Punjab-Haryana High Court
Amarjit Singh vs Darshan Kaur on 22 December, 1993
Equivalent citations: (1994)107PLR96
Author: R.P. Sethi
Bench: R.P. Sethi, H.S. Bedi
JUDGMENT R.P. Sethi, J.
1. Annoyed by the conduct of his wife the estranged husband knocked the doors of the Courts for getting decree of divorce from his wife on the ground of cruelty and desertion. Having failed in his pursuit to get the marriage dissolved in the trial Court as also before the first Court of appeal, the husband has approached us in this appeal for the grant of relief of dissolution of marriage.
2. A perusal of the facts disclose that the marriage between the parties was solemnised on 18.2.1968 and out of this wedlock a daughter namely Kulwant kaur was born in May, 1969. It was submitted in the matrimonial Court that before the birth of the child, the respondent-wife had allegedly deserted the appellant in February, 1969. It was further contended that the wife had been guilty of cruelty inflicted on the husband within a period of one year from the date of the marriage till February, 1969. The husband initially approached the Court with a prayer for restitution of conjugal rights by filing an application Under Section 9 of the Hindu Marriage Act, 1955 {hereinafter to be referred to as the 'Act') but got it dismissed in default on May 7, 1976. The matrimonial relations were allowed to remain in suspense for a period of about six years thereafter the husband filed a petition for divorce in the matrimonial Court on 27.4.1982. It is submitted that the respondent-wife who was working as Staff Nurse was repeatedly requested to give up her service which she declined and allegedly became inimical towards the husband. The appellant was alleged to have been abused and insulted by her on trivial issues. The respondent-wife started accusing the appellant of living in adultery with one Harvinder Kaur and even filed a complaint against him Under Section 494 of the I.P.C. for his alleged extra marital relations with one Kamaljit Kaur. The complaint filed on 25.11.1975 was ultimately dismissed on 27.8.1980. The petition was resisted by the wife mainly on the ground that the husband was taking advantage of his own wrong as he infact had turned her out of his matrimonial house after subjecting her to severe beatings. The allegations of desertion and cruelty were denied. In order to please her husband the respondent as a devotee wife claimed to have tendered her resignation from service on 9-11-1968 but rejoined the service after she was turned out from the matrimonial home. It is submitted that the appellant after having made the money quickly started leading a strange sort of life as he performed marriage with one Harvinder Kaur daughter of Avtar Singh in the year 1971 and after abandoning her married with one Kanwaljit Kaur.
3. On the pleadings of the parties, the following issues were framed by the trial Court:
"1. Whether the respondent is guilty of cruelty?
2. Whether the respondent has deserted the petitioner for a continuous period of more than two years prior to the filing of the petition? O.P.A.
3. Whether the petitioner is taking the benefit of his own default, as alleged? O.P.A.
4. Relief."
4. In order to prove his case the appellant examined Shangara Singh as his witness and got his own statement recorded in support of the allegations made by him. The respondent besides getting her statement recorded produced Bhagwant Singh Sandhu, Advocate, Dayal Singh, Ravinder Singh and Harbans Singh. The trial Court decided all the issues against the appellant and dismissed his petition with costs. The appeal filed by the husband was also dismissed vide judgment impugned in the case.
5. The learned counsel for the appellant confined his arguments to seek the relief of divorce on the ground of desertion alone. It was submitted that as admittedly the parties were living separately from last about quarter of a century, the marriage had broken and was required to be dissolved on the ground of desertion.
6. The word "desertion" has not been defined either under the Act or any other statute nor is it capable of being encased in a straight jacket. Its contents have to be spelt out from the conduct of the parties and various pronouncements made by the Courts in the country. Desertion has been defined in Halsbury's Laws of England 3rd Edition Vol.12 paras 453 and 454 in the following words:-
" In its desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that others consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and modes of life involved, the court has discouraged attempts at defining desertion there being no general principle applicable to all cases.
Desertion is not the withdrawal from a place but from a State of things. For what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things, may usually be termed for short the home. There can be desertion without previous cohabitation by the parties, or without the marriage having been conaumated.
The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.
The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition or where the offence appears as a cross charge of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete but is inchoate until the suit is constituted. Desertion is continuing offence."
