1. The appellant is the husband. The appellant filed a petition under Section 13(ia) and (ib) of the Hindu Marriage Act, 1955 (for short, the 'Act'), before the Court of the II Additional Family Court Judge, Bangalore City (for short, the 'Family Court'), for a decree of divorce. The said petition was dismissed by the judgment and order dated 27th November, 1999 by the Family Court. Hence, this appeal by the husband under Section 19(1) of the Family Courts Act, 1984.
2. The facts stated by the appellant in his petition under Section 13(l)(ia) and (ib) of the Act, to put it briefly, are as follows:
The appellant married the respondent on 5-3-1989 in Bangalore according to Hindu custom and rites and, after the marriage, they lived in Bangalore and out of the wedlock, a child was born on 13-4-1990. At the time of marriage, the parents of the respondent were residing in Bangalore. Four to five months after marriage, the respondent started going to the parents' house two to three days in a week. At the time of marriage, the respondent was a student of II year Medical Laboratory Technician Course in B.E.S. College, Jayanagar, Bangalore. Appellant bore all expenses of her education and she passed the said Course in the year 1990. Thereafterwards, the respondent started ill-treating the appellant and treated him like a beast. The respondent abused the appellant in most vulgar language. Despite this, in order to sustain the family, the appellant tolerated misconduct of the respondent. After the birth of the child at the parents' house of the respondent, the respondent stayed in parental house for about 11 months and she did not return to the house of the appellant despite repeated advice and request of the appellant and elders of the family. After a long lapse of 11 months, the respondent joined the appellant and before doing so, without his knowledge and consent, she joined the service of Yellamma Dasappa Hospital as Laboratory Technician, After joining the appellant, the respondent expressed her desire to establish a laboratory of her own and requested the appellant's father to provide a room in their house for that purpose. The respondent applied to KSFC for loan of Rs. 46,000/- and for that loan, the appellant stood as surety as requested by the respondent. After securing the loan, on 19-4-1991, the respondent opened the Lab in the name and style 'NETHRA DIAGNOSTIC LABORATORY'. After establishing the Lab, the respondent persuaded the appellant's father to give the ground floor to establish a Nursing Home of their own and that request was acceded to by the appellant's father. After a while, the respondent shifted the Lab to a different place on 11-3-1992. Even prior to that event, during the month of October 1991 itself the respondent left the matrimonial house deserting the appellant and started living with her parents along with the child without consent of the appellant. In addition, the respondent deliberately insulted and humiliated him by abusing whenever they happened to meet, quite often in the presence of others. When the matter stood thus, on 1-1-1992 the appellant got issued a legal notice to the respondent calling upon her to join him with the child. On receipt of the said notice, the respondent approached the appellant and insisted that he should set up a separate house and then only she would join him. In the circumstance, the appellant took a separate accommodation on rental basis and the respondent joined him on 15-4-1992 and stayed with the appellant only for about one and half month. During that short period also, the respondent used to leave the house of the appellant quite often without informing him. It is also the allegation of the appellant that the respondent took back the advance amount given to the owner of the house without his notice and went away with all her belongings to her parents' house on 15-6-1992 and, when the appellant contracted her and requested her to come back to matrimonial house, she did not turn up.
3. On 20-8-1992, the respondent sent reply to the notice dated 1-1-1992 got issued by the appellant making false allegations against the respondent. On 22-8-1992 the respondent lodged a complaint with the Commissioner of Police, Chief Minister, Home Minister, Ladies Police Cell, Tilaknagar Police Station and Koramangala Police Station, making false allegation of dowry harassment. The local police, having been satisfied that the allegations made by the respondent are false, advised the respondent to join the appellant, but she refused. On 25-8-1992 the respondent addressed a letter to the President of the Employees' Union, SKF Bearings India Limited, making similar allegations against the appellant. Again, on 9-7-1993, the respondent lodged a complaint with the Koramangala Police making allegations of dowry harassment against the appellant. As if that is not enough, the respondent went on writing letters to the superiors of the appellant in the department making unfounded and false allegations. Being convinced that there was no point in continuing his relationship with the respondent and it was practically impossible to lead a life of husband and wife with the respondent in view of the repeated acts of mental torture meted out to him, the appellant filed a petition under Section 13(l)(ia) and (ib) of the Act seeking divorce.
