LACHMAN UTAMCHAND KIRPALANI versus MEENA ALIAS MOTA

SuBBA RAo J.-1 regret my inability to agree. This appeal by certificate presents a facet of the social and sociological problem of a young Hindu wornan landed by marriage in a joint family and of her predicament tlierein. As Rajagopala Ayyangar, J., has traced the course of the litigation, it is not necessary to tover the ground overagain.

p. 364

Two questions arise for consideration, namely, (1) whetlier tliere was desertion by tlie respondent without reasonable cause of her matrimonial home; and (2) whetlier the appellant had prevented the respondent during the statutory period from. bringing tfu: d'e5erlion t9 an end. Before I consider the evidence in the case, it will be convenient to notice ihe relevam,-aspects of the law pertaining to the doctrine of ,desertion. The Hindu ·Marriage Act, 1955 .(A~t 25 of 1955), hereinafter called the Act, codified the law in that regard. The material provisions of the Act read thus :. . . .

pp. 364–365

Section 10. (1) Either party to. a marriage, whether. solemnized before or after the commencement of this Act; may ·pre5ent a petition to the Disfrift O>urt praying for a decree fpr judicial separation. on the ground ·that the other parcy- ( a) has de~erted the petit\oner for a continuous period of not less than tw6 years immediately preced-

p. 365

·ing the presentation of the· petition. * *· *. * '*' *. Explanation.-In this section, the expression ''.desertion", with its grammatical .variations and cognate expressions,. means, the desertion of the petitioner by the other party to the . marriage without, •reasonable cause and without .tlie consent or agairtst the wish of such party, and includes the wilful neglect .of the peti-

p. 365

tioner by the ·other party to the· marri~~e~' Under this section a spouse can ask· for judicial 'seperation if the oth~r spouse has deserted heP or him fon-a continuous period of not less tharu two years. Th.is provision introduces a revolutionary change in the Hindu law of· marriage. It is given retrospective effect. A spouse in ·India except .in some states, who .never expected·lany serious consequences of desertion, suddenly found himself or herself on May 18, 1955, in· the predicament of his or her marriage being put in peril. ·If by that date the .prescribed .period of· two. years had run out, he or she had Iio locus penitentiae and could retrieve the situation only by mutual consent. Section lO(l)(a) does not proprio ·vigore ·bring about dissolution of marriage. It is a stepping 'stone for dissolution. On .the deserted spouse obtaining a decree for judicial seperation, the said spouse can bring .about divorce by effiux of time under s. 13 (1) (viii) of the. Act. The expres5ion "desertion" came under the judicial scrutiny of this Court in Bipin €hander Jaisinghbhai Shah v., Prabha- (1) [1956] S.C.IL838:- I wati('). There, the question arose under s. 3 (l)(d) of the Bombay Hindu Divorce Act, 1947 (BoM. 22 of 1947) This Court, on the facts of that case, held that there was no desertion. The said section read :

pp. 365–366

" ( 1) A husband or wife may sue for divorce on any of the following grounds~ namely:- (d) that the defendant has deserted the plaintiff for

p. 366

a continuous period of four years.

p. 366

"Desertion" was defined in s. 2 (b) in these terms : "'Desert' means to desert without reasonable cause ~nd without the consent or against the will of the spouse." Sinha, J ., as he then was, speaking on behalf of the Court after considering the relevant textbooks and decisions on the subject, summarized the law thus, at p. 851 :

p. 366

"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 respec-

p. 366

tively. The learned Judge dealt with the mode of putting an end to the state of desertion as follows, at p. 85_2 :

p. 366

"Hence, if a deserting spouse takes advantage of the locus penitantiae 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 pro- 'ceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses the offer, the latter may be in desertion and

p. 366

not the former." Based on that reasoning the learned Judge proceeded to lay down the duty of the deserted spouse during the crucial period: "Hence it is necessary that during all the periogl 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 rea-

pp. 366–367

sonable." · : , Adverting again to the burden of proof and the nature of evidence required to prove desertion, the learned ·,Judge made the followinQ; observations, at p. 852 :

p. 367

"It is also well settled that in proceedings fat divorce the plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable doubt. Hence, though corraboration is not requirc;d as an absolute rule of law, the courts insist upon ·corroborative evidence, unless its absence is accounted· fo.r

p. 367

to the satisfaction of the Court." Collating the aforesaid observations, the view of this Court may be stated thus : Heavy burden lies upon a petitioner who seeks divorce on the ground of desertion to prove four essential conditions, namely, (1) the factum of separation; (2) animus deserendi; (3) absence of his or her consent; and ( 4) absence of his or her conduct giving reasonable cause to the deserting spouse to leave the matrimonial home. The offence of desertion must be proved beyond anv reasomble doubt and as a rule prudence the evidence of the petitioner shall be corroborated. In short, this Court equated the proof required in a matrimonial case to that in a criminal case. I am bound by this decision. I would, therefore, proceed to discuss the law from the point reached by this Court in the said decision.

p. 367

There is some controversy on the question on whom the burden of proof lies to establish that the deserting spouse has just cause or not to leave the matrimonial home. The judgment of this Court is clear and unambiguous and it throws the burden on the petitioner seeking divorce. This view is consistent with that expressed in leading judgment of English Courts. · " :

p. 367

In Pratt v. Pratt(') the House of Lords considered: the said aspect. Lon\ Macmillan stated, at p. 438, thus :

p. 367

"In my opinion, what is required of a petitioner for divorce on the ground of desertion is proot . that

p. 367

throughout the whole course of 3 years the respondent --(l)TI939]3AITE:R~ 437.

p. 367

' · has without cause been in desertion. . ............. In fulfilling its duty of determining whether, on the evidence, a case of desertion without cause has been proved, the Court ought not, in my opinion, to leave out of account the attitude of mind of the petitioner. If, on the facts, it appears that a petitioning husband Ms made it plain to his deserting wife that he will not receive her back, or if he has repelled all the advances which she may have made towards a resumption of married life, he cannot complain that she has persisted

p. 368

without cause in her desertion". 'On the question of just cau~, Lord Romer made some ·pertinent remarks, at p. 443, which are relevant to the present enquiry. There, as here, though under different circumstances, the deserting spouse, the wife, after previous correspondence did not call on her husband. In that context, Lord Romer observed :

p. 368

"It would, in my opinion, be quite unreasonable to hold that the respondent, guilty though she was of the_ serious matrimonial offence of desertion, should be expected to present herself at her husband's door with-

p. 368

Out any knowledge of how she would be received, ' and therefore at the risk of being subjected to the indignity of having admission refused by her husband or by ·one of his servants. . ........................ . Tt could not be expected that she should suddenly

p. 368

. ·make an unheralded entry into his house." Though it was necessary, in order to put an end to her desertion, for the wife to take some active step towards returning to the matrimonial home, Lord Romer held that she had taken such steps by writing letters and that the fact that she did not physically appear in the matrimoni'.ll home did not make is any the less a just cause on her part. . · In Dunn v. Dunn('), Denning L.J., as he then was, laid down the scope of burden of proof in such a case, at p. 823, thus:

p. 368

"The legal burden throughout this case is on the husband, as petitioner, to prove that his wife deserted him without cause. To discharge that burden, he relies on the fact that he asked her to join him [1948] 2 All E.R. 822. and she refused. That is a fact from which the court may infer that she deserted him without cause, but it is not bound to do so. Once he proves the fact of refusal, she may seek to rebut the inference of desertion by proving that she had just cause for her refusal ; and indeed, it is usually wise for her to do so, but there is no legal burden on her to do so. Even if she does not affirmatively prove just cause, the court has still, at the end of the case, to ask itself : Is the legal burden discharged? Has the hus-

pp. 368–369

band proved that she deserted him without cause?" This passage brings out the well known distinction between legal burden and onus of proof. Legal burden always remains on the petitioner ; and onus of proof shifts and is a continuous process. But, as the learned Lord points out, the court has to hold on the evidence whether the kgal burden to establish desertion without cause has been established by the petitioner.

p. 369

In Day v. Day( 1loc hmband petit'oned for divorce on the ground that his wife had deserted him. The wife relied 8n the fact that the husband com,nitted adultery and tlut, therefore, the desertion was not without cause. The Court held that the burden was upon the petitioning husband to prove that his adultery was not the cause of his wife's desertion and that he had proved !he same, as the facts proved established that she had formed her intention not to resume cohabitation ;ndependently of his adultery. The legal po,:ition is stated thuc, at p. 853 :

p. 369

"On the facts of the present case that involves the husband proving affirmatively that the mind of the wife was not in any way affected by her knowledge of the husband's adultery. Clearly the burden is a heavy one, and doubtless in many cases it will be one that a petitioner will not be able to discharge."

