C.K. Mahajan, J.
1. By way of this appeal, the appellant assails the order dated 21.10.2000 passed by the Addl. District Judge, Delhi in HMA Case No.237/99 dismissing the petition of the appellant under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act for dissolution of marriage by decree of divorce.
2. Briefly the facts are that the marriage between the parties was solemnised on 27.4.1978. In the year 1985, respondent filed a case under Section 406 IPC against the appellant and the appellant filed a petition for divorce on the ground of desertion. After reconciliation between the parties, the said divorce petition was withdrawn by the appellant. On 9.8.1989, the parties attended the Mahila Court in connection with the complaint under Section 406 IPC. It is alleged that on that date the respondent did not return to the matrimonial home and went to her mother's house. It is alleged thereforee that the respondent not only deserted the appellant but also abandoned two of her minor children. It is stated that during the pendency of the case under Section 406 IPC, the appellant made repeated efforts to convince the respondent to come back to her matrimonial home but all the efforts were rejected by the respondent and her mother who made unreasonable demand that immovable property be transferred in the name of the respondent. On 15th May 1997, the appellant was acquitted of the charges under Section 406 IPC.
3. After the conclusion of the criminal proceedings, the appellant filed a petition seeking dissolution of his marriage with the respondent on the grounds of cruelty and desertion. Subsequently, the ground of cruelty was given up by the appellant. However, vide the impugned judgment after holding that since there was a delay of 9-1/2 years in filing the petition coupled with the statement of the respondent that the appellant was having illicit relations with one Anita and that the appellant had failed to prove that the respondent had deserted him, the learned Addl. District Judge dismissed the petition of the appellant.
4. The Addl. District Judge observed that the statement of the appellant does not give any specific circumstances of cruelty. The matrimonial life of the parties has not been very smooth. They have separated and reunited several times from 1981 to 1989. The youngest daughter was born in the year 1984. There is no allegation of cruelty after 1986. The Addl. District Judge held that the appellant failed to prove that the respondent has treated him with cruelty.
5. The learned Addl. District Judge also observed that the present petition has been filed almost 9-1/2 years after the separation. The petition is hit on the ground of inordinate delay. The Addl. District Judge held that the appellant has not made any effort to show why he filed the petition after 9-1/2 years. The respondent has stated that she had seen the appellant having illicit relations with a girl named Anita. The delay in filing the petition coupled with the statement of the respondent shows that the appellant had in fact turned out the respondent from the matrimonial house. The appellant has failed to prove that it was the respondent who deserted him. The statements of the respondent and her mother that the respondent would return to the matrimonial house if one room was transferred to her name show the insecurity of the respondent. The said statements show that the respondent was willing to return to the matrimonial house but did not feel secure. The learned Addl. District Judge while dismissing the petition held that the appellant had failed to prove that the respondent has deserted the appellant.
6. Learned counsel for the appellant contends that the delay of 9-1/2 years occurred because the criminal proceedings under Section 406 IPC were pending against the appellant and the appellant was making efforts to convince the respondent to return to the matrimonial home. The relationship with Anita has also been denied by the appellant. In the proceedings under Section 406 IPC, no mention was made by the respondent that the appellant was having illicit relations with another person. The said allegation is an after thought and concocted. The finding of the Addl. District Judge that the appellant has failed to prove that the respondent deserted him is wrong as the respondent left the matrimonial home on her own. The Addl. District Judge also erred in holding that the appellant had turned the respondent out of the matrimonial house. In that case, he would have filed the divorce petition immediately after the expiry of two years and would not have waited for nine years for filing the divorce petition. Even in the criminal proceedings, the respondent had not alleged that the appellant had turned her out from the matrimonial house. The demand for a separate one room to be mutated in the name of the respondent show that the respondent was not willing to return to the matrimonial house. The respondent has not made any efforts for custody of the her two children.