Similarly Rayden on Divorce defines desertion to mean 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. In the American Jurisprudence (Vol. 17.p.l94) it is staled: "In the determination of what constitutes desertion one, of the first matters for consideration is the intent of the offending party: there must be in addition to separation or withdrawal from cohabitation, an intent on the part of the withdrawing party not to return or resume cohabitation. The wrongful intent to desert is indispensable. A mere severance of the relation is not sufficient since there may be a separation without desertion and desertion without separation. Continued separation of husband and wife which may be consistent with no intention to wilfully and obstinately desert is not a desertion." Desertion does not mean mere separate residence and separate living. There must be an element of animus deserendi. In appropriate cases, desertion may be proved even before there being actual separation of residence. Desertion can be proved between the parties even while living under the same roof.
7. In Bipan Chandra Shah v. Prabhavati, A.I.R. 1957 S.C. 176 the desertion was held to mean:
"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). 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. 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 defacio separation may have commenced without 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 year's 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 poenitentise thus provided by law and decides to come back to the deserted spouse by a bonafide 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, refusing 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 any other matrimonial offence beyond all reasonable doubt. Hence though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence unless its absence is accounted for to the satisfaction of the Court."
8. Even according to the explanation to Sub-section (1) of Section 13 of the Act, desertion means, "desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the wilful neglect of the petitioner by the other party to the marriage and its grammatical variations and cognate expressions shall be construed accordingly." It therefore follows that the erring party must have deserted the petitioner without his or her consent and against his or her wish. Desertion is not walking out of a house but is withdrawal from a home. A house is built by hands but home is built by hearts. Mere withdrawal from sex may not constitute withdrawal from home. Desertion consists in withdrawal not from a place but from the state of things.
9. Desertion for the purpose of being a ground for dissolution of marriage is to be ascertained from the facts and circumstances of each case keeping in view the status of the parties, their social surroundings and larger interests of the family. The concept of Hindu marriage in our country is a historical development which has passed through various stages like human society. The institution of marriage in our social system has been considered to be a sacred sanskar and the insistence is always required to be made for its continuance and not its dissolution unless no other option is left and upon satisfaction of the existence of grounds specified under the Act. Even though the Courts are not obliged to accept the old concept of the Hindu marriage being holy sacrament or sanskar yet an effort is required to be made to give sanctity for the preservation and institution of family.
10. In the instant case it has concurrently been found on facts that the husband and not the wife was responsible for separation of the parties and disruption of their matrimonial life. Section 23 of the Act disentitles a party from seeking a relief if it is proved that such party was taking advantage of his or her own wrongs or disability for the purposes of the relief prayed. The Act enjoins upon the Court to be satisfied with respect to the matters enumerated in the said Section and refuse the grant of relief if it is proved that any of the disability mentioned in the Section exists. Satisfaction within the meaning of this Section is to be arrived at on the basis of the record of the case and no judgment can be based on mere balance of probabilities and circumstances. The rule enunciated in Section 23 is based on the principle that the wrong doer should not be permitted to take advantage of his or her own wrong while seeking relief under the Act for which it is necessary to take into consideration the conduct of the petitioner who approaches the Court for any relief under the Act. If it is proved that he or she by his or her own conduct has forced the other spouse to leave him or her and to stay away, such a petitioner cannot be granted any relief for his or her own wrong by asking the Court to perpetuate it. This Court in Tara Chand v. Narain Devi, (1975) 77 P.L.R. 819, held:
"The rule enunciated in Section 23 of the Act which contains overriding provision, is based on the principle that wrong doer should . not be permitted to take advantage of his or her own wrong, while seeking relief under the Act from the Court. For that matter, it is necessary to take into consideration the conduct of the petitioner who approaches the Court for any relief under the Act. If he or she by his or her own misdeed forces the other spouse to leave him or her and to stay away, the petitioner cannot be allowed to take advantage of his or her own wrong and ask the Court to perpetuate it. Therefore, the claim of a husband for judicial separation on the ground of desertion when he himself has been guilty of constructive desertion which compelled his wife to stay away from him, has to be disregarded on the principle enacted by Section 23 of the Act."
11. In view of the concurrent finding of fact that the respondent-wife has never been guilty of desertion or cruelty, we do not find any good ground to interfere. The appellant in the instant case has been proved to be taking advantage of his own wrong which disentitles to the grant of the relief prayed for Under Section 23 of the Act. The mere fact that the marriage is actually broken cannot be made a basis for dissolving marriage when it has been found on facts that the broken matrimonial home was the result of acts of commission and omission attributable to the appellant-husband. The appeal is dismissed with costs throughout.