p. 369

In Br~wcr v. Brewer('), the Court of Appeal explained the views expressed by Lord Macmillan· and Lord Romer in Pratt v. Pratt('). Willmer, L.J. after quoting the observations of Lord Macmillan in Pratt's case('), proceeded to state :

p. 369

1957] 1 All E.R. 848.

p. 369, margin F

[1961] 3 All E.R. 957. (•) [1939] 2 All E.R. 437.

p. 369, margin F

"This passage, although not necessary for the decision of that case, was expressly approved and adopted by Lord Romer in Cohen v. Cohen('), and must, I think, be accepted as authoritative having regard to the fact that all the other members of the House ex-

p. 370

pressed their concurrence with Lord Romer." The case-law here and in England throws the burden of proof on the petitioning spouse to prove that desertion was without cause.

p. 370

Another aspect of the question may now be touched upon. The definition of desertion under s. 10 of the Act, the argument proceeds, is much wider than that under the English law or under the Bombay Act considered by this Court. Emphasis is laid upon the following words in the explanation to s. 10(1) of the Act:

p. 370

"includes the wilful neglect of the petitioner by the

p. 370

other party to the marriage." The expression "includes", the argument proceeds, enlarges the scope of the word "desertion", and takes in by definition the conscious neglect on the part of the offending spouse, without the requisite animus deserendi. This argument, if accepted, would impute an intention to the Parliament, which was entering the field for the first time, to bring about a revolutionary change not sanctioned even in a country like England where divorce or separation for desertion had long been in vogue. We would be attributing to the Parliament an incongruity, for, in the first part of the explanation it was importing all the salutary restrictions on the ri<rht to iudicial separa6on. hut in the second part it would be releasing the doctrine, to a large extent, of the said restrictions. By such a construction the legislation would be made to defeat its own purpose. On the other hand, the history of the doctrine of "desertion" discloses some limitations thereon conceived in the interests of society and the Parliament by the inclusive definition couched in wide language could not have intended to remove those limitations. The inclmive definition is only intended to incorporate therein the doctrine of "constructive desertion" known to English law and the language is designedly made wide to cover the peculiar circumstances of our society. In Ray den on Divorce, [1940] 2 All. E.R. 331, 335. 7th Edn., the expression "constructive desertion" is defined thus, at p. 155 :

pp. 370–371

"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 his wife, and the case of a man who compels his wife by his conduct, with the same intention, to leave him. This is

p. 371

the doctrine of constructive desertion." t\d verting to the question of animus in the case of constructive desertion, the learned author proceeded to observe, at p. 156, thus :

p. 371

"It is as necessary in cases of constructive desertion to prove both the factum and the animus on the part of the spouse charged with the offence of desertion as it is in cases of simple desertion. The practical difference between the two cases lies in the circumstances which will constitute such proof, for, while the intention to bring the matrimonial consortium to an end exists in both cases, in simple desertion there is an abandonment, whereas in constructive deser-

p. 371

tion there is expulsive conduct." The ingredients of desertion as well as constructive desertion are the same, namely, animus and factum, though in one case there is actual abandonment and in the other there is expulsive conduct. Under certain circumstances the deserted spouse may even stay under the same roof or even in the same bed-room. In our society, it is well known that in many a home the husband would be guilty of expulsive conduct towards his wife by completely neglecting her to the extent of denying her all marital rights, but still the wife, because of social and economic conditions, may continue to live under the same roof. The words "wilful neglect" in the explanation were certainly designed to cover constructive desertion in the English law. If so, it follows that wilful conduct must satisfy the ingredients of desertion as indicated above. Hence, the appellant could not take advantage of the inclusive definition unless he established all the ingredients of constructive desertion, namely, animus, factum and want of just cause.

pp. 371–372

There is yet another legal contention which may be disposed of before I consider the facts. It is based on s. 9 of the Act, which reads :

p. 372

"(l) when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply by petition to the District Court, for restitution of conjugal rights and the Court on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree

p. 372

restitution of conjugal rights accordingly. (2) Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity

p. 372

of marriage or for divorce." The contention on behalf of the appellant is that s. 9(2) of the Act affords a dictionary for the expression "without reasonable cause" and that it shows that reasonable cause in the explanation could only be that cause which will be a legal ground for the offending spouse to resist the petition by the other for restitution of conjugal rights. It is further contended that under cl. (2) thereof such legal ground could only be the lcgcil ground on which there could be judicial separation or nullity of marriage an<l, therefore, the reasonable cause in the explarMtion to s. 10 should also be only such grounds like cruelty etc. There is a fallacy in this argument. An illustration will bring it out. A husband files an application against the wife for restitution of conjugal rights under s. 9 of the Act. The wife can plead, Inter alia, that the husband is not entitled to re.stitution of conjugal rights as he has deserted her without reasonable cause. Section 9(2) of the Act does not afford any dictionary for ascertaining the meaning of the expression "reasonable cause". We have to fall ha.ck again for its meaning on the principles laid down by decided cases and the facts of each case. That apart, s. 9 and s. 10 deal with different subjects-one with restitution of conjugal rights and the other with judicial separation. We cannot irpport the pr,ovisiO!\S .of ~c; one iµto the otll.er, except in so far as the sections themselves provide for. it. The explanation does ;not expressly or by ,rn;cessary· implication equate reasonable;. cause with, a legal ground for sustaining a pl~a against. an action for restitution of conjugal rights.. Indeed; ir is a limitation on one of such legal groundi_,- Th.er,; is ,ap. essep.tial distinction between the scope of the two.. secti01)s. The ,Legislature even in socially advaqced countries leqns on the side o~ sanctity of mar- _riage ; therefore, under s .. 9 of the Act, our Parliament imposi:s stringent conditiqns to µon-suit a claim for restitution of conjugal rights. On the same reasoning, under s. 10 of the A,ct, it does not permit separation of spouses on the ground of desertio'n except when .the, desertion is without reasonaQ.le cause. • The expr-ession "reasonable cau.se" must. be so construed as to bring about. a union rather thaA. .separation. The said expression is more ,.comprehensive than p;uelty. and .such other. causes. It takes in ev~~y cause which in a ,given situation appears to be reasonable to.;a Court justifying a .spouse to.desert the other spouse._ This •vie)" )s consistent with the English law on the subject, In Halsbury's· Laws of England, 3rd Edn., Vol. 12, the author says, in para. 484, at p . .Z57 thus :

pp. 372–373

"Any matrimoniaf ciffehce, if proved, is a ground for the other spouse withd'fl!wing' from cohabitation. Further conduct which falls "short of a matrimonial offence, that is conduct not alnounting to cruelty or adul:

p. 373

tery, may excuse desertion." . ln Edwards v. EdUAards(') this idea was succinctly brought out. There it was stated that conduct short of crue:tv or other marrirrionial offence, mig~t afford cause for .cfesertion. So too, in an earlier decision in Yeatman v. Y-eatman(') it was held that reasonable cause was not necessarily a ·distinct matrimoniaF, offence on which a decree of judicial separation or dissd(ution of marriage could be founded. .I am, therefore, of the opinion that s. 9 of tile Act. does ncit· thrci'w \my light on the construction of the dpre'ssion "without reasonable causci'.' and 'that whether there i~ a reasonable cause or. not in a given case ' i(,i), b'.R.•{1950l IP:·8. ' ''' ,,j,, ' · -L.R. [1868] I~ .P. o.:489.' , .. , " • shall be decided only on the evidence and the peculiar circumstances of that case.

pp. 373–374

The result of the said discussion may be stated thus : The legal burden is upon the petitioning spouse to establish by convincing evidence beyond any reasonable doubt that the respondent abandoned him or her without reasonable cause. The petitioner must also prove that there was desertion throughout the statutory period and there was no bona fide attempt on the respondent's part to return to the matrimonial home and that the petitioner did not prevent the other spouse by his or her action by word or conduct from cohabitation. The expression "wilful neglect" included in the section does not introduce a new concept in Indian law unkown to the English law, but is only an affirmation of the doctrine of constructive desertion. The said doctrine is not rigid but elastic and without doing violence to the principles governing it, it can be applied to the peculiar situations that arise in an Indian society and home. No inspiration could .be derived from s. 9 of the Act in order to construe the scope of the expression "without reasonable cause" and whether there is a reasonable cause or not is a question of fact to be decided on the facts of each case.

