Desertion is a matter of inference to be drawn from the facts
and circumstances to each case. The inference may be drawn
from certain facts which may not in another case be capable of
leading to the same inference; that is to say, the facts have to
be viewed as to the purpose which is revealed by those acts or
by conduct and expression of intention, both anterior and
subsequent to the actual acts of separation. If in fact, there has
been a separation, the essential question always is whether that
act could be attributable to an animus deserendi. The offence of
desertion commences when the fact of separation and the
animus deserendi co- exist. But it is not necessary that they
should commence at the same time. The de facto separation
may have commenced without the necessary animus or it may
be that the separation and the (animus deserendi) coincide in
point of time; for example, when the separating spouse
abandons the marital home with the intention, express or
implied of bringing cohabitation permanently to a close. The law
in England has prescribed a three years period and the Bombay
Act prescribed a period of four years as a continuous period
during which the two elements must subsist. Hence, if a
deserting spouse takes advantage of the locus poenitentiae thus
provided by law and decides to come back to the deserted
spouse by a bona fide offer of resuming the matrimonial home
with all the implications of marital life, before the statutory
period is out or even after the lapse of that period, unless
proceedings for divorce have been commenced, desertion comes
to an end, and if the deserted spouse unreasonably refuses to
offer, the latter may be in desertion and not the former. Hence it
is necessary that during all the period that there has been a
desertion, the deserted spouse must affirm the marriage and be
ready and willing to resume married life on such conditions as
may be reasonable. It is also well settled that in proceedings for
divorce the plaintiff must prove the offence of desertion, like
and other matrimonial offence, beyond all reasonable doubt.
Hence, though corroboration is not required as an absolute rule
of law the courts insist upon corroborative evidence, unless its
absence is accounted for to the satisfaction of the court. In this
connection the following observations of Lord Goddard CJ. in
the case of Lawson v. Lawson, 1955-1 All E R 341 at p. 342(A),
may be referred to :-
"These cases are not cases in which corroboration is required as
a matter of law. It is required as a matter of precaution....... "
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO(HMA) No. 445/2015
Decided on: July 13, 2016
Reeta Devi
V
Manohar Lal
Coram:
Hon’ble Mr. Justice Rajiv Sharma, Judge.
Citation:AIR 2016 (NOC) 634 HP
This appeal has been instituted against Judgment
dated 15.9.2015 rendered by the learned Additional District
Judge (II), Mandi, District Mandi, Himachal Pradesh in HMA No.
45/15/2010.
2. “Key facts" necessary for the adjudication of the
present appeal are that the marriage between the parties was
solemnised on 24.11.1988. Respondent has filed petition under
Section 13 of the Hindu Marriage Act for dissolution of marriage
before Additional District Judge (II) Mandi. According to the
averments made in the petition, appellant left the matrimonial
home in April, 1990 without any reasonable cause. Appellant has
caused mental as well as physical cruelty to him. Petition was
contested by the appellant. Factum of marriage was admitted. It
was denied that the appellant has willfully deserted the
respondent. Respondent started ill-treating the appellant
immediately after marriage. Local Panchayat was informed.
However, respondent did not mend his ways. Respondent without
any reasonable cause ousted the appellant from the matrimonial
home in April, 1990. She was forced to live with her parents.
Learned trial Court framed issues on 23.3.2013. Petition was
allowed by the learned Additional District Judge on 15.9.2015
and marriage was dissolved on the ground of desertion.
3. Mr. Vikram Thakur, Advocate, has vehemently
argued that his client has never deserted the respondent. It is the
respondent who has ousted her from his house in the month of
April, 1990.
4. Mr. Devender K. Sharma, Advocate, has supported
the judgment dated 15.9.2015.
5. I have heard the learned counsel for the appellant
and also gone through the record carefully.
6. Respondent has led his evidence by way of affidavit
Ext. PW-1/A. He has reiterated the averments made in the
petition. According to him, appellant has left his company
without his permission and without reasonable cause. She has
filed false litigation for maintenance under Section 125 CrPC. He
paid maintenance allowance. Appellant has deserted his
company since April, 1990. In his cross-examination, he
admitted that the marriage was solemnised on 24.11.1988.
Appellant remained with him till April, 1990. He was paying
`300/- to the appellant. He has also categorically admitted that
since April, 1990, he has not filed any petition for restitution of
marriage.
