Whether burden of proof is on Husband to prove that wife deserted him without cause?

 Desertion is a matter of inference to be drawn from the facts and circumstances of each case. What amounts to desertion in a particular case depends upon the circumstances and mode of life of the parties. In any case mere physical separation between spouses for a continuous period of not less than two years immediately preceding the presentation of the petition would not constitute desertion. The factum of desertion and the intention of a party to bring cohabitation permanently to an end are the essential ingredients of legal desertion. In other words, the essence of desertion means the intentional permanent abandonment of one spouse by other without that other's consent and without reasonable cause. Insofar as burden is concerned it is always on the petitioner in proving the factum of desertion as well as animus deserendi, which the petitioner has to establish to the satisfaction of the court. Even if the wife, where she is a deserting spouse, does not prove just cause for her leaving apart, the petitioner-husband has still to satisfy the court that the desertion was without cause. Therefore, in a petition for divorce by the husband on the ground of desertion, it is not enough if it is established that the wife left the matrimonial home without reasonable excuse and against wishes of husband but indeed, it must further be shown that the intention was to bring cohabitation permanently to an end.

IN THE HIGH COURT OF BOMBAY

Family Court Appeal No. 110 of 2006

Decided On: 04.08.2008

 Arundhati Deepak Patil  Vs. Deepak Bhaurao Patil

Hon'ble Judges/Coram:

B.H. Marlapalle and D.B. Bhosale, JJ.
Citation; 2008(6) MHLJ 554 Bom

1. This appeal is directed against the Judgment and order dated 22.6.2006 rendered by Family Court in Petition No. A-1567 of 2000 filed by the respondent-husband seeking a decree of divorce under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 (for short, "the Act"). By the impugned judgment, the marriage of the appellant-Arundahti (for short, "the respondent") and the respondent-Deepak (for short, "the petitioner") has been dissolved on both the grounds, that is, cruelty and desertion. The operative portion of the impugned judgment reads thus:

The petition is allowed.

The marriage solemnized between the parties on 26.12.1994 is hereby dissolved by decree of divorce under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955.

The permanent custody of minor daughter Hardiki shall remain with the respondent-mother Arundhati Patil. Petitioner-father Deepak Patil shall have access to said Hardiki on 1st and 3rd Sunday of every month in the morning from 10.30 to 12.30.

The petitioner shall pick up the child from the residence of the respondent and shall bring her back to the same place.

The petitioner shall pay Rs. 1800/- per month towards the maintenance of daughter Hardiki. He shall pay the same from the date of the order, i.e. 22.6.2006.

The respondent's counter claim for return of her ornaments and getting the residential premises or in the alternative rent for the residential premises is hereby dismissed except that she shall be allowed to get the articles and ornaments which were found in the inventory conducted at the residence of the petitioner on 10.5.005, as per the report submitted at Exh.110, which are lying in the cupboard which is at the petitioner's residence. Parties to bear their respective costs.

A decree be drawn accordingly.

2. Briefly stated, the petitioner and the respondent got married on 26.12.1994. At the time of their marriage both were employed. After the marriage, in June -July, 1995 the respondent took admission for Engineering Degree course in S.P. college of Engineering at Andheri, Mumbai. She appeared for the first and second Semesters in October, 1995 and April, 1996 respectively. In October, 1996, the respondent conceived and, thereafter, left her job. According to the petitioner, at that time, in the course of medical investigation it was revealed that prior to the marriage the respondent was suffering from Multi Nodular Goiter with Hypothyroidism. In March-April, 1997 the respondent went to her maternal home for delivery. On 6.7.1997, she gave birth to a female child. On 12.10.1997, the respondent came back to her matrimonial home with her daughter- Hardiki. On 16.5.1998, according to the petitioner, the respondent left the matrimonial home along with Hardiki in a fit of rage and then returned on 22.6.1998. Again, on 23.6.1998 she went to her maternal home and returned on 7.7.1998. Then she lived with the petitioner for hardly four days and again on 11.7.1998 left the matrimonial home and never returned again. It appears that on 1o.7.1998 a police complaint (N.C. No. 5.8.98) was lodged by the petitioner against the respondent with Vile Parle Police Station. In October, 1998, the respondent once again took up a job. On 21.10.2000, the respondent filed the petition in the Family Court seeking divorce on the grounds of cruelty and desertion.

