judgement:
Appeal No. 247 of 1953.
Appeal by special leave from the judgment and decree dated August 22, 1952 of the Bombay High Court in Appeal No. 66 of 1952 arising out of the decree dated March 7, 1952 of Bombay High Court in its Ordinary Original Civil Jurisdiction in Suit No. 1177 of 1951.
M. C. Setalvad, Attorney General for India, Purshottam Tricumdas, T. Godiwala, J. B. Dadachanji, Rameshwar Nath and section N. Andley, for the appellant.
C. K. Daphtary, Solicitor General of India and Sardar Bahadur, for the respondent.
October 19.
The Judgment of the Court was delivered by SINHA J.
This is an appeal by special leave against the judgment and decree of the High Court of Judicature at Bombay dated August 22,1952, reversing those of a single Judge of that Court on the Original Side, dated March 7,1952, by which he had granted a decree for dissolution of marriage between the appellant and the respondent.
840 The facts and circumstances of this case may be stated as follows: The appellant, who was the plaintiff, and the respondent were married at Patan on April 20, 1942, according to Hindu rites of the Jain Community.
The families of both the parties belong to Patan, which is a town in Gujarat, about a night 's rail journey from Bombay.
They lived in Bombay in a two room flat which was in occupation of the appellant 's family consisting of his parents and his two sisters, who occupied the larger room called the hall, and the plaintiff and the defendant who occupied the smaller room called the kitchen.
The appellant 's mother who is a patient of asthma lived mostly at Patan.
There is an issue of the marriage, a son named Kirit, born on September 10, 1945.
The defendant 's parents lived mostly at Jaigaon in the East Khandesh district in Bombay.
The parties appear to have lived happily in Bombay until a third party named Mahendra, a friend of the family came upon the scene and began to live with the family in their Bombay flat some time in 1946, after his discharge from the army.
On January 8, 1947, the appellant left for England on business.
It was the plaintiff 's case that during his absence from Bombay the defendant became intimate with the said Mahendra and when she went to Patan after the plaintiff 's departure for England she carried on "amorous correspondence" with Mahendra who continued to stay with the plaintiff 's family in Bombay.
One of the letters written by the defendant to Mahendra while staying at the plaintiff 's flat in Bombay, is exhibit E as officially translated in English, the original being in Gujerati except a few words written in faulty English.
This letter is dated April,1947, written from the plaintiff 's house at Patan, where the defendant bad been staying with her mother in law.
This letter had been annexed to the plaint with the official translation.
It was denied by the defendant in her written statement.
But at the trial her counsel admitted it to have been written by her to Mahendra.
As this letter started all the trouble between the parties to this litigation, it will have to be set out in extenso hereinafter.
Continuing 841 the plaintiff 's narrative of the events as alleged in the plaint and in his evidence, the plaintiff returned to Bombay from abroadon May 2O, 1947.
To receive him back from his foreign journey the whole family ' including the defendant was there in Bombay.
According to the plaintiff, he found that on the first night after his return his bed had been made in the hall occupied by his father and that night he slept away from his wife.
As this incident is said to have some significance in the narrative of events leading up to the separation between the husband and the wife and about the reason for which the parties differ, it will have to be examined in detail later.
Next morning, that is to say, on May 21, 1947, the plaintiff 's father handed over the letter aforesaid to the plaintiff, who recognised it as being in the familiar handwriting of his wife.
He decided to tackle his wife with reference to the letter.
He handed it to a photographer to have photo copies made of the same.
That very day in the evening he asked his wife as to why she had addressed the letter to Mahendra.
She at first denied having written any letter and asked to see the letter upon which the plaintiff informed her that it was with the photographer with a view to photo copies being made.
After receiving the letter and the photo copies from the photographer on May 23, the plaintiff showed the defendant the photo copy of the letter in controversy between them at that stage and then the defendant is alleged to have admitted having written the letter to Mahendra and to have further told the plaintiff that Mahendra was a better man than him and that Mahendra loved her and she loved him.
The next important event in the narrative is what happened on May 24, 1947.
On the morning of that day, while the plaintiff was getting ready to go to his business office his wife is alleged to have told him that she had packed her luggage and was ready to go to Jalgaon on the ostensible ground that there was a marriage in her father 's family.
The plaintiff told her that if she had made up her mind to go, he would send the car to take her to the station and offered to pay her Rs. 100 for her expenses.
But she 884 refused the offer.
She left Bombay apparently in the plaintiff 's absence for Jalgaon by the afternoon train.
when the plaintiff came back home from his office, he "discovered that she had taken away everything with her and had left nothing behind".
It may be added here that the plaintiff 's mother had left for Patan with his son some days previously.
Plaintiff 's case further is that the defendant never came back to Bombay to live with him, nor did she write any letters from Jalgaon, where she stayed most of the time.
It appears further that the plaintiff took a very hasty, 'if not also a foolish, step of having a letter addressed to the defendant by his solicitor on July 15, 1947, charging her with intimacy between herself and Mahendra and asking her to send back the little boy.
,The parties violently differ on the intent and effect of this letter which will have to be set out in extenso at the appropriate place.
No answer to this letter was received by the plaintiff.
In November, 1947, the plaintiff 's mother came from Patan to Bombay and informed the plaintiff that the defendant might be expected in Bombay a few days later.
Thereupon the plaintiff sent a telegram to his father in law at Patan.
The telegram is worded as follows: "Must not send Prabha.
Letter posted.
Wishing happy new year".
The telegram stated that a letter bad been posted.
The defendant denied that any such letter bad been received by her or by her father.
Hence the original, if any, is not on the record.
But the plaintiff produced what he alleged to be a carbon copy of that letter which purports to have been written on November 13, 1947, the date on which the telegram was despatched.
An English translation of that letter is exhibit C and is to the following effect: Bombay 13 11 47 To Rajmanya Rajeshri Seth Popatlal & others.
There is no letter from you recently.
You must have received the telegram sent by me today.
Further, this is to inform you that I have received information from my Mami (mother) that 843 Prabha is going to come to Bombay in 3 or 4 days.
I am surprised to hear this news; Ever since she has gone to Jalgaon, there has been not a single letter from her to this day.
Not only that, but, although you know everything, neither you nor any one on your behalf has come to see me in this connection.
What has made Prabha thus inclined to come all of a sudden! After her behaviour while going to Jalgaon for: the marriage, (and after), her letter to Mahendra and her words. 'He is better than you Has feeling for ' me and I love him ' and all this, I was afraid that she would not set up a house with me.
Hence when my mother gave me the news of her return, I was surprised.
I have not the slightest objection to the return of Prabha, but if she gives such shameless replies to me and shows such improper behaviour, I shall not be able to tolerate the same.
If she now really realises her mistake and if she is really repenting and wants sincerely to come, please make her write a reply to this letter.
On getting a letter from her, I shall personally come to Patan to fetch her.
Kirit is young.
For his sake also, it is necessary to persuade Prabha.
Further, I have to state that I have so far kept peace.
I have made efforts to call back Prabha.
Please understand this to her my final effort.
If even now Prabha does not give up her obstinacy, I am not responsible and (then) do not blame me.
Well, that is all for the present.
Kirit must be bale and hearty.
My new year 's greetings to you all.
Please do assign to me such work as I can manage.
Written by Bipinchandra" The plaintiff stated that be received no answer either to the telegram or to the letter.
Two days later, on, November 15, the plaintiff 's father addressed a letter to the defendant 's father, which is exhibit D.
This letter makes reference.
to the defendant 's mother having, talked to the plaintiffs mother about sending the defendant I to Bombay and to the fact that the plaintiff bad sent a telegram on November 13, and ends with the expression of opinion by the plaintiff 's father 844 that it was "absolutely necessary" that the plaintiff 's consent should be obtained before sending the defendant to Bombay.
This letter also remained unanswered.
According to the plaintiff, nothing happened until May, 1948, when he went to Patan and there met the defendant and told her "that if she repented for her relations with Mahendra in the interests of the child as well as our own interests she could come back and live with me".
To that the defendant is said to have replied that in November, 1947, as a result of pressure from her father and the community, she had been thinking of coming to live with the plaintiff) but that she had then decided not to do so.
The defendant has given quite a different version of this interview.
The second interview between the plaintiff and the defendant again took place at Patan some time later in 1948 when the plaintiff went there to see her on coming to know that she had been suffering from typhoid,.
At that time also she evinced no desire to come back to the plaintiff.
The third and the last interview between the plaintiff and the defendant took place at Jalgaon in April May, 1949.
At that interview also the defendant turned down the plaintiff 's request that at least in the interests of the child she should come back to him.