7. Sant Ram (PW-2) has also led evidence by filing
affidavit Ext. PW-2/A. According to the averments made in the
affidavit, marriage was solemnised 26 years back. Parties have no
children. Respondent as well as father tried their best to bring
appellant back to the house at village Kapahi but she did not
come back. She was treated nicely by the respondent. In his
cross-examination, he has admitted that he was closely related to
the respondent. He also admitted in his cross-examination that
Sarita Devi was residing with respondent. He did not know the
relationship. He also admitted that the respondent has two
children, one daughter and one son. According to him, appellant
had deserted the respondent.
8. Inder Singh (PW-3) has led evidence by filing affidavit
Ext. PW-3/A. According to him, appellant has deserted the
respondent.
9. Appellant has appeared as RW-1. She has led
evidence by filing affidavit Ext. RW-1/A (sic. RW-2/A). According
to the averments made in the affidavit, after marriage,
respondent started maltreating the appellant. Matter was even
reported to the Panchayat. Respondent ousted her from the
matrimonial home without any reasonable cause and contracted
second marriage with one Sarita Devi. He was residing with
Sarita Devi as her husband and one son and one daughter were
born out of their union. She was constrained to file petition
under Section 125 CrPC. Respondent in connivance with the
Secretary, Gram Panchayat got name of the appellant struck off
from the Panchayat. She came to know about it. She filed an
application before the Sub Divisional Magistrate. Her name was
re-entered in the Parivar register. She denied the suggestion that
her father-in-law has convened the Panchayat thrice to take her
back to the matrimonial home.
10. Statement of RW-1 has been corroborated by Ram
Dass (RW-2) who has led evidence by filing affidavit Ext. RW-2/A.
According to the averments made in the affidavit, appellant was
ousted by the respondent from matrimonial home in 1990. He
contracted second marriage with one Sarita Devi and was living
with her.
11. Ashwani Kumar (RW-3) deposed that he was
Secretary, Gram Panchayat Sari. He had brought the record
pertaining to Parivar register. Coy of Parivar register is Ext PW-
3/A. Earlier name of respondent was stuck off from the Parivar
register of respondent. Later on, on the order of SDM, her name
was re-entered.
12. What emerges from the discussion of the evidence
herein above is that the marriage between the parties was
solemnised on 24.11.1988. They lived together for one year.
According to the respondent, appellant has deserted him in the
month of April, 1990. However, fact of the matter is that as per
evidence led by the appellant, she was ousted from the
matrimonial home in April, 1990. She was maltreated by the
respondent. She had no choice than to live with her parents. It
has also come on record that the respondent had contracted
second marriage with one Sarita Devi and had two children from
her. Appellant was constrained to file a petition under Section
125 CrPC seeking maintenance. Maintenance was allowed and
thereafter it was also enhanced. Respondent, in his crossexamination
admitted that he never filed any petition for
conjugation of marriage nor taken any steps to bring back the
appellant to matrimonial home. Appellant denied the suggestion
that her father-in-law had convened Panchayat thrice to take her
back to the matrimonial home. It has also come on record that
the appellant was always ready and willing to live with the
respondent. He has refused to take her back. Respondent can not
be allowed to take advantage of his own wrongs, firstly by
neglecting the appellant and then also contracting second
marriage. He has got name of the appellant deleted from the
Parivar register. However, same was re-entered on the basis of
orders of the SDM. This fact is duly proved from Ext. RW-3/A.
Learned trial Court has not discussed the evidence adduced by
the parties and has abruptly come to the conclusion that the
appellant has deserted the respondent. In order to prove
desertion, it was necessary for the respondent to prove animus
deserendi. Order whereby maintenance was allowed to the
appellant under Section 125 CrPC is Ext. RW-2/B, whereby she
was granted maintenance @ `375/- and thereafter same was
enhanced as per Ext. RW-2/C dated 8.6.2010. Respondent has
also not led any evidence that the appellant has caused any
mental or physical cruelty to him, rather it is the respondent who
has caused mental and physical cruelty to the appellant by
neglecting her and ousting her from the matrimonial home in the
month of April, 1990 and by also not taking any steps for
bringing her back.
13. Their Lordships of the Hon'ble Supreme Court in
Manisha Tyagi vs. Deepak Kumar reported in 2010(1) Divorce
& Matrimonial Cases 451, have explained the term ‘cruelty’ as
under:
“24. This is no longer the required standard. Now it would be
sufficient to show that the conduct of one of the spouses is so
abnormal and below the accepted norm that the other spouse
could not reasonable be expected to put up with it. The conduct
is no longer required to be so atrociously abominable which
would cause a reasonable apprehension that would be harmful
or injurious to continue the cohabitation with the other spouse.
