Gauhati High Court
Dr. Samir Kr. Das vs Aparna Das @ Tripti Das on 9 August, 2000
JUDGMENT
1. This appeal has been filed under Section 28 of the Hindu Marriage Act, 1955 against the Judgment and decree dated 9-6-1997 passed by the learned District Judge, Cachar at Silchar in Title Suit No. 37 of 1994. A suit was filed by the present appellant for a decree of divorce on the ground of desertion of the appellant (husband) by the respondent-wife.
2. The brief facts are as follows :-
The parties were married according to Hindu rites on 8-3-1980. It was a marriage by negotiation. The plaintiff-respondent is a Doctor and the defendant-wife was a Science graduate. A daughter was born out of the wedlock on 9.4.1981. After three months of the birth of the baby, it is alleged by the plaintiff, defendant-wife went to her parents house and she did not return to her marital home, but she took shelter at her parents house and she was brought back by the plaintiff after good deal of pursuasion. After return from her parents house, the wife did not want to reside at her marital home and wanted to go back to her parents house. In the last part of April, 1982 the parents of defendant-wife went again to bring the defendant, but the plaintiff did not send her. Thereafter on 5.5.1982 the plaintiff came to know that a search warrant had been issued by the Court of Magistrate at Silchar. Search warrant was issued on some false and concocted allegations by the father of the defendant-wife. The defendant on the dead hours of night of 4.5.1982 came out from the village house of the plaintiff leaving the breast sucking baby and took shelter in the house of one Radhey Dey near Katakhal Bazar. It is the case of the plaintiff that the defendant voluntarily deserted the plaintiff without reasonable cause. In the case No.203M/82 before the Magistrate, defendant gave a false and concocted statement. That after the aforesaid date the defendant did not keep any contact with the plaintiff though the plaintiff used to write letters to her to know the welfare of herself as well as of the baby. The allegation of the plaintiff is that the defendant totally repudiated the obligations of marriage. In the last part of 1985 the defendant joined the service in the United Bank of India and she is working there (at present she is an Officer of the Bank). The plaintiff was transferred to Silchar and then also he tried to pursue the defendant to come to his rented house at Bilpar, Professor para, Silchar. A lot of attempts were made to bring back the defendant, but it was unsuccessful. Father of the plaintiff expired on 3.1.1989 and this information was also sent to the defendant. But she did not come. Hence, this suit for a decree of divorce by dissolution of marriage.
3. A written statement was filed and therein the allegation of wilful desertion has been denied. Her case is in para 11 page 12 of the written statement and in brief they are as follows:
(a) When the plaintiff was posted at Kalinagar Health Centre Hospital which was at a distance of about 7 K.M. from the village of the plaintiff and though the plaintiff had quarter there, the defendant was not taken to that place and she had to live at the village home of the plaintiff with her father-in-law, mother-in-law and other members of the family, though occasionally she was taken to the Doctor's quarter at Kalinagar.
(b) That when the defendant was at the village home of the plaintiff, the mother and sisters of the plaintiff used to misbehave with her and used bad words for not giving proper dowry. Ultimately the brother of the defendant Arabinda Das in order to save her from torture and ill treatment arranged a scooter purchased form Delhi, as booking of scooter was not available on those days at Silchar. The plaintiff took away the scooter and he obtained a sale receipt from Arabinda Das snowing the value of the scooter at Rs.2500 only though the value of the scooter was more than Rs. 10,000.
(c) Even when the daughter was ill she did not get proper medical treatment though her father was a doctor and she had to come to the place of her father and stayed there for 5 months. During this period the plaintiff as well as none of the members of his family came to enquire regarding welfare of the child. After about 5 months, the husband came and took away the wife with the daughter.
