If she was waiting for an invitation to go to her  husband’s place  there  is  nothing  wrong  in  her  accompanying  the children  to  Kashmir.  The respondent’s  father  says  that about  2 months after their arrival in India, he waited  for an invitation from the appellant, but as he did not move  in the matter, he met one or two friends of his to bring  about a  rapprochement between the couple, but they could  not  do anything  in the matter.  There is nothing unnatural in  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 48 of 50  

father   making  the  said  attempts  to  bring  about   re- conciliation  between  the couple.  There is  no  reason  to reject his evidence in this regard.  I shall assume that  no mediators  were  sent by the respondent’s father  to,  bring about  a rapprochement between the couple.  Even  so,  after the  letter dated April 2, 1955 the husband, who  knew  that the  respondent  had come to India, should have  taken  some steps  directly or indirectly to induce her to come  to  his house.   If he stood on his prestige, the  respondent  could not  be  blamed, if after the rebuffs she received  and  the adment attitude of the appellant communicated 400 to her in the said letter, she did not take the first step. In  this context another circumstance may also  be  noticed. The  respondent  and also her father say  that  in  November 1955,  a  sister  of  the  appellant  was  married  but   no invitation was sent to the respondent.  The respondent  says that this fact also made her to apprehend that she would not be  received  if she straightaway went  to  the  appellant’s house.   In  the circumstances if she did  not  directly  on landing in India go to her husband’s house but waited for an invitation  from  him, I cannot say that  her  attitude  was either  unreasonable or that it should be attributed to  her final  determination to desert her husband.  On this  aspect of the case, Shah, J., observed in his judgment :               "The  conduct of the opponent in  not  meeting               her son after she returned to India may appear               to  be  unnatural, but, if after  receiving  a               highly  offensive letter from the  petitioner,               she  did not take an initiative to  return  to               the  matrimonial  home  and  waited  for  some               invitation  from, or from some amends  on  the               part of, the petitioner, that conduct may  not               be  regarded as improbable or  justifying  an’               inference that she was seeking to continue the               state   of  desertion  which  had   previously               started." I am in entire agreement with these observations. On  the other hand the conduct of the appellant is  telltale and reflects his determination to discard her.  According to him  he  came to know that the respondent came to  India  in April  or  May 1956, but a few days  thereafter  instead  of inviting  her to come, he went to a lawyer for  consultation and thereafter filed the petition for judicial separation in September 1956.  It is manifest that he was waiting for  the statutory  time to run out and soon thereafter he rushed  to the  Court.  The respondent, who obviously did not know  the passing of the Act, fell into his trap. Pausing  here, let me summarize the facts.   The  respondent belongs to a fairly rich family.  She must have been brought up  in  comfort and with love and affection.   She  was  not highly  educated  ; she has read, we are  told,  upto  sixth standard.  She was married to the appellant, who belongs  to a  well-to-do family.  The appellant is an M.B.B.S. and  has been  carrying  on  the profession of a  doctor  in  Bombay. After the marriage, the respondent 401 came  to live in the joint family house of the appellant  in 1947.   There were misunderstanding between the  parents  of the  respondent and the appellant and the latter’s  sisters. The  respondent was ill-treated, insulted and was  not  even allowed to look after her only child.  The husband, for  one reason  or  other,  either because of his  respect  for  his parents  or  because  of his weakness or  because  of  both, though at the beginning he was affectionate to his wife, was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 49 of 50  

not  able to stand up for her and later on he fell  in  line with  his  parents and sisters and began to  ill-treat  her. Though  in  the earlier years she was allowed to go  to  her parents’ house now and then, later on the appellant and  his parents  refused her permission to go to her parents’  house or  allowed  her  to  do  so once  in  a  while  with  great reluctance,  when  her  father, on  one  of  his  infrequent visits, was in India.  She was not even permitted to go when her  uncle died.  The appellant also contemplated  a  second marriage, but, for one reason or other, it did not come off. By the year 1954 she was in a nervous strain and necessarily that must have affected her health.  Her father, who came to India  at the end of 1953, heard her complaints and saw  her physical and mental condition.  He did what a loving  father should  do  in the circumstances.  Giving up  the  ideas  of false  prestige, he approached the parents of the  appellant directly  and through a friend and persuaded them to  permit the respondent to go to his house and thereafter to the  Far East  with him for a short stay to recoup her  health.   The respondent  also took the permission of her husband.   After some time, the husband I am assuming that his version of the visit  along with Dr. Lulla, to Poona was  true-changed  his mind  and  asked her to come back, but she refused  to  come back.   From her standpoint she obviously did not  like  her husband  going back on his word and disturbing  her  planned holiday,  to  which  she  was  looking  forward.   From  the standpoint of the husband, he was angry because as, a  Hindu husband he expected his wife to obey him whether his  demand was reasonable or not.  The wife, perhaps’ did not tell  him the day when she would be leaving with her father to the Far East.   She must have been afraid that he would prevent  her somehow from going abroad.  That explains her conduct 402 in  not  seeing  him or his parents  at  Bombay  before  she boarded the ship.  The subsequent correspondence shows  that the  appellant was telling her from his commanding  position that  she  should give up her holiday and come back  to  him immediately  and she, on her part, was persuading him  in  a subdued  tone  to permit her to stay for a  few  months  and promising  to come back thereafter.  The letter dated  April 2,  1955,  was  an unexpected and  unmerited  blow  to  her. Therein  she was charged with unchastity and leading a  fast and  reckless life.  Even a Hindu wife would be enraged  and insulted  by  such  dastardly conduct on  the  part  of  her husband.   Even so she sent a reply couched in  a  dignified and controlled language denying his allegations and  stating that  she  would return in a few months.  She was  not  even invited  by  the appellant when his sister  was  married  in November  1955.  She therefore, came back to India  only  in April 1956.  In view of the serious allegations made by  the appellant in his letter dated April 2, 1954, and in view  of his determined attitude disclosed therein, she naturally and properly expected that the husband would invite her or  send somebody to take her back to his home.  Instead of doing so, though he knew that the respondent had come to India, he did not  make  any attempt to invite her or send a  relation  to bring her to his home as he used to do on previous occasions when  she went to her father’s house.  By that time  as  the Act  came into force, he found his opportunity for which  he was  waiting  and took advantage of the situation.   As  the statutory period of two years had expired from the date  she left India, he rushed to the Court.  On these facts, I  have no  doubt  that the appellant failed to establish  that  the respondent deserted him without any reasonable cause. Even if she deserted him within the meaning of s. 10 of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 50 of 50  

Act, I would hold that by writing the letter dated April  2, 1955, she ceased to be in desertion from that date.  A  fair reading of that letter, read in the context of her offer  to return  within a few months, shows beyond any doubt that  he closed  the  door for her return long before  the  statutory period  had  expired.   When the  respondent  wrote  to  the appellant  telling him that she would come in a few  months, he wrote to her saying that she was leading 403 an  immoral life and that he would no longer be "drawn  into her  game." Even after that letter, she wrote  back  denying his  charges  and promising to come as soon  as  her  health improved.   I have no doubt that, at any rate from April  2, 1955, the desertion, if any, on the part of the  respondent, came  to an end and from that date the appellant was  guilty of desertion. For  the  aforesaid  reasons, I agree  with  the  conclusion arrived  at  by the High Court.  The appeal deserves  to  be dismissed and I accordingly dismiss it with costs.                        ORDER OF COURT In  accordance  with  the majority opinion,  the  appeal  is allowed with costs here and in the High Court.