According to the plaintiff, since May 24, 1947, when the defendant left his home in Bombay of her own accord, she bad not come back to her marital home.
The suit was commenced by the plaintiff by filing the plaint dated July 4, 1951, substantially on the ground that the defendant bad been in desertion ever since May 24, 1947, without reasonable cause and without his consent and against his will for a period of over four years.
He therefore prayed for a decree for a dissolution of his marriage with the defendant and for the custody of the minor child.
The suit was contested by the defendant by a written statement filed on February 4, 1952, substantially on the ground that it was the plaintiff who by his treatment of her after his return from England had made her life unbearable and compelled her to leave her marital home against her wishes on or about May 845 24, 1.947.
She denied any intimacy between herself and Mahendra or that she was confronted by the plaintiff with a photostat copy of the letter.
, exhibit E, or that she had confessed any such intimacy to the plaintiff.
She admitted having received the Attorney 's letter, exhibit A, and also that she did not reply to that letter.
She adduced her father 's advice as the reason for not sending any answer to that letter.
She added that her paternal uncle Bhogilal (since deceased) and his son Babubhai saw the plaintiff in Bombay at the instance of the defendant and her father and that the plaintiff turned down their request for taking her back.
She also made reference to the negotiations between the defendant 's mother and the plaintiff 's mother to take the defendant back to Bombay and that the defendant could not go to Bombay as a result of the telegram of November 13, 1947, and the plaintiff 's father 's letter of November 15, 1947, aforesaid.
She also stated that the defendant and her son, Kirit, both lived with,the plaintiff 's family at Patan for over four months and off and on on several occasions.
The defendant 's definite case is that she had always been ready and willing to go back to the plaintiff and that it was the plaintiff who all along had been wailfully refusing to keep her and to cohabit with her.
On those allegations she resisted the plaintiff 's claim for a decree for a dissolution of the marriage.
On those pleadings a single issue was joined between the parties, namely, "Whether the defendant deserted the plaintiff for a continuous period of over four years prior to the filing of the suit".
At the trial held by Tendolkar, J. of the Bombay High Court on the Original Side, the plaintiff examined only himself in support of his case.
The defendant examined herself, her father, Popatlal, and her cousin, Bhogilal, in support of her case that she had been all along ready and willing to go back to her marital home and that in spite of repeated efforts on her part through her relations the plaintiff had been persistently refusing to take her back.
110 846 The learned trial Judge answered the only issue in the case in the affirmative and granted a decree for divorce in favour of the plaintiff, but made DO order as to the costs of the suit.
He held that the letter, exhibit E "reads like a love letter written by a girl to her paramour.
The reference to both of them having been anxious about something and there being now no need to be anxious any more can only be to a possible fear that she might miss her monthly periods and her having got her monthly period thereafter, because, if it were not so and the reference was to anything innocent, there was nothing that she should have repented later on in her mind as she says she did, nor should there have been occasion for saying 'after all love is such an affair '.
" With reference to that letter he further held that it was capable of the interpretation that she had misbehaved with Mahendra and that she was conscious of her guilt.
With reference to the incident of May 24, the learned Judge observed that having regard to the demeanour of the plaintiff and of the defendant in the witness box, he was inclined to prefer the husband 's testimony to that of the wife in all matters in which there was a conflict.
He held therefore that there was desertion with the necessary animus deserendi and that the defendant had failed to prove that she entertained a bonafide intention to come back to the marital home, that is to say, there was no animus revertendi.
With reference to the contention that the solicitor 's letter of July 15,1947, had terminated the desertion, if any, he held that it was not well founded inasmuch as the defendant had at no time a genuine desire to return to her husband.
He made no reference to the prayer in the plaint that the custody of the child should be given to the father, perhaps because that prayer was not pressed.
The defendant preferred an appeal under the Letters Patent which was heard by a. Division Bench consisting of Chagla C.J. and Bhagwati J.
The Appellate Bench, allowed the appeal, set aside the decision of the trial Judge and dismissed the suit with costs.
It held that the defendant was not guilty of 847 desertion, that the letter of July 15, 1947, clearly established that it was the 'plaintiff who had deserted the defendant.
Alternatively, the Appellate Court held that even assuming that the defendant was in desertion as a result of what had happened on May 24, and subsequently, the letter aforesaid bad the effect of putting an end to that desertion.
In its judgment the letter, exhibit E, did not justify the plaintiff having any reasonable suspicions about his wife 's guilt and that the oral evidence of the defendant and her relations proved the wife 's anxiety to return back to her husband and of the obduracy of the husband in refusing to take the wife back.
The plaintiff made an application to the High Court for leave to appeal to this Court.
The leave asked for was refused by another Division Bench consisting of the Chief Justice and Dixit J.
Thereafter the plaintiff moved this Court and obtained special leave to appeal from the judgment of the Appellate Bench of the High Court.
In this appeal the learned Attorney General appearing on behalf of the appellant and the learned Solicitor General appearing on behalf of the respondent have placed all relevant considerations of fact and law before us, and we are beholden to them for the great assistance they rendered to us in deciding this difficult case.
The difficulty is enhanced by the fact that the two courts below have taken diametrically opposite views of the facts of the case which depend mostly upon oral testimony of the plaintiff husband and the defendant wife and not corroborated in many respects on either side.
It is a case of the husband 's testimony alone on his side and the wife 's testimony aided by that of her father and her cousin.
As already indicated, the learned trial Judge was strongly in favour of preferring the husband 's testimony to that of the wife whenever there was any conflict.
But he made no reference to the testimony of the defendant 's father and cousin which, if believed, would give an entirely different colour to the case.
Before we deal with the points in controversy, it is convenient here to make certain general of observations 848 on the history of the law on the subject and the well established general principles on which such cases are determined.
The suit giving rise to this appeal is based on section 3(1) (d) of the Bombay Hindu Divorce Act ', XXII of 1947, (which hereinafter will be referred to as "The Act") which came into force on May 12, 1947, the date the Governor 's assent was published in the Bombay Government Gazette.
This Act, so far as the Bombay Province, as it then was, was concerned, was the first step in revolutionizing the law of matrimonial relationship, and, as the Preamble shows, was meant "to provide for a right of divorce among all communities of Hindus in certain circumstances".
Before the enactment, dissolution of a Hindu marriage particularly amongst what were called the regenerate classes was unknown to general Hindu law and was wholly inconsistent with the basic conception of a Hindu marriage as a sacrament, that is to say, a holy alliance for the performance of religious duties.
According to the Shastras, marriage amongst the Hindus was the last of the ten sacraments enjoined by the Hindu religion for purification.
Hence according to strict Hindu law as given by the Samhitas and as developed by the commentators, a Hindu marriage could not be dissolved on any ground whatsoever, even on account of degradation in the hierarchy of castes or apostacy.
But custom ', particularly amongst the tribal and what used to be called the lower castes recognised divorce on rather easy terms.
Such customs of divorce on easy terms have been in some instances held by the courts to be against public policy.
The Act in section 3 sets out the grounds of divorce.
It is noticeable that the Act does not recognise adultery simpliciter as one of the grounds of divorce, though cl.
(f) renders the fact that a husband "has any other woman as a concubine" and that a wife "is a concubine of any other man or leads the life of a prostitute" a ground of divorce.
In the present case we are immediately concerned with the provisions of section 3(1)(d), which are in these terms: 3.
(1) A husband or wife may sue for divorce on 849 any of the following grounds, namely: . . . . . . . . (d) that the defendant has deserted the plaintiff for a continuous period of four years".
"Desertion" has been defined in section 2(b) in these terms: 'Desert ' means to desert without reasonable cause and without the consent or against the will of the spouse".
It will be seen that the definition is tautological and not very helpful and leads us to the Common Law of England where in spite of repeated legislation on the subject of matrimonial law, no attempt has been made to define "desertion".
Hence a large body of case law has developed round the legal significance of "desertion".
"Marriage" under the Act means "a marriage between Hindus whether contracted before or after the coming into operation of this Act".
"Husband" means a Hindu husband and "wife" means a Hindu wife.
In England until 1858 the only remedy for desertion was a suit for restitution of conjugal rights.
But by the Matrimonial Causes Act of 1857, desertion without cause for two years and upwards was made a ground for a suit for judicial separation.
It was not till 1937 that by the Matrimonial Causes Act, 1937, desertion without cause for a period of three years immediately preceding the institution of proceedings was made a ground for divorce.
The law has now been consolidated in the Matrimonial Causes Act, 1950 (14 Geo.
VI, c. 25 ).
It would thus appear that desertion as affording a cause of action for a suit for dissolution of marriage is a recent growth even in England.
