Judgment:
A.M. Bhattacharjee, J.
1. Theappellant-husband petitioned under Section 13 of the Hindu Marriage Act for dissolution of his marriage with the respondent-wife on the ground of desertion as well as cruelty. Both the grounds having been negatived and the petition having been dismissed by the trial court, the husband has preferred this appeal, but the learned counsel appearing for him has, however, pressed before us the ground of desertion only and has given up the ground of cruelty. The only question falling for our consideration in this appeal, therefore, is whether the respondent-wife deserted the appellant-husband to warrant a decree for divorce at the instance of the husband under Section 13(ib) of the Hindu Marriage Act and after hearing the learned counsel for the parties and after giving the materials on record our best consideration, we, in agreement with the learned trial Judge, propose to answer the question in the negative.
2. The facts of the case, stated in details in the judgment of the trial court, need not berestated as the real controversy, lies within a very narrow compass. The husband, Kamal, has a widowed elder sister Umarani, staying with him, who brought him up since he lost his mother at the age of four. The husband wants, as one should, that his mother-like widow elder sister should stay with them. But unfortunately the relation between his sister Umarani and his wife Kalayani appears to have been strained beyond measures, so much so that while the elder sister says that 'I shall never live at the family of Kamal if he lives with Kalyani', the wife Kalyani also says that 'I like to live with him (i.e. the husband) separately as well as jointly with others, but not with his elder sister Umarani'. The categorical assertion of the wife in her written statement as well as in her deposition is that she has all along been severely maltreated by the elder sister, making it impassible for her to live with the former. Even PW-2 Sajal, an elder brother of the husband, corroborates her and he goes further to say that the elder sister has misbehaved with the wives of the other brothers as well and as a result the other brothersalsohave had to live separately. But PW-1 Umarani however, has clearly admitted in her evidence that Kalyani never misbehaved with her 'nor had she ever ill-treated me'. Now if the evidence of Umarani is that even though Kalyani never misbehaved with her, yet she would not live with Kamal if Kamal lives with Kalyani and the evidence of Kalyani and the husband's brother Sajal is that Umarani has always misbehaved with Kalyani and also with the wives of the other brothers as a result whereof the other brothers are residing separately from Umarani, and if, under these circumstances, the wife Kalyani takes up the attitude that she would live with her husband and also his other relations, but not with Umarani. then it would not be possible for us to hold, on the materials on record, that the wife has taken an unreasonable attitude. And if, under these facts and circumstances, the wife, finding that the husband is in no mood to stay away from the elder sister, moves to her mother's place, it would be difficult for us to hold that she had no reasonable cause to do so and has deserted the husband.
3. In the Matrimonial Jurisprudence, desertion means, desertion of one spouse by the other without reasonable cause and without the consent of that other. It has been defined in the Explanation to Section 13(1) of the Hindu Marriage Act as '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'. It might sound almost tautologous to define desertion with the aid of that very expression, as has been done in the Explanation to Section 13(1). But what is sought to be emphasised is that a state of affair, which would otherwise a mount to desertion, would cease to be so if there is reasonable cause therefor or if the other party has consented thereto. In our view, however, consensual desertion or desertion by consent would almost amount to contradiction in terms as a state of affair emanating from consent of both the parties can never amount to desertion of the one by the other and therefore it seems that the provision providing that desertion must be without consent has been incorporated ex abundanti cautela, unless what is meant is that desertion would cease to be so if the deserted spouse has subsequently consented thereto.
4. If the wife in this case has deserted the husband, then in this action for divorce by the husband on the ground of such desertion by the wife, it would be necessary for us to ascertain as to whether there was any reasonable cause therefor on the part of the wife. But can she, on the materials on record, be at all said to have deserted the husband, so that we need investigate as to whether there was reasonable cause for the same ?
5. In Halsbury's Laws of England (3rd Edition Vol. 12, pages 453-454), desertion has been defined to mean in its essence 'the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause' and to denote 'the total repudiation of the obligations of marriage'. This definition has been quoted with approval by the Supreme Court in, among others. Bipin Chandra v. Prabhavati, : [1956]1SCR838 . As pointed out in Rayden on Divorce (13th Edition Vol. 1. page 239) 'in its essence desertion is theseparation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end, without reasonable cause and without the consent of the other spouse' This has also been quoted with approval by the Supreme Court in Bipin Chandra v. Prabhavati (supra). As already noted, the consistent stand of the respondent-wife all throughout appears to be that she was and is always willing to live and co-habit with the appellant-husband at any place, but without his elder sister and that she has left the matrimonial home only to get rid of that elder sister. This is neither a permanent forsaking of the husband by the wife, nor a total repudiation of the marriage and its obligations nor demonstration of any intention of bringing co-habitation permanently to an end. Mere living apart or leaving the home without any intention to bring cohabitation permanently to an end or to bring an end to the entire marital relationship for ever does not and cannot constitute desertion and reference in this connection may be made to the observations of the Supreme Court in Rohini Kumari v. Narendra Singh, : [1972]2SCR657 to the effect that 'there must be a determination to put an end to marital relation and cohibitation' as 'without animus deserendi there can be no desertion'. As is well settled, no amount of physical or factual separation would constitute desertion unless the requisite animus deserendi, i.e. the intention to bring cohabitation permanently to an end, also coexists (See, Rayden on Divorce supra, page 245). As we do not see any exhibition of any such animus deserendi on the part of the wife in living apart or leaving the matrimonial home, but rather find a clear indication of animus revertendi to the matrimonial home without the husband's sister staying there, we would have to hold, which we hereby do, that there was no desertion on her part to warrant any decree for divorce.