3. Before the Family Court, the petitioner, in support of the grounds for divorce, examined himself (PW 1), his father Bhaurao Patil (PW 2), their maid servant Manisha Dhavade (PW 3), his maternal uncle Ulhaskumar Patil (PW 4) and Vasantrao Sawant (PW 5), the retired Principal who acted as a mediator for resolving the dispute between the petitioner and the respondent. As against this, the respondent examined herself (RW 1), her mother Vidhya Gharat (RW 2) and her sister Swapanali Gharat (RW 3). Based on the evidence of these witnesses, examined by the petitioner and the respondent, the Family Court held that the respondent had treated the petitioner with cruelty and she deserted him without any reasonable cause for two years preceding the presentation of the petition. Insofar as custody of the child is concerned, the Family Court granted custody of Hardiki to the respondent with access to the petitioner and further granted Rs. 1800/- per month towards the maintenance of the daughter-Hardiki.

4. The petitioner sought a decree of divorce on the ground of cruelty, available under Section 13(1)(ia) of the Act, contending in her petition that:- (i) the respondent used to frequently visit her matrimonial home without permission and intimation to the petitioner and his family members; (ii) she used to insist for separate residence at the instance of her parents; (iii) she did not get her name deleted from the Ration Card of her parents so as to enable the petitioner to add her name to their ration card which, according to the petitioner, exhibited that she was never interested in becoming a member of the petitioner's family; (iv) on the first wedding anniversary she got annoyed and left for her maternal home merely because the petitioner did not take leave on that day; (v) after she returned on 12.10.1997 she stopped cooking and giving lunch box to the petitioner; (vi) on 16.5.1998, the respondent was not feeling well and in a fit of rage she cut a petticoat of Hardiki with a scissor; (vii) on 22.6.1998, when she returned to her matrimonial home and again quarrelled with the petitioner till after midnight and at the wee hours on 23.6.1998 allegedly consumed some tablets and did not wake up in the morning which panicked the family; and (viii) on 7.7.1998, she was brought back by her parents to the matrimonial home when the respondent, on the following conditions, as stated in the petition, allowed her to join him: (a) The respondent should prepare lunch box for the petitioner; (b) The respondent should help the petitioner's mother in the kitchen in cooking and cleaning; (c) The respondent should eat her dinner with all the family members as against her usual routine of talking to her mother on telephone for 30/40 minutes everyday in the night while other family members take their dinner and thereafter clean up the dinner table and kitchen; (d) the respondent would take proper care of Hardiki.

5. During the period from 7.7.1998 to 11.7.1998, according to the petitioner, the respondent was in a hostile and cantankerous mood and was continuously making malicious allegations against the petitioner, his parents and his sister. The respondent also threatened the petitioner that she would file a false criminal complaint against him and his parents that she was subjected to cruelty with a view to coercing her to meet unlawful demand of dowry. She also, allegedly, threatened the petitioner that she would take a lethal dose of sleeping pills and commit suicide and see that the petitioner would be punished under Section 498A. These are the grounds stated by the petitioner in the petition and in support thereof he examined himself, his father Bahaurao Patil, maid servant Manisha Dhavade and maternal uncle Ulhaskumar Patil. The evidence of all the witnesses, though to a large extent seems to be consistent, the question is whether the alleged conduct of the respondent and the incidents quoted in the petition and/or stated in the evidence by these witnesses would constitute cruelty and it was to such an extent so as to grant divorce.

6. Insofar as the ground of desertion is concerned, according to the petitioner, she left her matrimonial home on 11.7.1998 without reasonable cause and without the consent and against the wish of the petitioner for a continuous period of more than two years immediately -7- preceding the presentation of the petition for divorce which the petitioner filed on 21.10.2000.

7. Ms Phadke, learned Counsel for the petitioner, fairly stated that all the events and conduct of the respondent prior to 7.5.1998 were ordinary wear and tear of married life. This submission of Ms Phadke finds support from four conditions put by the petitioner when the respondent was allowed to join him on 7.7.1998. Ms Phadke focused her attention on the following events which, according to her, were grave and weighty so as to come to the conclusion that the petitioner cannot be reasonably expected to live with the respondent.

She submitted that on 7.5.1998 the petitioner and other family members, except his father, were supposed to attend funeral of the petitioner's aunt. The petitioner, therefore, wanted the respondent to keep Hardiki at home with his father since it was not proper to take her on such an occasion. The respondent, however, did not agree to keep Hardiki at home and took her along, which fact neither the members of the petitioner's family nor the other relatives liked. She was, according to the petitioner, adamant and unreasonable, which made the petitioner to suffer humiliation.

The next incident, which was equally responsible for causing cruelty to the petitioner, according to Ms Phadke, occurred on 20.6.1998. On that day, Hardiki was not keeping good health and all the family members were to attend a marriage of the petitioner's cousin sister at Alibag. The petitioner wanted the respondent to stay back but she did not listen to him and went with them along with Hardiki to Alibag and also took her sister along, who was not even invited for the marriage. At Alibag, the respondent, as per the petitioner, made a scene and caused humiliation to him. There the respondent, in the presence of others passed a remark that the petitioner was incapable of looking after Hardiki.

