Ajit Kumar Nayak, J.
1. This appeal is directed at the instance of petitioner-husband against the judgment and decree dt. 12-11-1979 passed by Shree S. K. Basu, learned Additional District Judge, First Court, Hooghly, in Matrimonial Suit No. 28/76 refusing the appellant petitioner's prayer for judicial separation and in the alternative for dissolution of his marriage on the ground of desertion. Having considered the respective contention of the parties, appearing in their pleadings, as supported by the oral and documentary evidence led by the m and the arguments advanced by the learned counsel of both sides, we are of opinion that the plaintiff-appellant has failed to prove his case of desertion and we hereby affirm the judgment and decree of dismissal passed by the learned Additional District Judge.
2. As already stated, the petitioner (appellant) brought this soil for judicial separation, in the alternative for a decree for divorce, under Section 13 of the Hindu Marriage Act, 1955. His case in brief was that the marriage between the parties was solemnized according to Hindu Rites and Customs on 12th May, 1966. After the marriage they lived happily as husband and wife in Calcutta for some time and, thereafter, at Serampur, having two issues, a daughter and a son, born out of their wedlock, who were aged nine years and three years respectively at the time of the institution of this suit. The defendant opposite party, holding a master's degree in commerce is an employee of Punjab National Bank, Brabourn Road, Calcutta, since before her marriage and was at the time of marriage drawing a salary of Rs. 1,000/- per month. The petitioner's further case was that his wife, shortly after the marriage, began to show signs of indifference towards him and his issues and used to come back late at night. The petitioner asked the defendant-wife to give up her work to pay more attention and to take proper care of the children but the defendant did not pay heed to that and instead, indulged in quarrelling with the husband and the members of his family. This attitude of the defendant deteriorated and she became more quarrelsome after the birth of her second issue. She left the plaintiffs house for her father's in Dec. 1973 without his consent and since her return has been residing separately in the same premises with ho intention of making a matrimonial home in spite of the best attempts on the part of the plaintiff to bring her back. The defendant-opposite party during their stay in the same house, used to assault the plaintiff-petitioner and had even bitten and insulted the petitioner to undermine his prestige in the estimation of others. The defendant-opposite party having wilfully deserted the plaintiff-petitioner for a continuous period of more than two years the plaintiff-petitioner was compelled to bring this action.
3. The wife opposite party contested the suit by filing a written objection and denied all the material allegations of the petitioner. She, on her turn, made out a case of systematic indifference, ill-treatment towards her and her children by her husband and his parents. It is alleged, after their marriage in 1966, the parties lived happily and peacefully in Calcutta till June, 1967 and, thereafter, shifted to their residence at Tarapukur housing estate and lived there till Dec., 1973. During this period, the opposite party gave birth to two children, the elder one, a daughter named Kumari Soma Chatterjee and the other a son named Sri Kaushik Chatterjee who were aged nine years and four years at the relevant time. It was alleged by the opposite party that her husband was a Union Leader and devoted most of his time, energy and money to his union activity in complete disregard of his obligation towards his wife and children and the opposite party had to run the whole family affair practically with her own income. As the petitioner's income was not sufficient enough he insisted on the opposite party's continuing in service after marriage in order to maintain his family and his parents. It was on the plaintiffs request the defendant took a loan of Rs. 23,000/- from his office and, thereafter, they purchased jointly a piece of land in the joint names and having constructed a single storied pucca building thereon at Zaminderbagar Lane, Serampur, began living therein with their children. Shortly after this, the plaintiff who was very arrogant and rough in temperament began to misbehave with the opposite party and finally refused to maintain her and her children and separated them on or from Dec., 1975. This, according to opposite party, was done by the plaintiff in collusion with his parents with a view to oust this opposite party and her issues from their new house and to grab such property. The opposite party was insulted and assaulted by the plaintiff and she had a very miserable existence facing great difficulties to maintain herself and her children. The opposite party always tried to adjust herself and to live a happy and peaceful conjugal life with the plaintiff. She denied that she ever left the plaintiffs house in December, 1973 or at any time and that she has been living there in the same premises as before. She also denied that she ever insulted or assaulted the plaintiff petitioner or his parents at any time.
