Santosh Duggal, J.
(1) The appellant in this letters Patent Appeal is the wife, who was respondent in the petition filed by the husband, seeking divorce by decree of dissolution of marriage, between the parties under Section 13(l)(ib) of the Hindu Marriage Act, as amended by the Marriage Laws (Amendment) Act, 1976.
(2) The facts, in so far as are relevant for the disposal of this appeal, are that the petition was brought on the allegation that the marriage between the parties was solemnised on 20th February, 1977, according to Hindu rites and ceremonies, and out of tin-, wedlock, a female child named Poonam was bora on 24th January, 1978. According to the petitioner (husband), he was residing with his parents, brothers and sister at the time of marriage in flat No. 40, Sarojini Nagar Market, New Delhi, and that the respondent in the proceedings; namely, the wife started pestering him to live separately from his parents after 10/12 days of the marriage, and he was so harassed by her on account of her misbehavior with him and his family members that he was compelled, alter a few months, to take a separate house on rent in Safdarjang Enclave being B-3/49. It was, however, stated that the younger brother of the petitioner Deen Dayal also shifted with him as he (husband) did not find it possible to afford the high rate of rent and that his brother agreed to share the same with him. He alleged that after shifting to the new house, the wife started insisting that he render monetary help to her parents on the plea that their financial position was poor, and that otherwise also, the respondent used to give clothes and some money to her sisters and parents, against the wishes of the petitioner, but he put up with all this in order to adjust with the respondent although her conduct was proving a great drain on his resources. He alleged to have pleaded with the wife to give up her ways but without any effect so much so that she refused to cook food for him and to perform other conjugal duties and her brothers and sisters also started abusing and humiliating him.
(3) The petitioner went on to allege that mother of the respondent died some time in middle of 1977 and at that time, she (wife) compelled him to give Rs. 1000.00 to her father for meeting the necessary expenses which amount he pleaded to have arranged from his parents and paid to the respondent (wife), and the same remained still unpaid. He alleged that whenever he demanded back that amount from the father of the respondent through her, she picked up quarrels and, that thereafter in October 1978 her father fell ill and then also she required him to lend Rs. 500.00 to her brothers for the treatment of her father which again he gave after obtaining the same from his parents. According to him, respondent's father died subsequently on 7th November, 1978, of which they received information on 8th November, 1978, and on that occasion also, the respondent told him to pay a sum of Rs. 5000.00 to her brothers for performing the customary rites in connection with the death of her father, but he expressed his inability to pay the said amount or to arrange the same. and thereupon the respondent her brother and sisters started quay rolling with him and insulted him. He alleged, however, that on coming to know of the death of respondent's father on 8th November, 1978, be immediately along with his mother and sister accompanied her. adding that his father did not go, as he was not in Delhi, being away to Haridwar.
(4) It was further alleged that after cremation of the father, the petitioner requested the respondent to accompany him back to the house but she declined saying that she would return only after 'Baraho' ceremony. He pleaded to have, Along with his mother and sister, visited respondent's parents' house in connection with the said 'Baraho' ceremony, and thereafter again asked her to accompany him but she refused saying that she would come after the rites of 40 days of the death of the father, and so he left her there. He alleged that during the interval of 40 days, he visited off and on, and whenever he visited his in-laws' house, he was insulted, and that his father on return from Haridwar on 15th November, 1978 had also gone for condolence to the house of the respondent's parents, and that he (petitioner's father) had also requested the respondent to come to the matrimonial home but she refused to join the petitioner, and his father tried to persuade her brothers also to send her back, but they also did not agree nor showed respect due to his father. He alleged to have again gone to the house of his in-laws to fetch the respondent back after the rites of 40 days (in about 3rd week of December, 1978), and requested her to accompany him back to his house, but she refused, and then also she as well as her brothers and sisters insulted him, and threatened him to go away else they would kill him, and consequently he returned disappointed. He went on to allege that he sent his relatives thereafter to the respondent asking her to return to him Along with the child, then about Ii months old, but she did not listen to any one, and when on 15th December, 1978 his Phoofa Dharam Dass Pamnani and Bua Smt. Savitri went to respondents parents' house for condolence, at petitioner's instance, they also attempted reconciliation, and tried to persuade her to come back, but she refused, and besides her brothers and herself insulting them; there was insistence on their part that the petitioner fulfill their demand for Rs. 5,000.00 , and it was only in the event of his paying the said amount, and further promising to settle her younger brother Raju in business of her father's shop, that they would consider whether to send her back or not.
