IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO No. 446 /2006 Reserved on: 9.9.2008 Decided on: 7.11.2008 Saroj Kumari. …Appellant. Versus Karnail Singh. …Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the Appellant : Mr. Romesh Verma, Advocate. For the Respondents: Mr. Neeraj Gupta, Advocate. Rajiv Sharma, J. This FAO is directed against the judgment dated 13.11.2006 passed by the learned District Judge, Kangra at Dharamshala in H.M.A.P. No. 5-K/III/2002. Brief facts necessary for the adjudication of this appeal are that the respondent (hereinafter referred to as ‘the husband’) filed a petition against the appellant (hereinafter referred to as ‘the wife’) under section 13 of the Hindu Marriage Act, 1954 for the dissolution of their marriage by 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 granting decree of divorce. The parties are Hindus. The marriage was solemnized at village Kulthi, Tehsil and District Kangra according to Hindu rites and customs on 22.4.1983. They lived together for about 16 years and lastly resided at village Nandrool, Tehsil and District Kangra. Three children were born to them. It is stated that the husband took good care of the wife at different places of posting in the Army, however, she failed to give due respect to him and also treated his family members, including his aged parents with utter disrespect and contempt. She made false and fictitious complaints to the police and Panchayat from time to time. She also alleged that the husband had illicit relation with the wife of his elder brother. These incidents caused immense torture and insult to the husband. The allegations made by her, before the Gram Panchayat, were found to be incorrect. She left matrimonial house in the month of December, 1999 on her own accord. She also filed complaint with the Army authorities. Primarily, the husband has sought dissolution of marriage on the account that the wife had willfully deserted him for continuous period of more than two years and the wife had treated him with cruelty physical as well as mental. The petition was resisted by the wife. The allegations contained in the petition were vehemently denied. It is stated in the reply that the husband used to beat her after consuming liquor. She has reported the matter to the Gram Panchayat on 1.3.1996. She has to make complaint to the police and Panchayat since she was getting threats from the husband and his family members. Sh. Jarnail Singh, brother of the husband is working in the local Post Office and when she did not get the money orders through the Post Office, she reported the matter to the police authorities. She was given beatings by Jarnail Singh also. In nutshell, her case is that it was due to the circumstances created 3 by her husband and his family members that she has to leave the matrimonial house. The learned District Judge on the basis of the pleadings of the parties, framed the following issues: 1. “Whether the petitioner has been treated with cruelty by respondent, as alleged? If so, to what effect? OPP 2. Whether respondent has deserted the petitioner without any cause or excuse, for more than two years? OPP 3. Whether the petition is not maintainable? OPR 4. Whether the petitioner, by his acts and conduct, estopped to sue? OPR 5. relief.” The learned District Judge returned the following findings on the issues framed: Issue No.1 Yes. Issue No.2 Yes. Issue No.3 No. Issue No.4 No. Relief The petition is allowed as per operative part of the judgment. Mr. Romesh Verma has strenuously argued that the judgment dated 13.11.2006 is not sustainable in the eyes of law. He vehemently argued that it was due to the circumstances created by the husband and his family members that his client was forced to leave the matrimonial house and it cannot be treated as desertion. He further contended that his client has never caused mental or physical agony resulting in cruelty to her husband. Mr. Neeraj Gupta has supported the judgment dated 13.11.2006. He has argued with vehemence that his client has not forced his wife to leave the matrimonial house and she has left the matrimonial house of her own. He has denied the allegations with regard to cruelty. 4 I have heard the learned counsel for the parties and perused the record carefully. PW-1 Karnail Singh has deposed that the wife has left the house in the month of December, 1999 and thereafter she never joined him. According to him, his parents are aged. He has denied the factum that he has given the beatings to her. He has denied the allegations of infidelity against his Bhabhi (Versha). He was informed by the police on 16.12.1999 that the FIR was lodged against him. The FIR was cancelled. She also filed application under section 125 of the Code of Criminal Procedure against him, which was dismissed. He has deposed in his cross-examination that he has constructed a separate house. He has admitted that he had been sending money orders to the wife. He has denied the accusation made against his brother that he has misappropriated the amount of money orders. PW-2 Head Constable Ashok Kumar has produced the copy of FIR Ex.PW-2/A registered under sections 498-A and 506 of the Indian Penal Code. PW-3 Sagar Singh, Junior Assistant and PW-4 Amin Chand, Senior Assistant, Senior Assistant office of the Sub Division Magistrate, Kangra are formal witnesses and they have placed on record and proved the copy of statement Ex.PW-4/A. PW-5 Randev Singh belongs to the same village where the husband is residing. He has remained Pradhan of Gram Panchayat, Nandrool. He had issued certificate Ex.PW-5/A. The same was prepared according to him in the presence