# BIPIN CHANDER JAISINGHBHAI SHAH v. PRABHAWATI

- **Citation:** [1956] 1 S.C.R. 838
- **Court:** Supreme Court of India
- **Decided:** 1956
- **Case number:** Civil Appeal No. 247 of 1953
- **Bench:** Jagannadhadas, Venkatarama Ayyar, B. P. Sinha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bipin-chander-jaisinghbhai-shah-v-prabhawati-1275
- **Pages:** 34

## Headnote

Husband and Wife-Divorce-Desertion-Ingredients of Desertion-Intention-Animus Deserendi-Statutory period of separaticn
-Burden of proof-Bombay Hind" Divorce Act, 1947 (Bom. XXII
of 1947 ), s. 3(1)( d).
The parties were married in 1942 and there was a child of the
marriage. In 1947 the appellant left for England on business and
on his return to India discovered that this wife (respondent) had
been having amorous correspondence with one M, and taxed her with
having developed intimacy with him. She was unable to give any
answer and went to her father's place on May 24, 1947, on the pre·
text of the marriage of her cousin which was to te.ke place in Jnne.
On July 15, 1947, the appellant sent a notice to the respondent
through bis solicitor in which after mentioning the fact that she had
left against his wishes stated that he did not desire to keep her any
longer under his care and protection, and desired her to send the
minor son to him. On July 4, 1951, the appellant instituted the suit
for divorce under s. 3(1)(d) of the Bombay Hindu Divorce Act, 1947,
on the ground that the respondent had been in desertion ever since
Ma.y 24, 1947, without reasonable ca.use and without his consent
and against his will for a period of over four years. The respondent's
case that it was the appellant who by his treatment of her after bis
return from England had made her Ji£e unbearable and compelled
her to lea.ve her marital home against her wishes, wa.s not proved
but there was evidence that after the solicitor's notice dated July 15,
1947, was received by the respondent, attempts were made by her
father and bis relations to bring about reconciliation between the
parties but they failed awing to the attitude of the appellant.
The
question was whether the respondent had been in desertion entitling
the appellant to have a decree for divorce.
Held that, on. the facts, though the initial fault la.y ·with the
respondent. her leaving her marital home was not actuated by any
animus to desert her husband but. as the result of her sense of guilt,
and as subsequently she was willing to come back but could not do
so owing t.o the attitude of the appellant, there was no proof that
she deserted him, much Jess that she had harboured that anim"s for
the statutory period, and the appellant's case must fail.
The essential conditions for the offence of desertion, so far as
the deserting spouse is concerned, are (i) the factum of separation
and (ii) the intention to bring cohabitation permanently to an end
-
'.
•
S.C.R.
SUPREME COURT REPORTS
839
(animu& deserendi); and as regards the qeserted spouse the elements
1956
are (i) the absence of consent and (ii) absence of conduct giving
reasonable cause to the spous;e leaving the matrimonial home to
Bij>in Chander
form the necessary intention aforesaid.
Jaisinghbhai Shah
Desertion is a matter of inference to be drawn from the facts
and circumstances of each case a.nd those 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
act of separation.
In a suit for divorce on the ground of desertion the burden is on
the plaintiff to prove that the deserting spouse has been in desertion
throughout the statutory period of four yea.rs.
Thomas v. Thomas ([1924] l'. 194), Bowron v. Bowron ([19115]
P. 187), Pratt v. Pratt ([1939] A.O. 417) and Lang v. Lang ([1955]
A.O. 402), referred to.
Quaere, whether the statutory period of four years specified in
s. 3(1)(d) should immediately precede the institution of the suit for
divorce.