4. The petition was opposed by the respondent-wife by filing statement of objections in which, the respondent, except admitting the factum of marriage and birth of a child from out of the wedlock, denied all other material allegations relating to ill-treatment and desertion as imaginary, false and fabricated. On the other hand, it was contended that the appellant and the respondent were related to each other even before marriage and both the families were well-connected to each other and, therefore, the respondent tried her best to adjust with the matrimonial life despite unfair and cruel treatment meted out to her in the matrimonial house. It is alleged that the appellant was under the clutches of his grandmother Smt. Lakshmamma and mother Smt. Gowramma, and, at their instance and instigation, he completely neglected the respondent. Even when she delivered the child, neither the appellant nor any member of his family came to see her and the child and only after nine months after delivery, the appellant came to her parents' place and took her and the child. After return to the matrimonial house, she was again subjected to same kind of cruel treatment at the instigation of Gowramma and Lakshmamma. The respondent also claimed that she joined the service of Yellamma Dasappa Hospital with full knowledge of the appellant and the appellant himself took her for interview at the hospital and she joined service of the hospital at his instance and advice that their income would be augmented so that they could earn required money to set up their own Laboratory. However, the Lab went in losses and she requested the appellant to pay maintenance, but the latter refused. It was also alleged that since the appellant demanded dowry, she had to file complaint with the police. The respondent also alleged that the appellant is having illicit affair with another woman, Rekha, by name and because of that illegitimate relationship, he neglected her. In conclusion, the respondent asserted that the appellant himself is guilty of deserting her and inflicting mental cruelty on her.
5. In the premise of the above pleadings of the parties, the learned Family Judge framed the following issues for decision making:
(i) Whether the petitioner proves that the respondent treated him with cruelty?
(ii) Whether the petitioner proves that the respondent has deserted him for a continuous period of two years or more immediately preceding the presentation of the petition?
The appellant, in support of his case, has examined himself as P.W. 1 and examined two more witnesses as P.Ws. 2 and 3 and produced 13 documents marked as Exhibits P. 1 to P. 13. On behalf of the respondent, the respondent herself examined as R.W. 1 and produced two documents marked as Exhibits R. 1 and R. 2.
6. The learned Family Judge, on consideration of oral and documentary evidence, has held that the appellant-husband has not substantiated the allegation of cruelty and desertion by adducing substantive legal evidence and, consequently, dismissed the petition by the impugned judgment and order.
7. We have heard Sri G. Varadaraja Thirumale, learned Counsel for the appellant and Sri A. Shivarama, learned Counsel for the respondent. Sri Varadaraja Thirumale would contend that the findings recorded by the Family Court on issues relating to desertion and cruelty are vitiated because of the fact that the learned Family Judge has not at all considered the documentary evidence adduced by the appellant. Sri Varadaraj would also contend that the witnesses examined on behalf of the appellant are not cross-examined and, therefore, the Family Court is not justified in not giving due weight to their testimony. Sri Varadaraj would further contend that the oral testimony of the respondent is full of contradictions and discrepancies and the learned Family Judge has not taken into account those discrepancies and contradictions in the decision making.
8. Sri A. Shivarama, learned Counsel for the respondent, on the other hand, would support the impugned judgment and submit that the findings recorded by the learned Family Judge on the issues relating to cruelty and desertion are well-founded and they are based on substantive legal evidence and therefore, no exception can be taken to the impugned judgment. In brief, Sri Shivarama would submit that the appellant has utterly failed to make out any ground warranting interference by this Court.
9. Having heard the learned Counsels for the parties, the question that arises for our decision is whether the findings recorded by the Family Court on question Nos. (i) and (ii) are perverse or whether they are justified and legal.