7. In support of his contentions, learned counsel for the appellant has placed reliance on Becker v. Becker reported in [1966] 1 All E.R. 894, Surinder Singh v. Smt. Tejinder Kaur 1987 (1) CLJ (C&Cr.;) 179, Tapankumar Chatterjee Vs . Smt. Kamala Chatterjee : AIR1989Cal74 , Rajwati v. Inderraj, (1989) DMC 143 and a judgment of this Court in Smt. Nirmoo Vs . Nikka Ram, 0043/1968 : AIR1968Delhi260 .
8. Learned counsel for the respondent contends that the order of the Trial Court does not suffer from any infirmity and should be sustained. The respondent is still ready and willing to live with the appellant but the appellant is not willing to take her back to the matrimonial house. There was delay of over 9-1/2 years in filing the divorce petition.
9. I have heard learned counsel for the parties and also perused the order of the Addl. District Judge.
10. Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act read as under :-
'13. Divorce.- (1) Any marriage solemnized, whether before or after the commence of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party -
(i) x x x x x (ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or'
11. The learned Addl. District Judge while dismissing the petition of the appellant held that the appellant had failed to prove that the respondent had treated him with cruelty and also that the respondent has deserted the appellant.
12. The act of cruelty is a solitary act and no dissolution of marriage could be maintained on a solitary act of cruelty. It would be a question of fact in each on the appreciation of the evidence whether there was ill-treatment or cruelty. The word 'treated' denotes a conscious action and includes an omission which has to be cruel in order to call for a decree of divorce. Cruelty is a willful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental, or to give rise to reasonable apprehension of such a danger.
13. Desertion as a ground for divorce as also for judicial separation has been recognised under Section 13(ib) and Section 10(1) of the Act. The term 'desertion' as defined in the Explanationn to Section 13(1) of the Act 'means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage and the grammatical variations and cognate expressions shall be constructed accordingly'. Two essential conditions must be there so far as deserting spouse is concerned, namely (1) factum of separation and (2) intention to bring cohabitation permanently to an end (animus deserendi). The essence of desertion is abandonment by one spouse by the other for no good cause. It was taken as a total repudiation of the obligations of marriage. The offence of desertion is said to commence when factum of separation and animus deserendi co-existed, it being not necessary that they should commence at the same time. But, ultimately at one point of time, the animus deserendi had to co-exist.
14. Desertion is not withdrawal from a place but from a state of things. It is not a specific act but a course of conduct which exists independently of its duration, but as a fact on which a petition for divorce may be founded, it must exist for a continuous period of at least two years immediately preceding the presentation of the petition.
15. The Supreme Court interpreted and elaborated the essence of desertion in Lachman Utamchand Vs . Meena : [1964]4SCR331 . It was held that in its essence desertion meant the intentional permanent forsaking and abandonment of one spouse by the other without the other's consent, and without reasonable cause.
16. The Supreme Court in Bipin Chander Jaisinghbhai Shah Vs . Prabhawati, : [1956]1SCR838 made the following observations :-
'.....Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has prescribed a three year period and the Bombay Act prescribes a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decides to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for 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 not the former. Hence it is necessary that during all the period that there has been a desertion the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable doubt.....'
17. From a reading of the aforesaid observations, it emerges that leaving the matrimonial home is not a necessary criteria for determining the desertion. Desertion is not withdrawal from a place but from a state of things. It is not a specific act but a course of conduct which exists independently of its duration, but as a fact on which a petition for divorce may be founded, it must exist for a continuous period of at least two years immediately preceding the presentation of the petition. One of the essential conditions for success in a suit for divorce grounded upon desertion is that the deserted spouse should have been willing to fulfill his or her part of the matrimonial duties. The burden is on the appellant to prove that the alleged desertion without reasonable cause subsisted throughout the statutory period. What is a reasonable cause depends on the facts and circumstances of each case.