6. But even assuming that there was animus deserendi and also no animus revertendi on the part of the wife and there was absence of consent on the part of the husband, still then the state of affair would not amount to desertion unless it is further established that there was absence ofconduct on the part of the husband reasonably causing the wife to form such animus deserendi. In order to constitute desertion within the meaning of the Explanation to Section 13(1) of the Hindu Marriage Act, while there must be two elements present on the side of the deserting spouse, namely, the factum of his or her withdrawal and the accompanying animus deserendi, there must also be two elements present on the side of the spouse claiming to be deserted, namely, absence of his or her consent and the absence of conduct on his or her part giving the deserted spouse reasonable cause to form the animus deserendi. That this is the accepted position in law would also appear from Rayden on Divorce (supra, pages 244-245). On the materials on record, we are constrained to hold that the conduct of the elder sister of the husband was such that it was not possible for the wife to put up and pull on with her, that even though according to her own admission, the wife has never misbehaved with her, yet the elder sister would not live in the house if the wife lives there and that as a result the wife has had to take up her stand to live in the matrimonial home only if theelder sister is not there. It must, however, be pointed out to the credit of the elder sister that she is 'agreeable to live elsewhere if Kamal lives happily with Kalyani'. If, under these circumstances, the husband states that he is 'never agreeable to live with (his) wife minus (the elder sister) Umarani' and has insisted that the wife must live in the matrimonial home with the elder sister staying there, then we are afraid that the husband has given reasonable cause to the wife to leave the matrimonial home and, therefore, such leaving on the part of the wife would not amount to desertion.
7. In a matrimonial cause on the ground of desertion, very often the question arises as to who has deserted and who is deserted, because the physical act of departure by one spouse does not necessarily make that spouse the deserting party. If a husband persists in doing things which he knows that his wife cannot, and has good reasons not to, tolerate and the wife accordingly has had to leave the home, then it is the husband who has deserted the wife, even though the wife herself has physically left home. Thisproposition is too well settled to require any citation, but yet reference may again be made to Rayden on Divorce for the purpose (supra; page 245). If it were necessary for us to decide the question, we would have had to hold on the materials on record that the husband has deserted the wife. But we need not do so as that is not the precise question before us, the question being whether the wife has deserted the husband. And we decide that question in favour of the wife without hesitation and hold that on the materials on record it has not been proved that she has deserted the husband.
8. In the Court of Appeal case in Munro v. Munro, (1950) 1 All ER 832, the husband took his wife to a flat next door to his own mother who had a dominating personality while the husband had none spending his time in drink and in doing no work. The wife stayed for about six months and then being unable to stand the conditions there any longer left the place. The husband asked her to come back to live under the same conditions and it was held that she was not bound to do so. It was held further (by Bucknill and Denning, LJJ. and Roxburgh, J.) that the wife had just cause for leaving and was entitled to restitution of conjugal rights and to further ask her husband to provide her with a reasonable home away from the mother-in-law.
9. Manu, our ancient law-giver, was not confronted with Article 14 and Article 15 of the Constitution mandating equality before the law and countermanding all discrimination on the ground of sex and thus could issue a peremptory fiat condemning women to perpetual tutelage -- Na Swatantra Kachit Striyah -- and commanding a wife not go against her hasband in mind, body, words or deeds -- Pating Ja Navicharati Manobakdehasanjata we must not be taken to have advocated the husband's shedding off his aged parents orother aged relations to infirmaries and to build a home only for his wife and minor children. But in the context of the set up of our modern society, we cannot, with Article 14 and Article 15 staring at our face, take that view of the law whichwould expose wife to unreasonable unpleasantness from the relations of her husband in her matrimonial home. The wife is entitled to the society, comfort and consortium of the husband and those rights would come within her rights to 'personal liberty' under Article 21 of the Constitution, now that the said Article has been expanded with the widest possible amplitude by the Supreme Court in Maneka Gandhi, : [1978]2SCR621 , in Francis Coraile Mullin, AIR 1981 SC 746 and other post-Maneka decisions. And if those rights stand the risk of being subverted because of the presence of and provocations from other relations, the law should allow the wife to insist for a separate home away from those relations. In the modern setup of our present-day society, the husband cannot have either a casting vote or a veto in the matter of choosing the matrimonial home or the members thereof and reference in this connection may be made to a decision of the Madras High Court in M. Ponnambalam v. Saraswathi, : AIR1957Mad693 where Ramaswami, J. (as his Lordship then was) observed (at p. 694) that 'at times the husband may have to choose between parents, mother and wife' and that 'it is now the settled law in England, America and India that a wife is entitled to insist that she should not be exposed to the unpleasantness of the relatives of her husband and that suitable provisions should be made for her to live with her husband in privacy'. And if on the failure of the husband to provide such a home, the wife leaves the home while indicating all the time her readiness and willingness to join the husband as and when such a home is provided, she cannot be branded as a deserting spouse with the requisite animus deserendi and animus non revertendi.
10. We accordingly dismiss the appeal preferred by the husband-appellant and affirm the judgment and decree of the court below. No costs.
Ajit Kumar Nayak, J.
11. Iagree.