Therefore, to establish cruelty it is not necessary that physical
violence should be used. However, continued ill-treatment
cessation of marital intercourse, studied neglect, indifference of
one spouse to the other may lead to an inference of cruelty.
However, in this case even with aforesaid standard both the
Trial Court and the Appellate Court had accepted that the
conduct of the wife did not amount to cruelty of such a nature
to enable the husband to obtain a decree of divorce.”
14. Their Lordships of the Hon'ble Supreme Court in
Ravi Kumar vs. Julumidevi reported in (2010) 4 SCC 476,
have explained the term ‘cruelty’ as under:
“19. It may be true that there is no definition of cruelty under
the said Act. Actually such a definition is not possible. In
matrimonial relationship, cruelty would obviously mean
absence of mutual respect and understanding between the
spouses which embitters the relationship and often leads to
various outbursts of behaviour which can be termed as cruelty.
Sometime cruelty in a matrimonial relationship may take the
form of violence, sometime it may take a different form. At
times, it ma be just an attitude or an approach. Silence in some
situations may amount to cruelty.
20. Therefore, cruelty in matrimonial behaviour defies any
definition and its categories can never be closed. Whether the
husband is cruel to his wife or the wife is cruel to her husband
has to be ascertained and judged by taking into account the
entire facts and circumstances of the given case and not by any
predetermined rigid formula. Cruelty in matrimonial case can
be of infinite variety – it may be subtle or even brutal and may
be by gestures and word. That possible explains why Lord
Denning in Sheldon v. Sheldon held that categories of cruelty in
matrimonial case are never closed.
21. This Court is reminded of what was said by Lord Reid in
Gollins v. Gollins about judging cruelty in matrimonial cases.
The pertinent observations are (AC p.660)
“.. In matrimonial cases we are not concerned with the
reasonable man as we are in cases of negligence. We are
dealing with this man and this woman and the fewer a
priori assumptions we make about them the better. In
cruelty cases one can hardly ever even start with a
presumption that the parties are reasonable people,
because it is hard to imagine any cruelty case ever
arising if both the spouses think and behave as
reasonable people.”
22. “ About the changing perception of cruelty in matrimonial
cases, this Court observed in Shobha Rani v. Madhukar Reddi
at AIR p. 123, para 5 of the report: (SCC p.108, para 5)
“5. It will be necessary to bear in mind that there has
been (a) marked change in the life around us. In
matrimonial duties and responsibilities in particular, we
find a sea change. They are of varying degrees from
house to house or person to person. Therefore, when a
spouse makes complaint about the treatment of cruelty
by the partner in life or relations, the court should not
search for standard in life. A set of facts stigmatized as
cruelty in one case may not be so in another case. The
cruelty alleged may largely depend upon the type of life
the parties are accustomed to or their economic and
social conditions. It may also depend upon their culture
and human values to which they attach importance. We,
the Judges and lawyers, therefore, should not import
our own notions of life. We may not go in parallel with
them. There may be a generation gap between us and
the parties.”
15. Their Lordships of the Hon’ble Supreme Court in
Bipinchandra Jaisinghbai Shah versus Prabhavati, AIR 1957
SC 176 have held that two essential conditions must be there to
prove the desertion: (1) the factum of separation, and (2) the
intention to bring cohabitation permanently to an end (animus
deserendi). Their Lordships have held that desertion is a matter
of inference to be drawn from the facts and circumstances of
each case. Their Lordships have held as under:
“What is desertion? "Rayden on Divorce" which is a standard
work on the subject at p.128 (6th Edn.) has summarized the
case-law on the subject in these terms:-
"Desertion is the separation of one spouse from the other, with
an intention on the part of the deserting spouse of bringing
cohabitation permanently to an end without reasonable cause
and without the consent of the other spouse; but the physical
act of departure by one spouse does not necessarily make that
spouse the deserting party".
The legal position has been admirably summarized in paras 453
and 454 at pp. 241. to 243 of Halsbury's Laws of England (3rd
Edn.), VoL 12, in the following words:-
"In its essence desertion means the intentional permanent
forsaking and abandonment of one spouse by the other without
that other's consent and without reasonable cause. It is a total
repudiation of the obligations of marriage. In view of the large
variety of circumstances and of modes of life involved, the Court
has discouraged attempts at defining desertion, there being no
general principle applicable to all cases. Desertion is not the
withdrawal from a place but from the state of things, for what
the law seeks to enforce is the recognition and discharge of the
common obligations of the married state; the state of things
may usually be termed, for short, 'the home'. There can be
desertion without previous cohabitation by the parties, or
without the marriage having been consummated. The person
who actually withdraws from cohabitation is not necessarily the
deserting party. The fact that a husband makes an allowance to
a wife whom he has abandoned is no answer to a charge of
desertion.