(d) Annaprasana of the child was arranged at the quarter of the plaintiff at Kalinagar and the parents, brothers and sisters of the wife went to the quarter at Kalinagar, but nobody was there. Annaprssana was celebrated at the village home of the plaintiff and on that day the mother of the plaintiff insulted the parents of the defendant and the parents was asked to leave the house and even they were not allowed to take meal on that day. The torture increased thereafter and even she was physically assaulted by the plaintiff. Sub-para (3) of para 11 is quoted below in its entirety:
"(j) On 2nd or 3rd May, 1982 the petitioner came at home. The respondent was always being assaulted and on the 4th night the respondent was mercilessly assaulted taking her in a lonely room. Being assaulted she lost her sense. The husband left the room keeping her alone in that condition. At the late hours of the night she regained her sense when she left the house leaving the child at home without knowing where she was going. She found that she would be murdered if she remains further in that house. It is important to mention here that being tortured and assaulted 2 days earlier she wrote a small slip and handed over the same to that old lady to give it to her father or mother. The father on receiving the small slip, hurriedly came to Hailakandi and filed a case being No.203M/82 under the provision of section 97 of the Cr. P.C. and with the help of police hastened to the village. He and the police got the information that the respondent has left the house on the last part of the night and she had taken shelter in the house of one Radhey Dey of Kalinagar. The gentleman Radhey Dey gave information to the relations and alos got very much anxious. The police and the father of the respondent got the petitioner. The child was taken out from the house and both were produced before the magistrate on 5.5.1982 at Silchar. There the statements of respondent was recorded by the learned Magistrate and therefrom being rescued she went to her parents house and since 5.5.1982 the respondent with the child is residing there. The child is a maritorious one and she is doing very well in the examinations. She is being properly treated and guidance are being provided by the mother in basing songs and other activities of life, she is doing well.".
The respondent never made any inquiry regarding welfare of the daughter. Sub-para (n) of para 11 is quoted below:
"This case has been brought with false-allegation. The respondent is always ready and wiling to live with the husband with honour and dignity. She has not deserted the petitioner rather she was driven away she was assaulted and she has been made to leave the husband's house for fear of her life. There is no desertion on her part. She has not voluntarily left the house of the husband. The petitioner should not take advantage of the wrong that he has done towards the respondent and obtain a relief in this case. It is therefore prayed that the court will be leased to dismiss this case."
4. Following are the issues framed.
1. Is there any cause of action for the suit?
2. Is the suit maintainable?
3. Whether the respondent was subjected to humiliation and mental and physical torture?
4. Whether the respondent deserted the plaintiff without any reasonable excuse?
5. Whether the plaintiff was also subjected to cruelty and mental sufferings by the respondent?
6. Whether the plaintiff is entitled to get the decree as prayed for?
7. To what relief, if any is the plaintiff entitled?
P.W. 1 is the plaintiff. In his deposition he has made a significant statement which is quoted below:
"1 do not give anything to my daughter during this long period of 14 years."
It may be stated that he deposed on 11.6.1996 and at that time the daughter was aged about 15 years.
P.W. 2 is Subrata Kumar Das, plaintiffs maternal uncle. He deposed regarding missing of the defendant from the house of the plaintiff on 5.5.1982. D.W. 1 is the defendant. She deposed inter alia as follows:
"After the marriage my husband and my mother-in-law and other members of his family had raised objection for giving poor quality of furniture and for not giving gold, scooter etc. as dowry and because of non-fulfilment of dowry I was tortured by my husband both physically and mentally. Thereafter I was compelled to write a letter to my father for a scooter. At that time my brother Dr. Arabinda Das arrange a scooter by approaching Nihar Ranjan Laskar who was a Central Minister at the relevant time. After giving the scooter there was no change in the behaviour and attitude of my in-laws. The scooter was shown sold by my brother at the instance of my husband and the sale receipt was accordingly written giving the value of the same at Rs. 2,500. The actual price of the scooter at the relevant time was Rs. 10,000."
