Called upon to decide upon the validity of a decree of divorce given by a trial court in favour of the husband on grounds of desertion by the wife, the Delhi High Court in a recent decision [Vimal Kanta v. J.M. Kohli] revisited the law on the issue to affirm the decision of the trial court. The High Court referred to the decisions of the Supreme Court to hold that the concept had received extensive enunciation to be fairly settled in the context of the Indian law.
The High Court observed the position the law on this aspect in the following terms;
9. The appellant has filed the present appeal on the ground that the findings of the learned trial court with regard to desertion are perverse. The question as to what precisely constitutes “desertion” has been elaborately discussed in a catena of judgments of the Hon’ble Supreme Court as well as various High Courts and also in several English cases. “Desertion” in a sense means the intentional permanent abandonment of a spouse by the other, without consent and without reasonable cause. It is a settled legal position that desertion is not a physical withdrawal from a place, but from a state of things, from which one can easily draw a conclusion that it is not a physical separation alone but there is a complete withdrawal on the part of the deserting spouse to bring cohabitation permanently to an end between them. The learned trial court referred to the judgment of the Apex Court in Bipin Chander’s case (Supra) where the concept of desertion has been defined in the following words:
"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 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.”
10. The above legal position was reiterated by the Apex Court in the Constitution Bench decision in Lachman UtamChand Kirpalani vs. Meena Alias Mota (1964) 4 SCR 331 and other subsequent judgments. Hence to establish desertion the two essential elements to be proved by the petitioner are the factum of separation and animus deserendi. xxx
11. xxx It is a settled legal position that the factum of separation and animus deserendi are not to always co exist and that the animus can be inferred from the subsequent conduct of the deserting spouse. Here it would be pertinent to refer to the judgment of the Apex Court in the case of Bipin Chander (supra) where it was held that:
“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 deserendi coincide in point of time.”
Therefore, though the parties separated on 24.12.1979 temporarily but the animus for bringing the cohabitation to end was later developed and can be inferred from the subsequent events in the present case as the appellant made no efforts for reconciliation or did any act to restore the wrecked relationship. Also in the case of Savitri Pandey vs. Prem Chandra Pandey (2002) 2 SCC 73 after referring to judgments in Bipin Chander and Lachman Utamchand, the Apex Court held that :
“8. "Desertion", for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, ie.., not permitting of allowing and facilitating the cohabitation between the parties. The proof desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case.
12. Clearly in the present case, the appellant is the deserting spouse and her intention can be inferred from her conduct. The very fact that the appellant did not make any efforts to restore the matrimonial relations would show that she did not want to live with the respondent husband after she separated from him temporarily and hence that lent an element of permanence to the temporary separation. xxx
13. xxx Paradoxically, however both the events, that is opening of the bank account and attending the Kriya ceremony go on to show that the respondent was fulfilling his duties as a husband and was still willing to live with the appellant and their daughter but it is the appellant who did not respond to his efforts. Here it would be useful to refer to the judgment of the Apex Court in the case of Adhyatma Bhattar Alwar vs. Adhyatma Bhattar Sri Devi (2002) 1 SCC 308 where it was held that :
“The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately proceeding the presentation of the petition. This clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include 'willful neglect' of the petitioning spouse by the respondent. It status that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes willful neglect of the petitioner by the other party to the marriage.
Hence, it would be clear from the law settled by the Apex Court that the explanation to Section 13 talks about willful neglect of the petitioner by the respondent in case of desertion. In the present case as well the appellant never bothered about the whereabouts of the respondent husband and hence such conduct of the appellant further strengthens the case of the respondent to claim divorce on the ground of desertion.