What is desertion? "Rayden on Divorce" which is a standard Work on the subject at p. 128 (6th Edn.) has summarised the case law on the subject in these terms: "Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to on end without reasonable cause and without the 850 consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party".
The legal position has been admirably summarised in paras.
453 and 454 at pp.
241 to 243 of Halsbury 's Laws of England (3rd Edn.) Vol. 12, in the following words: "In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other 's consent, and without reasonable cause.
It is a total repudiation of the obligations of marriage.
In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases.
Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, 'the home '.
There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated.
The person who actually withdraws from cohabitation is not necessarily the deserting party.
, The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.
The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition or, where the offence appears as a cross charge, of the answer.
Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted.
Desertion is a continuing offence".
Thus the quality of permanence is one of the essential elements which differentiates desertion from 851 wilful separation.
If a spouse abandon the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. ' For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there., namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi ).
Similarly two elements are essential so far as the deserted spouse is con cerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.
The petitioner for divorce bears the burden of proving those elements in the two spouses respectively.
Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out.
Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce; under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce.
Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case.
Desertion is a matter of inference to be drawn from the facts and circumstances of each case.
The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.
If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi.
The offence of desertion commences when the fact of separation and the animus deserendi co exist.
But it is not necessary that they should commence at the same time.
The de facto separation may have commenced without the necessary animus or it may be that the separation 852 and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close.
The law in England has prescribed a three year period and the Bombay Act prescribes a period of four years as a continuous period during which the two elements must subsist.
Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decides to come back to the deserted spouse by a bonafide offer of resuming the matrimonial some with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced,, desertion comes to an end and if the deserted spouse unreasonably refuses the offer, the latter may be in desertion and not the former.
Hence it is necessary that during all the period that there has been a desertion the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable.
It is also well settled that in proceedings for divorce ' the plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable doubt.
Hence, though corroboration is not required as an absolute rule of law, the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court.
In this connection the following observations of Lord Goddard, C.J. in the case of Lawson vs Lawson(1) may be referred to: "These cases are not cases in which corroboration is required as a matter of law.
It is required as a matter of precaution. . .
With these preliminary observations we now proceed to examine the evidence led on behalf of the parties to find out whether desertion has been proved in this case and, if so, whether there was a bona fide offer by the wife to return to her matrimonial home with a view to discharging marital duties and, if so, whether (1) , 342. 853 there was an unreasonable refusal on the part of the husband to take her back.
In this connection the plaintiff in the witness box deposed to the incident of the night of May 20, 1947.
He stated that at night he found that his bed had been made in the hall in which his father used to sleep, and on being questioned by him, the defendant told him that it was so done with a view to giving him the opportunity after a long absence in England to talk to his father.
The plaintiff expressed his wish to the defendant that they should sleep in the same room as they used to before his departure for England, to which the wife replied that as the bed had already been made, "it would look indecent if they were removed".
The plaintiff therefore slept in the hall that night.
This incident was relied upon by the plaintiff with a view to showing that the wife had already made up her mind to stop cohabitation.
This incident has not been admitted by the defendant in her cross examination.
On the other hand she would make it out that it was at the instance of the plaintiff that the bed had been made in the hall occu pied by his father and that it was the plaintiff and not she who was responsible for their sleeping apart that night.
As the learned trial Judge has preferred the plaintiff 's testimony to that of the defendant on all matters on which there was simply oath against oath, we would not go behind that finding.
This incident by itself is capable of an innocent explanation and therefore has to be viewed along with the other incidents deposed to by the plaintiff in order to prove his case of desertion by the defendant.
There was no reason why the husband should have thought of sleeping apart from the wife because there was no suggestion in the record that the husband was aware till then of the alleged relationship between the defendant and Mahendra.
But the wife may have been apprehensive that the plaintiff had known of her relations with Mahendra.
That apprehension may have induced her to keep out of the plaintiff 's way.
The most important event which led to the ulti 854 mate rupture between the parties took place on May 21, 1947, when in the morning the plaintiff 's father placed Mahendra 's letter aforesaid in the plaintiff 's hands.
The letter which has rightly been pointed out in the courts below as the root case of the trouble is in its relevant parts in these terms: "Mahendrababu, Your letter has been received.
I have read the same and have noted the contents.
In the same way, I hope, you will take the trouble of writing me a letter now and then.
I am writing, this letter with fear in my mind, because if this reaches anybody 's hands, that cannot be said to be decent.
What the mind feels has got to be constrained in the mind only.
On the pretext of lulling (my) son to sleep, I have been sitting here in this attic, writing this letter to you.
All others are chitchatting below.
I am thinking now and then that I shall write this and shall write that.
Just now my brain cannot go in any way.
I do not feel like writing on the main point.
The matters on which we were to remain anxious and you particularly were anxious, well we need not now be.
I very much repented later on in my mind.
But after all love is such an affair.
(Love begets love).
. . . . . . . "While yet busy doing services to my mother in law, the clock strikes twelve.
At this time, I think of you and you only, and your portrait shoots up before my eyes.
I am reminded of you every time.
You write of coming, but just now there is nothing like a necessity, why unnecessarily waste money? And again nobody gets salvation at my bands and really nobody will.
You know the natures of all.
Many a time I get tired and keep on being uneasy in my mind, and in the end I weep and pray God and say, 0 Lord, kindly take me away soon: I am not obsessed by any kind of anxiety and so relieve me from this mundane existence.
I do not know how many times I must be thinking of you every day. . . " This letter is not signed by the defendant and in place of the signature the word "namaste" finds 855 place.
The contents of the letter were put to the defendant in cross examination.
At that time it was no more a contested document, the defendant 's counsel having admitted it during the cross examination" of the plaintiff.
She stated that she had feelings for Mahendra as a brother and not as a lover ' When the mysterious parts of the letter beginning with the words "The matters on which" and ending with the words "such an affair" were put to her, she could not give any explanation as to what she meant.
She denied the suggestion made on behalf of the plaintiff in these words: "It is not true that the reference here is to our having had sexual intercourse and being afraid that I might remain pregnant".
The sentence "I very much repented later on in my mind" was also put to her specifically and her answer was "I do not know what I repented for.
I wrote some thing foolishly".
Pressed further about the meaning of the next sentence after that, her answer was "I cannot now understand how I came to write such a letter.
I admit that this reads like a letter written by a girl to her lover.
Besides the fact that my brain was not working properly I bad no explanation to give as to how I wrote such a letter".
She also admitted that she took good care to see that the.
other members of the family, meaning the mother in law and the sisters in law, did not see her writing that letter and that she wanted that the letter should remain a secret to them.
Being further pressed to explain the sentence "We need not be anxious now", her answer was " I did not intend to convey that I had got my monthly period about which we were anxious.
I cannot say what the normal natural meaning of this letter would be".
She bad admitted having received at least one letter from Mahendra.
Though it would appear from the trend of her cross examination that she received more letters than one, she stated that she did not preserve any of his letters.
She has further admitted in cross examination "I have not signed this letter.
It must have remained to be signed by mistake.
I admit that under the 856 letter where the signature should be I have put the word 'Namaste ' only.
It is not true that I did not sign this letter because I was afraid, that if it got into the hands of any one, it might compromise me and Mahendra.
Mahendra would have known from my handwriting that this was my letter.
I had previously written one letter to him.
That letter also I had not signed.
I had only said 'Namaste" '.
The tenor of the letter and the defendant 's explanation or want of explanation in the witness box of those portions of the letter which very much need explanation would leave no manner of doubt in any person who read that letter that there was something between her and Mahendra which she was interested to keep a secret from everybody.
Even when given the opportunity to explain, if she could, those portions of the letter, she was not able to put any innocent meaning to her words except saying in a bland way that it was a letter from a sister to a brother.
The trial court rightly discredited her testimony relating to her answers with respect to the contents of the letter.
The letter shows a correspondence between her and Mahendra which was clearly unworthy of a faithful wife and her pose of innocence by characterising it as between a sister and a brother is manifestly disingenuous.
Her explanation, if any, is wholly unacceptable.
The plaintiff naturally got suspicious of his wife and naturally taxed her with reference to the contents of the letter.
That she had a guilty mind in respect of the letter is shown by the fact that she at first denied having written any such letter to Mahendra, a denial in which she persisted even in her answer to the plaint.
The plaintiff 's evidence that he showed her a photostatic copy of that letter on May 23, 1947, and that she then admitted having written that letter and that she bad tender feelings for Mahendra can easily be believed.
The learned trial Judge was therefore justified in coming to the conclusion that the letter betrayed on the part of the writer "a consciousness of guilt".