(5) The petitioner alleged that faced with this attitude of the respondent and her brothers, he was compelled to send a notice to her on 26th December, 1978 requesting her to come to his house Along with the minor child, and to live with him, and to perform the conjugal rites, but inspire of the receipt of the notice, she neither joined him nor replied to the said notice. Detailing further efforts during the years 1979-80 and 1980-81 through friends, relatives as well as personally, and alleging that the respondent continued in her refusal to resume her matrimonial obligations, and that her refusal was without any reasonable cause and excuse, and she had intentionally and willfully deserted him, and had continued in her desertion for a period of more than two years at the time the petition was presented, he sought divorce by a decree for dissolution of marriage.
(6) The wife, (appellant herein), controverter all the averments set out in the petition, and refuted all the allegations and denied that she had ever misbehaved with the petitioner or his parents or had insisted upon a separate residence. She pleaded that it was on account of paucity of accommodation with the petitioner and his family members in Sarojini Nagar Market, that his father had taken a separate house in Safdarjang Enclave where all of them, namely, besides her and the petitioner, his parents, two brothers and sister, shifted whereas the flat on the shop in Sarojini Nagar Market was converted into a godown. She also denied that she desired, at any time, financial help to her parents or broth ers or sisters or that she at any time secreted away money or clothes, as alleged by the petitioner, or that she had compelled him to pay any money to her father, or brothers, at the time of mothe'rs death or father's illness. She pleaded that her parents were fairly well off inasmuch as her father was earning about Rs. 1000.00 p.m. from his tea shop and her three brothers were earning hands; one of them getting a salary of Rs. 900.00 per month while the other two were earning Rs. 600.00 p.m. each, and they never stood in need of any help from the petitioner.
(7) The version of the wife, as set out in the written statement, was that the petitioner's family had become affluent, and as such they listed her on account of relatively poor status of her parents, and because she had not been able to bring the desired dowry, and that even on her father's death, the petitioner refused to accompany her, and she was also not allowed to go when her brother came to inform about the father's death, but she was able to leave subsequently, and alone, and it was only on the 'Baraho' ceremony that the petitioner and his father had come, and that it was wrong for him to say that earlier his mother, sister or he had gone or that his father had visited them on 15th November, 1978 for condolence. She also denied that she had expressed any desire to continue staying at her brother's place after 'Baraho' ceremony of her father, and alleged that she, in fact, had accompanied the petitioner to the house but was subsequently turned out on 10th December, 1978, after being given a beating, and that it was wrong for the petitioner to say that he went on making efforts to bring her back or sent relatives or friends for the purpose. and alleged that all the narration in the petition about the efforts having been made for re circulation were concocted, and set up with a view to create a false ease, and that even the notice sent on 26th December, 1978 was with a view to create evidence, and in fact the petitioner had no intention of keeping the respondent nor desired that she should come back. She asserted that, on the other hand, her brothers and other relatives went to the petitioner's house for reconciliation but he stoutly declined to bring or take her back. She pleaded that all averments in the petition were false and frivalous, and that the allegation that she had deserted the petitioner was totally unfounded.
(8) On the basis of the pleadings, and appreciation of evidence adduced by the parties, and taking note of contents and timing of the notice dated 26th December, 1978, the Additional District Judge before whom this petition was pending, held it out to be a case where the husband's allegations against the wife were not entitled to any credence, and further found that his plea that he had made efforts personally or through relatives or friends to persuade her to resume matrimonial obligations or return to him with the child, was not believable, and the notice dated 26th December, 1978 was wholly without justification, and sufficient to give a cause to the respondent to give up any thought of returning to the husband, which would have been at the pain of constant humiliation and insult. Her thus came to the conclusion that it was not a case where the wife could be said to have been living away from the husband without any just or reasonable excuse so as to make her conduct amount to desertion as contemplated by law, and that in this matter the husband was not entitled to seek divorce by a decree of dissolution of marriage on the ground of desertion. As a result, the learned Additional District Judge ordered the petition to be dismissed by judgment dated 11th July, 1984.