Thirdly, she submitted that in the intervening night of 22.6.1998 and 23.6.1998, there was a quarrel between the petitioner and the respondent, which ended in the respondent taking some tablets. As a result thereof, in the morning she did not wake up, which panicked the whole family. The petitioner was required to call the family members of the respondent, who came and took her to the maternal home.

Next she submitted, during 7.5.1998 and 11.7.1998 the respondent left the matrimonial home on 2-3 occasions, which further added to mental agony since on every -9- occasion she left at some or the other incident occurred because of her adamant and strange behaviour. She then submitted that on 7.6.1998 when the petitioner came back to the matrimonial home she was allowed to stay on certain conditions but she did not observe those conditions and behaved very strangely with the petitioner and his family members. Between 7.7.1998 and 11.7.1998 the respondent was in a very hostile and cantankerous mood making false allegations against the petitioner and his parents. She threatened the petitioner of criminal complaint under Section 498A. She also threatened the petitioner that she would commit suicide and see to it that the petitioner goes behind bars. Those four days, in the petitioner's words, were a nightmare for him and his family members and they felt "relieved" when she went away on 11.7.1998 with her mother and other family members. The cumulative effect of all the aforementioned incidents and the conduct of the respondent, Ms Phadke submitted, are sufficient to hold that the petitioner was subjected to mental cruelty.

8. We have perused the depositions of all the witnesses examined by the parties and the pleadings with the assistance of the learned Counsel appearing for them. At the outset, let us observe that the first incident of attending funeral with Hardiki was not even remotely mentioned in the petition for divorce. For the first time, in paragraph 30 of the affidavit of evidence in lieu of examination-in-chief, the petitioner made reference to this incident. Apart from the fact that the respondent has denied having occurred such incident, we do not find much force in the submission that the alleged incident/occurrence would constitute mental cruelty to the petitioner. It is impossible to digest that merely because Hardiki was taken for attending funeral one would get humiliated so as to seek divorce from his wife.

Even the Alibag incident, in our opinion, cannot be treated as a cause for cruelty, mental or otherwise. Merely because the respondent attended the marriage along with Hardiki and her sister, who was not invited, against the wish of the petitioner, it can not be stated to have caused cruelty to the petitioner for more than one reason. Firstly, the marriage was in the family and, therefore, we fail to understand as to how the act of the respondent taking her sister for the marriage could cause any irritation or humiliation to the petitioner. Secondly, Hardiki is also a daughter of the respondent who, at the relevant time, was mature enough to take her care. It is not the case of the petitioner that she did not look after Hardiki properly and, therefore, her illness aggravated. Similarly, merely because at Alibag the respondent in the presence of others stated that the petitioner was incapable of taking care of Hardiki, in our opinion, cannot constitute any cruelty. Such remarks are very common in the life of almost every husband and wife. If such remarks are treated as grounds for cruelty no marriage would ever last. It is not the case of the petitioner that the respondent was in the habit of passing such remarks in front of outsiders.

The allegation regarding frequent visits during 7.5.1998 and 7.7.1998, also in our opinion, does not appear to be correct. During this period the respondent went to her matrimonial home only twice. It is pertinent to note that when the respondent was allowed to resume cohabitation on 7.7.1998 on certain conditions, no such condition regarding her visits to matrimonial home was put by the petitioner. That itself indicates that the petitioner did not have any objection about her visits to maternal home.

It appears, on 16.5.1998, the respondent allegedly, in a spate of anger, cut the petticoat of Hardiki and on the same day left for her maternal home and returned on 8.6.1998. Apart from the fact that the respondent has denied this incident, neither the petitioner nor any other witness has given further details as to what was the actual incident that occurred on 16.5.1998, which led the respondent to cut Hardiki's petticoat with scissors.

There is no satisfactory evidence on record to show that such incident did occur.

9. Even if it is assumed that all the aforementioned incidents did occur in the manner, as stated by the petitioner and other witnesses, still in our opinion, the conduct of the respondent was not of such a character and gravity so as to give rise to a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for him to live with her or it would be impossible for them to live together without mental agony or torture, t entitle the petitioner to secure divorce. In other words, the respondent's conduct was not such that no reasonable person would tolerate it. Parties to a marriage, tying nuptial knot, are supposed to bring about the union of two souls. It creates a new relationship of love, affection, care and concern between the husband and wife and that it brings two families together. Such ties cannot be allowed to be severed on the grounds/incidents or the conduct which on the face of it are ordinary wear and tear of matrimonial life. None of the aforementioned incidents or conduct of the respondent, could be termed as "grave and weighty" to be treated as a cause for cruelty. Though the word "cruelty" is not defined or it is not possible to say as to when a conduct of other spouse constitutes cruelty, the door of cruelty cannot be opened so wide otherwise divorce will have to be granted in every case for incompatibility of temperament. That was not the intention of Legislature when a ground of cruelty was made available for seeking a decree of divorce.