The offence of desertion is a course of conduct which exists
independently of its duration, but as a ground for divorce it
must exist for a period of at least three years immediately
preceding the presentation of the petition where the offence
appears as a cross-charge, of the answer. Desertion as a ground
of divorce differs from the statutory grounds of adultery and
cruelty in that the offence founding the cause of action of
desertion is not complete, but is inchoate, until the suit is
constituted. Desertion is a continuing offence".
Thus the quality of permanence is one of the essential elements
which differentiates desertion from wilful separation. If a spouse
abandons the other spouse in a state of temporary passion, for
example anger or disgust, without intending permanently to
cease cohabitation, it will not amount to desertion. For the
offence of desertion, so far as the deserting spouse is
concerned, two essential conditions must be there namely, (1)
the factum of separation, and (2) the intention to bring
cohabitation permanently to an end (animus deserendi).
Similarly two elements are essential so far as the deserted
spouse is concerned: (1) the absence of consent, and (2)
absence of conduct giving reasonable cause to the spouse
leaving the matrimonial home to form the necessary intention
aforesaid. The petitioner for divorce bears the burden of proving
those elements in the two spouses respectively. Here a
difference between the English law and the law as enacted by
the Bombay Legislature may be pointed out. Whereas under the
English law those essential conditions must continue
throughout the course of the three years immediately preceding
the institution of the suit for divorce, under the Act, the period
is four years without specifying that it should immediately
precede the commencement of proceedings for divorce. Whether
the omission of the last clause has any practical result need not
detain us, as it does not call for decision in the present case.
Desertion is a matter of inference to be drawn from the facts
and circumstances to each case. The inference may be drawn
from certain facts which may not in another case be capable of
leading to the same inference; that is to say, the facts have to
be viewed as to the purpose which is revealed by those acts or
by conduct and expression of intention, both anterior and
subsequent to the actual acts of separation. If in fact, there has
been a separation, the essential question always is whether that
act could be attributable to an animus deserendi. The offence of
desertion commences when the fact of separation and the
animus deserendi co- exist. But it is not necessary that they
should commence at the same time. The de facto separation
may have commenced without the necessary animus or it may
be that the separation and the (animus deserendi) coincide in
point of time; for example, when the separating spouse
abandons the marital home with the intention, express or
implied of bringing cohabitation permanently to a close. The law
in England has prescribed a three years period and the Bombay
Act prescribed a period of four years as a continuous period
during which the two elements must subsist. Hence, if a
deserting spouse takes advantage of the locus poenitentiae thus
provided by law and decides to come back to the deserted
spouse by a bona fide offer of resuming the matrimonial home
with all the implications of marital life, before the statutory
period is out or even after the lapse of that period, unless
proceedings for divorce have been commenced, desertion comes
to an end, and if the deserted spouse unreasonably refuses to
offer, the latter may be in desertion and not the former. Hence it
is necessary that during all the period that there has been a
desertion, the deserted spouse must affirm the marriage and be
ready and willing to resume married life on such conditions as
may be reasonable. It is also well settled that in proceedings for
divorce the plaintiff must prove the offence of desertion, like
and other matrimonial offence, beyond all reasonable doubt.
Hence, though corroboration is not required as an absolute rule
of law the courts insist upon corroborative evidence, unless its
absence is accounted for to the satisfaction of the court. In this
connection the following observations of Lord Goddard CJ. in
the case of Lawson v. Lawson, 1955-1 All E R 341 at p. 342(A),
may be referred to :-
"These cases are not cases in which corroboration is required as
a matter of law. It is required as a matter of precaution....... "
With these preliminary observations we now proceed to examine
the evidence led on behalf of the parties to find out whether
desertion has been proved in this case and, if so, whether there
was a bona fide offer by the wife to return to her matrimonial
home with a view to discharging marital duties and, if so,
whether there was an unreasonable refusal on the part of the
husband to take her back.
16. In view of the discussion and analysis made herein
above, appeal is allowed. Judgment dated 15.9.2015 rendered by
the learned Additional District Judge (II), Mandi, District Mandi,
Himachal Pradesh in HMA No. 45/15/2010 is set aside.
Pending applications, if any, are disposed of.
