Case: Bipin Chander Jaisinghbhai Shah Vs. Prabhawati

2. The facts and circumstances of this case may be stated as follows. The appellant who was plaintiff, and the respondent were married at Patan on April 20, 1942, according to Hindu rites of Jain Community. The families of both the parties belong to p73 Patan, which is a town in Gujarat, about a nights rail journey from Bombay. They lived in Bombay in a two room flat which was in occupation of the appellants 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 appellants mother who is a patient of asthama lived mostly at Patan. There is an issue of the marriage, a son named Kirit, born on September 10, 1945. The defendants parents lived mostly at Jalgaon 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 plaintiffs case that during his absence from Bombay the defendant became intimate with the said Mahendra and when she went to Patan after the plaintiffs departure for England she carried on amorous correspondence with Mahendra who continued to stay with the plaintiffs family in Bombay. One of the letters written by the defendant to Mahendra while staying at the plaintiffs flat in Bombay, is Ex. E, as officially translated in English the original being in Gujarati except a few words written in faulty English. This letter is dated April 1, 1947, written from the plaintiffs house at Patan, where the defendant had 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 had 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 the plaintiffs narrative of events as alleged in the plaint and in his evidence, the plaintiff returned to Bombay from abroad on May 20, 1947. To receive him back from his foreign journey the whole family including the defendant was therein Bombay. According to the plaintiffs 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 plaintiffs 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 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 that 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 p73 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 fathers 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 refused the offer. She left Bombay apparently in the plaintiffs 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 plaintiffs mother had left for Patan with his son some days previously. Plaintiffs 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 plaintiffs 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 asnot send Prabba. Letter posted. Wishing happy newtelegram stated that a letter had been posted. The defendant denied that any such letter had 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 13th November 1947, the date on which the telegram was despatched. An English translation of that letter is EX. C and is to the following13-11-47To,Rajmanya Rajeshri Seth Popatlal and 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 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 behavior 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 1 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 washave not the slightest objection to the return of Prabba, but if she gives such shameless replies to me and shows such improper behavior, 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 persuadeI have to state that I have so far kept peace. I have made efforts to call back Prabba. Please understand this to her my final effort. If even now Prabha does not give up her obstinancy, I am not responsible and (then) do not blamethat is all for the present. Kirit must be hale and hearty. My new years greeting to you all. Please do assign me such work as I canhe plaintiff stated that he received no answer either to the telegram or to the letter. Two days later, on 15th November, the plaintiffs father addressed a letter to the defendants father which is Ex. D. This letter makes reference to the defendants mother having talked to the plaintiffs mother about sending the defendant to Bombay and to the fact that the plaintiff had sent a telegram on 13th November and ends with the expression of opinion by the plaintiffs father that it was "absolutely necessary" that the plaintiffs 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 relation with Mahendra in the interest of the child as well as our own interest 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 envinced 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-MayAt that interview also the defendant turned down the plaintiffs request that at least in the interest of the child she should come back to him. According to the plaintiff since 24th May 1947, when the defendant left his home in Bombay of her own accord, she had not come back to her marital home. The suit was commenced by the plaintiff by filing the plaint dated 4th July 1951, substantially on the ground that the defendant had been in desertion ever since 24th May 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 4th February 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 24th May 1947. She denied any intimacy between herself and Mahendra or that she was confronted by the plaintiff with a photostat copy of the letter, Ex. E, or that she had confessed any such intimacy to the plaintiff. She admitted having received the Attorneys letter, Ex. A, and also that she did not reply to that letter. She adduced her fathers 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 defendants mother and the plaintiff mother to take the defendant back to Bombay and that the defendant could not go to Bombay as a result of the telegram of 13th November 1947, and the plaintiffs fathers letter of 15th November 1947, aforesaid. She also stated that the defendant and her son Kirit both lived with the plaintiff family at Patan for over four months and off and on several occasions. The defendants 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 willfully refusing to keep her and to cohabit with her. On those allegations she resisted the plaintiffs claim for a dissolution of the marriage.4. On those pleadings a single issue was joined between the, parties,the defendant deserted the plaintiff for a continuous period of over four years prior to the filing of thethe, 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.5. 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 no order as to the costs of the suit. He held that the letter,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 of a 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 would 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 anreference 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 24th May, 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 husbands 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 bona fide intention to come back to the marital home, that is to say, there was no animus revertendi. With reference to the contention that the solicitors letter of 15th July 1947, had terminated the desertion if any, he held that it was not well founded inasmuch as the defendant had at no time a genuine desire to return to her husband. He made no reference to the prayer in the plaint that the custody of the child should be given to the father, perhaps because that prayer was not pressed.6. The defendant preferred an appeal under the Letters Patent which was heard by a Division Bench consisting of Chagla C. J. and Bhagwati J. The appellate Bench allowed the appeal, set aside the decision of the trial Judge and dismissed the suit with costs. It held that the defendant was not guilty of 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 had the effect of putting an end to that desertion. In its judgement the letter, Ex. E, did not justify the plaintiff having any reasonable suspicions about his wifes guilt and that the oral evidence of the defendant and her relations proved the wifes 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.

Reasoning:
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.