10. The incident, that allegedly occurred on 22.6.1998 and which ended in the respondent taking some tablets at 2.45 am on 23.6.1998, has been stoutly denied by the respondent in her evidence so also in her written statement. According to the respondent, no such incident, as testified by the petitioner and his father (PW 2) in their evidence, ever occurred. The respondent has stated that on 23.6.1998 she woke up as usual at around 5.30 am and resumed to work in the kitchen. While the petitioner was about to leave for his office, he, at the instance of his father, telephoned her parents and called them at their home. She did not know as to why her parents were called and when she asked the petitioner he simply told her to keep quite. When her parents arrived they were told to take the respondent away and send her only after she gets job. Admittedly, at that point of time the petitioner was not having any job. It appears that all the time after she came back to the matrimonial home in October 1997, that is, after delivery, the petitioner and more particularly his father (PW 2) desired and had so expressed on several occasions that the respondent should work and support the family financially. She has so stated in her evidence. Even in the cross-examination, such case was put to the petitioner (PW 1) and his father (PW 2).

11. The alleged incident of taking tablets will have to be examined in the light of the respondent's case made out in her written statement and her testimony. If the incident of taking tablets, as narrated by the petitioner, was true he would not have kept quite from2.45 am, when she allegedly took the tablets in his presence, till morning and only in the morning informed her parents. In his affidavit of evidence, he has stated that in the following morning on 23.6.1998 while the petitioner was about to leave for work he tried to wake the respondent up and since she did not, he requested his father to inform the respondent's parents about their quarrel in the midnight and that she had consumed certain tablets. This conduct of the petitioner creates doubt about the happenings in the intervening night of 22.6.1998 and 23.6.1998.

Even the subsequent conduct of the petitioner and his family members show that no such incident of taking tablets ever occurred. One would not have reacted in the manner in which the petitioner reacted. If the wife of an innocent husband takes tablets, as alleged in the present case, the reaction of such husband would be different from the one of the petitioner. Firstly, one would not allow his wife to take tablets and would physically prevent her from doing so and, secondly he would call a doctor immediately or shift her to hospital and would not wait till morning to see whether she wakes up. In one case, the conduct of the petitioner in the morning was absolutely cool and unperturbed, who claims that the respondent had taken some tablets at wee hours in his presence followed by the quarrel between the two. It is in this backdrop, narrations of the happenings on 23.6.1998 by the respondent in her evidence appear to be more probable. She has denied that she had taken tablets, as alleged by the petitioner. This incident, in our opinion, cannot be stated to have been proved by the petitioner.

12. The allegation that the respondent was in a very hostile and cantankerous mood between 17.7.1998 and 11.6.1998, in our opinion, is absolutely vague and baseless. No further particulars have been stated either by the petitioner or any other witness examined by him in support of his case. According to the petitioner, the respondent threatened him of criminal complaint under Section 498A. He does not state as to when such threat was given by the respondent?; and what was the immediate reason for her to give such threat to him?. The allegation of the alleged threat of committing suicide also does not appear to be true and genuine. No particulars have been given by the petitioner as to what was the occasion for her to give such threat. Admittedly, the respondent did not make any attempt to commit suicide. All these allegations, which find place in paragraphs 15 and 16 of the petition and in paragraph 34 of the affidavit of evidence, in our opinion, are vague and baseless and that there is no evidence or material on record in support thereof. Admittedly, the respondent never filed any complaint either against the petitioner or his family members of any nature, much less the complaint under Section 498A of IPC. On the contrary, after the respondent left on 11.7.1998, on 15.7.1998 the petitioner lodged a complaint with the police station which, according to him, was filed out of abundant precaution. Apart from the fact that the petitioner did not place on record the said complaint or stated the particulars of the complaint, we do not find that he had any occasion or reason to make such complaint and, therefore, the submission of the learned Counsel for the respondent that such complaint was made only to create evidence against the respondent, sounds probable.

13. The father of the petitioner (PW 2) in his affidavit of evidence, has stated that after six months of the marriage, the respondent took admission in the Engineering college and she used to leave the house around 9-9.15 am and returned after 9.30 pm on almost all working days and it went on for a period of two years. This shows, atleast for two years she hardly use to be at home and that she was working very hard for better prospects in employment. During the period of these two years, according to PW 2, on Saturdays and Sundays she used to go to her maternal home for studies and during examination period even the petitioner used to go to her maternal home to explain difficulties she faced while preparing for the examination. This all, on the contrary, show that atleast for 2.1/2 years after the marriage, the relations between the parties were absolutely normal, cordial and happy. Thereafter, she gave birth to the child and she returned to the matrimonial home after her delivery in October, 1997.

