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Bipin Chander Jaisinghbhai Shah Vs. Prabhawati
AIR1957SC176, [1956]1SCR838
Hon’ble Judges/Coram: B.P. Sinha, B. Jagannadhadas, and T.L. Venkatarama Aiyyar, JJ.
Decided On: October 19th, 1956
FACTS:
The appellant and the respondent were married on April 20th, 1942. A son was born to them on September 10th, 1945. Mahendra, a friend of the family came to Bombay and started living with the family in their flat some time in 1946. On January 8th, 1947 the appellant left for England on business. The plaintiff returned to Bombay on May 20th, 1947. The appellant suspected an amorous relationship between his wife and Mahendra because of a letter written by the wife to Mahendra. The respondent left the appellant’s house on May 24th, 1947. The appellant suspected an amorous relationship between the respondent and Mahendra on the basis of a letter written by the respondent to Mahendra. The respondent leaves the house of the appellant on May 24th, 1947. Hence arose the question of desertion.
ISSUES: –
- Whether leaving one’s marital home physically is tantamount to desertion?
- Does desertion on part of the deserting party subsist when the deserted party refuses to accept the deserting party?
JUDGMENT:
The quality of permanence is one of the essential elements which differentiate desertion from wilful separation. The Court recognized that for the offence of desertion, two essential conditions must be fulfilled on part of the deserting spouse. First is the fact of separation. Second is the intention to bring cohabitation permanently to an end. On the part of the deserted spouse, the absence of consent and the absence of conduct to give reasonable cause for the formation of intention of desertion are necessary conditions.
Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention. The essential question always is whether the act could be attributed to animus deserendi. Also, 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 considerations as may be reasonable. After the appellant’s return from England, his bed had been made in the hall with his father’s bed. The Court held that there was no reason why the husband should have thought of sleeping apart from the wife as until then the husband was not aware of the alleged relationship between the defendant and Mahendra. But, the wife may have been apprehensive that the plaintiff had known of her relationship with Mahendra. Hence, the Court went with the appellant’s assertion on this issue.
When it came to the letter written by the respondent to Mahendra, the Court held that the respondent could not explain satisfactorily those portions of the letter which needed explanation. The letter shows correspondence between her and Mahendra which was clearly unworthy of a faithful wife and her pose of innocence by characterising it as between a sister and a brother is manifestly disingenuous. The letter betrayed on part of the writer a “consciousness of guilt”. The Court said that it was not prepared to say that the contents of the letter were capable of only one interpretation and no other.
The Court formulated the legal question as whether the respondent’s leaving her marital home on May 24th, 1947 is consistent with her having deserted her husband. The Court did not rely upon the uncorroborated testimony of the respondent that she had been compelled to leave her marital home under threats from the plaintiff. The happenings of May 24th, 1947 are consistent with the plaintiff’s case and with the facts and circumstances disclosed in the evidence. The Court then looked into the plaintiff’s solicitor’s letter of July 15th, 1947 addressed to the defendant. The letter does not in terms allege that the defendant was in desertion, apart from mentioning the fact that she had left against the plaintiff’s wishes or that she had done so with the intention of permanently abandoning her marital duties. The most important part of the letter is to the effect that the plaintiff had “become entitled to obtain a divorce” and that he “does not desire to keep you any longer under his care and protection”. The plaintiff did not allege any desertion and he was not prepared to receive her back to the matrimonial home.
The contents of this letter could not be explained away by the plaintiff. The letter does not corroborate the plaintiff’s version that the defendant was in desertion and that the plaintiff was all along anxious to induce her to come back to him. The telegram sent by the appellant and the letter supplemental to it completely negative the plaintiff’s statement that he was all along ready and willing to receive the defendant back to his home.
On the other hand, wife had all along been ready and willing to go back to the matrimonial home. This body of evidence is in consonance with the natural course of events. The relatives of the defendant were the parties most interested in bringing about reconciliation. On the other hands, the plaintiff’s evidence stood uncorroborated. The Court therefore was inclined to accept the defendant’s case that after her leaving her husband’s home and after the performance of her cousin’s marriage she was already and willing to go back to her husband.
Also, between 1948 and 1951 the respondent stayed with her mother-in-law at Patan whenever she was there. This conduct is wholly inconsistent with the plaintiff’s case. The defendant had also sent their three year old son to Bombay, which the Court held only be in hopes of reconciliation. The plaintiff fell short of proving his case, as his evidence was largely uncorroborated.
HELD:
In a case of desertion, the deserted party must be willing to accept back the deserting party on reasonable conditions at all times before the suit for divorce is instituted.
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