10. Section 13 of the Act provides several grounds for obtaining divorce presented by either party to the marriage whether solemnized before or after the commencement of the Act. The appellant-petitioner has filed the petition under Section 13(l)(ia) and (ib) of the Act and sought divorce on grounds of cruelty and desertion. Clauses (ia) and (ib) were added to Sub-section (1) by Amendment Act 68 of 1976 wherein cruelty and desertion are made grounds for obtaining divorce. The original Explanation in Section 10 of the Act was adopted verbatim as an Explanation to Sub-section (1) to explain what 'desertion' means. Prior to the Amendment Act 68 of 1976, the grounds mentioned in clauses (ia) and (ib) were previously grounds only for judicial separation under Section 10. With a slight difference in wording, they are now incorporated as grounds of divorce.
11. Although cruelty and desertion are made separate grounds for seeking divorce, sometimes it may so happen that the same conduct of the respondent against whom divorce is sought can constitute compulsive conduct founding a charge of constructive desertion and could also be an element of conduct founding a charge of cruelty. It may at times be impossible to draw the line between the two because very often the facts are mixed so that it is impossible to extricate one from the other. This may have bearing on cases of constructive desertion and cruelty of which it may well be said that the same facts also amount to cruelty. It is common place that constructive desertion and cruelty may often in substance be the same thing, proved by the same evidence. Although that is the position, a charge of cruelty and a charge of desertion must be distinctly pleaded and proved as such. It is stated that the Court, even if it is satisfied on a charge of desertion that the evidence is sufficient to establish, cruelty, must insist on the pleading being put in order and should raise the necessary issue before granting relief.
12. The appellant in support of his pleas of cruelty and desertion examined himself as P.W. 1, examined Sri Srinivas who is his father as P.W. 2 and Smt. Lakshmamma who is the grandmother of the appellant as P.W. 3 and produced 25 documents marked as Exs. P. 1 to P. 25, whereas the respondent-examined herself as R.W. 1 and produced two documents market as Exs. Rule 1 and Rule 2 in support of her case.
13. As regards charge of cruelty, the appellant alleged that the respondent treated him with cruelty whereas the respondent alleged that the appellant had treated her with cruelty and he deserted her. The question for our consideration is whose version is correct. Since the appellant has sought for divorce on the grounds of cruelty and desertion, the burden of proof is on him to substantiate the pleas of cruelty and desertion against the respondent. What constitutes 'cruelty' and what is the degree of 'cruelty' necessary to constitute a matrimonial offence has not been defined by any statute relating to marriage and divorce. It is obviously because the danger of any attempt on giving a comprehensive definition that may cover all cases has been emphasised in a number of decisions by the Courts of this Country as well as English Courts.
14. In Dr. N.G. Dastane v. Mrs. S. Dastane, : [1975]3SCR967 ., the Supreme Court having critically examined the matrimonial ground of cruelty as it was stated in the old Section 10(l)(b), observed that the inquiry in any case covered by that provision has to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for the petitioner to live with the respondent. The Supreme Court also pointed out that it was not necessary, as under the English law that the cruelty must be of such a character as to cause danger to life, limb or health, or as to give rise to a reasonable apprehension of such a danger though, of course, harm or injury to health, reputation, the working character or the like would be an important consideration in determining whether the conduct of the respondent amounts to cruelty or not. What is required was that the petitioner must prove that the respondent has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the respondent.
15. Lord Merriman in Simpson v. Simpson,. (1951) 1 All ER 955, cited the following observations of Evershed MR with approval:
'It has so often been said that it is obvious - yet it is worth repeating - that all cases that come before this Court must be determined on their own particular facts, and I should imagine that in no class of cases is that trite observation truer than in matrimonial cases. The circumstances vary infinitely from case to case. The fact is, I think, another reason for a sense of danger in trying to formulate principles of law out of particular circumstances in particular cases, and then treating those principles of law as being, so to speak, explanations or riders to the actual statutory language'.