But it is questionable how far the learned Judge was justified in observing further that ' the contents of the 857 letter "are only capable of the interpretation that she had misbehaved with Mahendra during the absence of the plaintiff".
If he meant by the word "misbehaved" that the defendant had sexual intercourse with Mahendra, he may be said to have jumped to the conclusion which did not necessarily follow as the only conclusion from them.
The very fact that a married girl was writing amorous letters to a man other than her husband was reprehensible and easily capable of furnishing good grounds to the husband for suspecting the wife 's fidelity.
So far there can be no difficulty in assuming that the husband was fully justified in losing temper with his wife and in insisting upon her repentance and assurance of good conduct in future.
But we are not prepared to say that the contents of the letter are capable of only that interpretation and no other.
On the other hand, the learned Judges of the Appeal Court were inclined to view this letter as an evidence merely of what is sometimes characterised as "platonic love" between two persons who by reasons of bond of matrimony are compelled to restrain themselves and not to go further than merely showing love and devotion for each other.
We are not prepared to take such a lenient, almost indulgent, view of the wife 's conduct as betrayed in the letter in question.
We cannot but sympathise with the husband in taking a very serious view of the lapse on the wife 's part.
The learned Judges of the Appeal Court have castigated the counsel for the plaintiff for putting those questions to the defendant in cross examination.
They observe in their judgment (speaking through the Chief Justice) that there was no justification for the counsel for the plaintiff to put to the defendant those questions in cross examination suggesting that she had intercourse with Mahendra as a result of which they were apprehending future trouble in the shape of pregnancy and illegitimate child birth.
It is true that it was not in terms the plaintiff 's case that there had been an adulterous intercourse between the defendant and Mahendra.
That need not have been so, because the Act does not recognise adultery as one of the grounds 858 for divorce.
But we do not agree with the appellate Court that those questions to the defendant in cross examination were not justified.
The plaintiff proposed to prove that the discovery of the incriminating letter containing those mysterious sentences was the occasion for the defendant to make up her mind to desert,the plaintiff.
We do not therefore agree with the observations of the appellate Court in all that they have said in respect of the letter in question.
There can be no doubt that the letter in question made the plaintiff strongly suspicious of his wife 's conduct (to put it rather mildly), and naturally he taxed his wife to know from her as to what she bad to say about her relations with Mahendra.
She is said to have confessed to him that Mahendra was a better man than the plaintiff and that he loved her and she loved him.
When matters had come to such a head, the natural reaction of the parties would be that the husband would get not only depressed, as the plaintiff admitted in the witness box, but would in the first blush think of getting rid of such an unloving, if not a faithless, wife.
The natural reaction of the defendant would be not to face the husband in that frame of mind.
She would naturally wish to be out of the sight of her husband at least for some time, to gain time for trying, if she was so minded, to reestablish herself in her husband 's estimation and affection, if not love.
The event of the afternoon of May 24, 1947, must therefore be viewed in that light.
There was going to be performed the marriage of the defendant 's cousin at her father 's place of business in Jalgaon, though it was about five to six weeks from then.
The plaintiff would make it out in his evidence that she left rather in a recalcitrant mood in the afternoon during his absence in office with all her belongings and that she had refused his offer of being sent in his car to station and Rs. 100 for ' expenses.
This conduct on the part of the wife can easily be explained as that of a person who had found that her love letter had been discovered by the husband.
She would naturally try to flee away from the husband for the time being at least because she had not the 859 moral courage to face him.
The question is whether her leaving her marital home on the afternoon of May 24, 1947, is only consistent with her having deserted, her husband, in the sense that she had deliberately ' decided permanently to forsake all relationship with her husband with the intention of not returning to consortium, without the consent of the husband and against his wishes.
That is the plaintiff 's case.
May that conduct be not consistent with the defendant 's case that she had not any such intention, i.e., being in desertion? The following observations of Pollock, M. R. in Thomas vs Thomas(1) may usefully be quoted in this connection: "Desertion is not a single act complete in itself and revocable by a single act of repentance.
The act of departure from the other spouse draws its significance from the purpose with which it is done, as revealed by conduct or other expressions of intention: see Charter vs Charter(2).
A mere temporary parting is equivocal, unless and until its purpose and object is made plain.
I agree with the observations of Day J. in Wilkinson vs Wilkinson(3) that desertion is not a specific act, but a course of conduct.
As Corell Barnes J. said in Sickert vs Sickert(4): 'The party who intends bringing the cohabitation to an end, and whose conduct in reality causes its termination, commits the act of desertion '.
That conduct is not necessarily wiped out by a letter of invitation to the wife to return".
The defendant 's further case that she bad been turned out of the house by the husband under duress cannot be accepted because it is not corroborated either by circumstances or by direct testimony.
Neither her father nor her cousin say a word about her speaking to them on her arrival at Jalgaon that she had been turned out of her husband 's home.
If her case that she bad been forcibly turned out of her marital home by the husband had been made out, certainly the husband would have been guilty of "constructive desertion", because the test is riot who (1) (3) (2) (4) , 282, 860 left the matrimonial home first.
(See Lang vs Lang(1)).
If one spouse by his words and conduct compel the other spouse to leave the marital home.
the former would be guilty of desertion, though it is the latter who has physically separated from the other and has been made to leave the marital home.
It should be noted that the wife did not cross petition for divorce or for any other relief.
Hence it is no more necessary for us to go into that question.
It is enough to point out that we are not prepared to rely upon the uncorroborated testimony 'of the defendant Chat she had been compelled to leave her marital home by the threats of the plaintiff.
The happenings of May 24, 1947, as pointed out above, are consistent with the plaintiff 's case of desertion by the wife.
But they are also consistent not with the defendant 's case as actually Pleaded in her written statement, but with the fact; and circumstances disclosed in the evidence, namely, that the defendant having been discovered in her clandestine amorous correspondence with her supposed paramour Mahendra, she could not face her husband or her husband 's people living in the same flat in Bombay and therefore shamefacedly withdrew herself and went to her parent 's place of business in Jalgaon on the pretext of the marriage of her cousin which was yet far off.
That she was not expected at Jalgaon on that day in connection with the marriage is proved by her own admission in the witness box that "when I went to Jalgaon everyone was surprised".
As pointed out above, the burden is on the plaintiff to prove desertion without cause for the statutory period of four years, that is.
to say, that the deserting spouse must be in desertion throughout the whole period.
In this connection the following observations of Lord Macmillan in his speech in the House of Lords in the case of Pratt vs Pratt(2 ) are apposite: "In my opinion what is required of a petitioner for divorce on the ground of desertion is proof that throughout the whole course of the three years the respondent has without cause been in desertion.
The (1) 417.
(2) , 420. 861, deserting spouse must be shown to have persisted in the intention to desert throughout the whole period.
In fulfilling its duty of determining whether on the evidence a case of desertion without cause has been proved the court ought not, in my opinion, to leave out of account the attitude of mind of the petitioner.
If on the facts it appears that a petitioning husband has made it plain to his deserting wife that he will not receive her back, or if he has repelled all the advances which she may have made towards a resumption of married life, he cannot complain that she has persisted without cause in her desertion".
It is true that the defendant did not plead that she had left her husband 's home in Bombay in the circumstances indicated above.
She, on the other hand, pleaded constructive desertion by the husband.
That case, as already observed, she has failed to substantiate by reliable evidence.
But the fact that the defendant has so failed does not necessarily lead to the conclusion that the plaintiff has succeeded in proving his case.
The plaintiff must satisfy the court that the defendant had been in desertion for the continuous period of four years as required by the Act.
If we come to the conclusion that the happenings of May 24, 1947, are consistent with both the conflicting theories, it is plain that the plaintiff has not succeeded in bringing the offence of desertion home to the defendant beyond all reasonable doubt.
We must therefore examine what other evidence there is in support of the plaintiff 's case and in corroboration of his evidence in court.
The next event of importance in this narrative is the plaintiff 's solicitor 's letter of July 15, 1947, addressed to the defendant, care of her father at Jalgaon.
The defendant 's cousin 's marriage was performed towards the end of June and she could have come back to her husband 's place, soon thereafter ' Her evidence is that after the marriage had been performed she was making preparations to go back to Bombay but her father detained her and asked her to await a letter from the plaintiff.
The defendant instead of getting an invitation from the plaintiff to 862 come back to the marital home received the solicitor 's letter aforesaid, which, to say the least, was not calculated to bring the parties nearer.
The letter is in these terms: "Madam, Under instructions from our client Bipin Chandra J. Shah we have to address you as under: That you were married to our client in or about April 1942 at Patan.
Since the marriage you and our client lived together mostly in Bombay and son by name Kirit was born on or about the 10th day of September 1944.