She also deposed regarding illness of the daughter and the negligence of the husband to give proper treatment to her and her information to the parents for proper treatment. She also deposed that during this period of 5 months, none from the family of the plaintiff came to see her and daughter. She also deposed regarding the insult made to the parents on the day of annaprasana and how they had to leave without taking meal. Regarding the incident on 4.5.1982 she deposed as follows:
"I left the house of my husband on 4.5.1982 on that night I was beaten seriously by my husband in a separate room in the house and I lost my senses. When I regained senses I thought that it would be unsafe to stay there and so I left the house of my husband in darkness of the night on the said date. After walking some distance I entered into a house. The owner of the house asked my identity which narrated. Thereafter the owner of the said house informed my father and other relations. In the meantime my father had filed a case against my husband at Hailakandi Court."
Regarding subsequent event she deposed as follows:
"My husband has not paid anything to me or to my daughter during this long period. My husband did not enquire about the welfare and study of my child during this' period. I do not leave the company of my husband voluntarily. I do not want dissolution of marriage by a decree of divorce. I want to live together with my husband. 1 requested my husband to stay with me at Silchar in the interest of my service and that of the study of our child."
D.W.2 Radhey Dey where the defendant took shelter after leaving marital home had deposed as follows:
" On. 4.5.1982 at 2-30/3.00 a.m. in the night she came to my house and knocked the door. On query she told me that she is the wife of Dr. Samir Das and requested me to open the door. When I opened the door 1 saw a woman. I enquired as to what had happened to her and she became nervous and fell on the ground and she was removed to bed. I saw marks of bloods on her body and marks of baking on her cheek. She reported that the injuries, were caused by her mother-in-law and her husbands sigter. I saw blood and mud stains on the saree of her body. Temperature developed on her. On the following morning I made a telephone to her father. At about 10 a.m. her father, brother and Nitish Laskar, Professor of Cachar College went to my house. An ejahar was lodged before police. The child of the respondent was at her house at Palarpar. Police brought the said child. At about 3 P.M. the respondent was brought to Silchar with the child. Her father, brother and Nitish Laskar accompanied her."
The statement recorded by the magistrate in case No.203M/1982 which is available at page 47 of the Paper Book is quoted below:
"On Oath, six month back from the hospital quarter in which my husband resides in. 1 was taken to Bherialapar the house of my father-in-law. Shri Suresh Chandra Das.
My husband used to visit me there after every 2 or 3 days. After going there he frequently used to beat me and assault me physically (Patro Das). This just one incident.
My mother-in-law and my sister-in-law (my elder sister Khala Das) also used to join in the abusing. They used to complain to my husband about me, behind my back. Yesterday in the evening, my husband went to Bhertalarpar. After going there he physically assaulted me. He snatched my child from me and gave her to his sister telling me not to touch the baby.
After the beating I was lying half dead.
In the early hours of the morning (before dawn) 1 had to come away from the house of Radhey Dey. They snatched my baby from me when I was lying in bed.
I want to stay with my father now. The police brought me from the house of Radhey Das" where 1 had taken shelter."
That was exhibited in the suit as Ext.B. On the basis of these materials, the learned Judge came to the finding that the plaintiff failed to prove the wilful desertion by wife. Rather, he came to the finding that the defendant was compelled to leave the marital house because of the torture of the plaintiff and he further found that there was just and reasonable cause for the defendant to live separately from her husband. Hence, this appeal.
5. I have heard Mr P.C. Deka, learned Advocate for the appellant and Mr. G.N. Sahewalla, learned Advocate for the respondent.
6. It may be stated herein that before the matter was heard an attempt was made for re-conciliation and both the parties appeared before me in my chamber, but the attempt of compromise failed as ' the parties took adamant attitude.
7. Desertion per se was not a ground for relief by way of divorce prior to the amendment of Section 13 by amending Act of 1976, but was only a ground for the relief of judicial separation. In Clause (a) of section 10(1) which was in identical term. In Mulla's Hindu Law, 15th edition at page 793 onwards, Mulla has summarised the law and principle of desertion.