(Rajiv Sharma)
Judge
July 13, 2016
(
Print Page
and circumstances to each case. The inference may be drawn
from certain facts which may not in another case be capable of
leading to the same inference; that is to say, the facts have to
be viewed as to the purpose which is revealed by those acts or
by conduct and expression of intention, both anterior and
subsequent to the actual acts of separation. If in fact, there has
been a separation, the essential question always is whether that
act could be attributable to an animus deserendi. The offence of
desertion commences when the fact of separation and the
animus deserendi co- exist. But it is not necessary that they
should commence at the same time. The de facto separation
may have commenced without the necessary animus or it may
be that the separation and the (animus deserendi) coincide in
point of time; for example, when the separating spouse
abandons the marital home with the intention, express or
implied of bringing cohabitation permanently to a close. The law
in England has prescribed a three years period and the Bombay
Act prescribed a period of four years as a continuous period
during which the two elements must subsist. Hence, if a
deserting spouse takes advantage of the locus poenitentiae thus
provided by law and decides to come back to the deserted
spouse by a bona fide offer of resuming the matrimonial home
with all the implications of marital life, before the statutory
period is out or even after the lapse of that period, unless
proceedings for divorce have been commenced, desertion comes
to an end, and if the deserted spouse unreasonably refuses to
offer, the latter may be in desertion and not the former. Hence it
is necessary that during all the period that there has been a
desertion, the deserted spouse must affirm the marriage and be
ready and willing to resume married life on such conditions as
may be reasonable. It is also well settled that in proceedings for
divorce the plaintiff must prove the offence of desertion, like
and other matrimonial offence, beyond all reasonable doubt.
Hence, though corroboration is not required as an absolute rule
of law the courts insist upon corroborative evidence, unless its
absence is accounted for to the satisfaction of the court. In this
connection the following observations of Lord Goddard CJ. in
the case of Lawson v. Lawson, 1955-1 All E R 341 at p. 342(A),
may be referred to :-
"These cases are not cases in which corroboration is required as
a matter of law. It is required as a matter of precaution....... "
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO(HMA) No. 445/2015
Decided on: July 13, 2016
Reeta Devi
V
Manohar Lal
Coram:
Hon’ble Mr. Justice Rajiv Sharma, Judge.
Citation:AIR 2016 (NOC) 634 HP
This appeal has been instituted against Judgment
dated 15.9.2015 rendered by the learned Additional District
Judge (II), Mandi, District Mandi, Himachal Pradesh in HMA No.
45/15/2010.
2. “Key facts" necessary for the adjudication of the
present appeal are that the marriage between the parties was
solemnised on 24.11.1988. Respondent has filed petition under
Section 13 of the Hindu Marriage Act for dissolution of marriage
before Additional District Judge (II) Mandi. According to the
averments made in the petition, appellant left the matrimonial
home in April, 1990 without any reasonable cause. Appellant has
caused mental as well as physical cruelty to him. Petition was
contested by the appellant. Factum of marriage was admitted. It
was denied that the appellant has willfully deserted the
respondent. Respondent started ill-treating the appellant
immediately after marriage. Local Panchayat was informed.
However, respondent did not mend his ways. Respondent without
any reasonable cause ousted the appellant from the matrimonial
home in April, 1990. She was forced to live with her parents.
Learned trial Court framed issues on 23.3.2013. Petition was
allowed by the learned Additional District Judge on 15.9.2015
and marriage was dissolved on the ground of desertion.
3. Mr. Vikram Thakur, Advocate, has vehemently
argued that his client has never deserted the respondent. It is the
respondent who has ousted her from his house in the month of
April, 1990.
4. Mr. Devender K. Sharma, Advocate, has supported
the judgment dated 15.9.2015.
5. I have heard the learned counsel for the appellant
and also gone through the record carefully.
6. Respondent has led his evidence by way of affidavit
Ext. PW-1/A. He has reiterated the averments made in the
petition. According to him, appellant has left his company
without his permission and without reasonable cause. She has
filed false litigation for maintenance under Section 125 CrPC. He
paid maintenance allowance. Appellant has deserted his
company since April, 1990. In his cross-examination, he
admitted that the marriage was solemnised on 24.11.1988.
Appellant remained with him till April, 1990. He was paying
`300/- to the appellant. He has also categorically admitted that
since April, 1990, he has not filed any petition for restitution of
marriage.