p. 374

I shall now proceed to consider the facts of the case. The main question is whether the appellant has proved that the respondent deserted him within the meaning of the term as explained above. To ascertain that fact from a correct perspective it is necessary to notice broadly the marital life of the couple since their marriage. The appellant is an M.B.,B.S. and a medical pnctitioner carrying on his professiop in Bombay. He belongs to a well-to-do family, his father being a businessman. The family is comparatively old-fashioned in habits and customs. 'The respondent is the daughter of one Vasanmal, a businessman, who had branches in Singapore, Hongkong, Jakarta and Manila. Though he spent most of his time in foreign countries in connection with his business, he always left his family in India and he used to visit his family in India whenever he could conveniently do . Though the learned counsel ·for the appellant attempted to argue that the members of Vasanmal's family, includ; ing the respondent, were leading a fast life, there is nothing on the record, except some vague suggestions here and there, to support the said argument. It may be accepted that the respondent's father is comparatively a richer man than the appellant. On November 10, 1946, the appellant and the respondent were married at Hyera bad (Sind). On July 19, 1947, a male child was born to them and was named Ashok. Unfortunately for the couple, their even course of life was -disturbed by the partition of India. In October, 1947, they had to migrate, as many others did, from Pakistan to India. Though the respondent's father was maintaining a family house at Lonavla, about 70 miles from Bombay, the members of the appellant's family including the respondent, went to the Colombo and were staying with the appellant's mother's brother. In or about December, 1947, the appellant, along with his mother, left Ceylon for Bombay leaving the respondent and appellant's sisters in his uncle's home at Colombo. The respondent's version is that, as her sisters-in-law ill-treated her, she was not happy there and therefore she had to leave that place, along with her child, in January, 1948, to her parents' house at Lonavia. At the end or January, 1948, the appellant and his mother went to Lonavla and brought the respondent to Bombay. At the end of the first week of February, 1948, the respondent went back to Lonavla and came back to Bombay in or about August or September, 1948, and was living with the appellant for about 3 months. In or about that time, the respondent's parents shifted their residence from Lonav la to Poona and settled down there. Poona is about !O:l miles from Bombay. In December, 1948, the respondent visited her parents at Poona and returned back to Bombay in February, 1949. According to her from Februarv 26, 1954, she was living with the appellant in his house at Bombay and she was not permitted to go and sec her parents ; but according to the appellant, she was going now and then to her parents' house. Much is made of her frequent visits to her parents' home, but it is ignored that the frequent visits were only made during the difficult days the evacuees were passing through. But t'le fact remains that from 1949 for about 4 vears she was continuously living with her husband in his ·house.

pp. 374–375

It is common case that the couple were not happy in their married life. The husband and wife give their versions of the reasons for this estrangement. The husband, as P.W. 1, attempts to throw the blame wholly on the wife. He says that the respondent was disrespectful and indifferent to him, that she was proud and arrogant, that she refused to wear the clotfies which were made for her by his parents on the ground that they were made of inferior stuff, that she was very disobedient and disre·pectful to his parents, that she used to leave for her parents' house very often and sometimes without informing him, that she had no love or affection for him, that wh. n she was in her parents' house she used to play cards, and drank at the parties given by her father, that she did not like to have children and that she was rude and insulting in her behaviour towards him and his parents. In the cross-examination he admits that he saw her dr:nking only twice or thrice at her father's parties, but none of his friends saw her drinking nor did she drink from 1947. He further admits that he saw her playing cards without stakes, but he had not seen personally her playing cards after 1946 or 1947. He admits that the relationship between his mother and the respondent's parents was not cordial. He describes her acts of disobedience thus:

pp. 375–376, margin D

"On the next day of our marriage, it was customary that she should put on the saree which we got made for her. We had such a saree ,already prepared. She refused to put on such a saree saying that the same was too inferior to be put on by her. She on many occasions ordered him to do certain things for her. For example, on one day I told her that she should not spread her sarees on the sofa but she should keep the sarees wrapped and keep them in a cupboard. On the next day the same thing was repeated, namely, that she kept her saree spread on the sofa. I called her and requested her to wrap it. She asked me as to why I should not do the same. I protested and told her that I was speaking to her in a· polite way and why she should order me to do things, whereupon she told me that her friends' husbands even do boot-polish and why I should not do even such trifling tl1ings." ·

p. 376

_,_..,.._~-·. A perusal of his evidence discloses that. thotigh he is an educated man he belongs to the old school and takes offence ·for the most trivial things which another would ignore. A perusal of his entire evidence' .also discloses that he is . highly respectful to his· parents and that

p. 377

he was particular that his wife also should be obedient · -to them and particularly to his mother. Though the learned counsel for. the ·appellant painted the respondent in his opening address as a highly sophisticated woman, addicted to all · the evils - of drink, dance · etc., the evidence of the appellant, even if entirely accepted, shows that she is not highly educated, that she has not been addicted -to any bad habits such as drink, playing cards, smoking etc., and that she was living in the family house of her husband, though now and then she· was going to

p. 377

her parents' house. In the cross-examination the appel- .. !ant also stated that he had to take the respondent ·in 1953 or 1954 to Dr. Marfatia, a psychiatrist, for treatment, indicating thereby that was under some nervous_ or mental strain. · · -

p. 377

Now -Jet us see what the respondent says about her · life in her husband's house. She says that at the time of her marriage her father gave a dowry of Rs. 25,000.00 and several presents and gifts, including clothes worth about Rs. 10,000.00, but _her mother-in-law was not satisfied with the amount of dowry given by her_ father; that her parents-in-law wou!cl not ordinarily permit her to visit her parents' house, that whenever such p~rmission was asked. for they used to refuse a number of times,· but would allow her to go only once in a way ; that she was abused for trivial things, such as when handkerchiefs were missing; that the treatment of her. mother-in-law and sisters-in-law from the beginning was cruel and when they made complaints to the appellant, he used to abuse her ; that . in Ceylon -also they ill-treated her ; that, between 1949 and 1954 she was_ allowed to go to her parents' house only on two occasions, that is, once on the wedding of one of her sisters and the second time on the wedding of· her cousin · and during those ocC:asions she stayed with them only for a ·few days; that she. :was refused permission to go to Poona even when her uncle died; th_at her parents-in-law not only said man.y 25-2

p. 377

.. ·SUPREME -COURT REPORTS [1964J

p. 378

·-,--~--- -~--- Mdirty" things of her but they did not allow her to speak to her son ; that when her father-in-law scolded her son, he started weeping and she was scold!!<i for interfering : that this incident happened iii 1953 and that since then her hlisband ceased to talk with her; that, she was also prevented by her mother-in-law from doing any work for her husband or for her son; that she was also beaten lly her hlisband sometimes ; that she was not allowed to see her child when he was ill; that in 1951 she heard that her husband attempted to remarry and even asked hb: to sign a paper giving her consent for him to do so; that ·she was made to sleep on a bench in the drawingl'oom till about the year 1952 and thereafter on the floor tJ her mother-in-law did not provide her with a bed. Her tridence discloses tliat she had no freedom in her husband's house, that she was abused and-insulted by. her patents-in-law and sisters-in-law, that she was not given_ the usual comforts which she expected in her · husband's home, that she was not allowed to look after her husband ani;I her child, that the husband took the side of his mOther whenever there was trouble between her and her mother-in-law. There may be some exaggeration in this .. Tm1on, but by and large this evidence fits in what gene- ~y happtns in an old-fashioned house where a girl with modern upbringing goes to stay as a daughter-in law of lhe house.. It may therefore be accepted that she was leading :i miserable_ life in her husband's house and she must have been under a ternole nervous strain. · ·

p. 378

What does the father of the respondent; who was painted as villain Of the· piece, say about this unfortunate sitlwion in which his. daughter wa5 placed? Whatever · may be said about him, his evidence discloses that he is

p. 378

much.attiched to his daughter and he attempted to do W'b:it an affectionate. father c.ould possibly do in the c:Irrumstances. He supports the evidence given by his <bughter in regard to dowry and·· the n::luctance of her parciits-in-law to send her to his · h?use ·whenever he requested them to do so and also he speaks to the comp- Taint made to him by his daughter about the ill-treatment mtted out to her by her in-laws and also the want of a'lfdiality between his family and the family of the appdbnt. I have gone through his evidence carefully He does not impress me as one who was out to wreck the life of his daughter out of pride or anger, but a loving father who tri,d his best to make her happy and to reconcile the couple, if possible. Whenever there was trouble he tried to persuade them to live together and whenever she was unlnppy he tried to take her to his home and give her the necessary warmth of love and affection.

pp. 378–379

Neither the mother-in-law nor the father-in-law nor the sistcrs-in-l;;w were examined in the case. If the motherin-law had exomined, nnre details could have been elicited, but unfortunatdy she was kept back, in my opinion, for obvious reasons.