4. The parties went to trial on thenfollowing issues:
1. Is the suit maintainable in law?
2. Is the petitioner entitled to get a decree of divorce on the ground of desertion?
3. Whether the respondent deserted the petitioner without any reasonable cause?
4. To what relief, if any, is the petitioner entitled?
5. The learned Additional District Judge having negatived the contentions of the plaintiff petitioner on all the main issues, dismissed his suit and being aggrieved by the same, the plaintiff petitioner has preferred this present appeal.
6. Issue No. 1: This issue was not pressed before the Trial Court and same has not also been pressed before us and as such it is answered in favour of the plaintiff appellant.
7. Issues 2 and 3 : The principal ground on which the plaintiff has brought the suit for judicial separation and in the alternative for divorce is one of wilful desertion by the opposite party defendant without the consent or the plaintiff petitioner since December, 1973. It has been asserted by the petitioner that the opposite party left the matrimonial home for her father's house in Dec., 1973 and came back six months after but has been living, since then, separately with her children in a separate flat in the same premises with the intention to bring the matrimonial consortium 16 an end.
8. Desertion as a ground for divorce as also for judicial separation has been recognized under Section 13(ib) and Section 10(1) of the Hindu Marriage Act. The term desertion as defined in the explanation to Section 13(1) of the Hindu Marriage 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 wilful neglect of the petitioner by the other party to the marriage, and the grammatical variations and cognate expressions shall be construed accordingly.' The second part of the explanation is therefore wide enough to include a situation where desertion means not only withdrawal from place but from a state of things. It is now a settled principle of law that for the act of desertion to exist there must be two elements present on the side of deserting spouse namely, the factum i.e. physical separation and the animus deserandi, that is, the intention to bring cohabitation or tile matrimonal consortium to an end The elements present on the side of the deserted spouse should be absence of consent and absence of conduct reasonably causing the deserting spouse to form his or her intention to bring cohabitation to an end. : [1972]2SCR657 , Rohini Kumari v. Narendra Singh, (1969) 73 Cal WN 143. To constitute desertion both these elements must co-exist.
9. Admittedly the parties were married according to Hindu Rites in May, 1966, and that a son and a daughter had been born to them out of this wedlock. Admittedly also, the parties came to live at Serampore from Calcutta, in 1967 and jointly built a house at Zamindar Bagan Lane at Serampore with the joint fund in 1973-74. It is also an admitted fact that both the parties are living now under the same roof in the said premises. Undisputedly also the petitioner is an employee of Standard Pharmaceutical Works Ltd. at Serampore and at least at the relevant time was an office bearer of the employees Union. It is also an admitted fact that the opposite party wife is an employee of Punjab National Bank, Brabourn Road, Calcutta since before her marriage and was drawing a salary of Rs. 1,000/- per month at the time of her marriage. There is no dispute that the children of the parties are now in the care and custody and living with their mother in the same premises.
10. The petitioner husband examined as many as 4 witnesses in support of his case of desertion by the opposite party since Dec., 1973. The opposite party on the other hand examined 2 witnesses in her turn to prove her case of denial.
11. It may be stated at the very outset that the two essential elements of desertion at the side of deserting spouse as allegedly attributed to the wife opposite party are absolutely wanting in the instant case. The specific case in the petition of desertion of matrimonial home by the wife in Dec., 1973, has been completely belied by P. Ws. 1 and 2, the parents of the petitioner who admitted in their evidence that Kamala and Tapan were staying together with their children in joint mess in their house at Zamindar Bagan Lane when these witnesses came to live with them in Sept., 1975. It is in their evidence that of the two flats in this house, one flat (now occupied by opposite party) was rented to a tenant at the relevant time i.e. 1975. It is obvious therefore, that the other flat was shared jointly by the parties themselves making a matrimonial home. The fact that parties were living jointly in the same matrimonial home at the material time is also borne out by other evidence and circumstances of this case.