of parties. The husband had requested the wife to accompany him to matrimonial house but the wife had refused to do so. He then deposed that the husband is Radha Soami. He has admitted in his cross-examination that Maya Devi was the Pradhan of the Gram Pancnahyat and she is the Bhabhi of Jarnail Singh. PW-6 Kumari Vineeta Angaria is the daughter of the parties. She has 5 supported the version of her father. She has deposed that her mother had been coercing her father to live separately from the family. She was student of +2 at the time when her statement was recorded. She has admitted that her father was paying Rs. 2,000/- to her as maintenance. RW-1 is Smt. Swarna Devi. She is the neighbour of the husband. She has testified that the husband, his parents and his brothers were harassing and torturing the wife. She then deposed that as and when Karnail Singh (husband) used to come on leave, he would beat Saroj Kumari. According to her, husband was not happy because she had insulted them by disclosing about misappropriating of the money orders by Jarnail Singh. She then deposed that Karnail Singh brought meat and liquor and told Saroj Kumari to take liquor with him. Saroj Kumari (wife) told this to this witness, who advised her to leave the matrimonial house and return when the situation normalizes. She has admitted that Saroj Kumari (wife) had been living with the husband at different places of his posting. She has also admitted that husband is Radha Soami. The age of the parents of the husband according to this witness is about 80 and 70 years. She also admitted that when the matter was reported to the police by the wife, he was on Army duty. RW-2 is Saroj Kumari. She has stated that the family members of her husband had been interfering in her married life. She had reported the matter to the Gram Panchayat in the year 1996. She was beaten up by Jarnail Singh when she inquired about the money orders. She moved an application to the Gram Panchayat and the same was forwarded by the Gram Panchayat to the Police. She was advised by the children to leave the matrimonial house in December, 1999. Her eldest daughter was born at Almora and second one at Assam and son was born at the native place. She lived with her husband at Almora for 2 ½ years and her husband got her operated at hospital in 6 Delhi. She has admitted that she filed a complaint for maintenance. RW-3 Gurpreet is the son of the parties. He has supported the version of his mother. He has stated that Jarnail Singh has beaten up his mother with broom. He then deposed that when his father used to come home, he used to make his mother stand in the courtyard. He has deposed that his father is non-vegetarian and also takes liquor. He was born in the year 1991. He had been residing in the rented quarter in the Temple Mohalla at Kangra. It is in this backdrop that the case is required to be adjudicated upon to see whether the appellant-wife has left the matrimonial house of her own volition. It is evident from Ex.PW-5/A that the Panchayat was convened under the supervision of Deputy Superintendent of Police, Kangra and he asked her to company the husband to matrimonial house. The Gram Panchayat had also advised her to go to matrimonial house but she maintained that she would live only at the house of her parents’. This certificate has been proved by PW-5 Randev Singh, who was the member of the Gram Panchayat. The explanation given by RW-2 in her statement for leaving the house in December, 1999 is that the husband had brought the meat and asked her to prepare it and also to take liquor. It has come in the evidence that the husband is Radha Soami. PW-6 Vaneeta Kumari has categorically deposed that her father is vegetarian and does not consume liquor. PW-5 Randev Singh has also deposed that the husband is Radha Soami and he does not consume non- vegetarian food or take liquor etc. RW-1 has also admitted in her cross- examination that the husband is Radha Soami. The wife has failed to prove by tangible evidence that her act of leaving matrimonial house was due to circumstances beyond her control and which were directly 7 attributable to her husband. It has also come in the evidence that prior to December, 1999, the wife had left the matrimonial house and it was only on the persuasion of the family members that she came back. She has admitted in her cross-examination that as and when husband used to come on leave from Army, he would go to the house of her parents to bring her back. It has also come in the evidence that the husband had constructed a separate house and had been residing separately from the joint family. The allegations as per Ex.PW-5/C have been made against the brother of the husband. She had accompanied the husband when he was posted in Assam and Almora. He has got her operated in Delhi. Two daughters were born in Almora and Assam. The son was born in the native place. Her application filed under section 125 of the Code of Criminal Procedure was dismissed. The FIR Ex.PW-2/A was also cancelled. In view of the discussion made hereinabove, it can safely be concluded that the wife has left the matrimonial house of her own and the husband in no manner is responsible for the same. She is thus guilty of ‘desertion’ under the Hindu Marriage Act, 1954. The appellant-wife had deserted the husband without any just and reasonable cause. Their Lordships of the Hon’ble Supreme Court in Bipinchandra Jaisinghbai Shah versus Prabhavati, AIR 1957 SC 176 have held that two essential conditions must be there to prove the desertion: (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Their Lordships have held that desertion is a matter of interference to be drawn from the facts and circumstances of each case. Their Lordships have held as under: “What is desertion? "Rayden on Divorce" which is a standard work on the subject at p.128 (6th Edn.) has summarized the case-law on the subject in these terms:- 8 "Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party". The legal position has been admirably 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 abondonment of one spouse by the other without that other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. Desertion is not the withdrawal from a place but from the state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, 'the home'. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion. The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition where the offence appears as a cross- 9 charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence". Thus the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for example anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similiarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances to each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those 10 acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co- exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the (animus deserendi) coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied of bringing cohabitation permanently to a close. The law in England has prescribed a three years period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decides to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end, and if the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court. In this connection the following observations of Lord Goddard CJ. in the case of Lawson 11 v. Lawson, 1955-1 All E R 341 at p. 342(A), may be referred to :- "These cases are not cases in which corroboration is required as a matter of law. It is required as a matter of precaution....... " With these preliminary observations we now proceed to examine the evidence led on behalf of the parties to find out whether desertion has been proved in this case and, if so, whether there was a bona fide offer by the wife to return to her matrimonial home with a view to discharging marital duties and, if so, whether there was an unreasonable refusal on the part of the husband to take her back. Their Lordships of the Hon’ble Supreme Court in Lachman Utamchand Kirpalani versus Meena alias Mota, AIR 1964 SC 40 have held that 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. Their Lordships have further held that the burden of proving desertion - the ‘factum’ as well as the ‘animus deserendi’ is on the petitioner and he or she has to establish beyond reasonable doubt to the satisfaction of the Court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. Their Lordships have held as under: “The question as to what precisely constitutes "desertion" came up for consideration before this Court in an appeal for Bombay where the Court had to consider the provisions of S. 3(1) of the Bombay Hindu Divorce Act, 1947 whose language is in pari materia with that of S. 10(1) of the Act. In the judgment of this Court in Bipin Chandra v. Prabhavati, 1956 SCR 838; ((S) AIR 1957 SC 176) there is an elaborate consideration of the several English decisions in which the question of the 12 ingredients of desertion were considered and the following summary of the law in Halsbury's Laws of England (3rd Edn.) Vol. 12 was cited with approval : "In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the order 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." The position was thus further explained by this Court. "If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently the cease cohabitation, it will not amount to desertion. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there, (1) the factum of separation, and (2) the intention of bring cohabitation permanently to an end (animus deserndi). Similarly two elements are essential so far as the deserted spouse is concerned : (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid . . . . . . . Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anteriror 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 13 attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time." Two more matters which have a bearing on the points in dispute in this appeal might also be mentioned. The first relates to the burden of proof in these cases, and this is a point to which we have already made a passing reference. It is settled Law that the burden of proving desertion - the "factum" as well as the "animus deserendi" - is on the petitioner; and he or she has to establish beyond reasonable doubt, to the satisfaction of the Court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. In other words, even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the petitioner-husband has still to satisfy the Court that the desertion was without just cause. As Dunning, L. observed : (Dunn v. Dunn (1948) 2 All ER 822 at p. 823) : "The burden he (Counsel for the husband) said was on her to prove just cause (for living apart). The argument contains a fallacy which has been put forward from time to time in many branches of the law. The fallacy lies in a failure to distinguish between a legal burden of proof laid down by law and a provisional, burden raised by the state of the evidence . . . . . . . . . . . The legal burden throughout this case is on the husband, as petitioner, to prove that this wife deserted him without cause. To discharge that burden, he relies on the fact that he asked her to join him and she refused. That is a fact from which the