p. 379

The sai<l tVidcncc. \iroadly gives the victure of the responcknt's unhaµpy life in her hmband's house and the mental strain she was putt:ng up there.

p. 379

In those circum,tances in the month of November, 1953, respondent's father cc.me to India and was very anxious to take her to his house at Poona and thereafter, with him, to foreign rnuntries for a short time to enable her to recoup her health. With that obiect, the father approached the appellant's family cautinu.:ly and through mediators to get their permission. He says, in his evidence, that after he came to India he met the respondent at her husband's place of residence and o'Jserved that she was very pale, that she had lost weight and appeared to be much worried and unhappy. He asked the appellant and his parents to allow her to be taken to Poona, but the permission was not granted. Two or three months thereafter, he again came to Bombay two or three times and made similar requests, hut they were all turned down. On one occasion, the respondent described to him her miserable condition under her husband's roof and he consoled her that he would get her the permission to visit him. He requested one Manganmal to intercede on his behalf with the appellant's father and get his permission to take the 'respondent to his house and thereafter abroad for recoupinent of health. About a week thereafter, Manganmal told 'him that he had seen the appellant's father and made the request on his behalf, but the appellant's father wanted to ; confer with his wife and so he asked him to see him again a week thereafter. A week thereafter, he saw the appel- !ant's father and repeated the request. The appellant's father requested him to see him 3 or 4 days thereafter. He went to him again, when the appellant's father gave the necessary permission. The witness promised to go to him on February 26, 1954 to fetch his daughter. He went there at 4.30 p.m. on that day and left for Poona by the Deccan Queen at about 5.30 p.m. on the same day. At the time when he went to appeliant's house to fetch the respondent, the appellant's father and mother were present, but the appellant was not there. The respondent took the permission of her parents-in-law and accompanied him. This version is natural. It is unthinkable that a man of the status of respondent's father would carry away his daughter from her husband's house without taking the permission of her husband or her parents-in-law. It is not likely that the respondent would have run away from the hbuse of her husband in the abse11ce of her husband and parentsin-law taking away the jewels with her as was suggested on. behalf of the appellant. There is nothing in the crossexamination worth the name to belie the version given by this witness. It was the most natural thing any father in the position of the respondent's father would do. in the said circumstances. I do not see any justification to reiect his evidence. The respondent in her evidence supports the · evidence given by her father and, in addition, she says that on February 26, 1954, she took the permission of her husband before leaving the place. She asked him to allow her to take her son, but he refused to give the permission. It is said that while she said that her husband was in the house, her father said that he was not there. But she dearly says in her evidence that her husband was in another room and that she went to that room to take his permission. Obviously, the husband was not willing to face his father-in-law. Manganmal, who interceded on behalf of the respondent's father with the appellant's father, gives evidence as D.W. 3. He is the Managing Director of Chotirmall & Co., with branches in India and in foreign countries. He is a friend of the respondent's father. He corroborates the evidence of the respondent's father. He says in his evidence. that he went to the appellant's house and asked his father to allow the respondent to stay with her father while he was in India, as sbe had not been to lrer father's house!or years. In the cross-e:icamination it was suggested that he was not a friend of the appellant's father, that he, along with others, was a co-trustee with Kanaya4'.l, a ·sonin-law of ,the appellant's father, of Nanikrani's trust, and that in tlie dispute that was raised by K~nayalal's father, Nanikram, in respect Qf the subject-matter of th;:- trust, Kanayala was supporting )iis father whereas Manganmal was suppqrting the tr!Jst, He a~mits that he does not claim to be a friend of the appellant's father apd that there was conflict of views between him ·and Kanayalal in respect of the trust, but adds that on that -account there was no lack of cordiality between himself and the appellant's father. He' is a respectable witness. He . gave straight- ,forward answers to the ques~ipns put to him. He did not support the respondent's father COII)pletely in that he did not say that he askecf tor permission for the respondent's father taking the .re~pondent to foreign countries. Presumably the further. request was mape by the respoqdent's father himself and not by this, witness. If he had come to lie iri the witnes~-box, he would have added the fort.lier request also. ' There is nothing unusual in the respondent's father requisitionipg the services of this gentleman in preference to" qthers more close. to the appellant's father, for this wit,r)ess is. a respectable man and very well known to him and was in a pqsition and was also \villing .to intercede on his behalf. I do not see any reason why- the evidence of this witness should be 'rejected. '

pp. 379–381

As against this evidence, the appellant says that on February 26, 1954, he was not P1*Sent when the respondent k:ft his house, that no one, except the maid-servant was present_in the house when the respondent .left the house, that in tl)e evening at about 6 O'clock he discovered that the respondent had left his house leaving some message with the maid-servant and taking away all her jewels and valuable clothes. He farther says that he wrote some letters to his wife soon ther~~fter, but he did not receive any reply from her. Bf.It this, was denied by the respondent; and there is nothing except his word for this, This is a remarkable stqry. If his wjfe'·had left him when nobody was present in the house, he would not have taken . I it so philosophically as he asks us to believe. On his own showing, he went to Poona only two or three months thereafter. He does not even tell us what was the message that she left with the maid-servant. The maid-servant was not examined. Neither his father nor his mother nor his sister were put in the witness-box. When three witnesses, the respondent, her father and a friend of her father, definitely gave evidence that the appdlant's parents were approached and that they gave their consent, it was the duty of the appellant to examine them. No doubt some sort of explanation was given that the father. was in Japan, but none in respect of his mother or the maid-servant. When the bmdcn was upon the appellant to establish desertion, it is strange indeed that he should have thoug:1t fit to keep back the best evidence from the witness-box. When the respondent and her father depose that they took the consent of the appellant's parents and if the parents of the appellant did not choose to come to the witness-box to deny it, a court ordinarily should accept the evidence of the father and the daughter unless their evidence is ex facie unnatural or inherently improbable. But that cannot be said in this case, for what the respondent's father is said to have done is the most natural in the circumstances.

pp. 381–382

It is said that the City Civ.,il Judge had seen the respondent's father, Manganmal and the respondent in the witnes'.-box and he clicl not accept their evidence and that, therefore, the High Court should not have taken a different view. On this aspect of the case, after considering the evidenre of the witnesses, the High Court says thus :

p. 382

"The parents of the petitioner were available to give evidence in this case, but they have not been examined: nor has any explanation been given why the maidse:vant with whom a message was left by the opponent when she left the house, has not been examined in the case. V./ e are left in this case with the two diametrically opposite version of the two interested parties:. . . . . . . . . . Having regard to these circumstances, we are of the view that the departure of the opponent from the house of "the petitioner was, if not with his express permision, with his consent and full knowledge though such consent was given on account of

p. 382

some exasperation on his part." I entirely agree with this vie\\f. It is consistent with the evidence given by the respondent's witnesses and also with the circumstances of the case and subsequent· conduct of the parties. The appellant and his parents must have given the consent, thoug\l not willingly, either because of the importunities of the respondent's father or because of the social pressure put on them through the interven• ti01: of a respectabls: oy,tsider: But they did like tin; respondent's parents-and therefore they' dill not like, the respondent going to their .house. It was a permission reluctantly given and she was afrai~ that it would be withdrawn. That is why there was no corresponaence·betweeIJ. the couple during all the days she was staying at Poona and she did not even meet the appellant or his pai:ents. when she was boarding the ship at Bombay. I woutd, therefore, hold that the respondent left her ·matrimonial, home with the permission of the appellent and his parelll$ for the purpose of staying with her fathei? at Poona aaj thereafter to leave for foreign countries for short stay, recoup her health.

p. 383

Strong reliance is placed upon an incident that is leged to have taken place in May 1954. Acairding to .t!ie, appellant, he and his friend, Dr. Lulla, went -to Poona .it1 persuade her to come back to his house, but she defiriitdy: , told. them ihat she would never return to his house. !t iS said. that this incident would show that. she had ~ecidcd to leave him permanently. In t~e· petition this May incident was .not specifically mentioned nor was it stated that: it afforoed a cause of action. There was no mention or the appellant and his friend Dr. Lulla going to htr am1 hcl. stating to them that she would never return to his houoc: Before th'e' High Court the learnep counse1 appearing for· the appellant did not seek to rely upon" this meeting and: the reply alleged to have been given by the respondent· as: furnishing a cause of action for founding a claim for reuef of judicial separation. This incident was relied upo1;1. only in support of the appellant's case that the respondeqt• was intransigent throughout and was unwil)ing. to go ba$1 to. the petitioner. indeed, the learned · counsel appear! admi~ that the eyidence of the·appella11.t an:d Dr.-Lul.Ja'Was.i not clear ~s to what was the precise. questio.q asked ah<i._ what was the exact answer give·n by the respondent. It wiruld,' therefore, be seen that this incident did not loom l,arge _either in the pleadings or in the arguments 11efore the -High Court. But it became a sheet-anchor of tht appellant's case before us. Let me, therefore, consider this aspect of the case in some detail.