(9) On the husband filing an appeal to this Court, learned Single Judge reversed the findings of the trial Judge, and opining that the husband had discharged his duty of asking the wife to come back to the matrimonial home by serving her with a notice on 26th December, 1978, and that her failure to responds was tantamount to desertion and that the husband was under no further obligation to ask her back, and that wife's conduct amounted to legal desertion, which entitled the husband to a decree of divorce under Section 13(l)(ib) of the Hindu Marriage Act, set aside the judgment of the Additional District Judge dated 11th July, 1984, and by his judgment dated February 21, 1986, allowed the appeal by granting a decree of divorce under Section 13(l)(ib) of the Hindu Marriage Act, in favor of the petitioner and against the wife, leaving them, however, to bear their own costs.
(10) Aggrieved by the reversal of the trial court's judgment, the wife has now come up in this Letters Patent Appeal pleading that the learned Single Judge has taken a wholly erroneous view of the whole matter, holding that she is to be taken to have deserted the husband from the date of the notice dated 26th December, 1978 or seven days thereafter. The plea is that the learned Single Judge did not consider that the desertion in its essence is the separation of one spouse from the other with intention on the part of the deserting spouse of bringing cohabitation permanently to an end, and that mere physical separation did not amount to desertion in the eye of law. It is further averred that there was not an iota of evidence that the intention of the appellant was to bring cohabitation permanently to an end.
(11) After reiterating the facts, as pleaded in the written statement as earlier noticed, it is pleaded that the learned Single Judge did not consider that the notice dated 26th December, 1978 was served on the appellant only after a period of 1-1/2 months of the death of her father, and this notice made false allegations against her and her parents, which she was shocked to receive, and this only meant that the respondent was anxious to have divorce and not restoration of conjugal rights, and that the mere fact that she did not reply in writing to this notice, did not mean that the allegations made in the notice were true. She pertinently pointed out the allegations made in the notice by the husband that she had get Rs. 1.000.00 paid to her father at the time of her mother's death in August, 1977, and again compelled the respondent to pay Rs. 500.00 to her brothers in October, 1978 when her father fell ill and that she had been giving financial help and clothes to her sisters, stating that these were patently false and insulting, that if the appellant did not go back in response to this notice, it was only because she was in a state of temporary passion of disgust', (sic) and that her conduct did not amount to desertion.
(12) She further pleaded that her version in the written statement as supported by her evidence, that after receipt of this notice by her, her brothers, uncle and brother-in-law went to the respondent to ask him as to why he had made such false allegations in the notice, requesting him to take her back, and that it was he who had declared that he was not interested in the wife, but only in divorce, ought to have been taken into consideration, and that the learned Single Judge should have addressed himself to the question as to why the appellant should leave the matrimonial home?
(13) The contention further is that in law it is the respondent as petitioning spouse, who had to show that the appellant had deserted him without any sufficient cause, and that his plea that he had been sending the relatives and friends for reconciliation could not be accepted after he had given the notice on 26th December, 1978 making allegations which have been held to be false. She describes the version, set out in the petition, to be a concoction, and contended that the fact was that the respondent and his family members had become very rich, and for that reason they wanted to throw away the wife (appellant) without any cause, and that it was not a case where she can be held guilty of desertion of the husband, and that the judgment under appeal granting him a decree of dissolution by divorce was not sustainable.
(14) During hearing Mr. R.K. Makhija, appearing for the appellant, assailed the view adopted by the learned Single Judge on the basis of facts alleged by the husband, pointing out that the whole case set up by the respondent herein was unbelievable, as normally in Hindu Society even the people with humblest means would not ask a son-in-law for money in any adversity, much less on occasions such as death of mother-in-law; particularly to meet the expenses of the last rites, nor any wife would ask the husband to advance to her brothers money for the treatment of her father, or compel him to pay money to her brothers when father's dead body is living, awaiting cremation to enable the brothers to perform the funeral rites. He thus argued that the whole foundation of the husband's case was full of concoctions, and that the learned Single Judge has taken a wholly erroneous view to accept husband's version. According to Mr. Makhija it was in the background of the allegations made by the husband that his notice given on 26th December, 1978 though a lawyer had to be understood from the wife's point of view, and that when he made all types of false and insulting allegations, the wife was justified in not returning immediately in response to that notice, and that instead her brothers, brother-in-law and other relatives made efforts to see that the husband adopt a proper attitude, and that the wife returns only after reconciliation was ensured.