12. Both P.Ws. 1 and 2, the parents of the petitioner, admitted in their evidence that it was at the request of Kamala, the Opposite Party, they came down from Calcutta to reside with their son at Serampore house, and as already stated, found them living together in joint mess. Had the opposite party any intention to break away from the matrimonial home, this would be the last thing, she would do at that time. Rather, it goes to show that she tried earnestly to mend the family fence, showing signs of normal wear and tear by inviting the benign and living presence of the parents of the petitioner.
13. We find also from unimpeachable evidence on record that the petitioner along with his wife and children and others including a friend and colleague D.W. 1 Chandra Sekhar Das went to Digha in January, 1975. They all went in a bus and halted at Jhauban at Digha. It is in evidence that the cook who accompanied them at that time also supplied the necessary food. This was an occasion for sight seeing and outing by the entire family. It seems again highly unlikely that the opposite party would accompany the petitioner to such visit at Digha with her children, if she had the slightest intention to break the matrimonial home. However much the petitioner may try to deny such happy occasion the evidence of D.W. 1 admitted friend and colleague of petitioner, together with the Exts. A(I) and 1(a) the joint photographs taken on such occasion, leave no manner of doubt that the parties enjoyed happy family life at least till the early part of 1975. P.W. 1 the mother of the petitioner has stated in evidence that she did not know at the time she came to Serampore in 1975 that the petitioner was not on good terms with his wife. P.W. 2, the father has also admitted in evidence (cross-examination) that when he came to Serampore, the petitioner was living with his wife in the same flat. It has been admitted by P.W. 2 that he never enquired about the trouble or cause of strained relationship between the parties. He was very much eager and anxious to make a happy settlement between the parties without knowing the real cause of such unhappy relationship between his son and doughter-in-law. This goes to show and support the contention of the opposite party that the petitioner was suffering from an emotional imbalance and that barring the normal and occasional conjugal discord, there was no deep-seated maladjustment between them. Both P.Ws. 1 and 2 in their evidence have made certain insinuations against their daughter-in-law, which on scrutiny appear to be without any foundation or substance at all The evidence of P.W. 3 Sudhangshu Sekhar Mukherjee cannot be believed at all as he never witnessed any such quarrel between the parties and his knowledge is only hearsay and that too the incidents taking place at night. P.W. 4 is the petitioner himself. He has admitted that he married the opposite party, having prior acquaintance with her, according to Hindu Rites. The evidence that his wife left in December, 1973 has not been corroborated by any other witnesses. It is true that there may be a case of desertion even when the husband and wife are living in the same house but there must be positive evidence showing neglect, indifference or overt acts of estrangement on the part of one, so that the conduct may amount to desertion. In the instant case, the facts and circumstances as stated above do not support such case of desertion as alleged by the petitioner.
14. In his evidence P.W. 4, the petitioner Tapan tried to paint a picture that his wife became arrogant, immodest and very violent only two months after her marriage. The petitioner did not consult a Doctor for the same. It is in his evidence that he did not tell this fact to any of his friends and relatives. According to the petitioner, his friends Mihir Khan and Chandra Sekhar Das witnessed this matter but this piece of evidence of the petitioner has been thoroughly contradicted by Chandra Sekhar Das, D.W. 1 who has given a very good account or certificate in his evidence about the conduct and behaviour of the opposite party.
15. It is in the evidence P.Ws. 2, 3 and 4 and also that of the opposite party that the petitioner is an office bearer and an active member of his employees Union and used to hold in such capacity many meetings in his house to the consternation, difficulty and dismay of the opposite party, confining her virtually to her kitchen throughout the day.