pp. 383–384

The appellant says in his evidence that he went to Po<)na along with Dr. Lulla towards the end of May 1954, t4i\t ·.he saw the respondent at Poona and enquired of her as to. why she left his house secretly and that she told him that she had decided not to come back to him. This is interested evidence and is inconsistent with my finding that she left his house with his consent as weil as with the conseiit of his parents. His evidence is supported by the evi- 4i:nce of Dr. Lulla. But the respondent contradicts this tfridence. She denies the incident altogether. She is also ah interested witness. Dr. Lulla, as D.W.3, says that he \~eiit to Poona along with the appellant, that the appellant tried to persuade the respondent to come back to him, that thereafter he also tried to persuade her to come back to tl;i~ appellent, but she told them both that she had made up her mind not to go back for ever. He is a doctor with <i"fairly good practice and a friend of the appellant. But his cross-examination discloses that he did not ask the resp0ndent why she left the appellant, that he was with the r~sponderit at Poona only for a few minutes, that he could n!Jt recollect. what the appellant told the respondent actually and that she only stated that she was not preplted to come back to the appellant for ever. It also shows that they went to Poona without any intimation, that they had decided to meet . her alone, that they thought that they could persuade her in a few minutes' tfme to come back to the appellant, and that, therefdfe, when they left for Poona they did not make any arrangements for the next day, for they expected to return back by the midnight train. This evidence is atbcked on many grounds. It is said that Dr. Lulla is a gtjod friend of the appellant and, therefore, he went to h~lp him in getting rid of his wife as the appellant was n6t happy with her. It is pointed out that if this incident h~Cl happened, this would have been mentioned in tbe earlier correspondence, in the notice issued and in the plaint filed. It is also argued that his entire evidence was artificial and appears to be improvised for the occasion, for the way he went about the business appears to be very casual. It is asked whether Dr. Lulla, who was going on a serious attempt of reconciliation, would go to Poona without the appellant informing the respondent or her father that they were coming; if his intention was to meet her alone, how did he expect that her parents would not be there when he went? And how did he also think that the est·angement that was prolonged could have been put an end to in a few minutes If he was serious about it as he pretends he was, he would have gone there with preparations for a stay of one or two days after making necessary arrangements in respect of his professional work. There is much to be said for this argument. I have come across in my experience highly respected persons lyiPg in the witness-box to help a friend or save one from a trouble. But the City Civil Judge accepted h;s evidence. The High Court says about his. evidence thus:

pp. 384–385

"The learned trial Judge appean ro have been considerably impressed by .the testimony of Dr. Lulia. He regarded Dr. Lulla as an independent penon who was not like! y to tell an untruth to support tl1e case of the petitioner. The karne,l Judge also took the view, having regard to the contradictory statements mar le by the opponent in her evidence that the testimony of the opnonent was not reliable. Sitting in a'>peal it w;ll be difficu for u~ tn ignore the appreci;lt':on of ev· (!ence by the learned trial Judge. It must, however, be observed that Dr. Lulla wa.s <leposing to an incident which took place about three years prior to the date on which he gave evidence, and he did not claim to remember the exact words in which the conversation took place between the petitioner and the opponent or between the petitioner and himself. Dr. Jethmalani, who appears on behalf of the petitioner, does not seek to rely upon this meeting and the replies alleged to have been given by the opponent as furnishing a cause of action for founding a claim to relief for judicial separation. . ... . . . . . . in the absence of evidence as to what precisely were the questions put to and the answers given by the opponent, it is difficult to hold, even on the view that there was in the month of May 1954 a meeting between the petitioner and Dr. Lulla on the one hand and the opponent on the other as alleged by the petitioner, that the opponent had in unmistakable terms informed the petitioner and Dr. Lulla that she had no desire to

pp. 385–386

return at any time to the matrimonial home." This finding appears to me to be couched in euphemistic terms. Though the learned Judges were not inclined to disturb the finding of the learned trial Judge that Dr. Lulla met the respondent along with the appellant, they were not willing to accept his evidence that she told them that she would not return to ·the matrimonial home for ever. I feel a real doubt whether the appellant and Dr. Lulla met the respondent at all. But let me assume for the purpose of this case, as the High Court was inclined to assume, that they went there. But Dr. Lulla admits in his evidence that he did not remember the exact words used by the respondent in speaking to the appellant; if so, he could not have also remembered the exact words Hsed by her in answering the appellant's question. Afterall the emphasis is on the solitary word "ever". The witness was speaking to an incident that took place about 3 years before he gave evidence and in respect of a conversation that took place for a few minutes. It is not advisable to rely upon his memory in regard to the words alleged to have been used by the respondent, particularly when he comes to give evidence on behalf of a friend when the tendency would be to give the necessary twist to a conversation of which one could not remember the exact words. The High Court as well as the learned Advocate, who appeared for the appellant in the High Court, did mt, rightly, rely upon the pharaseology used in the alleged conversation between the appellant and the respondent. Even if the incident had taken place, it fits in with my earlier finding, namely, that the respondent's father had taken the permission of the appellant's parents, though given with reluctance. The appellant might have had second thoughts and intended to go back on the consent and to persuade the respondent to come back to his home and not leave India. With that intention he might have taken his friend Dr. Lulla to Poona, where the respondent was living. She might have refused to return

p. 386

---- . -,. 4 S.C.R. SUPREME .COURT REPORTS as the appellant .was' going back on his consent:-- She must have been - obviously very angry. and must have curtly refused to come back. Even if she had. used the word "ever",-which I believe is only a gloss added fo her statement intenlionally_ or by lapse of memory-::-it mtist have been said in a huff. If every statement made by a .spouse in a huff in a ·short conversation with her husband were taken in it5 face value, many a home would be broken. I cinnot, therefore, give' any value to the evidel)ce of Dr. Lulla. I would hold that it is very doubtful whether this . incident had taken place, that even if it did, the evidence given by Dr. Lulla could not be taken to be a reproduction of the actual words used by the respondent, and that, even if· she 'had used those words, it was only a statement niade in a huff in a short interview and could not be taken as a finaI word on the subiect as to. compel a court to_ hold that she deserted her husband without reasonable cause.

p. 387

Some emphasis is also made. on her conduct . in not meeting her husband or . his parents when she came to - Bombay. to board the ship and also on her not giving hci husband's house as the address in the relevant papers pre-· pared-for the· journey. It was argued that the place where she -was staying at Bombay was very near to that of her husband and it is unthinkable that she would not have gone there, if she was going abroad with permission, to see- her husband or his parents or her child. This argument misses the real point. _Here we ·are considering the case of a wife who was ill-treated in 'her husband's house arid who, at the instance of her father and his friend, got reluctant permission· from her husband and parents-in-law and if Dr. Lulla's evidence we.re true, the appellant went back on his consent and was trying to prevent her from going with her father. In such a situation ·it is impossible to expect an unfortunate-woman like the respondtnt to create more unpleasantness to herself by going to her. husband's house before departure and to take the risk of spoiling her planned holiday. The fact that her husband's address was not given in the relevant travel papers could not be attributed to her, for they ·must have been prepared in usual course at the instance of the. gentleman who was helping them in that regard. If once it was accepted that .she deserted her husband permanently, these circumstances may have relevance, but once it was conceded that she was going with the permission of he~ husband, though unwillingly given, this conduct would fall in a piece with the respondent's case. I would, therefore, not give much value to such circumstances in the situation in which the respondent was placed. The respondent left Bombay on July 7, 1954, for the Far East with her father. Much was made about her leaving India with her father. If she had eloped with a stranger, no doubt that would be a different matter. But here a father was taking his daughter to give her a holiday so that she may improve her health. By taking her away for short time from the oppressive surroundings which affected her health, I do not see any justification for the comment that she had deserted her husband. It must also be remembered that the respondent's father was not living with his family in the Far East. His wife and children have all along been in India. He was taking the respondent only for a temporary sojourn; and what is wrong in a father taking his daughter for a holiday in those circumstances? If he bad taken tbe appellant's or bis parents' consent, it was not suggested that there was anything wrong in her so going. If he or his daughter did not take such a consent, it might be an improper or an inadvisable thing to do. But such a conduct in the case of a wife leaving with her father temporarily to a foreign country as cin escape from an oppressive atmosphere cannot be described as reprehensible even by a Hindu society; much less can it be treated as a desertion. It was a natural reaction to an extraordinary situation. ,She might have known that her conduct would anger her husband, but she would not have thought that it would be a permanent obstacle in their relationship. Be it as it may, I have already found that she left with her father with the consent of the appellant and his father, and that even if the appellant subsequently retracted from his consent, her departure might be only improper, but could not conceivably amount to legal desertion.

