Case: Bipin Chander Jaisinghbhai Shah Vs. Prabhawati

boy. The evidence of these two witnesses on behalf of the defendant is ample corroboration of the defendants 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 solicitors letter by way of a shock treatment to the defendants family so that they might persuade his wife to come back to his matrimonial home. The subsequent telegram and letters (assuming that both the letters of 13th November and 15th November had been posted in the usual course and received by the addresses) 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 defendants 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 defendants relatives aforesaid. It cannot be seriously argued that that evidence should be disbelieved, because the witnesses happened to be the defendants relatives. They were naturally the parties most interested in bringing about 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 person 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 considered to be derogatory to the good name and prestige of the families concerned. The plaintiffs 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 defendants case that after her leaving her husbands home and after the performance of her cousins 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 husbands home without any fault on the part of the plaintiff which could justify her action in leaving him, and that after the lapse of a few months stay at her fathers place she was willing to go back to her matrimonial home.24. 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 plaintiffs 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 defendants attempts to get herself re-established in her husbands 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 he 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 l948 when the defendant deposes to having questioned her husband why she was not been called back and the husbands answer was evasive. Whether or not this statement of the defendant is true, there can be no doubt that the defendant would not allow 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 defendants father and the cousin as discussed above. Thus, it is not a case where evidence was not available in corroboration of the plaintiffs case. As the plaintiffs evidence on many important aspects of the case has remained uncorroborated by evidence which could be available to him, we must hold that 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.25. 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 husbands testimony alone on his side and the wifes testimony aided by that of her father and her cousin. As already indicated, the learned trial Judge was strongly in favour of preferring the husbands testimony to that of the wife whenever there was any conflict. But he made no reference to the testimony of the defendants father and cousin which, if believed, would give an entirely different colour to the case.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 plaintiffs way.The tenor of the letter and the defendants 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 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 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 had first denied having written any such letter to Mahendra, a denial in which she persisted even in her answer to the plaint. The plaintiffs 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 had 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 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 wifes fidelity. So far there can be no difficulty in assuming that the husband was fully justified in loosing temper with his wife and 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 restrained 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 wifes 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 wifes 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 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 plaintiffs 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 for divorce. But we do not agree with the appellate Court that those questions to the defendant in cross-examination were not justified. The plaintiff proposed to prove that the discovery of the incriminating letter containing those mysterious sentences was the occasion for the defendant to make up her mind to desert the plaintiff. We do not therefore agree with the observations of the Appellate Court in all that they have said in respect of the letter inone suppose 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 martial 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 that she had been compelled to leave her marital home by the threats of the plaintiff.16. The happenings of 24th May 1947, as pointed out above, are consistent with the plaintiffs case of desertion by the wife. But they are also consistent not with the defendants case as actually pleaded in her written statement, but with the facts 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 husbands people living in the same flat in Bombay and therefore shamefacedly withdrew herself and went to her parents 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 wholeis true that the defendant did not plead that she had left her husbands 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 the 24th May 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 plaintiffs case and in corroboration of his evidence in court.Applying those observations to the facts of the present case, can the plaintiff honestly say that he was all along willing to fulfill the duties of the marriage and that the defendants desertion, if any, continued throughout the statutory period without his consent. The letter, Ex. A, is an emphatic no. In the first 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.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 wifes departure, for her fathers 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, he 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 plaintiffs 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, Ex. E. and that the wife left her husbands place in shame not having the courage to face him after that discovery.It is true that once it is found that one of the spouses has been in desertion, the presumption is that the desertion has continued and that it is not necessary for the deserted spouse actually to take steps to bring the deserting spouse back to the matrimonial home.So far we do not find any convincing evidence in proof of the alleged desertion by the wife and naturally therefore the presumption of continued desertion cannot arise.21. But it is not necessary that at the time the wife left her husbands home she should have at the same time theanimus deserendi.In this connection the episode of November 1947 when the plaintiffs 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 plaintiffs mother or after a few days. But on this information being given to the plaintiff he countermanded any such steps on the wifes part by sending the telegram, Ex. B, aforesaid and the plaintiffs fathers letter dated 15th November 1947. We are keeping out of consideration for the present the letter, Ex. C, dated 13th November 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 15th November 1947, by the plaintiffs father to the defendants father is equally peremptory. It says "it is absolutely necessary that you should obtain the consent of Chi. Bipinchandra before sending, Chi. Prabbavati". The telegram and the letter which is a supplement to the telegram, as found by the courts below, completely negative the plaintiffs statement in court that he was all along ready and willing to receive the defendant back to his home. The letter of 13th November 1947, Ex. 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 solicitors letter of 15th July 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 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 fides of this letter, it can be said that the plaintiffs 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 he 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 thetherefore 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 defendants relatives aforesaid. It cannot be seriously argued that that evidence should be disbelieved, because the witnesses happened to be the defendants relatives. They were naturally the parties most interested in bringing about 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 person 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 considered to be derogatory to the good name and prestige of the families concerned. The plaintiffs 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 defendants case that after her leaving her husbands home and after the performance of her cousins 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 husbands home without any fault on the part of the plaintiff which could justify her action in leaving him, and that after the lapse of a few months stay at her fathers place she was willing to go back to her matrimonial home.24. 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 plaintiffs 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 defendants attempts to get herself re-established in her husbands 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 he 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 l948 when the defendant deposes to having questioned her husband why she was not been called back and the husbands answer was evasive. Whether or not this statement of the defendant is true, there can be no doubt that the defendant would not allow 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 defendants father and the cousin as discussed above. Thus, it is not a case where evidence was not available in corroboration of the plaintiffs case. As the plaintiffs evidence on many important aspects of the case has remained uncorroborated by evidence which could be available to him, we must hold that 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.25. 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.