Since October, 1997 till 7.5.1998, when the alleged incident of attending funeral occurred, there is no whisper about the conduct of the respondent either in the pleadings or in the evidence of the petitioner and his witnesses. This further shows that after delivery the respondent was carrying on in the family of the petitioner very well and that they had no occasion to make any grievance against her conduct. Then the four incidents, as relied upon by Ms Phadke, learned Counsel for the petitioner, occurred on 7.5.1998, 20.6.1998, 22.6.1998 and her alleged hostile and cantankerous conduct between 7.7.1998 and 11.7.1998. As observed earlier, apart from the fact that the respondent has denied every incident, relied upon or the allegations made by the petitioner after 7.5.1998, we are satisfied that none of these incidents or the alleged conduct has been proved by the petitioner. Even if it is accepted that the incidents occurred on 7.5.1998, 20.6.1998 are true, in any case, they cannot be termed as serious incidents than ordinary wear and tear of the married life.

14. The conduct of a wife has to be considered in the background of several factors, such as, social status of the parties, their education, physical and mental condition, customs and traditions. If all that is taken into consideration, in this case, the conduct of the respondent, in our opinion, was not as grave as to come to the conclusion that no reasonable person would tolerate it. It is well settled that every matrimonial conduct, which may cause annoyance to the other spouse, may not amount to cruelty and we are satisfied that the intensity of the respondent's conduct is not to the extent so as to come to the conclusion that the petitioner cannot be reasonably expected to live with her.

15. The Supreme Court in Naveen Kohli v. Neelu Kohli AIR 2006 SCW 1550, while dealing with an appeal arising from a matrimonial petition filed by the husband seeking a decree of divorce on the ground of cruelty, has observed that "the foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other's fault to a certain bearable extent has to be inherent in every marriage, Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particulars case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counter productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it". In the present case, none of the incidents or the alleged conduct of the respondent could be termed as intolerable.

16. In Shoba Rani v. Madhukar Reddi (1998) SCC 105, the Supreme Court had an occasion to examine the concept of cruelty. In this case, the Supreme Court has interpreted the word "cruelty". The "cruelty" which has not been defined in the Act, though it has been specifically used in Section 13(1)(ia) of the Act. The Supreme Court observed that "the cruelty is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment".

17. In V. Bhagat v. D. Bhagat 1994 AIR SCW 45, the Supreme Court had an occasion to examine the concept of "mental cruelty". Paragraph 17 of the Judgment reads thus:

Mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be decided in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.

18. It is true that the approach of the court should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other. The situation, however, must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. In our case, the cumulative effect of the facts and circumstances emerging from the evidence of the petitioner and the other witnesses, in our opinion, is not sufficient to hold that the petitioner was subjected to mental cruelty due to the conduct of the respondent.

19. In A. Jayachandra v. Aneel Kaur AIR 2005 SCW 163, a three Judges Bench of the Supreme Court while dealing with the expression "cruelty" observed that if from the conduct of spouse it causes an apprehension in the mind of other spouse about his or her mental welfare, then such conduct amounts to cruelty. We do not find any such case having been made out by the petitioner. It is well settled that the conduct of the spouse must be something more serious than ordinary wear and tear of married life. The conduct of the respondent, in our case, does not constitute cruelty. As a matter of fact, most of the incidents/conduct relied upon by the petitioner, in our opinion, are insignificant or trifling and it cannot be said that it touched a certain pitch of severity. In any case, it cannot be stated that the conduct of the respondent was such that no reasonable person would tolerate it.

20. The trial Court, without there being any material on record, held that all the incidents, particularly the incident dated 22.6.2007 and the occurrences as alleged by the petitioner in the petition and his evidence during 7.7.1998 and 11.7.1998, have been proved. In our opinion, the trial Court has not examined the evidence on the point of cruelty in proper perspective and, therefore, has reached a wrong conclusion that the respondent treated the petitioner with cruelty so as to make him impossible to live with her. In the circumstances, the findings recorded by the trial Court on the point of cruelty are set aside and we hold that the petitioner is not entitled for divorce on that ground.

21. That takes us to consider the next ground of divorce, namely, desertion under Section 13(1)(ib) of the Act. Mr Salvi, learned Counsel for the respondent-wife, at the outset, submitted that merely because the petitioner and the respondent physically separated on 11.7.1998, the ingredients to constitute desertion cannot be stated to have been satisfied in the present case. From the conduct of the respondent it is clear that she never intended to bring cohabitation permanently to an end and that she cannot be stated to have permanently abandoned the matrimonial home/the petitioner. In short, he submitted that from overall facts and circumstances of the case, the intention cannot be attributed to the respondent to bring cohabitation permanently to an end. In support of his contentions, he took us through the pleadings and the evidence of all the witnesses examined by the petitioner and the respondent.