16. Under clause (ia) of Section 13(1) of the Act, 'cruelty' is a ground for divorce. Cruelty contemplated under clause (ia) is a conduct of such type that the petitioner cannot reasonably be expected to live with the respondent. The Court has no interpret and analyze and define what would constitute cruelty in a given case, depending upon many factors such as environment, education, social status, family background, local customs, traditions, caste and community, upbringing of the parties, physical and mental conditions of the parties, public opinion prevailing in the locality and also subsequent events. Cruelty should be of the type which will satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent that it has become impossible for them to live together without matrimonial agony, torture or distress. It need not be of such a character as to cause danger to life, limb and health. Cruelty implies and means harsh conduct of such intensity and persistence which would make it impossible for the spouse to operate the marriage. In case where the conduct complained of is itself bad enough and per se unlawful and illegal, the Court should not enquire as to its effect on the other spouse. Cruelty in Matrimonial Law may be subtle or brutal, physical or mental, that it may be bad word, gesture or by mere silence, violent or non-violent. Individual instances of cruelty need not be considered separately in order to decide whether one is guilty of inflicting cruelty or not. It is said: 'Small twigs of abnormal behaviour when piled, one upon another, may become a heavy burden of cruelty'. This mental torture was heavier than any physical torture. It is well-settled law that if the cruel behaviour of one spouse is of such a nature as to give rise to a reasonable apprehension in the mind of the other spouse, that it will be harmful or injurious on the other to live with the first spouse, it amounts to legal cruelty. The apprehension contemplated by the legal conception of cruelty is that further cohabitation will be harmful or injurious and not that the same or similar acts of cruelty will be repeated. The Supreme Court in Shobha Rani v. Madhukar Reddi, : [1988]1SCR1010 held that the impact or the injurious effect on the other spouse on account of the alleged cruelty need not be enquired into or considered and that the cruelty will be established if the conduct itself is proved or admitted. What is cruel treatment must to a large extent be a question of fact or a mixed question of law and fact and no dogmatic answer can be expected to the variety of problems that must continue to arise before the Court. The law has no standard by which to measure the nature and degree of cruel treatment that may satisfy the test. It is said that physique, temperament, standard of living and culture of the spouses and the interaction between them in their daily life and all other relevant circumstances must have a bearing on the question whether the acts or conduct complained of amount to the matrimonial offences which entitles a spouse to relief under clause (ia) of Sub-section (1) of Section 13 of the Act.
17. The language of clause (ia), now it is well-settled, is comprehensive enough to include cases of physical as well as mental cruelty. A large volume of case-law had grown around the significance of what is sometimes termed 'legal cruelty' (Babu Ram v. Kanta Devi, ). In the treatise Principles of Hindu Law by Mulla (first reprint of 17th Edition) Volume-II, the case-law particularly keeping in mind that of the Apex Court on the point, it is summarized thus:
'Cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence. The question whether the respondent treated the petitioner with cruelty is a single question only to be answered after all the facts have been taken into account. Without quoting the specific opinions on which this principle was stated by at least two of the Lords who decided the case of Jamieson v. Jamieson, 1952 AC 525 in the House of Lords, this principle may now be said to be well-established. It may be taken as equally well-established that it is a wrong approach to put the various acts or conduct alleged into a series of separate compartments and say of each of them that by themselves they cannot pass the test of cruelty and, therefore, that the totality cannot pass that test.
It is undesirable, if not impossible to create categories of acts or conduct as having or lacking the nature or quality which render them capable or incapable in all circumstances amounting to mental cruelty. Nor is it necessary to compare acts as being gross and not gross. There may be cases where the acts complained of are in themselves so trivial that the Court would be justified in not attaching any importance to them. On the other hand, acts not serious in themselves may be symptomatic of the pass to which the marriage had come and of the state of mind of the parties. Since cruelty is to be inferred from the whole relations between the husband and wife it would not be proper approach 'to take up each alleged incident one by one and hold that it is trivial or that it is not hurtful or cruel and then to say that cumulatively they do not amount to anything grave, weighty or serious. The relationship of marriage in the present context is not to be taken as just the sum of a number of incidents'.