18. It is to be seen whether the evidence led by the appellant stands the test of requirement of law with regard to desertion. The onus was on the appellant to prove beyond reasonable doubt that he was not guilty of such conduct which provided a reasonable cause to the respondent to leave the matrimonial home and if the wife was living separately he was not in any way taking advantage of his wrong as envisaged under Section 23 of the Act.
19. The difficulty in this case is that though the factum of separation is present, the Addl. District Judge concluded that the marriage could not be dissolved as the appellant had failed to establish animus deserendi on the part of the respondent. The Addl. District Judge also held that it was the appellant who deserted the respondent.
20. In these circumstances, in order to arrive at a definite conclusion as to who has deserted the other, it would be necessary to appreciate the facts right from the marriage of the parties.
21. The admitted facts are that the parties were married in 1978. Three children were born out of the wedlock. They lived peacefully for some time. In 1983, the respondent left the matrimonial home. No efforts were made to by the appellant to bring back the respondent to the matrimonial home. In 1984, a Panchayat was held and the matter was settled. In 1985, the respondent again left the matrimonial home. A complaint was made against the appellant for demand of dowry and a case under Section 406 IPC was registered. The appellant was arrested and released on bail. The appellant filed a petition for dissolution of marriage in 1985. The respondent filed an application under Section 125 of the Cr. P.C. for maintenance. Thereafter, attempts were made to bring the parties together. A compromise was arrived at in 1989. The appellant filed a petition in this Court for quashing of proceedings under Section 406 IPC. However, the respondent declined to withdraw the case. On 9.8.1989, the parties appeared before the Metropolitan Magistrate in proceedings under Section 406 IPC from where the respondent left with her mother for the parental home. She did not return to the appellant. The petition filed by the appellant for quashing of proceedings under Section 406 IPC was dismissed by this Court. The appellant was acquitted by the Trial Court of the charges under Section 406 IPC on 15.5.1997. No appeal was preferred against the order.
22. The appellant alleges that relations with his wife became strained on account of the interference of the mother and the maternal uncle of the respondent. He also alleges that the respondent would leave the matrimonial home without any reason. On the other hand, the respondent has alleged that dowry demands were made and she was being harassed and beaten by the appellant. The appellant also tried to burn the respondent by sprinkling kerosene oil on her. Admittedly no report was lodged. It is further alleged that the respondent was also not allowed to meet her mother whenever her mother came to meet the respondent.
23. On 21.1.1992 in the proceedings under Section 406, the respondent inter alia, made the following statements :-
'I do not want to live with him as he is giving me maltreatment....It is correct to suggest that I proposed to Kishan Chand that one room out of the property where Kishan Chand lives should be transferred and mutated in my name and only then she will live and cohabit as his wife. Volunteered I have said so, in order to get the protection on account of being maltreated by accused and his family....It is wrong to suggest that the accused and his family members do not prevent me from meeting my mother and other relations.'
24. On 23.8.1994, the respondent made the following statement :-
'I lived in my matrimonial home for about six months after effecting the compromise but since I was given a bad treatment again and I was expelled then I went back to my parental home.
25. From the evidence on record, it is evident that the husband did not want to keep the respondent. During the period 23.7.1983 till 9.7.1984, 29.3.1985 to 2.3.1989 and after 9.8.1989, he made no efforts to bring back the respondent to the matrimonial home. Allegations of maltreatment, beatings, burning and demand of dowry have been made against the appellant. The evidence clearly show that the respondent had no other alternative but to leave the husband and live with her parents. An FIR under Section 406 was also registered against the husband, though the appellant was later on acquitted. The refusal of the respondent to withdraw the proceedings under Section 406 IPC against the appellant also show that the respondent was not happy with the conduct of the appellant. In his statement before the Addl. District Judge, the appellant stated that he is not prepared to keep the respondent even if she wants to come back and live with him.
26. In these circumstances, it is evident that it was the appellant whose conduct compelled the wife to leave the matrimonial home and thereforee he is guilty of desertion. It was the conduct of the petitioner that prompted the respondent not to withdraw the proceedings under Section 406 IPC and to back out from the compromise.