Our client.
states that he left for Europe in January last and returned by the end of May last.
After our client 's return, our client learnt that during our client 's absence from India you developed intimacy with one Mahendra and you failed to give any satisfactory reply when questioned about the same and left for your parents under the pretext of attending to the marriage ceremony of your cousin.
You have also taken the minor with you and since then you are residing with your father to evade any satisfactory explanation.
Our client states that under the events that have happened, our client has become entitled to obtain a divorce and our client does not desire to keep you any longer under his care and protection.
Our client desires the minor to be kept by him and we are instructed to request you to send back the minor to our client or if necessary our client will send his agent to bring the minor to him.
Our client further states that in any event it will be in the interest of the minor that he should stay with our client.
Our client has made this inquiry about the minor to avoid any unpleasantness when our client 's agent comes to receive the minor".
The letter is remarkable in some respects,apart from antedating the birth of the son Kirit by a year.
The letter does not in terms allege that the defendant was in desertion, apart from mentioning the fact that she had left against the plaintiff 's wishes or that she had done so with the intention of permanently abandon 863 ing her marital duties.
On the other hand, it alleges that "You are residing with your father to avoid any satisfactory explanation".
The most important part of the letter is to the effect that the plaintiff had "become entitled to obtain a divorce" and that he "does not desire to keep you any longer under his care and protection".
Thus if the solicitor 's letter is any indication of the working of the mind of the plaintiff, it makes it clear that at that time the plaintiff did not believe that the defendant had been in desertion and that the plaintiff had positively come to the determination that he was no longer prepared to affirm the marriage relationship.
As already indicated, one of the essential conditions for success in a suit for divorce grounded upon desertion is that the deserted spouse should have been willing to fulfill his or her part of the marital duties.
The statement of the law in para 457 at p. 244 of Halsbury 's Laws of England (3rd Edn.
Vol 12) may be usefully quoted: "The burden is on the petitioner to show that desertion without cause subsisted, throughout the statutory period.
The deserting spouse must be shown to have persisted in the intention to desert throughout the whole of the three year period.
It has been said that a petitioner should be able honestly to say that he or she was all along willing to fulfill the duties of the marriage, and that the desertion was against his or her will, and continued throughout the statutory period without his or her consent; but in practice it is accepted that once desertion has been started by the fault of the deserting spouse, it is no longer necessary for the deserted spouse to show that during the three years preceding the petition be or she actually wanted the other spouse to come back, for the intention to desert is presumed to continue.
That presumption may, however, be rebutted".
Applying those observations to the facts of the present case, can the plaintiff honestly say that be was all along willing to fulfill the duties of the marriage and that the defendant 's desertion, if any, continued throughout the statutory period without his consent.
The letter, exhibit A) is an emphatic No.
In the first 864 place, even the plaintiff in that letter did not allege any desertion and, secondly, he was not prepared to receive her back to the matrimonial home.
Realising his difficulty when cross examined as to the contents of that letter, he wished the court to believe that at the time the letter was written in his presence he was "in a confused state of mind" and did not remember exactly whether he noticed the sentence that he did not desire to keep his wife any longer.
Pressed fur ther in cross examination, he was very emphatic in his answer and stated: "It is not true that by the date of this letter I had made up my mind not to take her back.
It was my hope that the letter might induce her parents to find out what had happened, and they would persuade her to come back.
I am still in the confused state of mind that despite my repeated attempts my wife puts me off".
In our opinion, the contents of the letter could not thus be explained away by the plaintiff in the witness box.
On the other hand, it shows that about seven weeks after the wife 's departure for her father 's place the plaintiff had at least for the time being convinced himself that the defendant was no more a suitable person to live with.
That, as found by us, be was justified in this attitude by the reprehensible conduct of his wife during his absence is beside the point.
This letter has an importance of its own only in so far as it does not corroborate the plaintiff 's version that the defendant was in desertion and that the plaintiff was all along anxious to induce her to come back to him.
This letter is more consistent with the supposition that the husband was very angry with her on account of her conduct as betrayed by the letter, exhibit E and that the wife left her husband 's place in shame not having the courage to face him after that discovery.
But that will not render her in the eye of the law a deserter, as observed by Pollock, M. R. in Bowron vs Bowron(1) partly quoting from Lord Gorell as follows: "In most cases of desertion the guilty party (1) , 192. 865 actually leaves the other, but it is not always or necessarily the guilty party who leaves the matrimonial home.
In my opinion, the party who intends bringing the cohabitation to an end, and whose conduct in reality causes its termination, commits the act of desertion: See also Graves vs Graves(1); Pulford vs Pulford(2); Jackson vs Jackson(2); where Sir Henry Duke P. explains the same doctrine.
You must look at the conduct of the spouses and ascertain their real intention".
It is true that once it is found that one of the spouses has been in desertion, the presumption is that the desertion has continued and that it is not necessary for the deserted spouse actually to take steps to bring the deserting spouse back to the matrimonial home.
So far we do not.find any convincing evidence in proof of the alleged desertion by the wife and naturally therefore the presumption of continued desertion cannot arise.
But it is not necessary that at the time the wife left her husband 's home, she should have at the same time the animus deserendi.
Let us therefore examine the question whether the defendant in this case, even if she had no such intention at the time she left Bombay, subsequently decided to put an end to the matrimonial tie.
This is in consonance with the latest pronouncement of the Judicial Committee of the Privy Council in the case of Lang vs Lang(1) in an appeal from the decision of the High Court of Australia, to the following effect: "Both in England and in Australia, to establish desertion two things must be proved: first, certain outward and visible conduct the 'factum ' of desertion; secondly, the 'animus deserendi ' the intention underlying this conduct to bring the matrimonial union to an end.
In ordinary desertion the factum is simple: it is the act of the absconding party in leaving the matrimonial home.
The contest in such a case will be almost entirely as to the 'animus '.
Was the intention (1) 3 Sw. & Tr.
(3) (2) (4) [1955] A.G. 402, 417.
866 of the party leaving the home to break it up for good, or something short of, or different from that?" In this connection the episode of November, 1947, when the plaintiff 's mother came from Patan to Bombay is relevant.
It appears to be common ground now that the defendant had agreed to come back to Bombay along with the plaintiff 's mother or after a few days.
But on this information being given to the plaintiff he countermanded any such steps on the wife 's part by sending the telegram, exhibit B,aforesaid and the plaintiff 's father 's letter dated November 15, 1947.
'We are keeping out of consideration for the present the letter, exhibit C, dated November 13, 1947, which is not admitted to have been received either by the defendant or her father.
The telegram is in peremptory terms: "Must not send Prabha".
The letter of November 15, 1947, by the plaintiff 's father to the defendant 's father is equally peremptory.
It says "It is absolutely necessary that you should obtain the consent of Chi.
Bipinchandra before sending Chi.
Prabhavati".
The telegram and the letter which is a supplement to the telegram, as found by the courts below, completely negative the plaintiff 's statement in court that he was all along ready and willing to receive the defendant back to his home.
The letter of November 13, 1947, exhibit C, which the plaintiff claims to have written to his father in law in explanation of the telegram and is a prelude to it is altogether out of tune with the tenor of the letter and the telegram referred to above.
The receipt of this letter has been denied by the defendant and her father.
In court this letter has been described as a fake in the sense that it was an afterthought and was written with a. view to the legal position and particularly with a view to getting rid of the effect of the solicitor 's letter of July 15, which the plaintiff found it hard to explain away in the witness box.
Neither the trial court, which was entirely in favour of the plaintiff and which had accepted the letter as genuine, nor the appellate Court, which was entirely in favour of the defendant has placed implicit faith in the bona fides of this letter.
The lower appellate Court 867 is rather ironical about it, observing "This letter as it were stands in isolated glory.
There is no other letter.
There is no other conduct of the plaintiff which is consistent with this letter".
Without going into the controversy as to the genuineness or bona fldes of this letter, it can be said that the plaintiff 's attitude, as disclosed therein, was that he was prepared to take her back into the matrimonial home provided she wrote a letter to him expressing real repentance and confession of mistake.
This attitude of the plaintiff cannot be said to be unreasonable in the circumstances of the case.
He was more sinned against than sinning at the beginning of the controversy between the husband and the wife.
This brings us to a consideration of the three attempts alleged by the plaintiff to have been made by him to induce his wife to return to the matrimonial home when he made two journeys to Patan in 1948 and the third journey in April May, 1949, to Jalgaon.
These three visits are not denied by the defendant.
The only difference between the parties is as to the purpose of the visit and the substance of the talk between them.