In general, cruelty is in its character a cumulative charge. It is not necessary that the acts complained of must be of a certain character. The conduct may consist of a number of acts each of which is serious in itself, but it may well be even more effective if it consists of a long continued series of minor acts no one of which could be regarded as serious if taken in isolation. Every such act must be judged in relation to its attendant circumstances, and the physical or mental condition or susceptibilities of the innocent spouse and the offender's knowledge of the actual or probable effect of his conduct on the other. The age, environments, standard of culture and status in life of the parties are also matters which may be decisive in determining on which side of the line a particular act or course of conduct lies. The acts and incidents complained of as also the conduct of the parties must be taken together to form a composite picture from which alone it can be ascertained whether the acts of one spouse on another should, judged in relation to all the surrounding circumstances, be found to amount to cruelty.
The existence of cruelty depends not merely on the magnitude, but at times also on the consequence of the offence, actual or apprehended.
Mental ill-treatment may be coupled with physical ill-treatment together to found a charge of cruel treatment. Since mental and physical ill-treatment can, though they are not ejusdem generis, be taken together, it must follow that different forms of ill-treatment may be taken together to found a charge of treatment which amounts to cruelty.
The primary question in these cases is not a question of whether the conduct complained of would be cruel to a reasonable person. The Court has to deal not with an ideal husband or ideal wife but with 'this man and this woman'. Nor is the Court concerned with the reasonable person. The Court will not start with any a priori assumptions that the parties are reasonable people'.
18. Before granting relief on ground of cruelty and/or desertion, the Court must be satisfied that the grounds are established by the petitioner by adducing substantive legal evidence to the satisfaction of the Court. The respondent, on the other hand, bears the burden of establishing affirmative defences set up by her or him in reply.
19. Section 23 of the Act circumscribes the power of the Court in the matter of granting reliefs under the Act. They are of considerable importance and consequence. Sub-section (1) of Section 23 lays down that a decree for restitution of conjugal rights, judicial separation, declaration of nullity of marriage, annulment of voidable marriage, or divorce can be granted only when any ground for granting relief asked for is established to the satisfaction of the Court. It is a firmly-established rule that the ground for relief in a matrimonial cause should be strictly proved. The standard of proof in case of all proceedings under the Act is that the Court must be satisfied on a preponderance of probability that the ground for relief is proved and normally the Court requires that the evidence of a spouse who charges the other spouse with a matrimonial offence should be corroborated. While the analogies and precedents of criminal law should have no authority in matrimonial causes the Court would ordinarily, be justified in requiring, not as a matter of law but as a rule of prudence, that where possible corroborative evidence should be led in order to satisfy the Court that the allegations made are well-founded. Section 23 requires that before decreeing any relief in any proceeding under the Act the Court must be satisfied that the ground for relief exists, meaning thereby that it is established, and that to the granting of such relief there is no bar of any kind mentioned in the said section. Although the Supreme Court in Bipinchandra Jaisinghbai Shah v. Prabhavati, : [1956]1SCR838 , was pleased to observe that it was well-settled that in proceedings for divorce the petitioner must prove the alleged offence beyond all reasonable doubt, that position stands altered by the judgment of the Supreme Court in Dastane's case, supra, wherein it was held that proceedings under the Act being essentially of a civil nature, the word 'satisfied' in Section 23 of the Act must means ''satisfied on preponderance of probabilities' and not 'satisfied beyond a reasonable doubt'. In other words, satisfaction of the Court must be based on legal evidence.
20. In the premise of the case-law noticed above, let us critically examine the evidence on record, particularly the evidence adduced by the appellant-petitioner and see whether he has established grounds of cruelty and desertion to the satisfaction of the Court so that the Court would be justified in granting a decree of divorce.