(15) Mr. Makhija cited from a Supreme Court judgment : [1956]1SCR838 - (Bipinchandra Jaisinghbai Shah-v.Prabhavati), holding that desertion is a matter of influence to be drawn from the facts and circumstances of each case, and further that the facts have to be viewed as to the purpose which is revealed by those facts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation and further that if, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi, emphasising that the act of desertion may commence without the necessary animus or it may be that the separation and the animus deserendi coincide. He placed reliance on another Supreme Court judgment : [1964]4SCR331 (Lachman Utamchand Kirpalani v. Meena alias Mota, reiterating the same principles, further laying down that in its essence desertion means the international permanent forsaking and abandonment of one spouse by the other without the other's consent, and without reasonable cause, and when a spouse abandons the other spouse in a state of temporary passion, for example, anger and disgust, without intending permanently to cease cohabitation, it will not amount to desertion.
(16) The learned counsel then highlighted the observations and findings of the trial judge recorded in paragraph 15 and 16 of the judgment in which he has evaluated the truth or falsity of the allegations made by the petitioner (husband) before him, holding that the petitioner's version that the wife was in desertion since 9th November, 1978 was false, because it was his own case that she had gone there on receiving message of her father's death, and that there could obviously be no intention to leave the matrimonial home permanently at that point of time. The learned counsel further pointed out that the trial court's finding was fully justified that even after the Baraho ceremony, the wife had nowhere, even according to the petitioner, betrayed any intention of not returning, as the only reason given by her for staying back at her brother's place was her desire to continue there up to the ceremonies concluded, with the 40th day of the death, and that the husband had consented at that time to her doing so. Mr. Makhij'a argued that it is in this context that the trial Judge disbelieved the version about efforts, alleged to have been made in between, namely, on 15th November, 1978 as also on 15th December, 1978, asking the wife to come back or her imposing condition of payment of Rs. 5,000.00 to her brothers or insist that the petitioner take responsibility for setting her younger brother Raju in her father's shop. He justified the finding of the trial Judge disbelieving the whole story, as set out by the petitioner, pointing out inconsistencies and omissions on material particulars in the notice given on 26th December, 1978, or vagueness of certain allegations in the petition under Section 13(l)(ib) of the Hindu Marriage Act. and argued that the view taken by the trial court on the impact of the notice dated 26th December, 1978 was a perfectly correct view, and he has rightly held that when the wife was continuing to stay at her brother's place, with the facit consent of the husband up to the 40th day of the death of the father for the completion of the customary rites, then the notice sent with all types of insulting allegations of alleged misbehavior by her, within 7 days of the 40th day, must have come as a bolt from the blue, and if the wife did not reply the inference would not be that she had nothing to say in reply to those allegations, but it was a case where wife would be shocked to get such a notice as Ex, PI.
(17) He thus assailed the findings of the learned Single Judge to the effect that this notice was by way of reminder to the wife of her matrimonial obligations, asking her to come back, and that when she was given 7 days to return, it was her bounden duty to return within the period stated in the notice, and that failure to do so, and not to take any step till the petition was filed, to come back to the husband on her own, once she had been called upon to do so by means of notice Ex. Pi, amounted to desertion in law entitling the husband to a decree of divorce. He prayed thereforee that it was a fit case where judgment under appeal be set aside and that the trial court restored.
(18) Mr. Swatanter Kumar, replying to the arguments on behalf of the respondent (husband) pointed out the findings of the trial court recorded in paragraph 20 of the judgment, whereby he disbelieved the version of the appellant to the effect that she had returned with the husband after the 'Baraho' ceremony of her father, and that she had been turned out on 10th December, 1978 by him after being given a severe beating, as also the allegation of grievance about paucity of dowry. He contended that. on these findings there was obviously no cause for her to have remained away from the matrimonial home, and that her failure to return, and having continued to stay away for a period of 3 1/2 years till the petition was filed, would tantamount to desertion, entitling the husband to a decree of divorce by dissolution of marriage be, because it is in his evidence that he had done all to make her see reason, and return to the matrimonial home by going personally as well as by sending relatives, friends or other persons with influence, and that notice Ex. Pi has to be construed in this context, that it was nothing but an attempt on the part of the husband to make the wife return to him since she was putting him off on one pretext or the other.