22. Ms Phadke, learned Counsel for the petitioner-husband, on the other hand, submitted that the respondent had no reason or valid cause to leave the petitioner's home in his absence with her mother and other family members. There is absolutely no material on record to draw an inference that the father of the petitioner (PW 2) drove the respondent out of the matrimonial home on the ground that she was not employed at the relevant time. She submitted that while leaving the home the respondent had told the petitioner and also to the father of the petitioner that she would come back within 15 days. She, however, did not make any efforts to come back to the matrimonial home after having left it on 11.7.1998. To resume cohabitation or the petitioner's company the burden, therefore, stood shifted on the respondent after 15 days, which she has miserably failed to discharge. Despite this conduct of the respondent the petitioner made repeated efforts to bring her back to the matrimonial home, but he failed in his all efforts, which ultimately forced him to file the instant petition. After taking us through the relevant portion from the pleadings and the evidence of the witnesses once again, she submitted, that even the other circumstances, which have not been disputed by either of the parties, clearly show that the respondent had an intention to desert the petitioner. She invited our attention to the three documents, namely, her parents' Ration Card in which the name of Hardiki was entered, duplicate birth certificate of Hardiki, sought by her, for taking admission in the school; and a call letter received by the petitioner from the Reserve Bank of India, which he had sent to the respondent by courier service since despite his efforts he could not contact her. This clearly demonstrates, Mrs Phadke submitted, that the respondent never intended to resume cohabitation with the petitioner. She further invited our attention to the inventory of the respondent's cupboard in the matrimonial home which was conducted on 13.4.2003, to contend that the respondent had left negligible articles in her cupboard which fact further supports that she had left the matrimonial home with a view not to resume the petitioner's company. She then invited our attention to the evidence of Sawant (PW 5) in support of her contention that the petitioner's all efforts failed in bringing her back after the respondent left on 11.7.1998. In support of her submissions she placed reliance upon the following judgments : (i) Nazario Alfrede Magalhaes v. Maria Fatima Varela MANU/MH/0899/2005 : AIR2005Bom380 ; (ii) Patwant Kaur v. Sarabjit Singh (ii) MANU/PH/0396/2005; (iii) I (2002) DMC 94 (SC).

23. The petitioner in the petition for divorce and in his evidence so also in the evidence of his father (PW 2) and to some extent in the evidence of their maid Manisha Dhavade (PW 3), has brought on record that on 11.7.1998 in the evening at about 5.30 pm the respondent's mother, aunt, her cousin brother and two other adoptive brothers, came to the matrimonial home and took away the respondent with them on the pretext that the respondent was very disturbed emotionally and as such she needed to relax for a while. This, according to the petitioner, was the last day of the respondent in the matrimonial home and she left it with an intention not to come back. This, according to the petitioner and the other witnesses, is reflected from the conduct of the respondent. While leaving the matrimonial home, as per the petitioner, she took away all her belongings including the jewellery and the jewellery gifted to Hardiki, which was in her mother-in-law's cupboard without informing her or any other members in the family. After she left, according to the petitioner, she never returned despite the petitioner's repeated efforts to bring her back to the matrimonial home.

24. The respondent has stoutly denied the incident of her family members coming to her matrimonial home on their own on 11.7.1998 and taking her away in the manner in which it is narrated in the petition and as stated in the evidence of the petitioner (PW 1) and his father (PW 2). On the contrary, according to the respondent on 11.7.1998 the petitioner's father called the respondent's relative to the matrimonial home in the absence of the petitioner and told them to take her away and that she had no alternative but to leave the matrimonial home and go to her maternal home with her mother and others. The respondent has stated in her written statement so also in her evidence, which is supported by the evidence of her mother (PW 2) and sister (PW 3), that all throughout the family members of the petitioner wanted the respondent to work. In fact, she did her engineering only with an intention to take up a better job which she could not do it immediately since Hardiki was very small. The respondent has also stated that at one point of time she was told that it was not possible for the petitioner to bear the burden of her and Hardiki and that she should take an employment.