21. According to Sri Varadaraj, instances of cruelty levelled against the respondent are satisfactorily proved by legal evidence. We do not agree with learned Counsel. At the threshold, it needs to be noticed and highlighted that the evidence of P.W. 1 goes beyond his pleadings. In other words, there was a deliberate attempt on the part of the appellant to improve the case set out by him in the petition. In the petition, the appellant having said that after the marriage, he and the respondent lived in a rented house in Jayanagar 9th Block, Bangalore, while referring to the conduct of the respondent, states thus:
'Petitioner submits that after the marriage, the respondent started ill-treating the petitioner and treated the petitioner like an animal and every act of the petitioner was condemned and used to get blame in a most vulgar words which reach upto his birth to his parents. All the acts of the respondent were tolerated with the pond hope that the respondent may herself realise and their matrimonial home will be good after some time. Rather than reducing the atrocities on the petitioner, it has gone to worst stage'.
The above allegation is as vague as it could be. Except the above allegation, the appellant has not stated that the respondent was not talking to the family members; she used to sit in the room alone and weep all the time; she was not co-operating for sexual intercourse; she told the appellant that she married him due to the pressure and the force exercised by her parents; she was not eating properly and when the food was supplied to her she used to throw away the tali; she used to spill the milk given to her for drinking; she was mentally ill and depressed and she was treated by a psychiatrist; she told him that she was not interested to cohabitate with him and she was staying with him only for the reason that her brothers and sisters are yet to be married; that when the appellant was at home she used to lock the house from outside and go away without informing him; she was objecting to the appellant visiting of his parents; she was not allowing him to take the child to his parents; she was objecting even to touch her; she told him that if the appellant gives Rs. 2,00,000/- she would agree for divorce. All these statements made by the appellant who was examined as P.W. 1 in the course of deposition are undeniably improvements over the pleadings. This aspect is pointedly highlighted by the Family Court in its judgment.
22. The second act of cruelty attributed to the respondent relates to the respondent beating him with chappals. P.W. 1 in his evidence has stated that the respondent used to leave the matrimonial house quite often and return at 9.00 or 9.30 p.m. in the night, and when he questioned her one day as to why she failed to perform her obligations to the matrimonial home, she was enraged and picked up quarrel and told him that she was not willing to cohabitate with him and so saying she slapped on his face, tore his clothes, threw chappals at him and left the matrimonial home with the child. The above version of P.W. 1 is an instance of improvement. Not a word is said in the petition about the above episode. Therefore, the evidence of P.W. 1 and P.W. 2 with regard to treatment meted out to the appellant by the respondent cannot be believed. It is well-settled that no amount of evidence in the absence of plea can be taken into account to decide an issue arising out of such plea.
23. The other version of the appellant that the respondent was not mentally well and she took treatment from a psychiatrist does not find a base in the pleading. The above fact is not spoken to by the appellant even in the notice issued by him through his Advocate and the farther notice to follow. Mental illness was spoken to by the appellant only in his evidence for the first time. The other instance of cruelty attributed to the respondent by the appellant is when he went to work, the respondent without his permission collected advance of Rs. 6,500/-deposited with the landlady and left the matrimonial home with all her jewels and belongings. Of course, as regards this allegation, in the petition it is stated that the respondent 'under the pretext of seeing for a new house, she obtained back the advance amount from the landlady, took all the jewels, clothes and utensils and went to her parents house' and she did not return to matrimonial home despite repeated requests. In his evidence P.W. 1 has stated that the respondent has collected the advance amount of Rs. 6,500/- from the landlady and she has passed a voucher for receiving the amount. The appellant in his examination-in-chief has stated that he paid advance of Rs. 8,000/- and Ex. P. 1 is the receipt for having deposited Rs. 8,000/- with the landlady. If the evidence of the appellant is considered in the light of Ex. P. 1, it shows that the version of the appellant is false. P.W. 1 as per Ex. P. 1 appellant, paid the advance of Rs. 8,000/-. Therefore in the absence of authority given by the appellant to the respondent, in normal course, the landlady would not have returned advance money, that too, without consulting and consent of the appellant. Therefore, the version of the appellant in that regard is highly unnatural and does not inspire confidence. The appellant further has deposed that the respondent has received Rs. 6,500/- This version is also not probable because admittedly sum of Rs. 8,000/- was deposited with the landlady and if the landlady were to return the deposited money at the request of the respondent, she would have returned Rs. 8,000/- and not Rs. 6,500/-. Further, there is discrepancy in the plea and evidence with regard to the respondent taking back the advance money deposited with the landlady. As per evidence of the appellant the respondent took back the deposited money with the intention to leave the house and to go over to her parents house whereas in the pleading it is stated that she took back advance money from the landlady by stating that she wanted that for finding alternative house. In conclusion, we hold that the appellant-petitioner has utterly failed to plead and prove any instance of cruelty on the basis of which the Court could possibly grant a decree of divorce.