(19) The learned counsel also laid emphasis on the fact that the appellant herein, did not even reply to this notice, and thus the finding of the trial Judge that this notice must have come as a shock to the wife, or that she did nut return because of the insulting allegations made therein, was not sustainable, because the wile docs not say so. He cited a judgment of the Supreme Court in Civil Appeal No. 1097 of 1963 {Kundanmal v. Madhukanta), decided on March 6, 1964, in support of his plea that after the husband had given notice asking the wife to return, it was not his duty to continue asking her to return, as the husband was under no obligation in law to approach in this manner, and that the learned Single Judge has rightly held that it was not his duty to keep on cajoling or chasing her. He also placed reliance on some judgments of this Court, namely, : AIR1983Delhi53 , Shakuntala Kumari v. Om Parkash Ghai 1979 AIHLR 123, (shri Kishan Lal Madan v. Smt. Usha ;) (Shri Umesh Kapoor v. Smt. Shakuntala Kapoor), and pleaded that the consensus in all the authorities was that where the wife's conduct was such that she left the matrimonial home or continued to stay away without any reasonable cause, then the husband was entitled to a decree for dissolution of marriage on the ground of desertion ; adding that the present was such a case where also the wife, namely, the appellant has absolutely failed to establish any reasonable or just cause for not returning to the matrimonial home, inspire of the husband requiring her to do so.
(20) We have with great care gone through the evidence as well as the judgment of the learned Single Judge as also that of the trial Judge. We cannot help recording that the learned Single Judge has placed singular emphasis on the notice. Ex. Pi, sent by the respondent to his wife, the appellant, on 26th December, 1978, without having regard to the impact such a notice was bound to create on her. The learned Single Judge has accepted the plea of the husband that he entirely stood absolved of his responsibility of showing that the wife was staying away without any just or reasonable cause simply by proving notice Ex. Pi, on the view that the husband adopted right cause, when the wife did not return on the promised 40th day of the death of the father, by sending this notice, calling upon her in no uncertain terms that she must come along with the minor daughter to his house, and to live with him, and to perform the conjugal duties, within 7 days of the receipt of the notice, failing which the husband would be constrained to take action against the wife in accordance with law, without any further notice,
(21) The notice is extracted in the judgment itself. A bare reading of its contents compel us to record that the learned Single Judge has taken a wholly erroneous view of the whole matter, and does not seem to have taken right perspective of martial relations which are based on mutual respect, and sensitivity to each other's feelings. The notice, Ex. Pi, was certainly not a simple remainder to the wife to return to the matrimonial home, but a preemptory call, fraught with threatening legal consequences and preceded by such allegations which no self-respecting woman, howsoever financially bumble her parents or brothers may have been, would have pocketed particularly when the insinuations were patently false and mischievous. The one and tenor of the notice is such that no other inference can commend to any discerning mind, but that the husband was bent upon discarding the wife, and had deliberately worded the notice, which he served through a lawyer, in such a manner that the wife could take no other decision but not to return to him, because the only consequence for her would have been to face life long humiliation, at the hands of a husband, bereft of (hose delicate feelings which add meaning, and lend charm to matrimonial relations.
(22) It has been found by the trial court that the notice starts with a false allegation against the wife that she had started misbehaving with him and his parents and had even refused to perform conjugal duties shortly after the marriage, and had caused him to live separately from his old parents after about three months of the marriage, and that in the interest of matrimonial harmony he was constrained to take separate rented house, and that even there the wife did not let him live in peace and started pestering him to give financial help to her parents, brothers and sisters. There is further allegation that the financial position of her parents was very poor, and she had been giving valuable clothes, and money to her younger sisters and parents against his wishes, and that this resulted in such a mental cruelty to him that he entreated her to stop all this but she made his life miserable, and refused to cook food for him, and perform her conjugal duties, and even her brothers and sisters abused and humiliated him. Then there is a recital of his having paid Rs. 1000.00 to her father at the time of death of her mother to meet the expenses of funeral rites and then to pay a sum of Rs. 500.00 to her brothers for the treatment of her father, and further on the death of the father, she required him to pay Rs. 5.000.00 to her brothers to meet the funeral expenses of the father, and that although he had complied on earlier two occasions, he expressed his inability third time and, then she as well as her brothers and sisters quarrelled with him, and even insulted him. The notice goes on to allege that when after the rites of 40 days, the husband asked her to accompany him to his house, the wife refused and not only that, she along with her brothers and sisters quarrelled with him, and threatened him to go away else he would he killed, and it was in this situation that he came back in order to save his life.