16. D.W. 1 Chandra Sekhar Das in his evidence has stated that he did not notice any abnormal relationship between the petitioner and his wife and that the opposite party sought for his help to concile the family relationship as the witness had intimacy with the petitioner. It has transpired in his evidence that in spite of his best intention and endevour to that effect the same failed because of the unreasonable attitude adopted by the petitioner and his parents. He has also stated that excepting usual conjugal discords nothing worth mentioning took, place between the parties. D.W. 1 repeatedly requested the petitioner to patch up his differences with his wife. Admittedly, D.W. 1 is a friend and a colleague of the petitioner. As such, we can put enough of reliance upon his evidence. The opposite party has narrated in detail in her evidence supporting the case made out in her written objection. We find from her evidence that she had reservation about the opening of a grocery shop by her husband which according to her was not commensurate with his prestige and status in life. The abnormal conduct of the petitioner was attributed by her to the excessive physical and mental labour the petitioner was undergoing and that explains why as an understanding wife she tolerated all the sufferings and ignominies at the outset.
17. She was surprised thereby when she got the lawyer's letter on behalf of her husband. She spared no pains, approaching everybody including friends, colleagues, relatives of the petitioner to make a approachment between the parties. It is in evidence that meetings were also arranged to get such reconciliation, but, it all went in vain due to the attitude taken by her husband It is also in her evidence that she became so much apprehensive about the physical safety of herself and her children that she thought it fit jto remain in a different room though under the same roof. She still claims to be a faithful and devoted wife ready to fulfil her share of matrimonial obligation. As already stated she knocked every home both on her father's and husband's side including the house of her sister-in-law (that is the sister of her husband) and disclosed everything to them seeking frantically their assistance and sympathy to bring about reconciliation and peaceful matrimonial home. All these acts and conduct of the opposite party cannot by any stretch of imagination be said to be the outcome of any intention to break the matrimonial home or desertion. In view of what has been stated above we are, therefore, in agreement with the finding arrived at by the Learned Additional District Judge that opposite party never deserted the petitioner and that he (the petitioner) has failed to prove his case of desertion.
18. We now come to the next question as to whether the petitioner is entitled to get a decree of divorce on any other ground in his petition. He has made a vague and general allegation of misbehaviour and misconduct by the opposite party towards the petitioner. He has also alleged that she is cruel in nature and used to assault the petitioner and had even bitten the petitioner on one occasion. Such instances of misbehaviour and misconduct of physical assault have not been specifically stated in the petition with reference to date, time or place. It is very easy to make such vague and general allegations and as it happens normally in such cases, the same have not been corroborated by cogent evidence on record. What the petitioner wanted to impute by implication, as a ground for divorce is cruelty, though, the same has not been spelt out in so many words in his petition.
19. Cruelty as we know, is a wilful 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. On this point save and except the uncorroborated testimony of P.W. 4, the petitioner, there is no evidence to show that the opposite party ever assaulted or had bitten her husband the petitioner. According to P.W. 1 the mother of the petitioner, the opposite party once assaulted her by pulling her hair several months after she came to Serampur. But these facts find no mention in the petition itself though the suit was filed in the year 1976. Similar such vague allegations have been made by P.W. 2, the father of the petitioner. According to P.W. 2, he reported these incidents to a Professor and an Engineer but he cannot tell their names. As against this, we have already seen D.W. 1 Chandra Sekhar Das, a friend and a colleague of the petitioner himself, has given a good account about the conduct and temperament of the opposite party. There is no reason accordingly to disbelieve him on this point. On the other hand, we find from the evidence of D.W. 2, the opposite party, that if cruelty had ever been perpetrated upon anybody it was on her by the petitioner and members of his family. It so appears from evidence on record that she tolerated and swallowed all these ignominies without making any fuss, with a view to purchase family peace. In consideration of what has been stated above, we are in agreement with the finding of the learned Additional District Judge, that the petitioner has failed to prove his case and that he is not entitled to any relief whatsoever as claimed. The appeal, therefore, fails and the same is dismissed. The judgment and decree passed by the learned Trial Court, that is, the Additional District Judge, Second Court, Hooghly, are hereby affirmed. Parties shall bear their own costs.
A.M. Bhattacharjee, J.
20. I agree.