25. The petitioner (PW 1) in his evidence has stated that he was not at home when the respondent with her family members left the matrimonial home on 11.7.1998. He had gone out along with his mother. He was informed about the arrival of the respondent's relatives to take her away by his father on telephone. The petitioner also spoke to the cousin of the respondent, who assured him that they would send her back after a fortnight. After he returned to home, he states, he was informed by his father that the respondent had opened his mother's cupboard where all valuables including the respondent's jewellery was kept. Therefore, the mother of the petitioner opened the Godrej cupboard and found that the jewellery of the respondent and Hardiki missing. It is pertinent to note that the father of the petitioner (PW 2) in his evidence does not make any mention/reference to the respondent opening his wife's Godrej cupboard. If what the petitioner has stated is correct that all valuables and jewellery of all the members in the family were in the cupboard of the petitioner's mother, it is not possible to digest that she would keep the cupboard open or give access to the keys of the cupboard to every member in the family all the time. That apart, if what the petitioner states is correct how come his father did not see her taking out the jewellery. It is pertinent to note that the father of the petitioner in his cross-examination has stated that the respondent-wife, while leaving the house on 7.7.1998 kept all her clothes/belongings in her cupboard. He does not state that he had seen the respondent packing the bags and taking them away while leaving the home. PW 3 Manisha Dhavade, the maid servant of the petitioner and whose duty hours were only from 4 pm to 6.30 pm every day for several years prior to 11.7.1998, however, states that she was at home when the family members of the respondent had come to the petitioner's home and that she had seen packing her "bags". Admittedly PW 3 did not stay at the petitioner's home till after the respondent left in the evening on 11.7.1998. On the contrary, the father in his cross-examination has categorically stated that the respondent kept her all belongings in her cupboard. The evidence of the petitioner's father (PW 2) and of Manisha (PW 3) therefore, would not help the petitioner to support his case that the respondent left home with her all belongings including the jewellery packed in the "bags". In other words, it would not help the petitioner to establish that the respondent left the matrimonial home with the intention to bring cohabitation permanently to an end.

26. The respondent, on the other hand, in her evidence has stated that after 7.7.1998 her routine started as usual. She started getting up early in the morning and cooking and giving tiffins to the petitioner, his mother and do all other miscellaneous household work in the house. She states, that on 11.7.1998 the attitude of the petitioner's father was hostile. He had said to the petitioner that he should not have allowed the respondent to resume his company on 7.7.1998 since she was not working and earning for the family. According to her, the father of the petitioner telephoned to her parents and called them to their home. The respondent was not aware about the same and she was shocked to see her family members in the evening at her matrimonial home. Though the petitioner and his father in their evidence have stated that the family members of the respondent came to their home all of a sudden and took away the respondent under the pretext that she was not well, the father of the petitioner in cross-examination in paragraph 10, has clearly stated that "it is true that on 11.7.1998 I had called Arundhati's parents" (respondent's parents). This admission supports the case of the respondent that it is the petitioner's father who was bent up to remove her from the matrimonial home and, therefore, he had called her family members and told them to take her away. It is true that after giving this admission in the cross-examination, the petitioner's father retracted the said statement. But, in our opinion, that would not help the petitioner to establish the fact that the respondent left the matrimonial home on 11.7.1998 on her own with her family members. The respondent had just resumed the company of the petitioner on 7.7.1998 and, therefore, her family members had no reason to go to her matrimonial home within three and half days under the pretext that she was not well and needs rest. The respondent has also given a detailed version as to what happened on 11.7.1998 since morning till evening, which appears to be more probable.

27. The subsequent conduct of the petitioner also speaks volumes. Though he has stated that he made repeated efforts to bring the respondent back to the matrimonial home, it is not reflected either in the petition or in the evidence that he made genuine efforts to bring her back to the matrimonial home. In the petition and his evidence, he has stated that he called the respondent several times and asked her to resume cohabitation but she did not pay any heed to the request. He also had a desire of meeting Hardiki and spent some time with her which was also denied to him by the respondent. Though, he has so stated, he has not given any details or particulars as to when he made calls to the petitioner?; what efforts he made to see the daughter?; why did he not send any mediator, such as, his sister who appears to be a friend of the respondent or his maternal uncle (PW 4), whose relations with the respondent and her family were cordial, for more than two years from 11.7.1998 ?; why did he not send notice to the respondent asking her to resume cohabitation or file petition for restitution of conjugal rights? All these questions have remained unanswered by the petitioner. On the other hand, the respondent has stated that all throughout she was waiting for the petitioner to take her back to the matrimonial home and she made calls to him questing him to take her back. In October, 1998 when she got a job she informed the petitioner and requested him to take her home to which, according to her, there was no response. From the evidence of the petitioner and his father, the alleged efforts made by the petitioner to bring the respondent back to the matrimonial home do not appear to be genuine. The petitioner in paragraph 34 of the evidence, on the contrary, has clearly stated that when the respondent left the matrimonial home on 11.7.1998, he and his family members felt relieved. He has further stated that those four days (7.7.1998 to 11.7.1998) were nightmares for him and his family members. From the sequence of events and the evidence on record, we do not find it to be true and correct. We are satisfied that the respondent, while leaving the home on 11.7.1998, did not take with her any of her belongings including jewellery, which clearly shows that she had no intentions to leave the matrimonial home with a view not to return and in fact it is her case that she left at the advice of the petitioner so that within few days his father would cool down.