(23) Then follows the narration about various other attempts to bring her back, and alleging that she had withdrawn from his society, and refused to perform the conjugal rights without reasonable cause, and also deprived him of the company of his minor daughter and thereby caused mental torture affecting his health adversely and compelled him to cook his own food and do all household work in her absence, he puts her on notice that she must come along with the minor daughter to live with him within 7 days of the receipt of the notice otherwise he would be constrained to take action against her in accordance with law at her risk and costs without any further notice to her.
(24) It passes comprehensions as to how to notice containing such allegations against the wife can be treated as just a call by the husband, asking her to come back. The impression which this notice unmistakably creates on a bare reading is that the petitioner was laying foundation for some future legal action, and he had no love lost for his wife. The natural and normal reaction of any woman on reading such a notice, heaping insults, not only against her, but also on her parents, brothers and sisters, would be no different than that of the appellant, and she would certainly hesitate to return to such a husband, unless there was some assurance that there was change in his attitude or that she would be ensured a return consistent with her dignity as a woman, and as a wife. Obviously, no such assurance came because the trial court after appreciation of evidence has disbelieved, and rightly so, the evidence of the husband that he sent relatives and friends for reconciliation during the years 1979-80 and 1980-81 because after shooting off, this notice on 26th December, 1978. it is not normal human conduct that he would send acquaintances or friends or relations or go personally with them to bring back the wife because in this notice he had said in clear and irrevocable terms that she must return within 7 days failing which he would be constrained to take such legal action as was open to him under law, and without any further notice.
(25) In a situation like this, it would rather be wife's people who would try to reason with the husband or try to persuade him to behave in a manner that would re-assure the wile to make her return without any apprehension about the future The learned Single Judge has not, at all, adverted to this aspect of ordinary normal human behavior as to whether after such a stern notice, the husband would still go or send people to persuade the wife to come back or it would be her people who would be making efforts to see that she is able to return to him after proper reconciliation.
(26) That is, however, besides the point because the learned Single Judge has gone solely on the basis that after notice Ex. Pi was given, there was no further duty on the husband to make any further afford or send any message to the wife, much less go himself but that the ball was in the wife's court, and that it was for her to return in compliance with this notice, and that the husband was not expected to go and chase her, and that she should have taken the only course open to her, namely, return on her own, once she had been told to do so by this notice, and that even the fact that the let other persons, namely, relatives or friends talk of reconciliation, was of no consequences because after receipt of this notice, the only action she need have taken was to go back to the husband, and since she never did that, she was guilty of desertion, and as such the husband became entitled to a decree of divorce.
(27) This we find to be a wholly untenable view to endorse, The tenor and tone of the notice Ex. Pi as well as the timing thereof, namely, within 7 days of the 40th day of the death of the father, as well as the mode adopted, namely, service through an advocate, are such that unless the wife was prepared to completely demean herself and to live a perpetually humiliating life, enduring insults to her as well as her people ; she could not be expected by any reasonable man, after receipt of such type of notice to come back.
(28) The learned Single Judge has referred to the dictum laid down in Bipinchandra Shah's case (supra), but he has not taken note of the requirements laid down by the Supreme Court for a spouse alleging to have been deserted, to be established. It has been laid down in no uncertain terms that there are two elements which 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. It has also been held in this authority that desertion is a matter of inference, to be drawn from the facts and circumstances of each case.
(29) We are of the clear view that in matrimonial relations, no case can be an authority, on facts, for another case, but the essential requirement for a petitioner to succeed on the ground of desertion is to establish, inter alia, that there was no such conduct on his part which could have given reasonable cause to the other spouse for leaving the matrimonial home. To oar mind, it would make no defense whether it is a question of leaving the matrimonial home or subsequently staying away, when the initial departure was in normal course, as in the present case, when the wife went on hearing news of her father's death, and remained there with the husband's consent, on his own showing.