pp. 387–388

Till now I was considering only the oral evidence. But hereafter we come across unimpeachable documentary evidence which shows the attitude of the couple to each other. I shall proceed to consider the documentary evidence on the assumption favourable to the, appellant, namely, that he, along with Dr. Lul\a, went to Poona in May 1954, retracted his permission given earlier, and persuaded her to come back t6 the matrimonial 'home, but she refusecj to do so and left witli her fai:11'er-for foreign' countries.

pp. 388–389

· I am definitely of the view that ·in the circumstances narrated above the ex·act words used by her could .n<5t be held tQ have been pro\·ed by the vague oral ev_id~nJ:e-of Dr. Lulla and that, even if she hall expressed herself strongly in a huff, such expression could not in the circumstances be considered to be decisive cif her determination to lea~e the matrimonial home for ever. She left for the Far East on July 7, 1954. Within a fortnight from that date, on July 20, 1954, the appellant gave a cable to the respondent to the following effect : · '"Extremely surprised at your suddenly secretly leaving India without my lfoowlFdge and consent return im-

p. 389

mediately first plane." On July 22/23, 1954, as soon as· the respondent received ·the cable from the appellant, she gave a cable in reply thus :

p. 389

"Returning/Within few months". On July 2'!, '1954, the appellant gave another cable to the respondent to the fgllowing effo;t :

p. 389

"You must return immediate! y."

p. 389

Pausing here for a moment, let me recapitulate the position. If the respondent definitely told the appellant an<l Dr. 1.ulla that shi: had .given him up and tliat she would not return to the matrimonial home, why did the appellant serid a cable telling her that he was surprised at her secretly leaving India and a5king her to return immediately? And why did she reply tliat she would return in a·'few months? The ~able-given by the appellant is more consistent with the fac't that neither of them understood tl1at 'she had left him f,;r ever. Indeed, the cable reflected his anger on her departur~ along witl:i her father, because, though permission was given earlieP, he did not like her to go. Whatever ambiguity there may be, her in:imediate reply was inconsistent with her determination to leave him for ever, uri.l.ess we assume, as we are asked to do, that the cable was a link in the. 'chail). of ihe plan .conceived by her' and he~ fa~er tb resist. ary action that .might be taken by the hbsband> in a court' of law. 1n 'July 1954 what was the action which the appellant could have taken and what was the defence, if such an action was taken, that could be sustained on the basis of this cable? At that time the Act was not passed. The Act was passed in 1955 and came into force on May 18, 1955. Therefore, the only action which the husband could have taken under the law, as it then stood, was to fiie a suit for restitution of conjugal rights, and this cable could not possibly be a defence against such an action. If she waneed to join him again she could have submitted to the decree. The Bombay Hindu Divorce Act, 1947, may not have any extra-territorial operation. Even if it has, four years of desertion had . to run out before she could be divorced; and there was no particular urgency for her to create any evidence at that stage. To my mind, this cable is destructive of the case of the appellant that she left him for ever. His reply cable also is only consistent with the fact that there was no break between them.

pp. 389–390

Now, I come to a letter dated August 2, 1954, over which there is some controversy, the appellant alleging that it was a forged one and the respondent stating that it was a draft of the letter she sent to her husband. It reads :- "My dear husband, Darling I received your two telegrams, copies of which enclosed herewith. I immediately cabled you that I shall be returning within few months, however I really feel surprised why you want me return to Bombay by first plane without any reason. Dear I was particularly pained to read that I have suddenly and secretely left the place without your consent. What has prompted you to write this I really don't understand. Dear how came this change. You know I was not keeping good health and considerably gone down in spirit and weight for reasons which I do not like to discuss here since you are fully aware of it. It was you who suggested that I should go over and stay at my father's place and it was at your suggestion that I did so. You were fully aware that I was accompanying my father to Singapore for a few months for a change and you gave consent. As soon as I feel better I shall return to Bombay. I hope yoµrseli, Ashok and aII .. the other family members are 0. K. Give my loves to Ashok and Best regards t~ Mother and Father.

pp. 390–391

Yours forever,

p. 391

Meena." The respondent, in her examination-in-chief, says :- "I had written a letter dated 2nd August 1954 to my husband, a copy whereof ha~ beep. preserved by me, I produce the copy of the letter dated 2nd August

p. 391

1954." Tha,t;- was not objecte.d to and the copy of the letter was put in and marked as Ex. No. 4. In 'the cross-examination there is some confusion, but she broadly stated that her father dictated to her the letter, that the said letter was typed, that she copied from .that typed letter and that Ex. 4 is that typed letj:er. The father in his cross-examiµation deposes that the respondent had written a letter dated August 2, 1954, to the' app<1Ilant, that he had a draft of that letter and the same was written after consulting him. The appellant denied that~he received that letter. The learned City Civil Judge found thus :- "I am ·not prepared to hold that the copy letter Ex. 4 was fabr,icated subsequently, because there. a'e references to the letter dated 2-8-1954 in subsequent letters

p. 391

addressed by the responden_t to the petitioner." But he .held that the appeilant did not"receive such a letter. The trial ~our,t held that· the letter not being a copy of what was written by the respondent to the appellant; it could not be regarded. as a secondary evidence of the contents of the J.etter. But the High Court pointed out that it was. not the case of the re~pondent that it was· a secondary evidence of the contents of. the letter :written by her, lint her case was that the text qf Ex. 4 and the letter written to the appellant was the same; ahd in support of her case she prodticed the letter from wl).ich she had copied out the letter ,she had addressed to the appellant. Both the Courts, therefore, held that Ex. 4 ~as the typed letter from which the resJ?Ondent drafted he• letter to her husband. Undoubtedly, Ex. 4 cannot be a sec\mdary :evidence of the letter written by the respondent to her husbancl, but it c~rtainly corroborates her oral evi&nce that she wrote a Jetter with simil~r recitals contained in. Ex. A •to her husband on the date Ex. 4 bears. As pointed out hy the learned City Civil Judge as well as by the High Court, the subsequent letters written by her clearly demonstrate that Ex. 4 could not have been fabricated subsequently and a letter must have been written by her on August 2, 1954. In view of the concurrent findings of fact, I do not think it is necessary to consider the evidence over again. I acce_pt the concurrent findings that a letter dated August 2, 1954, with contents similar those in Ex. 4 was written by the respondent to her husband.

pp. 391–392

It is contended that the said letter was written at the instance of the father and on his dictation to furnish evidence in an action that might be brought by the appellant against the respondent. Let me first take the comment, viz., would a wife write a letter to her husband in consultation with her father? Ordinarily in the case of married couples it is true that a wife would not write letters to her husband after consulting her father. But the circumstances under which the respondent wrote letter were not ordinary ones. Here, there was trouble between the husband and wife. The husband, according to the respondent, gave his consent, though reluctantly, for her to leave with her father to the Far East, but soon there-after gave two cables asking her to return immediately. Naturally she would tell that fact to her father and seek his advice in the matter of replying to her husband. There is nothing wrong in her father helping her to send a suitable reply, so that the husband may not be offended. The second comment, namely, that this letter was intended to be a shield against a possible action by the appellant, is devoid of merits. At the time the letter was written the Act had not come into force and this letter could not have been an answer to a possible action the husband might take for restitution of conjugal rights. There was no particular urgency for her to create evidence on that date against a possible action under the Bombay Act, even if it applied to her. This letter demonstrates beyond any reasonable doubt that the wife did not desert her husband with the requsite animus, but, on the other hand, shows her willingness to go over to Bombay as soon as she regained her health. To this letter no reply was sent by the appellant and he says in his evidence that he did not receive the said letter. It is very difficult to believe his statement. He is obviously denying the receipt of this letter it establishes that she had not the animus to desert him. On February 24, 1955, he again gave a cable in the following terms :- "Since your secret departure you not replying my telegrams letters myself shocked you wandering different countries leading reckless life spoiling my reputation your most disgraceful behaviour ruining

pp. 392–393

mv life." This cable contains incorrect statements. Whether he received the letter dated August 2, 1954, or not, admittedly he had received the cable given by her. I have already held that he must have received the letter dated August 2, 1954. He imputes to her in this cable reckless life and disgraceful behaviour. Where did he get this information that she was leading a bad life? In his evidence he does not say that she was leading any disgraceful life. There is nothing on the record to show that the respondent was leading a bad life, and indeed the appellant admits that she was not even leading a fast one, she never danced, played cards or drank, at any rate, according to the appellant, from the year 1947. This cable must have irritated any respectable woman. Yet on February 26, 1955, she gave the following cable:-· "Your allegations in your cable dated twentifourth not correct cannot understand your attitude stop I have departed with your knowledge with my father because of falling health due to reasons you are well aware stop keeping quiet life with my parents stop have not received your letter only telegrams which have