14. The court in the case of Adhyatma Bhattar (supra) further observed:
11. This Court in the case of Smt. Rohini Kumari v. Narendra Singh,: [1972]2SCR657 , while considering the case of judicial separation on the ground of desertion under Section 10(1)(a) of the Act read with the Explanation, held:
"...The two elements present on the side of the deserted spouse should be absence of consent and absence of conduct reasonably causing the deserting spouse to form his or her intention to bring cohabitation to an end. The requirement that the deserting spouse must intend to bring cohabitation to an end must be understood to be subject to the qualification that if without just cause or excuse a man persists in doing things which he knows his wife probably will not tolerate and which no ordinary woman would tolerate and then she leaves, he has deserted her whatever his desire or intention may have been. The doctrine of "constructive desertion" is discussed at page 229. It is stated that desertion is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave home it may be that the spouse responsible for the driving out is guilty of desertion. There is no substantial difference between the case of a man who intends to cease cohabitation and leaves the wife and the case of a man who with the same intention compels his wife by his conduct to leave him.
In Lachman Utamchand Kirpalani v. Meena alias Mota, this Court had occasion to consider the true meaning the ambit of Section 10(1)(a) of the Act read with the Explanation. Reference was made in the majority judgment to th e earlier decision in Bipin Chander Jaisinghbhai Shah v. Prabhawati, in which all the English decisions as also the statement contained in authoritative text books were considered. After referring to the two essential conditions, namely, the factum of physical separation and the animus deserendi which meant the intention to bring the cohabitation permanently to an end as also the two elements so far as the deserted spouse was concerned i.e.(1) the absence of consent and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the intention aforesaid, it was observed while examining how desertion might come to an end:
"In the first place, there must be conduct on the part of the deserted spouse which affords just and reasonable cause for the deserting spouse not to seek reconciliation and which absolves her from her continuing obligation to return to the matrimonial home. In this one has to be regard to the conduct of the deserted spouse. But there is one other matter which is also of equal importance, that is, that the conduct of the deserted spouse should have had such an impact on the mind of the deserting spouse that in fact it causes her to continue to live apart and thus continue the desertion. But where however, on the facts it is clear that the conduct of the deserted spouse has had no such effect on the mind of the deserting spouse there is no rule of law that desertion terminates by reason of the conduct of the deserted spouse."
Hence in the face of the above settled law, it is evident that the conduct of the respondent in visiting the appellant at Munirka would not dislodge the fact of desertion.
xxx
16. Before parting with the judgment, this court is constrained to observe that this is an unfortunate case where the parties have spent more than half of their lives in the alleys of the courts. Marriage is a union where the husband and wife spend their entire life building a bond of trust, love and friendship which would be their support during the last years of their lives. Having the other spouse by the side at the fag end, to cherish the moments of their times spent together, is an asset which clearly the parties were devoid of in the present case. The parties were involved in mud slinging at each other for so many years that they did not realize that they would not have the time to start their lives afresh. At this juncture of 80 years, the appellant wanted the decree of divorce to be set aside which made me inquisitive to know the reason behind it. Was it because that the appellant wanted to be a legally wedded wife till her last breath with the pride of the red vermillion adorning her or was it because she had her eyes on the enrichments that would ensue if she still has the status of the wife of the respondent or was it because there was nothing but pure vengeance to settle the score with the respondent that propelled the appellant to fight this arduous legal battle when practically her marital life turned catastrophic long back. However, the answer to this is still shrouded in mystery. In any case, the irresistible conclusion is that it is a dead and ominous marriage, and adjudicating it has led this court to have a grave concern over the time taken to decide matrimonial cases. This court would not shy away from observing that the years which should have been spent by the parties to start on a clean slate have been spent with the lawyers and in the court rooms. When parties approach the portals of law for dissolving their matrimony, it should be the endeavour of the courts to expeditiously decide these matters so that parties can get on with carving out their future plans. But more often the situation arises, like in the present case, that the grueling litigative voyage leaves the parties helpless and hapless. The vicious circle of litigation has contributed to the demise of their hopes, promises and dreams. This case has indeed left me with a bitter aftertaste.
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