That the plaintiff 's attachment for the defendant had not completely dried up is proved by the fact that when he came to know that she had been suffering from typhoid he went to Patan to see her.
On this occasion which was the second visit the plaintiff does not say that he proposed to her to come back and that she refused to do so.
He only says that she did not express any desire to come back.
That may be explained as being due to diffidence on her part.
But in respect of the first and the third visits the plaintiff states that on both those occasions he wanted her to come back but she refused.
On the other hand, the defendant 's version is that the purpose of his visit was only to take away the child and not to take her back to his home.
It is also the plaintiff 's complaint that the defendant never wrote any letter to him offering to come back.
The wife 's answer is that she did write a few letters before the solicitor 's letter was received by the father and that thereafter under her father 's advice she did not write 868 any more to the plaintiff.
In this connection it becomes necessary to examine the evidence of her cousin Babulal and her father Popatlal.
Her cousin, Babulal, who was a member of her father 's joint family, deposes that on receipt of the letter, exhibit A, a fortnight later he and his father, since deceased, came to Bombay and saw the plaintiff.
They expostulated with him and pleaded the defendant 's cause and asked the plaintiff to forgive and forget and to take her back.
The plaintiff 's answer was that he did not wish to keep his wife.
The defendant 's father 's evidence is to the effect that after receipt of the letter, exhibit A, he came to Bombay and saw the plaintiff 's father at his residence and protested to him that "a false notice had been given to us".
The plaintiff 's father is said to have replied that they "would settle the matters amicably" He also deposes as to his brother and his brother 's son having gone to the plaintiff.
He further states that he with his wife and the defendant went to Patan and saw the plaintiff 's mother and in consultation with her made arrangements to send her back to 'Bombay.
But before that could be done the telegram, exhibit B, and the letter, exhibit D, were received and consequently he gave up the idea of sending the defendant to Bombay without straightening matters.
Both these witnesses on behalf of the defendant further deposed to the defendant having done several times and stayed with the plaintiff 's family, particularly his mother at Patan along with the boy.
The evidence of these two witnesses on behalf of the defendant is ample corroboration of the defendant 's ,case and the evidence in court that she has all along been ready and willing to go back to the matrimonial home.
The learned trial Judge has not noticed this evidence and we have not the advantage of his comment on this corroborative evidence.
This body of evidence is in consonance with the natural course of events.
The plaintiff himself stated in the witness box that he had sent the solicitor 's ' letter by way of a shock treatment to the defendant 's family so that they might persuade his wife to come back to his matrimonial home.
The subsequent 869 telegram and letters (assuming that both the letters of the 13th and 15th November had been posted in the usual course and received by the addressees) would give a shock to the family.
Naturally thereafter the members of the family would be up and doing to see that a reconciliation is brought about between the husband and the wife.
Hence the visits of the defendant 's uncle and the father would be a natural conduct after they had been apprised of the rupture between them.
We therefore do not see any sufficient reasons for brushing aside all that oral evidence which has been believed by the Lower Appellate Court and had not in terms been disbelieved by the trial court.
This part of the case on behalf of the defendant and her evidence is corroborated by the evidence of the defendant 's relatives aforesaid.
It cannot be seriously argued that evidence should be disbelieved, because the witnesses happened to be the defendant 's relatives.
They were naturally the parties most interested in bringing about a reconciliation They were anxious not only for the welfare of the defendant but were also interested in the good name of the family and the community as is only natural in families like these which have not been so urbanised as to completely ignore the feelings of the community.
They would therefore be the persons most anxious in the interests of all the parties concerned to make efforts to bring the husband and the wife together and to put an end to a controversy which they con sidered to be derogatory to the good name and, prestige of the families concerned.
The plaintiff 's evidence, on the other hand, on this part of the case is uncorroborated.
Indeed his evidence stands uncorroborated in many parts of his case and the letters already discussed run counter to the tenor of his evidence in court.
We therefore feel inclined to accept the defendant 's case that after her leaving her husband 's home and after the performance of her cousin 's marriage she was ready and willing to go back to her husband.
It, follows from what we have said so far that the wife was not in desertion though she left her husband 's home without any fault on the part of the 870 plaintiff which could justify her action in leaving him, and that after the lapse of a few months ' stay at her father 's place she was willing to go back to her matrimonial home.
This conclusion is further supported by the fact that between 1948 and 1951 the defendant stayed with her mother in law at Patan whenever she was there, sometimes for months, at other times for weeks.
This conduct is wholly inconsistent with the plaintiff 's case that the defendant was in desertion during the four years that she was out of her matrimonial home.
It is more consistent with the defen dant 's attempts to.
get herself re established in her husband 's home after the rupture in May 1947 as aforesaid.
It is also in evidence that at the suggestion of her mother in law the defendant sent her three year old son to Bombay so that be might induce his ' ,father to send for the mother, The boy stayed in Bombay for about twenty days and then was brought.
back to Patan by his father as he (the boy) was unwilling to stay there without the mother.
, This was in August_September 1948 when the defendant deposes to having questioned her husband why she bad not been called back and the husband 's answer was evasive.
Whether or not this statement of the defendant is true, there can be no doubt that the defendant would not have allowed her little boy of about three years of age to be sent alone to Bombay except in the hope that he might be instrumental in bringing about a reconciliation between the father and the mother.
The defendant has deposed to the several efforts made by her mother in law and her father in law to intercede on her behalf with the plaintiff but without any result.
There is no explanation why the plaintiff could not examine his father and mother in corroboration of his case of continuous desertion for the statutory period by the defendant.
Their evidence would have been as valuable, if not more, as that of the defendant 's father and cousin as discussed above.
Thus it is not a case where evidence was not available in corroboration of the plaintiff 's case.
As the plaintiff 's evidence on many important aspects of the case 871 has remained uncorroborated by evidence which could be available to him, we must hold that the evidence given by the plaintiff falls short of proving his case of desertion by his wife.
Though we do not find that the essential ingredients of desertion have been proved by the plaintiff, there cannot be the least doubt that it was the defendant who had by her objectionable conduct brought about a rupture in the matrimonial home and caused the plaintiff to become so cold to her after she left him.
In view of our finding that the plaintiff has failed to prove his case of desertion by the defendant, it is not necessary to go into the question of animus revertendi on which considerable argument with reference to case law was addressed to us on both sides.
For the aforesaid reasons we agree with the Appellate Bench of the High Court in the conclusion at which they had arrived, though not exactly for the same reasons.
The appeal is accordingly dismissed.
But as the trouble started on account of the defendant 's con duct, though she is successful in this Court, we direct that each party must bear its own costs throughout.
Appeal dismissed.

summary/full:
The parties were married in 1942 and there was a child of the marriage.
In 1947 the appellant left for England on business and on his return to India discovered that this wife (respondent) bad been having amorous correspondence with one M, and taxed her with having developed intimacy with him.
She was unable to give any answer and went to her father 's place on May 24, 1947, on the pretext of the marriage of her cousin which was to take place in June.
On July 15, 1947, the appellant sent a notice to the respondent through his solicitor in which after mentioning the fact that she had, left against his wishes stated that he did not desire to keep her any ' longer under his care and protection, and desired her to send the minor son to him.
On July 4, 1951, the appellant instituted the suit for divorce under section 3(1)(d) of the Bombay Hindu Divorce Act, 1947, on the ground that the respondent had been in desertion ever since May 24, 1947, without reasonable cause and without his consent and against his will for a period of over four years.
The respondent 's case that it was the appellant who by his treatment of her after his return from England had made her life unbearable and compelled her to leave her marital home against her wishes, 'was not proved but there was evidence that after the solicitor 's notice dated July 15, 1947, was received by the respondent, attempts were made by her father and his relations to bring about reconciliation between the parties but they failed owing to the attitude of the appellant.
The question was whether the respondent had been in desertion, entitling the appellant to have a decree for divorce.
Held that, on the facts, though the initial fault lay with the respondent, her leaving her marital home was not actuated by any animus to desert her husband but as the result of her sense of guilt, and as subsequently she was willing to come back but could not do, so owing to the attitude of the appellant, there was no proof that she deserted him, much less that she bad harbored that animus for the statutory period, and the appellant 's case must fail.
The essential conditions for the offence of desertion, so far as the deserting spouse is concerned, are (i) the factum of separation and (ii) the intention to bring cohabitation permanently to an end 839 (animus deserendi); and as regards the deserted spouse the elements are (i) the absence of consent and (ii) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.
Desertion is a matter of inference to be drawn from the facts and circumstances of each case and those facts have to be viewed as to the purpose which is revealed by those facts or by conduct and expression of intention, both anterior and subsequent to the actual act of separation.