The expression desertion in the context of matrimonial law represents a legal conception and is one very difficult to define. The essence of desertion is the forsaking and abandonment of one spouse by the other without reasonable cause and without the consent or against the wish of the other. I has been said more than once that no judge has ever attempted to give a comprehensive definition of desertion, and that probably no Judge would ever succeed in doing so, but among the descriptions of desertion one which lias always appealed to courts trying matrimonial causes is that "desertion" is "a withdrawal not from a place, but from a state of things" (o). The essential ingredients of this offence in order that it may furnish a ground for relief are:
(a) the factum of separation; and
(b) the intention to bring cohabitation permanently to an end -
animus deseraendl;
(c) the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period;
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 preceding the presentation of the petition. This clause has to be read with the Explanation.
The Explanation purports to give the meaning of the expression desertion with all its grammatical variations and cognate expressions. Permanent forsaking and abandonment (p) are expressions often used in the context of the matrimonial offence of desertion. The Explanation has widened the definition of desertion so as to include "wilful neglect" of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner and that wilful neglect of one spouse by the other is desertion within the meaning of the expression. It will be seen that the meaning given is somewhat tautological but the Explanation has the merit of making it abundantly clear that the Legislature intended to give to the expression a wide import which includes wilful neglect of the petitioner by the other parry-to the marriage. It is also clear that the meaning given includes both actual desertion as well as what is generally referred to as constructive desertion in which although there is no ostensible abandonment of one spouse by the other there is expulsive conduct manifesting animus deserendi. One effect of including "wilful neglect" in the meaning of desertion is that wilful neglect of one spouse by the other is sufficient to establish abandonment or expulsive conduct and amounts to proof of the animus deserendi on the part of the latter which is an essential ingredient of the offence. This will have considerable bearing in cases of constructive desertion. The Explanation is intended obviously to avoid any attempt at defining an expression which is extremely difficult if not impossible to define in a manner which would fully bring out its comprehensive connotation. It is enough to satisfy the requirement of the rule that the abandonment was without reasonable cause and without consent. It is not necessary to show that it is against the wish of the person charging it.
The statutory requirement as to time during which the "state of things" should continue is fixed at a continuous period of not less than two years immediately preceding the presentation of the petition. Thus, the quality of permanence is one of the essential elements which differentiates desertion from wilful or voluntary separation. 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 and their continuance throughout the statutory period (r).
A large body of case-laws has developed round the legal significance of' desertion' both in England and in India and the broad general rules deducible from the same will be of great assistance and guidance in cases which fall for determination under the present enactment though of course opinions expressed in the context of enactments even slightly differently worded must always be read with the caution most commonly needed in their application to cases arising in different circumstances and varied situations. Moreover, as already pointed out, the language of the present clause and Explanation are intended to give a wide import to the expression though no radical innovation has been made. In Bipin Chandraer v. Prabhawati (s), the Supreme Court after posing the question - What is desertion? observed that the legal position had been admirably summarised in paragraphs 453 and 454 of Halsbury's Laws of England, 3rd Edition, Vo. 12:
"In its essence 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. 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 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 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 ... it must exist for a period of at least .... years immediately preceding the presentation of the petition or, where the offence appears as a cross-charge, of the answer. Desertion .... 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."
The Supreme Court in the case mentioned above, made some general observations and summed up some other important principles which will afford considerable guidance in cases arising under the Act. It was pointed out 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 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 has prescribed a period of... as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenttentlae 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 relief have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses the 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."