7. Sant Ram (PW-2) has also led evidence by filing
affidavit Ext. PW-2/A. According to the averments made in the
affidavit, marriage was solemnised 26 years back. Parties have no
children. Respondent as well as father tried their best to bring
appellant back to the house at village Kapahi but she did not
come back. She was treated nicely by the respondent. In his
cross-examination, he has admitted that he was closely related to
the respondent. He also admitted in his cross-examination that
Sarita Devi was residing with respondent. He did not know the
relationship. He also admitted that the respondent has two
children, one daughter and one son. According to him, appellant
had deserted the respondent.
8. Inder Singh (PW-3) has led evidence by filing affidavit
Ext. PW-3/A. According to him, appellant has deserted the
respondent.
9. Appellant has appeared as RW-1. She has led
evidence by filing affidavit Ext. RW-1/A (sic. RW-2/A). According
to the averments made in the affidavit, after marriage,
respondent started maltreating the appellant. Matter was even
reported to the Panchayat. Respondent ousted her from the
matrimonial home without any reasonable cause and contracted
second marriage with one Sarita Devi. He was residing with
Sarita Devi as her husband and one son and one daughter were
born out of their union. She was constrained to file petition
under Section 125 CrPC. Respondent in connivance with the
Secretary, Gram Panchayat got name of the appellant struck off
from the Panchayat. She came to know about it. She filed an
application before the Sub Divisional Magistrate. Her name was
re-entered in the Parivar register. She denied the suggestion that
her father-in-law has convened the Panchayat thrice to take her
back to the matrimonial home.
10. Statement of RW-1 has been corroborated by Ram
Dass (RW-2) who has led evidence by filing affidavit Ext. RW-2/A.
According to the averments made in the affidavit, appellant was
ousted by the respondent from matrimonial home in 1990. He
contracted second marriage with one Sarita Devi and was living
with her.
11. Ashwani Kumar (RW-3) deposed that he was
Secretary, Gram Panchayat Sari. He had brought the record
pertaining to Parivar register. Coy of Parivar register is Ext PW-
3/A. Earlier name of respondent was stuck off from the Parivar
register of respondent. Later on, on the order of SDM, her name
was re-entered.
12. What emerges from the discussion of the evidence
herein above is that the marriage between the parties was
solemnised on 24.11.1988. They lived together for one year.
According to the respondent, appellant has deserted him in the
month of April, 1990. However, fact of the matter is that as per
evidence led by the appellant, she was ousted from the
matrimonial home in April, 1990. She was maltreated by the
respondent. She had no choice than to live with her parents. It
has also come on record that the respondent had contracted
second marriage with one Sarita Devi and had two children from
her. Appellant was constrained to file a petition under Section
125 CrPC seeking maintenance. Maintenance was allowed and
thereafter it was also enhanced. Respondent, in his crossexamination
admitted that he never filed any petition for
conjugation of marriage nor taken any steps to bring back the
appellant to matrimonial home. Appellant denied the suggestion
that her father-in-law had convened Panchayat thrice to take her
back to the matrimonial home. It has also come on record that
the appellant was always ready and willing to live with the
respondent. He has refused to take her back. Respondent can not
be allowed to take advantage of his own wrongs, firstly by
neglecting the appellant and then also contracting second
marriage. He has got name of the appellant deleted from the
Parivar register. However, same was re-entered on the basis of
orders of the SDM. This fact is duly proved from Ext. RW-3/A.
Learned trial Court has not discussed the evidence adduced by
the parties and has abruptly come to the conclusion that the
appellant has deserted the respondent. In order to prove
desertion, it was necessary for the respondent to prove animus
deserendi. Order whereby maintenance was allowed to the
appellant under Section 125 CrPC is Ext. RW-2/B, whereby she
was granted maintenance @ `375/- and thereafter same was
enhanced as per Ext. RW-2/C dated 8.6.2010. Respondent has
also not led any evidence that the appellant has caused any
mental or physical cruelty to him, rather it is the respondent who
has caused mental and physical cruelty to the appellant by
neglecting her and ousting her from the matrimonial home in the
month of April, 1990 and by also not taking any steps for
bringing her back.
13. Their Lordships of the Hon'ble Supreme Court in
Manisha Tyagi vs. Deepak Kumar reported in 2010(1) Divorce
& Matrimonial Cases 451, have explained the term ‘cruelty’ as
under:
“24. This is no longer the required standard. Now it would be
sufficient to show that the conduct of one of the spouses is so
abnormal and below the accepted norm that the other spouse
could not reasonable be expected to put up with it. The conduct
is no longer required to be so atrociously abominable which
would cause a reasonable apprehension that would be harmful
or injurious to continue the cohabitation with the other spouse.