(30) It is petitioner's own case that till the 40th day, all that the wife had been telling him was that she wanted to stay at her parents, house till the completion of the ceremonies connected with her father's death up to the 40th day, and that she remained there on that account. His evidence that in between his father told her to come back on 15th November, 1978 when even 'Baraho' ceremony had not taken place, and that his Phoola and Bua told her to return to matrimonial home when they went for condolence on 15th December, 1978 by which time the 40th day had not reached, is thus not acceptable. There was also no occasion for the wife to tell the said relatives that he pay Rs 5.000.00 to her brothers or settle her younger brother Raju in her father's shop because up to 40th day she was allowed to remain at the parents' house by the husband himself. The question of her having made such pre-posteriors demand, at that point of time, does not arise because no Hindu women would think of, even suggesting such matters, though her husband's relations coming for condolence on her father's death.
(31) The way the husband has built up his allegations, first in the notice, then in the petition, and thereafter in his evidence, consisting of omissions and variations, as noted by the trial court, also suggests that he was bent upon creating a situation which left the wife with no course open but to remain away, because otherwise there was no occasion for him within 7 days of the 40th day to send notice so worded as Ex Pi, and that too through a lawyer, making all types of allegations of misbehavior, demand for money, hurting insults on her and her parents, and that they were of the type to take money from his son-in-law to meet funeral expenses of mother-in-law or illness or funeral expenses of the father-in-law or even cut off relations from him, to the extent of threatening to have him killed, when he expressed his inability to pay the money, as demanded by the wife, to meet the expenses of last rites of the father. Nothing can be more hurting and insulting to a woman than such degrading imputations against her parents.
(32) It is also to be noted that in the Face of his admission that his father-in-law had a tea shop from which he could have reasonable income as to carry on his expenses, and further that he had three sons at the time when the appellant's mother died who were earning Rs. 900.00 p.m. (one) and Rs. 600.00 p.m. each (two others), and as against that, no husband's own showing working as a private employee in his father's firm getting a salary of Rs. 500.00 to Rs. 1000.00 pm., out of which he was paying rent also for the Safdarjung Enclave house which would come to Rs. 325.00 p.m. as his share, because according to him the total rent of that house was Rs. 650.00 p.m. out of which his younger brother agreed to pay half. It is thus unbelievable that from his income of Rs. 500.00 to Rs. 1000.00 , of which he has not given any definite figure, and after paying Rs. 325.00 as rent, and after meeting his family expenses along with a small child; his wife would be left with spare money to give financial help, against his wishes, to her parents, brothers and sisters, as alleged in the notice. Apart from this apparent lack of resources, his version is otherwise also utterly unbelievable because in Hindu society, no father-in- law or brother-in-law, howsoever penurious he may be, would ask son-in-law or brother-in-law (sister's husband) to pay for the funeral expenses of the mother-in-law. In the present case, there was not even such an object penury because as admitted by the petitioner, all the three brothers of the wife were earning and the father had also a shop when her mother died.
(33) The shift to Safdarjung Enclave house also could not have been at newly wedded wife's insistence as alleged by the husband in the notice but apparently owing to paucity of accommodation with the family, when on his own admission, his younger unmarried brother and sister also moved with them. He has thus come up with patent falsehood, in the notice, when be made these allegations, and the learned trial Judge rightly held that in face of such a notice, the wife was justified in deciding not to respond to the notice and that she had reason to feel humiliated on receiving a notice with which the husband rushed within a week after the 40th day and that this notice was certainly in the nature of bombshell for her containing all sorts of allegations of demand of money for her family members, and also containing allegations that she would get her husband killed and had quarreled with him with the help of her brothers and sisters, and that these allegations which have been found to be false, were bound to create a piquant situation in her mind, and have apprehension about adverse intention of her husband, and thus such a notice would persuade any wife to delay going back to the husband rather than to rush to his house- The learned Single Judge endorsed that part of the trial Judge's findings, where he disbelieved the wife's evidence of demand of dowry, or about turning her out by the husband on 10th December, 1978 after beating, but he has overlooked the elaborate and reasoned discussion by the trial court, disbelieving the entire evidence of the husband as petitioner, about having made efforts through relatives or friends or personally to bring back the wife, and as also his statement that he had accompanied his wife on 9th December, 1978 on getting the news of the death of his father-in-law, and has held that the evidence suggested that he did not accompany her as stated by her, and it was for this reason that he had guilty mind, and he was preparing a ground and that existence of the notice Ex. Pi could have no effect other than adding to the apprehension of the wife who was already smothering under the humiliation when her husband did not come for the cremation of her father.