24. This takes us to the question whether the appellant is entitled to a decree of divorce on the ground of desertion. The expression 'desertion' in the context of matrimonial law represents a legal conception and is very difficult to define. The essence of desertion is the forsaking and abandonment of one spouse by the other without reasonable cause and without the consent or against the wish of the other. It has been said repeatedly by the Courts that no Judge has ever attempted to give a comprehensive definition of desertion, and that probably no Judge would ever succeed in doing so, but among the descriptions of desertion one which has always appealed to Courts trying matrimonial causes is that 'desertion' is 'a withdrawal not from a place, but from a state of things'. The essential ingredients of this offence in order that it may furnish a ground for relief are: (i) the factum of separation; (ii) the intention to bring cohabitation permanently to an end-animus deserendi. The element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period. The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition. This clause has to be read with the Explanation.
25. The statutory requirements as to time during which the 'state of things' should continue is fixed at a continuous period of not less than two years immediately preceding the presentation of the petition. Thus the quality of permanence is one of the essential elements, which differentiates desertion from wilful or voluntary separation. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation; and (2) the intrusion to bring cohabitation permanently to an end, i.e., animus deserendi. Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent; and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period.
26. In Bipinchandra's case, supra, the Supreme Court quoted the following paragraphs from the Halsbury's Laws of England, 3rd Edition, Volume 12, paras 453 and 454 with approval:
'In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle to all cases.
Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, 'the home'. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated.
The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.
The offence of desertion is a course of conduct which exist independently of its duration, but as a ground for. . . it must exist for a period of at least. . . years immediately preceding the presentation of the petition or, where the offence appears as a cross-charge of the answer. Desertion. . . differs from the statutory grounds on adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence'.
In the same case the Supreme Court pointed out that desertion is a matter of inference to be drawn from the facts and circumstance of each case. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. It is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time. The law has prescribed a period of desertion as a continuous period during which the two elements must subsist.
27. In view of the above requirement of law, it is incumbent on the petitioner to prove that the desertion without reasonable cause subsisted throughout the statutory period. The Court, before granting relief of divorce on the ground of desertion, must be satisfied that the matrimonial offence complained of is established. Therefore, the question for our considerations is whether appellant has established the ground of desertion by adducing legally permissible evidence.
28. In the premise of the norms and principles noticed above let us have a look at the facts of this case. Admittedly, the appellant and the respondent lived together as husband and wife at least till the end of October 1992 though during two spells anterior to October 1992 they were not staying together. It is the case of the respondent that when the appellant took a separate residence at Jayanagar 9th Block and started living, he stopped coming to the house regularly and started demanding dowry. It is also the case of the respondent that the appellant was having illicit relationship with one Rekha and he was living with the said Rekha and that was the reason for him to drive her out of the matrimonial home. In this regard it is relevant to notice that the appellant has specifically admitted about his relationship with said Rekha. Exs. Rule 1 and Rule 2 show the pictures of the appellant with Rekha and a child. According to the respondent the child in the picture is born from out of the cohabitation of the appellant with said Rekha. In the cross-examination, the appellant has stated thus:
'From 1995 I have relationship with Rekha. Even now Rekha is residing in my house. It is false to say even prior to filing application I have relationship with Rekha. It is false to say to accommodate Rekha I started harassing the respondent. I have not informed about my relationship with Rekha to the respondent'.