Therefore, to establish cruelty it is not necessary that physical
violence should be used. However, continued ill-treatment
cessation of marital intercourse, studied neglect, indifference of
one spouse to the other may lead to an inference of cruelty.
However, in this case even with aforesaid standard both the
Trial Court and the Appellate Court had accepted that the
conduct of the wife did not amount to cruelty of such a nature
to enable the husband to obtain a decree of divorce.”
14. Their Lordships of the Hon'ble Supreme Court in
Ravi Kumar vs. Julumidevi reported in (2010) 4 SCC 476,
have explained the term ‘cruelty’ as under:
“19. It may be true that there is no definition of cruelty under
the said Act. Actually such a definition is not possible. In
matrimonial relationship, cruelty would obviously mean
absence of mutual respect and understanding between the
spouses which embitters the relationship and often leads to
various outbursts of behaviour which can be termed as cruelty.
Sometime cruelty in a matrimonial relationship may take the
form of violence, sometime it may take a different form. At
times, it ma be just an attitude or an approach. Silence in some
situations may amount to cruelty.
20. Therefore, cruelty in matrimonial behaviour defies any
definition and its categories can never be closed. Whether the
husband is cruel to his wife or the wife is cruel to her husband
has to be ascertained and judged by taking into account the
entire facts and circumstances of the given case and not by any
predetermined rigid formula. Cruelty in matrimonial case can
be of infinite variety – it may be subtle or even brutal and may
be by gestures and word. That possible explains why Lord
Denning in Sheldon v. Sheldon held that categories of cruelty in
matrimonial case are never closed.
21. This Court is reminded of what was said by Lord Reid in
Gollins v. Gollins about judging cruelty in matrimonial cases.
The pertinent observations are (AC p.660)
“.. In matrimonial cases we are not concerned with the
reasonable man as we are in cases of negligence. We are
dealing with this man and this woman and the fewer a
priori assumptions we make about them the better. In
cruelty cases one can hardly ever even start with a
presumption that the parties are reasonable people,
because it is hard to imagine any cruelty case ever
arising if both the spouses think and behave as
reasonable people.”
22. “ About the changing perception of cruelty in matrimonial
cases, this Court observed in Shobha Rani v. Madhukar Reddi
at AIR p. 123, para 5 of the report: (SCC p.108, para 5)
“5. It will be necessary to bear in mind that there has
been (a) marked change in the life around us. In
matrimonial duties and responsibilities in particular, we
find a sea change. They are of varying degrees from
house to house or person to person. Therefore, when a
spouse makes complaint about the treatment of cruelty
by the partner in life or relations, the court should not
search for standard in life. A set of facts stigmatized as
cruelty in one case may not be so in another case. The
cruelty alleged may largely depend upon the type of life
the parties are accustomed to or their economic and
social conditions. It may also depend upon their culture
and human values to which they attach importance. We,
the Judges and lawyers, therefore, should not import
our own notions of life. We may not go in parallel with
them. There may be a generation gap between us and
the parties.”
15. Their Lordships of the Hon’ble Supreme Court in
Bipinchandra Jaisinghbai Shah versus Prabhavati, AIR 1957
SC 176 have held that two essential conditions must be there to
prove the desertion: (1) the factum of separation, and (2) the
intention to bring cohabitation permanently to an end (animus
deserendi). Their Lordships have held that desertion is a matter
of inference to be drawn from the facts and circumstances of
each case. Their Lordships have held as under:
“What is desertion? "Rayden on Divorce" which is a standard
work on the subject at p.128 (6th Edn.) has summarized the
case-law on the subject in these terms:-
"Desertion is the separation of one spouse from the other, with
an intention on the part of the deserting spouse of bringing
cohabitation permanently to an end without reasonable cause
and without the consent of the other spouse; but the physical
act of departure by one spouse does not necessarily make that
spouse the deserting party".
The legal position has been admirably summarized in paras 453
and 454 at pp. 241. to 243 of Halsbury's Laws of England (3rd
Edn.), VoL 12, in the following words:-
"In its essence desertion means the intentional permanent
forsaking and abandonment of one spouse by the other without
that other's consent and without reasonable cause. It is a total
repudiation of the obligations of marriage. In view of the large
variety of circumstances and of modes of life involved, the Court
has discouraged attempts at defining desertion, there being no
general principle applicable to all cases. Desertion is not the
withdrawal from a place but from the state of things, for what
the law seeks to enforce is the recognition and discharge of the
common obligations of the married state; the state of things
may usually be termed, for short, 'the home'. There can be
desertion without previous cohabitation by the parties, or
without the marriage having been consummated. The person
who actually withdraws from cohabitation is not necessarily the
deserting party. The fact that a husband makes an allowance to
a wife whom he has abandoned is no answer to a charge of
desertion.