28. The petitioner has examined one Vasantraoji Sawant (PW 5) who was sent by the petitioner's father to the respondent's parents house as a mediator. It is pertinent to note that he was sent after more than two years, that is, after the statutory period of two years to seek divorce on the ground of desertion got over. That apart, Sawant, who claims that he knows both the families and the respondent's mother in particular, could not give the name of a woman, who allegedly shut the door on his face, when he had gone to her home. The question remains if he knew the respondent's mother why did he not contact her on telephone and then go to their home. In our opinion, Sawant's visit to the respondent's maternal home has not been proved by the petitioner apart from the fact that the respondent has denied the factum of his visit to her maternal home some time in September, 2000. The question remains as to why the petitioner did not make such efforts within two years period from 11.7.1998.

29. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. What amounts to desertion in a particular case depends upon the circumstances and mode of life of the parties. In any case mere physical separation between spouses for a continuous period of not less than two years immediately preceding the presentation of the petition would not constitute desertion. The factum of desertion and the intention of a party to bring cohabitation permanently to an end are the essential ingredients of legal desertion. In other words, the essence of desertion means the intentional permanent abandonment of one spouse by other without that other's consent and without reasonable cause. Insofar as burden is concerned it is always on the petitioner in proving the factum of desertion as well as animus deserendi, which the petitioner has to establish to the satisfaction of the court. Even if the wife, where she is a deserting spouse, does not prove just cause for her leaving apart, the petitioner-husband has still to satisfy the court that the desertion was without cause. Therefore, in a petition for divorce by the husband on the ground of desertion, it is not enough if it is established that the wife left the matrimonial home without reasonable excuse and against wishes of husband but indeed, it must further be shown that the intention was to bring cohabitation permanently to an end.

30. In the present case, it is apparent from the overall facts and circumstances of the case that the petitioner did not care for the respondent and Hardiki or care to maintain Hardiki after 11.7.1997. He never made any attempt to bring them back. There is no material on record to show that he made any attempts to meet Hardiki either through mediator or through court or through his sister and her husband who were known to be the friends of the respondent. This conduct of the petitioner speaks volumes. If he genuinely wanted to patch up and bring the respondent and Hardiki back home, as he tried to demonstrate by examining Sawant (PW.5), he could have done so either through the mediator or by giving her notice or by filing a petition for restitution of conjugal rights. He did none. He sent Sawant only after two years. In our opinion, it is not sufficient for a husband to show that his wife had left him without an intention to return and that he is willing to keep the wife but she without any reasonable cause was avoiding his company. In order to support his case or to shift the burden, he must further show that the attempts were made by him to get back the wife to the matrimonial home. Further not only he should make attempts but the attempts should seem to be honest and genuine. This is exactly what is lacking in the present case. None of the attempts made by the petitioner, in our opinion, are honest and genuine.

31. It is true that the petitioner and the respondents are living separately from 11.7.1998 but essential parameter of the act of desertion, that is, animus deserendi is not proved by the petitioner against the respondent. On the other hand it seems from the material on record that the petitioner, who felt "relieved" when the respondent left on 11.7.1998, never wanted the respondent to come back and was waiting for two years period to get over to seek divorce on the ground of desertion. No inference on the basis of material on record can be drawn that the respondent ever intended to bring cohabitation permanently to an end. Thus, in our opinion, even the ground of desertion has not been proved by the petitioner in the present case. The trial Court has not considered the evidence in proper perspective and as a result of which wrong conclusions on the point of desertion have been drawn. The finding of the trial Court that the respondent deserted the petitioner without any reasonable cause for two years preceding the presentation is, therefore, liable to be set aside as it is not supported from the evidence on record.

32. Before hearing of the appeal commenced we interviewed the parties in our chamber. The respondent-wife, with the humility at her command, categorically stated that she with Hardiki is keen to live with the petitioner. The petitioner all throughout was saying no without offering any explanation for saying so. He simply stated that he had suffered a lot. When it comes to sufferance, perhaps the respondent, in our opinion, has suffered more. They are separate since 11.7.1998. Hardiki is now 10 years old. The respondent is having permanent job. Keeping that all in view and considering overall facts and circumstances in view, we are satisfied that the marriage has not been irretrievably broken and even now it is possible for the parties to come together and lead a happy matrimonial life in their interest and also in the interest of Hardiki.

33. Mr Salvi, learned Counsel for the appellant-wife fairly submitted that he has instructions not to press this appeal against the findings recorded by the Family Court in respect of maintenance awarded to the daughter Hardiki and her prayer for getting residential accommodation.

34. In the result, the Appeal is partly allowed. The judgment and decree dated 27.6.2006 of divorce under Section 13(1)(ia) and (ib) of the Act is set aside. The petitioner shall continue to pay the maintenance as awarded by the Family Court till the respondent is allowed to resume cohabitation.

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