The statutory requirement as to time during which the animus deserendi should continue if fixed at a continuous period of not less than two years immediately preceding the presentation of the petition. What is constructive desertion that has been discussed by Mulla at page 799 and that is quoted below:
"Constructive desertion - It is a well established principle that proof of factum of separation, which is one of the essential ingredients of the matrimonial offence of desertion, does not consist merely in ascertainment of which party left the home first. The rule is now well established that a spouse may be guilty of such misconduct as would render the continuance of marital relations so unbearable that the other spouse feels compelled to leave the matrimonial home and in such a case it is the former and not the latter, who is the deserter. There is no substantial difference between the case of a husband who leaves his wife with the intention of terminating cohabitation and the case of a husband who with like intent evidenced by his misconduct brings the cohabitation to an end by virtually compelling the wife to depart from the matrimonial home. In Lang v. Lang(d) the Privy Council summarized in an impeccable form the principles and made some general observations on the question of constructive or indirect desertion which give authentic guidance on the subject and will be found very instructive: "It has been recognised that the party truly guilty of disrupting the home is not necessarily or in all cases the party who first leaves it. The party who stays behind (their Lordships will assume this to be the husband) may be. by reason of conduct on his part, making it unbearable for a wife with reasonable self-respect, or powers of endurance, to stay with him, so that he is the party really responsible for the breakdown of the marriage. He has deserted her by expelling her; by driving her out. In such a case the factum is the course of conduct pursued by the husband-something which may be far more complicated than the mere act of leaving the matrimonial home. It is not every course of conduct by the husband causing the wife to leave which is a sufficient factum. A husband's irritating habits may so get on the wife's nerves that she leaves as a direct consequence of them but she would not be justified in doing so. Such irritating idiosyncrasies are part of the lottery in which every spouse engages on marrying, and taking the partner of the marriage 'for better, for worse'. The course of conduct- the 'factum'- must be grave and convincing. "Conduct which falls short of legal cruelty may justify one spouse in leaving another, provided it is of a grave and convincing character (e). It is not possible to deduce any principle of law by reference to which it can be determined in every case on which side of the line the case falls when this test of grave and convincing conduct is to be applied; the issue in the main would be one of fact and no criterion can be propounded which would be very helpful. In these cases it has to be noted that the Legislature has not thought fit to make the continuous unhappiness of the spouse caused by the unklndness, the lack of consideration, or the selfishness or every degradation of the other spouse aground for obtaining relief. It is essential to examine, as Lord Green, Master of the Rolls, observed in the undermentioned case (f), the actual facts to see whether the conduct of the spouse who is to blame can fairly and clearly be said to have crossed the borderline which divides blameworthy conduct causing unhappiness to the other spouse from conduct equivalent to expulsion from the matrimonial home. "It is," as Asquith L. J. observed in the same case, "possible to say of certain courses of conduct that they should not amount to constructive desertion, and of certain other courses that they could not fail to do so... But between the extremes indicated there is obviously a non-man's land where the issue is one of fact" (fl). One effect of including 'wilful neglect' in the meaning of desertion [Explanation] is that such neglect of one spouse by the other is sufficient to establish expulsive conduct. The neglect to become desertion must be such as amounts to forsaking or abandonment by a conscious disregard of the duties and obligations of the married state considered as a whole (g).
In the case of constructive desertion also there must be proof of both the essential ingredients of factum and animus desercndi on the part of the offending spouse. The law relating to this latter requirement was reviewed by the Privy Council in the above mctnioned case and it was laid down that prima facie in these cases a person is presumed to intend the consequences of his acts, though the inference may be rebutted; and if the whole of a husband's conduct is such that a reasonable man must know that it will probably result in the departure of his wife from the matrimonial home the fact that the husband did not want this consequence to ensure does not rebut the inference that he intended the probable consequences of his acts and thus his wife to leave the home. Conduct which would give rise to this inference must be grave and convincing and where it exists proof of actual intention to bring the matrimonial consortium to an end would not be required. Apart from rebutting evidence, therefore, such conduct would be sufficient proof of an intention to disrupt the home and it would be no answer that bis desire was that his wife will stay and the home will not be disrupted (h) It is sometimes said that a charge of constructive desertion cannot be proved by evidence of conduct, alleged to have caused the petitioner to leave the matrimonial home, of the nature of cruelly, but not amounting to cruelty in law (I). The true rule of the matter would seem to be that it is not possible to build up a case of constructive desertion by what is really a case of unproved cruelty.