p. 393

been replied by cable and letter." This reply is in subdued terms and it shows her respectable attitude towards the appellant inspite of his provocation. Therein she denies his wild accusations and restates that she went with her father with his consent and that she had replied to his cables by cables as well as by letter. On March 4, 1955, the appellant gave another cable to her charging her with fabricating false stories. On March 3, 1955, before the respondent received the above cable, she wrote a letter to the appellant giving a detailed reply to his cables. Therein she denied that she was leading any reck- 26-2 less life and •old him that she was either with her f~ther or uncle and also that she did not receive any letters from him. Then she proceeded to state :you know darling I being away from the people who despise me, I have improved my health considerably, I wish you could come and meet me her_e outside that suspicious atmosphere and you will know the real pleasure. I am very lonely without you and my son Ashok who is always with me in my sleep. I long to see both of you and therefore I beg to come out here .. Please do come and do not disappoint me. You know in your heart that I love you so much. This trip outside India will make you good and we shall have a very happy life. You are working so hard for your parents and never think of me and your health which as I know is deteriorating and I also know that you are not happy. Darling, I assure you that this change for few months will improve your health considerably. You need good rest to think on all your problems of daily life which you can do only along and outside the inl!uence of the people who are around you. I hope you will understand and at least come out here for a change-for a short period. I shall do what you want me to do, but please, darling, do come; Please give my Charanawandana to father and mother and

pp. 393–394

love to Ashok." This letter is criticized on the ground that it was another attempt to create evidence at the instance of her father and alsi> on the ground that she asked her husband to come away from his parents. To me 'this letter appears to be an honest attempt on the part of the wife to reconcile with her husband. It mentions his troubles and requests him to come over the East not for any permanent stay but only as a temporary sojourn to recoup his health and to enjoy a holiday along with her. As I have already stated, by that time the Act was not passed and therefore this letter could not have been written to set up any defence against any possible action by the husband. I find it very difficult to see any sinister motive in this wet! meant reply to her husband, and particularly after his cable attributing to her reckless life. After despatching this letter she received a cable dated March 4, 1955, wherein the appellant attributed to her the conduct of fabricating false stories. To that cable she sent a reply cable on March 10, 1955, denying the said allegation and telling him that somebody was wrecking their lives and asking him to come over to Hongkong. On April 2, 1955, the appellant wrote a long letter to the respondent in reply to her letter dated March 3, 1955. Therein he chastised her for making insinuations against his parents, who had done much for her welfare and happiness. Emphasizing upon the word "pleasure" in her letter dated March 3, 1955, he proceeded to state :- " 'Pleasure'! that, indeed, is the crux of the whole problem. It is your perverted funny notions of pleasure giving vent to your past and present associations, both in India and abroad, that are the root cause of

pp. 394–395

all your evil and irrational deeds." Pursuing the same idea, he observed :- "Just remember my efforts all these years to improve you and make you a happy and contented wife. It is a wonder that you find pleasure in leaving home, leaving your husband, wandering from country to conutry, leading reckless life under the guise of being in the company of your relations and uncles whom you find readily available at every port. And you have gone so far in this direction, that you find yourself unable to break your past links and get out of the muddle created by you and seek pleasure and happiness in your own home by being a faithful and devoted

p. 395

wife." He did not stop with that, but proceeded to state :- " .... you have proceeded to Hongkong and other places, in defiance of my clear instruction to return And, m order to cloak all these evil things you are now inventing dirty excuses, evidently meant for the consumption of the outside world whom you want to fool, so that you may be able to justify your disgraceful conduct and continue to live your life of "pleasure"

p. 395

without let or hindrance." What is more, he told her that in her letters she had · fabricated false and malicious stories to cover up her outrageous conduct for misleading the outside world. He finally ended with the following words expressing bis determination to ignore her further correspondence :- "However, if you still choose to fling further filth in my face by writing to me such letters and telegrams, I shall have no choice but to ignore and make no reply to the same. lnspite of all my efforts, you· have completely deserted me and chosen the path of pleasure and perversion at any cost. You are only looking for same cloak to cover your guilt and continue to live your life of degradation with impunity. I refuse to furnish you with that cloak and I

pp. 395–396

refuse to be drawn in your game." There is considerable argument on the import of this letter. On behalf of the appellant it is contented that the contents of this letter were nothing more than an emotional outbrust of a deserted husband and that the words used therein should not be understood literally. It is argued on behalf of the respondent that this letter did not mince matters in attributing infidelity and u·nchastity to the respondent and it communicated a final determination on his part not to have anything to do with her. The former argument was accepted by the City Civil Court, but the latter contention had the approval of the High Court. Shah, J., after reading the relevant portions of the document, came to the following conclusion :- Whatever may be the protestations made by the petitioner in his evidence before the Court, it is impossible to accede to the contention of Mr. Jethmalani that his letter · was merely the outpouring of an anguished heart. The letter in no unmistakable terms charges the opponent with infidelity not occasional but a persistent and chosen life of infidelity-and also charges with inventing a scheme whereby she may be able to live that life of infidelity under an appearance of being respectfuly married. If after this letter the opponent was unwilling to carry out the petitioner's direcions and to forthwith go and live with him, in our

p. 396

judgment, no fault can be found with her." Deasi, J., in his separate judgment wholly agreed with • Shah, J. The appellant is a graduate and it cannot be said that he does not know English. The terms of the letter indicate that his standard of English is rather high and he has sufficient vocabularly .at his command. It is not necessary to cover the ground overagain, as I entirely agree with the construction placed upon that letter by Shah and Deasi, JJ. The expressions "outrageous conduct" , "reckless life", "wild ventures", disgustful conduct", "life of pleasure'', "past links", "relations readily available at every port" and such others found in the letter leave no room to doubt that the said expressions were intended to impute an immoral and dissipated life to her. Whether he used those words really believeing that she was such a bad woman or whether he used the wild language because he was angry that she went with her father need not be speculated upon. What matters is that he designedly couched his letter without leaving any room for doubt in clear and precise phraseology and told her that she was a bad woman and, therefore, he had nothing more to do with her. To such an outrageous letter, how did the respondent react? She must have been extremely offended as any self-respecting woman would be. But she controlled herself and replied to him by letter dated April 12, 1955 in a subdued and dignified manner. After repeating that the appellant and his parents gave her consent to leave with her father, she again repeated that she left with her father to improve her health. She told him that her health improved a little and that she would return to him and to her son after sometime. Adverting to his fulminations in his letter she said :

pp. 396–397

"I find it unnecessary to reply to the other unfounded accusations contained in your letter because I know and I am sure that the basis of the same are your hallucinations, of what I am not. I deny your charges all over again and you know that they are not true. I believe that the best way is to ignore them

p. 397

since they are not based on truth." She ended her letter thus :

p. 397

"Please do not indulge in misgivings. As soon as my health has completely improved, I shall of course, come

p. 397

back home to you and to our son .... This letter shows that she was very much offended and she was also sorry. She told him in mild words that all his accusations were false and requested him not to indulge in such things. She promised to come as soon as her health improved. Here the arguments advanced by learned counsel for the appell~nt may be noticed.

p. 397

Firstly, tl1e usual argument, namely, tliat tliis letter was written to the dictation of her fatlier as a shield against a possible action by tlie appellant, is repeated ; and secondly, this letter indicates that tlie false accusations made by her husband did not so operate on her mind as to induce her to give up her idea of coming back to him. The first argument calls for the same answer, which I have given in the context of other correspondence. There is nothing wrong in the respondent consulting her father, who any day was more affectionate to her than the appellant could possibly have been. There is no point in the second contention. This letter clearly shows that she was highly offended by the false accusations ; but she replied in a dignified manner asking him neitlier to make nor to believe such accusations. She should be unusual woman if she was not offended by this letter. This reply reflects more her self-control than her indifference or insensitiveness. 'J'.his letter, read along witli tlie letter written by the appellant on April 2, 1955, demonstrates that she was always ready and willing to come back to him inspite of his accusations. Some comment is made on the basis of the answers she gave in her evidence in regard to tlie manner she got the contents explained to her. Those answers were given in the stress of cross-examination. Those could not possibly detract from the admitted facts that she received the said letter and gave her reply. The letter and her answers speak for themselves. The ingenuity of the cross-examining counsel could not add to or detract from either. So far as the letters go, they proved beyond reasonable doubt that however inadvisable it may be for the respondent to go to the Far East with her fatlier, she had not the least intention of leaving her husband permanently. She was always ready and willing to go back to her husband.