(34) The judgments cited by the learned counsel for the respondent as referred to above, are on facts of a given case. and where the wife had been found to have been guilty of a conduct bereft of all justification for leaving the matrimonial home or staying away there from or where the husband's conduct was found to be beyond reproach. Here, on the other hand, is a case where the inexorable manner in which the notice was shot off by the husband, and the contents thereof, constituted full justification for the wife not to take steps to return to the husband unless be gave any indication of change of mind; his evidence having been rightly disbelieved by the trial court, when his conduct also suggests that after this notice Ex. Pi, no further efforts would have been made by him. It has been held in Laxman Uttamchand Kripalani's case (supra) quoting from Rayden on Divorce, 7th edition :
'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 the doctrine of constructive desertion.'
(35) We have in an earlier case reported as 1988 (2) Delhi lawyer (DB.) 175, (Shri Ashok Kumar Bhatnagar v. Smt. Shabnam Bhatnagar), held that it is not the party who ostensibly leaves the house who is necessarily guilty of desertion but the crux of the matter is conduct of the spouse and even a party who continues living in the matrimonial home can be guilty of expulsive conduct qua the other, if he gives cause by his actions to the other, to stay away from the matrimonial home.
(36) We have already held that contents as well as timing of notice Ex. Pi constituted a just and sufficient cause for the wife not to return immediately. She also rightly did not send any reply as it would have either aggravated the matter or would have been futile. The course adopted by her was the correct one, namely, trying through her brothers and other relatives to bring about change in his attitude. The efforts obviously did not bear fruit.
(37) There is also no suggestion that he ever showed care or concern for his infant daughter, who was then about 11 months old, or at any point or time, till he filed the petition, or even during the pendency of the petition sent any money, much less maintenance for her. There was thus every reason for the wife not to have returned to such an unrepentant and callous husband. The learned Single Judge had been been swayed away by the fact that no husband is expected to chase his wife. In the given facts of this case that proposition cannot be endorsed because after insulting the wife and her parents, brothers and sisters and having buried all sorts of a causations against them, it was for him to make amends and the wife was in all justification, not expected to rush back to him because sensitivity is not the exclusive preserve of a husband. The wife is also entitled to expect such a treatment from her husband as is consistent with her self-respect and dignity.
(38) We, thereforee, find that on the facts of this case, the finding of the finding of the learned Single Judge, that it was the wife who had deserted the husband, making him entitled to a decree of divorce, cannot be endorsed for there was nothing on record to justify such a finding. There is also no suggestion that earlier the wife had at any time given out her intention to abandon the matrimonial home. She could not have even harboured any such thought as she had an infant daughter of about 11 months old, and she was not working any where or having any other source of livelihood.
(39) The plea made at the end by Mr. Swatanter Kumar that since on all accounts the marriage has broken down, it may as well be dissolved by a decree of divorce also cannot be entertained because, as held by us in the earlier case : Ashok Kumar Bhatnagar (supra), that irretrievable break down of marriage is not contemplated to be one of the ground for dissolution of marriage in the scheme of the Hindu Marriage Act, and thus by itself it cannot be taken to be a ground for decree of dissolution of marriage.
(40) We accordingly set aside the judgment of the learned Single Judge dated February 21, 1986 in Fac No 156 of 1984 and restore that of the judgment of the trial court dated 11th July, 1984 with the result that the petition of the husband (respondent herein), under Section 13(l)(ib) of the Hindu Marriage Act, as amended by the Marriage Laws (Amendment) Act, 1978, stands dismissed. The appellant shall also be entitled costs throughout. Counsel fee in this appeal is assessed at Rs. 1000.00 .