In a suit for divorce on the ground of desertion the burden is on the plaintiff to prove that the deserting spouse has been in desertion throughout the statutory period of four years.
Thomas vs Thomas ([1924] P. 194), Bowron vs Bowron ([1925] P. 187), Pratt vs Pratt ([1939] A.C. 417) and Lang vs Lang ([1965] A.C. 402), referred to.
Quaere, whether the statutory period of four years specified in section 3(1)(d) should immediately precede the institution of the suit for divorce.


judgement:
N: Criminal Appeal No. 403 of 1981.
841 From the judgment and order dated the 10th October, 1980 of Punjab & Haryana High Court in Crl.
A. No. 954 of 1979.
Sushil Kumar for the Appellant.
K.C. Bhagat and R.N. Poddar for the Respondents.
The Judgment of the Court was delivered by SEN, J.
The short point involved in this appeal is whether the appellant is guilty of culpable homicide amounting to murder punishable under section 302, Indian Penal Code, or only of culpable homicide not amounting to murder punishable under section 304, Part II, Indian Penal Code (hereinafter called 'the Code ').
It is not disputed that the appellant, Jagrup Singh, struck a blow with the blunt side of a gandhala on the head of the deceased, Chanan Singh, who was his uncle, resulting in his death.
It appears that after the death of Joginder Singh, the deceased Chanan Singh was looking after the family of his brother, Joginder Singh consisting of his widow Mst.
Dalip Kaur and her children.
He had settled the betrothal and marriage of Mst.
Dalip Kaur 's daughter, Tej Kaur.
The prosecution case is that the appellant Jagrup Singh and his brothers, Billaur Singh, Jarmail Singh and Waryam Singh, co accused, although they were collaterals of Joginder Singh, were not invited by Mst.
Dalip Kaur to the marriage of her daughter Tej Kaur, at the instance of the deceased Chanan Singh.
On account of this, there was ill feeling between the parties.
On the fateful evening, i.e. On 20.3.1978, at 5.15 p.m. the marriage of Tej Kaur was performed.
It is alleged that shortly thereafter, the appellant Jagrup Singh armed with a gandhala, his brothers Billaur Singh armed with a gandasa and Jarmail Singh and Waryam Singh armed with lathis emerged suddenly and made a joint assault on the deceased Chanan Singh and the three eyewitnesses, Gurdev Singh, PW 10, Sukhdev Singh, PW 11 and Makhan Singh, PW 12.
The deceased along with the three eye witnesses was rushed to the Rural Dispensary, Rori where they were examined at 6 p.m by Dr. Bishnoi, PW 3, who found that the deceased had a lacerated wound 9cm x 1/2cm bone deep on the right parietal region, 9 cm away from the tip of right pinna; margins of wound were red, irregular and were bleeding on touch; direction of wound was anterior posterior.
The deceased was in a serious condition and, therefore, he was referred by Dr Bishnoi to the Civil Hospital, Sirsa, where he died on the morning of 21.3.1978 at 2.10 a.m. 842 Dr. Karan Singh, Senior Medical officer, Civil Hospital, Sirsa, PW 1, performed an atopsy on the dead body of the deceased.
He found the following external injuries: A stitched contused wound 9 1/2 cm long situated on right side of the head, 9 cm above the top of pinna and 9 cm above the eye brow.
Skull deep, direction anterio posterior.
On dissection, he found the following internal injury: A fracture line running starting from the lower and the anterior part of parietal bone injuring the middle meningeal artery near its entrance into the skull and traversing medially across the base of right middle fossa, crossing the mid line and extending slightly to the left of mid line.
There was a dark red haemotoma (extra dural) 3" 2x3" overlying the parietal and temporal lobes of brain on right side and the area was compressed.
In his opinion, the death of the deceased was due to cerebral compression as a result of the head injury which was sufficient in the ordinary course of nature to cause death.
He High Court of Punjab and Haryana, agreeing with the Additional Sessions Judge, Sirsa, held that the appellant struck a blow on the head of the deceased with the blunt side of the gandhala with the intent of causing such bodily injury which was sufficient in the ordinary course of nature to cause death and that being so, the appellant was guilty of culpable homicide amounting to murder punishable under section 302 of the Code.
In assailing the conviction, learned counsel for the appellant contends that the appellant having struck a solitary blow on the head of the deceased with the blunt side of the gandhala, can be attributed with the knowledge that it would cause an injury which was likely to cause death and not with any intention to cause the death of the deceased.
The offence committed by the appellant, therefore amounted to culpable homicide not amounting to murder, punishable under section 304, Part Ir of the Code.
He further contends, in the alternative, that there could be no doubt that the appellant acted in the heat of the moment when he bit the deceased and is, therefore, entitled to the benefit of Exception of section 300 of the Code.
On the other hand.
Learned counsel for the State contends that the matter 843 squarely falls within Clause Thirdly of section 300 of the Code.
He A submits that merely because the appellant rendered a solitary blow with the blunt side of the gandhala on the head would not necessarily imply that the offence amounted to culpable homicide not amounting to murder punishable under section 304, Part II of the Code.
There is no justification for the assertion that the giving of a solitary blow on a vital part of the body resulting the death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under section 304, Part II of the Code.
If a man deliberately strikes another on the head with a heavy log of wood or an iron 'rod or even a lathi so as to cause a fracture of the skull, he must, in the absence of any circumstances negativing a the presumption, be deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death.
The whole thing depends upon the intention to cause death, and the case may be covered by either Clause Firstly or Clause Thirdly.
The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death.
The ingredients of Clause Thirdly of section 300 of the Code were brought out by Vivian Bose, J. in Virsa Singh vs State of Punjab in his terse language: "To put it shortly, the prosecution must prove the following facts before it can bring a case under section 300 "3rdly".
First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved.
These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, 844 Fourthly, it must be proved that the injury of the type just described made Up of the three elements set out above is sufficient to cause death in the ordinary course of nature.
This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender".
The learned Judge explained the third ingredient in the following words: The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present.
If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved.
But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it.
Whether he knew of its seriousness, or intended serious consequences, is neither here nor there.
The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the in jury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.
These observations of Vivian Bose, J. have become locus classicus.
The test laid down in Virsa Singh 's case (supra) for the applicability of Clause Thirdly is now ingrained in our legal system and has become part of the rule of law.
Under Clause Thirdly of section 300 of the Code, culpable homicide is murder if both the following conditions are satisfied: (a) that the act which causes death is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death, viz. that the injury found to be present was the injury that was intended to be inflicted.
The decision in Virsa Singh 's case (supra) has throughout been followed as laying down the guiding principles.
The decisions 845 are too numerous and we may notice only two of them: Gudur Dusadh vs State of Bihar and Chahat Khan vs State of Haryana.
In Gudur Dusadh 's case, the day before the occurrence, the accused had killed a goat and on the advice of the deceased, the complainant lodged a report.
On the next morning, while the deceased was returning from his fields along with his son, they were assaulted by the accused persons who had been hiding on the route.
Thereafter, the accused set fire to the hut of the deceased.
On these facts it was held that the act of the accused who had waylaid the deceased was a pre meditated act, and, therefore, the accused had the necessary intention to commit murder.
In Chahat Khan 's case also, the deceased was waylaid by the accused who were armed with lathis.
That case is destructive of the theory that a solitary blow on the head reduces the offence to culpable homicide not amounting to murder punishable under section 304, Part II.
From the evidence it emerged that the accused had both gun and a lathi, and he made full use of the lathi by using both the hands and struck a blow on the head of the deceased with sufficient force.
The solitary blow with the lethi was sufficient in the ordinary course of nature to cause his death, and there was no occasion for using the gun which was hanging on his shoulders.
Both these cases fell within Clause Thirdly as there was clear intention to cause such bodily injury which in the ordinary course of nature was sufficient to cause death.
Looking at the totality of the evidence, it would not be possible to come to the conclusion that when the appellant struck the deceased with the blunt side of the gandhala, he intended to cause such bodily injury as was sufficient in the ordinary course of nature to cause death.
A gandhala is a common agricultural implement consisting of a flat, rectangular iron strip, three sides of which are blunt, embedded in a wooden handle.
The length of the iron strip is in continuation of the wooden handle and the end portion is sharp, which is used to dig holes in the earth to set up fencing on embankments in the field.
If a man is hit with the blunt side on the head with sufficient force, it is bound to cause, as here, death.
There can be no doubt that it was used with certain amount of force because there was cerebral compression.
But that by itself is not sufficient to raise an inference that the appellant intended to cause such bodily injury as was sufficient to cause death.
He could only be attributed with the knowledge that it was likely to cause an injury which was 846 likely to cause the death.
