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 221952 reversing those of a single Judge of that Court on the Original Side dated March 71952 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 April1947 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 1947
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 withthe 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 151947 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 CJ 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 31 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 31d 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 2b 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 CJ in the case of Lawson vs Lawson1 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 desertthe 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 ie being in desertion The following observations of Pollock M R in Thomas vs Thomas1 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 Charter2
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 Wilkinson3 that desertion is not a specific act but a course of conduct
As Corell Barnes J said in Sickert vs Sickert4 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 Lang1
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 Pratt2  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 respectsapart 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 Bowron1 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 Graves1 Pulford vs Pulford2 Jackson vs Jackson2 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 notfind 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 Lang1 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 AG 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 Baforesaid 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:
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 31d 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 AC 417 and Lang vs Lang 1965 AC 402 referred to
Quaere whether the statutory period of four years specified in section 31d should immediately precede the institution of the suit for divorce