That again does not cover the whole area of constructive desertion. Grave and weighty matters may be alleged which are quite different in kind and quite as serious, if not more serious, than cruelty. In this class of cases the facts are often somewhat complex and overlapping. If the facts and circumstances are such as satisfy the general test already discussed the court may well reach the conclusion that the conduct of the other spouse was equivalent to expulsion and that the complaining spouse was justified in leaving the matrimonial home. The acts sufficient to satisfy this test must be a serious and convincing nature, but conduct short of an actual matrimonial offence may be sufficient. The conduct, however, must from the very nature of the offence of desertion, obviously be of a grave and convincing character. It may include wilful neglect of the petitioner by the other party to the marriage."
8. What is good cause for separation, regarding that Mulla pointed out that it is a well established principle that a spouse who withdraws from cohabitation for what is described as a good cause or a just cause or an effective cause such as adultery or cruelty, cannot be said to be guilty of desertion, for in such a case it is the conduct of the offending spouse that is the cause of separation and the spouse who leaves the matrimonial home cannot be said to have acted from any animus deserendi. Apart from other causes, cruelty would afford complete defence to any petition by the other spouse for material relief on the ground of desertion unless the court is satisfied that there was condonation of such cruelty.
Regarding offer of reconciliation mulla has pointed out that the offer must be genuine offer made in good faith and not merely to lay a foundation for an intended petition or to forestall or defeat any proceeding by the injured spouse. The offer must be conciliatory and not hedged in with any unreasonable qualification or condition.
Regarding onus and standard of proof of desertion, the law is that the petitioner is to prove the desertion without reasonable cause and that it subsisted during the statutory period. Before granting relief on the ground of desertion the court must be satisfied that the matrimonial offence complained of is established.
9. In AIR 1957 SC 176 (Bipinchandra Jaisinghbai Shah, v. Prabhavati) the question of desertion was considered, the principle of desertion under the Bombay Hindu Divorce which is parimating almost same with desertion under Hindu Marriage Act and there the Supreme Court considered all the aspects of the matter and pointed out that it is also well settled that the plaintiff must prove the offence of desertion beyond all reasonable doubt. On this question of standard of proof reference also may be made to AIR 1965 SC 40 (Lachman Utamachad Kirpalani v. Meena alias Mota) where the Supreme Court pointed out that the onus lies on the petitioner to establish that the desertion was without cause and stressed the importance of avoiding the fallacy which lies in a failure to distinguish between a legal burden of proof which rests on the petitioner and a provisional burden raised by the state of evidence which may shift from one party to another. The legal burden throughout the case is on the petitioner to prove that the wife deserted him without cause. To discharge that burden he may rely on the fact that the other spouse asked to join and there was refusal. But it may always be established that by the spouse that he or she has just cause. Mulla pointed out that even if it is not proved affirmatively at the end of the trial, the court has still to ask itself: (i) is the legal burden discharged? (ii) Has the husband proved that the wife deserted him without cause? Regarding desertion and doctrine of condonation Mulla has pointed out as follows:
"Desertion and doctrine of condonation.- The doctrine of condonation in its strict sense or on some analogous principle is inappropriate and inapplicable to the offence of desertion. Section 23 of the Act it will be noticed speaks of condonation only in relation to the matrimonial offences of adultery and cruelty. Condonation involves (i) an election by the injured spouse to affirm the marriage notwithstanding the condoned offence, and (ii) the possibility of revival of the condoned offence by any further matrimonial offence on the part of the guilty spouse. It is the essence of the offence of desertion that the deserted spouse should all the time be affirming the marriage; otherwise desertion ceases and becomes separation by consent. There is thus no question of election on the part of the deserted spouse to affirm or disaffirm it. He or she has no option but to affirm. Further, the offence of desertion for a period of two years immediately preceding the presentation of the petition, once condoned, could never be revived, because the continuous period of desertion required by the statute would be irretrievably broken (a)."
10. In this case, we must bear in mind Section 23 of the Hindu Marriage Act. The initial words of the section adopt the well-established principle of matrimonial law that decrees of dissolution of marriage are to be made only upon strict proof. The proceedings under the Act are not of the character of ordinary suits and the standard of proof required is that the Court must be satisfied that the ground for relieve is established beyond reasonable doubt. It makes no difference whether the proceeding is defended or not. The Court must vigilantly see that all the requirements of law are fulfilled and the safeguards provided in the section are duly observed. The words at the close of sub-section (l)(a) specifically provides that one cannot be allowed to take advantage of his or her own wrong.