The matter, therefore, does not fall within Clause Thirdly of section 300 of the Code.
In Chamru Budhwa vs State of Madhya Pradesh in somewhat similar circumstances, where there was exchange of abuses between the two parties both of whom were armed with lathis, they came to blows and in the course of the fight that ensued, the accused struck a lathi blow on the head of the deceased which caused a fracture of the skull resulting in the death.
In view of the fact the accused had given only one blow in the heat of the moment, it was held that all that can be said was that he had given the blow with the knowledge that it was likely to cause death and, therefore, the offence fell under section 304, Part II of the Code.
In Willie (Williams) Slaney vs State of Madhya Pradesh there was, as here, a sudden quarrel leading to an exchange of abuses and in the heat of the moment a solitary blow with a hockey stick had been given on the head.
The court held that the offence amounted to culpable homicide not amounting to murder punishable under section 304, Part II.
At this stage, we think, it desirable to refer to two other decisions in Harjinder Singh (alias Jinda) vs Delhi Admn.
and Lakshman Kalu Nikalje vs State of Maharashtra, where the court, relying upon the principles enunciated by Vivian Bose, J. in Virsa Singh 's case (supra), excluded the application of Clause Thirdly, because the third ingredient laid down, viz. the intention to cause the particular injury which was likely to cause death, was not present.
In Harjinder Singh 's case (supra) there was a sudden commotion when the accused took out a knife and stabbed the deceased who intervened in a fight.
At this stage, the deceased was in a crouching position presumably to intervene and separate the two persons fighting.
It could not, therefore, be said with any definiteness that the accused aimed a blow at a particular part of the thigh that it would cut the femoral artery which would result in the death of the deceased.
It was, therefore, not possible to apply Clause Thirdly of section 300 of the Code.
In Laxman Kalu Nikalje 's case (supra) there was a sudden quarrel and the accused lost his temper and whipped out a knife and gave one blow.
Although it was given on the chest, 847 it was not on a vital part of the chest and but for the fact that the knife cut the auxiliary artery, death might not have ensued.
In the present case, there is no doubt that there was a sudden quarrel and the appellant assaulted the deceased with the blunt side of the gandhala on the head in the heat of the moment.
What actually was the immediate cause for the assault by the appellant on the deceased at the marriage ceremony of Tej Kaur, is not clear.
The genesis of the quarrel resulting in the head injury to the deceased is not known.
The prosecution came with a positive case that the appellant, together with his three brothers, who had not been invited to the marriage of Tej Kaur by Mst.
Dalip Kaur at the instigation of deceased Chanan Singh, came armed with different weapons to teach the deceased a lesson.
But the prosecution has failed to examine Mst.
Dalip Kaur and the defence version is that the appellant and his brothers had been invited to the marriage of Tej Kaur by Mst.
Dalip Kaur.
In view of these infirmities in the prosecution case, the High Court was constrained to observe: In the absence of any specific and positive evidence whether oral or documentary, it is not possible to arrive at any positive conclusion that this circumstance furnished any motive for the accused to attack Chanan Singh (deceased) and three other prosecution witnesses.
After a careful perusal of the entire prosecution evidence, it appears more probable that the accused had also joined in the marriage as the collaterals, but something happened on the spur of the moment which resulted in the infliction of injury by Jagrup Singh on the person of Chanan Singh which resulted into his death.
In the first information report, it had not been disclosed, as was subsequently made out at the trial, that the accused had come from the house of Jarmail Singh, accused, armed with weapons.
(emphasis supplied) In our judgment, the High Court having held that it was more probable that the appellant Jagrup Singh had also attended the marriage as the collateral, but something happened on the spur of the moment which resulted in the infliction of the injury by Jagrup Singh on the person of the deceased Chanan Singh which resulted in his death, manifestly erred in applying Clause Thirdly of section 300 848 of the Code.
On the finding that the appellant when he struck the deceased with the blunt side of the gandhala in the heat of the moment, without pre meditation and in a sudden fight, the case was covered by Exception 4 to section 300.
It is not suggested that the appellant had taken undue advantage of the situation or had acted in a cruel or unusual manner.
Thus, all the requirements of Exception 4 are clearly met.
That being so, the conviction of the appellant Jagrup Singh, under section 302 of the Code cannot be sustained.
The result, therefore, is that the conviction of the appellant under section 302 is altered to one under section 304, Part II of the Indian Penal Code.
For the altered conviction, the appellant is sentenced to suffer rigorous imprisonment for a period of seven years.
P.B.R Appeal allowed.

dataset_name: IN-Abs

summary/full:
The appellant and the deceased were collaterals.
On the death of his brother, the deceased was looking after the affairs of his brother 's wife and children.
Some while before on the day of occurrence, the deceased attended the marriage of his brother 's daughter.
The prosecution case against the appellant was that he nursed a grievance against the deceased that it was he who induced his sister in law not to invite him, (the appellant) and his brothers to the marriage and incensed by such insult he wanted to teach the deceased a lesson.
After the marriage, armed with a gandhala (a common agricultural implement with a flat, rectangular iron strip with three sides blunt, embedded in a wooden handle which is used for digging holes) the appellant and his brothers emerged suddenly and in a joint assault the appellant struck a blow on the head of the deceased with the blunt side of the gandhala.
The Sessions Judge held that the appellant struck the blow on the head with intent to cause such bodily injury as was sufficient in the ordinary course of nature to cause death and that, therefore, he was guilty of culpable homicide amounting to murder punishable under section 302 I.P.C. Affirming the conviction and sentence the High Court was of the view that there was no specific and positive evidence as to the motive for the murder but that it was more probable that the accused had joined the marriage and that "something happened on the spur of the movement", which resulted in the infliction of the injury leading to the death of the deceased.
In appeal it was contended that the offence amounted to culpable homicide not amounting to murder punishable under section 304 part II I.P.C. because all that could be attributed to the appellant was knowledge that a blow struck on the head with the blunt side of the gandhala would cause an injury, which was likely to cause death but that in any event when he struck the blow he could not be attributed with intention to cause death.
Allowing the appeal, ^ HELD: The appellant having been found to have struck the deceased with the blunt side of the gandhala in the heat of the moment without premeditation 840 and in a sudden fight all the requirements of Exception 4 to section 300 are met.
Having held that it was more probable that the appellant had also attended the marriage but that something had happened on the spur of the moment resulting in the infliction of the injury and eventual death of the deceased the High Court erred in applying clause.
Thirdly of section 300.
Giving a solitary blow on a vital part of the body resulting in death cannot always necessarily reduce the offence to culpable homicide not amounting to murder punishable under section 304 part II of the Code.
If a man deliberately struck another on the head with a heavy log or an iron rod or a lathi so as to cause a fracture of the skull, in the absence of any circumstances negativing the presumption, he must be deemed to have intended to cause death or such bodily injury as is sufficient to cause death.
The intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon death.
[843 B C] Under clause Thirdly of section 300 culpable homicide is murder if the act which causes death is done with intention of causing a bodily injury and that injury is sufficient in the ordinary course of nature to cause death i.e. the injury found was one that was intended to be inflicted.
[844 F G] Virsa Singh vs State of Punjab ; at 1503 applied.
Gudur Dusadh vs State of Bihar , Chahat Khan vs State of Haryana, A.I.R. 1972 S.C. 2574, Chamru Budhwa vs State of Madhya Pradesh, A.I.R. 1954 section C. 652, Willie (Williams) Slaney vs State Of Madhya Pradesh ; , Harjinder Singh (alias Jinda) vs Delhi Admn. ; & Lakshman Kalu Nikalje vs State of Maharashtra ; referred to.
In the instant case the genesis of the quarrel was not known.
The prosecution alleged that the appellant and his brothers had a grouse against the deceased and that they went to the marriage armed with weapons to teach the deceased a lesson.
The defence version, on the other hand, was that they were invited to the marriage.
In a controversy of such a nature the prosecution should have examined the sister in law of the deceased who was a material witness to ascertain the truth, failure to do which made the prosecution case infirm.
[847 B C] Secondly when the appellant struck a blow with blunt side of the gandhala it could not be said that he intended to cause such bodily injury as was sufficient in the ordinary course of nature to cause death.
If a man is hit with the blunt side on the head with sufficient force it is bound to cause death.
The fact that the gandhala was used with sufficient force was not by itself sufficient to raise an inference that the appellant intended to cause such bodily injury as was sufficient to cause death.
He could only be attributed with the knowledge that it was likely to cause an injury which was likely to cause death.
Therefore, the case does not fall within clause Thirdly of section 300 I.P.C [845 E H]