27. In actual desertion, factual separation is an essential ingredient, but it does not mean that the spouse who leaves the matrimonial home is necessarily a deserter. The spouse who stays behind might, on account of his conduct, have made it intolerable for the departed spouse to stay in the matrimonial home. In such a case the spouse who stays back is the deserter. Further, if parties have ceased to cohabit with each other, having no contact with each other, then the factum of separation is provided by the conduct of the party who has brought about such a situation. In Long v. Long (1955) AC 402, the Privy Counsel observed :-
Since 1860 in England.... it has been recognised that the party truly guilty of disrupting the home is not necessarily or in all cases the party who leaves it. The party who stays behind (their Lordships will assume this to be the husband) may be by reason of conduct on his part making it unbearable for a wife with reasonable self-respect, or powers of endurance, to stay with him, so that he is the party really responsible for the breakdown of the marriage. He has deserted her by expelling her, by driving her out.'
28. While dismissing the petition for grant of divorce, there were two main facets which were considered by the Addl. District Judge which led the Court to conclude that it was not the respondent who had deserted the appellant but it was the conduct of the appellant that resulted in the respondent leaving the matrimonial home. The two facets are : (1) that the appellant was having illicit relations with some other woman; and (2) that the refusal of the appellant to transfer one room in the house of the appellant in the name of the respondent made the respondent feel insecure, though she was willing to return to the matrimonial home.
29. The allegations of illicit relations does not find mention in the evidence of the parties in the proceedings under Section 406 IPC and this plea was taken up for the first time in the divorce petition filed by the appellant. Apart from the statement, there is no evidence on record to show that the appellant was having illicit relations with another woman. Mere statement of the respondent cannot by itself constitute a factor for arriving at a conclusion that it was the appellant who deserted the respondent. Moreover, the appellant was not cross-examined on the issue of having illicit relations with Anita. The bald averment that the appellant was having illicit relations with another woman which is unsupported by any evidence on record formed the basis of the finding of the Addl. District Judge. In the absence of any evidence on record, the Addl. District Judge could not have come to the finding that it was the appellant whose conduct had resulted in the respondent leaving the matrimonial home.
30. The demand of the respondent for transfer of a room in the house of the appellant shows the insecurity of the respondent. It shows that the respondent was willing to return to the matrimonial home but did not feel secure. She wanted transfer of a room in her name in order to get the protection on account of being maltreated by the appellant and his family members and that she could not be turned out by the appellant again and again.
31. In the proceedings under Section 406 IPC, apart from the statement of the respondent the mother of the respondent also made the following statement :-
'I am ready to send my daughter if accused transfers the house in the name of my daughter, does not give her beatings and assures that he will not take her life.'
32. In Teerath Vs . Parvati , the wife was living separately from her husband. She said unless her husband establishes a separate residence away from the joint family, she would not join him. The Rajasthan High Court held that she was not in desertion.
33. I am not satisfied that the husband has established a ground to have a decree for divorce. There was justifiable excuse on the part of the respondent to forsake her husband which is evident from the evidence on record. The respondent was justified in staying away from the appellant as she had reasonable apprehension that she would continue to be ill-treated/beaten up. The statement of the respondent's mother supports the apprehension of the respondent. thereforee, it cannot be held that wife has permanently deserted the husband with no intention to return to the matrimonial home. The wife has no intention to break the matrimonial home for good. On the contrary, she wants an independent room where she could live peacefully. Facts may differ from case to case. In this case, it cannot be held that wife will be considered to have deserted the husband without sufficient reasons. The material on record does not show that the respondent lived away from the appellant without sufficient cause. The statement of the appellant shows that he is not willing to fulfill his part of the matrimonial duties and obligations.
34. Accordingly, the order of the Addl. District Judge to this extent is upheld. In these circumstances, I do not find any force in the appeal. Dismissed.