11. In AIR 1964 SC 40 (supra) a 5 Judges Bench of the Apex Court in paras 18 and 19 has laid down the law as follows:
"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 : (1948) 2 All ER 822 (823), Foll."
In AIR 1975 SC 1534 (Dr. N.G. Dastane v. Mrs S. Dastan) in paragraphs 26 and 28 the Supreme Court has laid down the law as follows:
"Neither Section 10 which enumerates the grounds on which a petition for judicial separation may be presented nor Section 23 which governs the jurisdiction of the Court to pass a decree in any proceeding under the Act requires that the petitioner must prove his case beyond a reasonable doubt. Section 23 confers on the Court the power to pass a decree if it is "satisfied" on matters mentioned in clauses (a) to (e) of the Section. Proceedings under the Act being essentially of a civil nature, the word "satisfied" in Section 23 must mean "satisfied on a preponderance of probabilities" and not "satisfied beyond a reasonable doubt." Section 23 does not alter the standard of proof in civil cases."
It may be stated that this a decision of 3 judges and as such the decision of the larger bench shall be binding on me and I must accept the decision rendered in AIR J964 SC 40 (supra) as the correct proposition of law. So, the offence must be proved beyond reasonable doubt.
12. The learned advocate for the appellant places reliance on large number of decisions with regard to the cruelly and they are:
(i) AIR 1988 SC 121 (Shobha Rani v. Madhukar Reddi). This is a decision on cruelty under the Hindu Marriage Act and this decision does not help the appellant.
(ii) 1997 (III) GLT 292 (Monoranjan Dutta v. Smti. Shibani Dey] wherein a Division Bench of this Court in paragraph 12 has laid down the law as follows:-
"We have also discussed the evidence led by the petitioner/ appellant in respect of allegation of desertion. Desertion within the meaning of Section 13(1)(i-b) means fulfil abandonment and forsaking of one's spouse by another without any reasonable excuse. Desertion means repudiation of obligation of marriage. That desertion must be of permanent in nature. Desertion must consist of animus as well as factum without any just cause. Desertion means something more than mere separation, one must further prove the animus."
(iii) (J995) 2 SCC 7 (Romesh Chanderv. Savitri) that is a decision on cruelty. The Supreme Court therein pointed out that when the marriage is dead, emotionally and practically, and there is no chance of its being retrieved, continuance of it would be cruelty. That power is exercised by the Supreme Court under Article 142 of the Constitution of India. This court does not have that power. Further that aspect of the matter is not now before the Constitutional Bench meaning thereby that whether the Supreme Court in exercise of power can give relief against the statute. So, this decision docs not help the appellant.
(iv) 1998(3) GLT 150 (Sushil Kumar Bcri v. Jyoti Rani Den). That also is a case on cruelty. That case also does not help the appellant.
(v) (1996) 1 GLR 474 (Sunanda Cnaudhuni v. Ashok Kumar Choudhuiy) where a Division Bench of this Court pointed out that the Court must be fully satisfied on the basis of evidence which has been held by the petitioner that a ground for divorce as indicated in Section 13 of the Act has been made out. There is no quarrel with this proposition of law and that aspect of the matter shall be considered at a later stage.
(vi) AIR 1980 Karnataka 8 (Dr. Srikant Rangacharya Adya v. Smt. Aruradha) where in paragraph 11, the Karnataka High Court has pointed out as follows: "If there is a complete abandonment of all matrimonial duties, desertion can be inferred. Desertion is not from a place but from a state of things."