p. 398

On April 8, 1956, the respondent returned to India. The appellant's complaint is that she did not inform him that she was coming and that she did not come to his . house. · The contention on behalf of the respondent is tliat after she received the letter dated April 2, 1955, she was highly offended and that, tlierefore, she expected some step on the part of her husband to meet her or send .1omebody to take her to his home. In her evidence she says th:1t after she arrived in India, her father spoke to two or three persons for rapproachment and one of them was Kishinchand of Messers. J. Kimat:rai and Kundanmal and that her father told her that Kishinchand had a talk with the appellant, but the latter refused to take her back. She adds that after her return no efforts were made either by her husband or on his behalf or by his parents to call her back to his house and she thought that somebody would be sent by her husband to fetch her from Poona to Bombay according to the custom. The appellant admits in his evidence that sometime in the month of May or June 1955 he came to know that the ;espondent had returned to India. Assuming that he was speaking the trnth, it is clear from the evidence that he knew of her return about a month after she returned, but presumably he was standing on his rights and prestige and did not move in the matter. It is suggested to her that instead of going to her husband's house, in April 1956 she went to Kashmir for a holiday. She admits that she went, but explains that her father's brother's children had holidays and as they proceeded to Kashmir, she also accompanied them. I do not see any bearing of this Kashmir trip on the question of desertion. If she was waiting for an invitation to go to her husband's place there is nothing wrong in her accompanying the children to Kashmir. The respondent's father says that about 2 months after their arrjval in India, he waited for an invitation from the appellant, but as he did not move in the matter, he met one or two freinds of his to bring about a rapproachment between the couple. but they could not do anything in the matter. There is nothing unnatural in the father making the said attempts to bring about reconciliation between the couple. There is no reason to reject his evidence in this regard. I shall assume that no mediators were sent by the respondent's father to bring about a rapproachment between the couple. Even so, after the letter dated April 2, 1955 the husband, who knew that the respondent had come to India, should have taken some steps directly or indirectly to induce her to come to his house. If he stood on his prestige, the respondent could not be blamed, if after the rebuffs she received and the adament attitude of the appellant communicated to her in the said letter, she did not take the first step.

pp. 398–400

In this context another circumstance may also be noticed. The respondent and also her father say that in November· 1955, a sister of the appellant was married but no invitation was sent to the respondent. The respondent says that this fact also made her to apprehend that she would not be received if she straightway went to the appellant's house. In the circumstances if she did not directly on landing in India go to her husband's house but waited for an invitation from him, I cannot say that her attitude was either unreasonable or that it should be attributed to her final determination to desert her husband. On this aspect of the case, Shah, J., observed in his judgment :

p. 400

"The conduct of the opponent in not meeting her son after she returned to India may appear to be unnatural, but, if after receiving a highly offensive letter from the petitioner, she did not take an initiative to return to the matrimonial home and waited for some invitation from, or from some amends on the part of, the petitioner, that conduct may not be regarded as improbable or justifying an inference that she was seeking to continue the state of desertion which had

p. 400

previously started." I am in entire agreement with these observations. ·

p. 400

On the other hand the conduct of the appellant is telltale and reflects his determination to discard her. According to him he came to know that the respondent came to India in April or May 1956, but a few days thereafter instead of inviting her to come, he went to a lawyer for comultation and thereafter filed the petition for judicial separation in September 1956. It is manifest that he was waiting; for the statutory time to run out and soon thereafter he rushed to the Court. The respondent, who obviously did not know the passing of the Act, fell into his trap.

p. 400

Pausing here, let me summarize the facts. The respondent belongs to a fairly rich family. She must have been brought up in comfort and with love and affection. She was not highly educated ; she has read, we are told, upto sixth standard. She was married to the appellant, who belongs to a well-t~o family. The appellant is an M.B.B.S. and has been carrying on the profession of a doctor in Bombay .. After . the marriage, the . respondent came to live in the joint family house of the appellant in 1947. There were misunderstanding between the parents of the respondent and the appellant and the latter's sisters. The respondent was ill-treated, insulted and was not even allowed to look after her only child. The husband, for one reason or other, either because of his respect for his parents or because of his weakness or because of both, though at the beginning he was affectionate to his wife, was not able to stand up for her and later on he fell in line with his parents and sisters and began to ill-treat her. Though in the earlier years she was allowed to go to her parents' house now and then, later on the appellant and his parents refused her perm1ss10n to go to her parents' house or allowed her to do so once in a while with great reluctance, when her father, on one of his infrequent visits, was in India. She was not even permitted to go when her uncle died. The appellant also contemplated a second marriage, but, for one reason or other, it did not come off. By the year 1954 she was in a nervous strain and necessarily that must have affected her health. Her father, who came to India at the end of 1953, heard her complaints and saw her physical and mental condition. He did what a loving father should do in the circumstances. Giving up the ideas of false prestige, he approached the parents of the appellant directly and through a friend and persuaded them to permit the respondent to go to his house and thereafter to the Far East with him for a short stay to recoup her health. The respondent also took the permission of her husband. After some time, the husband-I am assuming that his version of the visit along with Dr. Lulla, to Poona was true-changed his mind and asked her to come back, but she refused to come back. From her standpoint she obviously did not like her husband going back on his word and disturbing her planned holiday, to which she was looking forward. From the standpoint of the husband, he was angry because as a Hindu husband he expected his wife to obey him whether his demand was reasonable or not. The wife, perhaps, did not tell him the day when she would be leaving with her father to the Far East. She must have been afraid that he would prevent her somehow from going abroad. That explains her conduct in not seeing him or his parents at Bombay before she boarded the ship. The subsequent correspondence shows that the appellant was telling her from his commanding position that she should give up her holiday and come back to him immediately and she, on her part, was persuading him in a subdued tone to permit her to stay for a few months and promising to come back thereafter. The letter dated April 2, 1955, was an unexpected and unmerited blow to her. Therein she was charged with unchastity and leading a fast and reckless life. Even a Hindu wife would be enraged and insulted by such dastardly conduct on the part of her husband. Even so she sent a reply couched in a dignified and controlled language denying his allegations and stating that she would return in a few months. She was not even invited by the appellant when his sister was married in November 1955. She therefore, came back to India only in April 1956. In view of the serious allegations made by the appellant in his letter dated April 2, 1954, and in view of his determined attitude disclosed therein, she naturally and properly expected that the husband would invite her or send somebody to take her back to his home. Instead of doing so, though he knew that the respondent had come to India, he did not make any attempt to invite her or send a relation to· bring her to his home as he used to do on previous occasions when she went to her father's house. By that time as the Act came into force, he found his opportunity for which he was waiting and took advantage of the situation. As the statutory period of two years had expired from the date she left India, he rushed to the Court. On these facts, I have no doubt that the appellant failed to establish that the respondent deserted him without any reasonable cause.

pp. 400–402

Even if she deserted him within the meaning of s. 10 of the Act, I would hold that by writing the letter dated April 2, 1955, she ceased to be in desertion from that date. A fair reading of that letter, read in the context of her offer to return within a few months, shows beyond any doubt that he closed the door for her return long before the statutory period had expired. When the respondent wrote to the appellant telling him that she would come in a few months, he wrote to her saying that she was leading an immoral life and that he would no longer be "drawn into her game." Even after that letter, she wrote back denying his charges and promising to come as soon as her health improved. I have no doubt that, at any rate from April 2, 1955, the desertion, if any, on the part of the respondent, came to an end and from that date the appellant was guilty of desertion.

pp. 402–403

For the aforesaid reasons, I agree with the conclusion arrived at by the High Court. The appeal deserves to be dismissed and I accordingly dismiss it with costs .

p. 403

ORDER OF COURT

p. 403

In accordance with the majority opinion, the appeal is allowed with costs here and in the High Court.

p. 403

STATE BANK OF BIKANER

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v.

p. 403

BALAI GRANDER SEN (P. B. K. N. K. C. DAs

p. 403

JJ.)

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lndustn"al Dispute-Application for approval moved before discharge-Validity of the application-Industrial Disputes Act (14 of 1947), 33(2)(b.)

p. 403

The respondent while working assistant cashier of the appellant-bank, received Rs. 4,100/- but denied having received that amount and stated that he was paid only Rs. 4,000/-. He was suspended and charge-sheeted for giving false statements to the manager. An enquiry was held. The enquiry officer found that the charges framed against the respondent had been proved and he recommended that he should be discharged from service of the bank. The bank agreed to discharge him. Before passing the actual

p. 403