29. The above admission of the appellant clearly corroborates the respondent's contention that the appellant had illicit relationship with Rekha. It is reasonable to infer that since the appellant had illicit affair with another woman he did not treat the respondent properly and he drove away the respondent from the matrimonial home. Looking from another angle also the version of the respondent acquires credence. Since, the appellant being a married man, during the sustenance of the marriage, had an affair with another woman and started living with her, that circumstance itself without anything further, could be a valid justification for the legally wedded wife to stay away from the husband. Even P.W. 2 has stated that the said Rekha was residing in his sister's house and that she was doing household work and he advised the appellant not to marry Rekha as he is already married. This statement of the father of the appellant shows that the appellant had an affair with Rekha. Otherwise, we are at a loss to understand why the father should advise the appellant-son not to marry Rekha. It presupposes that before P.W. 2 gave advice to the appellant not to marry Rekha, the appellant had decided to marry Rekha and that it had come to the notice of P.W. 2. Even P.W. 3 in his deposition has stated that Rekha was going to their house for work and she was brought to their house by the appellant. These pieces of evidence, if cumulatively considered, would go to show that the appellant had an affair with the said Rekha. The discussions above clearly go to show that it was the appellant who drove away the respondent from matrimonial home and deserted her. Even otherwise, the respondent has justification to stay away from the appellant because during the subsistence of marriage he had an affair with another woman and he was living with her. It is well-recognized principle that a spouse who withdraws from cohabitation for what is described as a good cause or a just cause or an effective cause; such as adultery or cruelty or the opposite party having an illicit affair outside the marriage, cannot be said to be guilty of desertion, for in such a case it is the conduct of the offending spouse who is the cause of separation and the spouse who leaves the matrimonial home cannot be said to have acted from any animus deserendi. In Smt. Vimla Ladkani v. Dr. Chandra Prakash Ladkani, : AIR1996MP86 , where the wife was alleged to be leading an immoral life and there was evidence showing that the wife had illicit relations with another person who used to frequently visit her house and with whom she went to several places and the fact that the same man was taking active part in prosecuting her case was also suppressed from the Court, the Madhya Pradesh High Court held that the overall conduct of the wife amounted to mental cruelty. In Lalita Devi v. Radha Mohan , where the husband indulged in a love affair with another woman promising to marry her and also keeping her in the same house, Rajasthan High Court held that it amounts to mental cruelty against the wife and the wife is entitled to judicial separation.
30. We do not find any merit in any of the contentions raised by Sri G. Varadaraja Thirumale noticed by us in paragraph 7 of the judgment. It is not. correct to state that the Family Court did not consider the evidence on record adduced by the appellant while recording findings on issues relating to desertion and cruelty. The Family Court has considered all relevant materials on record and given cogent and acceptable reasons to record the findings against the appellant. There is no need for us to examine the effect of non-cross-examination of the witnesses on behalf of the appellant by the respondent, Further, though we find some contradictions and discrepancies in the oral testimony of the respondent which were highlighted by Sri G. Varadaraja Thirumale during the Course of hearing, that fact would not come to the aid of the appellant for seeking divorce on grounds of cruelty and desertion. It is trite that the appellant, in order to secure a decree of divorce on grounds of cruelty and desertion at the hands of the Family Court, he should establish those grounds by adducing substantive legal evidence and if he fails to establish those grounds, he is not entitled to decree of divorce merely on the ground of weakness of the evidence of the respondent. Looking from any angle, the appeal is devoid of merits and liable to be dismissed.
31. In the result and for the foregoing reasons, we dismiss the appeal with costs. Advocate's fee is fixed at Rs. 2,000/-.