On the basis of this decision, it is argued by the learned Advocate for the appellant that before presenting the petition he made all the efforts to bring back the wife, but that attempt failed. He further submits that the marriage has really been reduced to shadow and sheel and the appellant has been suffering misery and frustration. That was a case where there was no consumation of marriage because of appellant failed to effectuate sexual intercourse and it was in that ground and appeal was dismissed and there was a decree in favour of the wife-respondent dissolving her marriage with the appellant by decreeing the appeal on the ground of cruelty and desertion. That case does not help the appellant.
(vii) AIR 1985 Delhi 491 (Jyoti Sarup Manocha v. Smti Lalita Manocha) where a Single Judge of Delhi High Court pointed out as follows:
"For succeeding in petition for divorce on the ground of desertion the petitioner-husband must show that the wife had left the matrimonial home without his consent and that there is factual desertion for a period of more than two years. He must further show that the respondent-wife had left the matrimonial home without any intention to return and that he is willing to keep the wife but the wife, without any reasonable cause was avoiding his company. For this purpose he must show the attempts made by him to get back the wife to the matrimonial home. The burden is primarily on the petitioner-husband but it shifts to the respondent-wife as soon she alleges reasonable cause or justification for her withdrawing from the company of her husband."
(ix) (7999) 1 GLR 377 (Gouri Shankar Chakraborty v. Sasana Roy (Chakravarty). That is a case on cruelty wherein a Single Judge of this court pointed out that- "mere allegation of cruelty without anything concrete is not sufficient to snap the tie of marriage."
(x) AIR 1995 SC 2170 (Smt. Sneh Prabha v. Ravinder Kumar). That also is a case where the Supreme Court exercised its power under Article 142 of the Constitution of India. As indicated above, that power not being available to this Court and in view of the fact that the matter now is pending before a Constitutional Bench, 1 cannot exercise that power.
13. It is in the back ground of this law, we must decide the present appeal. I have already discussed that the application for divorce was filed on two grounds i.e. (i) on the ground of desertion and mental cruelty. The case of the appellant is that the petitioner has kept him away from the company of the respondent from May, 1982, her conduct is nothing but cruelty. His further case is that keeping him away from the company of his only daughter deprived him from the love and affection of his only daughter is also mental cruelty. Regarding the case of the daughter, the petitioner as P.W. 1 has admitted that he did not give anything to his daughter during this long period of 14 years (on the date of deposition). So, that shows his concern for the daughter. If he has really concern for his daughter he could have filed necessary application even before the trial court to have the company of his daughter. But that also he did not do. On 24.7.1995 there was an order of the trial court. An application was filed by the wife to give some maintenance to his daughter who was a minor at that point of time. That application was resisted by the husband on the ground that the mother is earning. That application inter alia reads as follows: "The daughter is now reading in Class-lX in the Silchar Collegiate School and the school's expenditure is very high requiring tutors for proper education and presently the respondent is working as clerk in Bank." The objection of the husband-petitioner was that the maintenance of the daughter does not come within the purview of Section 24 of the Hindu Marriage Act. As such, on the basis of that clear position the maintenance of the daughter is unwarranted in the state of the proceeding. The respondent-wife is not entitled to any money either as pendente lite maintenance for herself and the daughter. Strictly speaking Section 23 cannot apply to the maintenance of a daughter. But if the petitioner was a loving and caring father he would not have resisted this just and bona fide claim on the part of the wife to give some succour and support to his daughter. That shows that the petitioner does not have any soft corner for the daughter and the claim that deprivation of the company of the daughter is nothing hut to make a ground in the petition. The finding of facts arrived at by the trial court is that the petitioner demanded dowry from the wife and in order to satisfy him a scooter was purchased by the brother of the wife at Rs. 12,500 and it was sold to the petitioner at Rs. 2500. That also will come to establish the mental torture by the petitioner on the wife-respondent. It is also clear from the evidence that the wife was tortured by the husband and the members of his family save and except (father-in-law) and she had to leave the home as will be clear from the evidence quoted earlier. So, there was just cause for the wife to leave the matrimonial home.
14. I do not find anything to disagree with the findings arrived at by the trial court. Accordingly, there is no merit in this appeal and the same shall stand dismissed. I leave the parties to bear their own costs.