The offence of desertion is a course of conduct which exists
independently of its duration, but as a ground for divorce it
must exist for a period of at least three years immediately
preceding the presentation of the petition where the offence
appears as a cross-charge, of the answer. Desertion as a ground
of divorce differs from the statutory grounds of adultery and
cruelty in that the offence founding the cause of action of
desertion is not complete, but is inchoate, until the suit is
constituted. Desertion is a continuing offence".
Thus the quality of permanence is one of the essential elements
which differentiates desertion from wilful separation. If a spouse
abandons the other spouse in a state of temporary passion, for
example anger or disgust, without intending permanently to
cease cohabitation, it will not amount to desertion. For the
offence of desertion, so far as the deserting spouse is
concerned, two essential conditions must be there namely, (1)
the factum of separation, and (2) the intention to bring
cohabitation permanently to an end (animus deserendi).
Similarly two elements are essential so far as the deserted
spouse is concerned: (1) the absence of consent, and (2)
absence of conduct giving reasonable cause to the spouse
leaving the matrimonial home to form the necessary intention
aforesaid. The petitioner for divorce bears the burden of proving
those elements in the two spouses respectively. Here a
difference between the English law and the law as enacted by
the Bombay Legislature may be pointed out. Whereas under the
English law those essential conditions must continue
throughout the course of the three years immediately preceding
the institution of the suit for divorce, under the Act, the period
is four years without specifying that it should immediately
precede the commencement of proceedings for divorce. Whether
the omission of the last clause has any practical result need not
detain us, as it does not call for decision in the present case.
Desertion is a matter of inference to be drawn from the facts
and circumstances to each case. The inference may be drawn
from certain facts which may not in another case be capable of
leading to the same inference; that is to say, the facts have to
be viewed as to the purpose which is revealed by those acts or
by conduct and expression of intention, both anterior and
subsequent to the actual acts of separation. If in fact, there has
been a separation, the essential question always is whether that
act could be attributable to an animus deserendi. The offence of
desertion commences when the fact of separation and the
animus deserendi co- exist. But it is not necessary that they
should commence at the same time. The de facto separation
may have commenced without the necessary animus or it may
be that the separation and the (animus deserendi) coincide in
point of time; for example, when the separating spouse
abandons the marital home with the intention, express or
implied of bringing cohabitation permanently to a close. The law
in England has prescribed a three years period and the Bombay
Act prescribed a period of four years as a continuous period
during which the two elements must subsist. Hence, if a
deserting spouse takes advantage of the locus poenitentiae thus
provided by law and decides to come back to the deserted
spouse by a bona fide offer of resuming the matrimonial home
with all the implications of marital life, before the statutory
period is out or even after the lapse of that period, unless
proceedings for divorce have been commenced, desertion comes
to an end, and if the deserted spouse unreasonably refuses to
offer, the latter may be in desertion and not the former. Hence it
is necessary that during all the period that there has been a
desertion, the deserted spouse must affirm the marriage and be
ready and willing to resume married life on such conditions as
may be reasonable. It is also well settled that in proceedings for
divorce the plaintiff must prove the offence of desertion, like
and other matrimonial offence, beyond all reasonable doubt.
Hence, though corroboration is not required as an absolute rule
of law the courts insist upon corroborative evidence, unless its
absence is accounted for to the satisfaction of the court. In this
connection the following observations of Lord Goddard CJ. in
the case of Lawson v. Lawson, 1955-1 All E R 341 at p. 342(A),
may be referred to :-
"These cases are not cases in which corroboration is required as
a matter of law. It is required as a matter of precaution....... "
With these preliminary observations we now proceed to examine
the evidence led on behalf of the parties to find out whether
desertion has been proved in this case and, if so, whether there
was a bona fide offer by the wife to return to her matrimonial
home with a view to discharging marital duties and, if so,
whether there was an unreasonable refusal on the part of the
husband to take her back.
16. In view of the discussion and analysis made herein
above, appeal is allowed. Judgment dated 15.9.2015 rendered by
the learned Additional District Judge (II), Mandi, District Mandi,
Himachal Pradesh in HMA No. 45/15/2010 is set aside.
Pending applications, if any, are disposed of.
(Rajiv Sharma)
Judge
July 13, 2016
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