## Text

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1956
October 19.
838
SUPREME COURT REPORTS
(1956)
BIPIN CHANDER JAISINGHBHAI SHAH
v.
PRABHAWATI.
(JAGANNADHADAS, VENKATARAMA AYYAR and
B. P. SINHA, JJ.]
Husband and Wife-Divorce-Desertion-Ingredients of Desertion-Intention-Animus Deserendi-Statutory period of separaticn
-Burden of proof-Bombay Hind" Divorce Act, 1947 (Bom. XXII
of 1947 ), s. 3(1)( d).
The parties were married in 1942 and there was a child of the
marriage. In 1947 the appellant left for England on business and
on his return to India discovered that this wife (respondent) had
been having amorous correspondence with one M, and taxed her with
having developed intimacy with him. She was unable to give any
answer and went to her father's place on May 24, 1947, on the pre·
text of the marriage of her cousin which was to te.ke place in Jnne.
On July 15, 1947, the appellant sent a notice to the respondent
through bis solicitor in which after mentioning the fact that she had
left against his wishes stated that he did not desire to keep her any
longer under his care and protection, and desired her to send the
minor son to him. On July 4, 1951, the appellant instituted the suit
for divorce under s. 3(1)(d) of the Bombay Hindu Divorce Act, 1947,
on the ground that the respondent had been in desertion ever since
Ma.y 24, 1947, without reasonable ca.use and without his consent
and against his will for a period of over four years. The respondent's
case that it was the appellant who by his treatment of her after bis
return from England had made her Ji£e unbearable and compelled
her to lea.ve her marital home against her wishes, wa.s not proved
but there was evidence that after the solicitor's notice dated July 15,
1947, was received by the respondent, attempts were made by her
father and bis relations to bring about reconciliation between the
parties but they failed awing to the attitude of the appellant.
The
question was whether the respondent had been in desertion entitling
the appellant to have a decree for divorce.
Held that, on. the facts, though the initial fault la.y ·with the
respondent. her leaving her marital home was not actuated by any
animus to desert her husband but. as the result of her sense of guilt,
and as subsequently she was willing to come back but could not do
so owing t.o the attitude of the appellant, there was no proof that
she deserted him, much Jess that she had harboured that anim"s for
the statutory period, and the appellant's case must fail.
The essential conditions for the offence of desertion, so far as
the deserting spouse is concerned, are (i) the factum of separation
and (ii) the intention to bring cohabitation permanently to an end
-
'.
•
S.C.R.
SUPREME COURT REPORTS
839
(animu& deserendi); and as regards the qeserted spouse the elements
1956
are (i) the absence of consent and (ii) absence of conduct giving
reasonable cause to the spous;e leaving the matrimonial home to
Bij>in Chander
form the necessary intention aforesaid.
Jaisinghbhai Shah
Desertion is a matter of inference to be drawn from the facts
and circumstances of each case a.nd those 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
act of separation.
In a suit for divorce on the ground of desertion the burden is on
the plaintiff to prove that the deserting spouse has been in desertion
throughout the statutory period of four yea.rs.
Thomas v. Thomas ([1924] l'. 194), Bowron v. Bowron ([19115]
P. 187), Pratt v. Pratt ([1939] A.O. 417) and Lang v. Lang ([1955]
A.O. 402), referred to.
Quaere, whether the statutory period of four years specified in
s. 3(1)(d) should immediately precede the institution of the suit for
divorce.
CIVIL APPELLATE JURISDICTION:
Civil Appeal
No. 247 of 1953.
Appeal by special leave from the judgment and
decree dated August 22, 1952 of the Bombay High
Court in Appeal No. 66 of 1952 arising out of the
decree dated March 7, 19t>2 of Bombay High Court
in its Ordinary Original Civil Jurisdiction in Suit
No. 1177 of 1951.
M. 0. Setalvad, Attorney-General for India, Purshottam Tricumdas, T. God,iwala, J. B. Dadachanji,
Rameshwar Nath and S. N. Andley, for the appellant.
0. K. Daphtary, Solicitor-General of India and
Sardar Bahadur, for the reE1pondent.
1956. October 19. The Judgment of the Court
was delivered by
SINHA J.-This is an appeal by special leave against
the judgment and decree of the High Court of Judicature at Bombay dated August 22, 1952, reversing those
of a single Judge of that Court on the Original Side,
dated March 7-, 1952, by which he had granted a decree
for dissolution of marriage between the appellant and
the respondent.
v.
P.-abhawati
840
SUPREME COURT REPORTS
[1956]
1956
The facts and circumstances of this case may be
Bp· Ch
d
.stated as follows: The appellant, who was the plainJai:i~;hbh:;• s:ah tiff, and the respondent were married at Pa tan on
v.
April 20, 1942, according to Hindu rites of the Jain
Prabhawati
Community. The families of both the parties belong
to Pa tan, which is a town in Gujarat, about a night's
rail journey from Bombay. They lived in Bombay
Sinha}.
in a two-room flat which was in occupation of the >"
appellant's family consisting of his parents and,his
two sisters, who occupied the larger room called the
hall, and the plaintiff and the defendant who occupied
the smaller room called the kitchen. The appellant's
mother who is a patient of asthma lived mostly at
Pa tan. There fa an issue of the marriage, a son named
Kirit, born on September 10, 1945. The defendant's
parents lived mostly at J algaon in the East Khandesh
district in Bombay. The parties appear to have lived
happily in Bombay until a third party named Mahendra, a friend of the family came upon the scene
and began to live with the family in their Bombay
flat some time in 1946, after his discharge from the
army. On January 8, 1947, the appellant left for
England on business. It was the plaintiff's case that
during his absence from Bombay the defendant. became intimate with the said Mahendra and when she
went to Patan after the plaintiff's departure for
England she carried on "amorous correspondence"
with Mahendra who continued to stay with the plaintiff's family in Bombay. One of the letters written
by the defendant to Mahendra while staying at the
plaintiff's flat in Bombay, is Ex. E as officially translated in English, the original being in Gujera ti except
a few words written in fatilty English.
This letter
is dated April 1, 1947, written from the plaintiff's house
at Patan, where the defendant had been staying with
her mother-in-law.
This letter had been annexed to
the plaint with the official translation. It was denied
by the defendant in her written statement.
But at
the trial her counsel admitted it to have been written
by her to Mahendra.
As this letter started all the
trouble between the parties to this litigation, it will
have to be set out in extenso hereinafter. Continuing
S.C.R.
SUPREME COURT REPORTS
841
the plaintiff's narrative of the events as alleged in
1956
the plaint and in his evidence, the plaintiff returned
Bp· Ch
d
•
t ui
an er
to Bombay from abroad on May 20, 1947. To receive Jaisinghbhai Shah
him back from his foreign journey the whole family
y.
including the defendant was there in Bombay.
AcPrablrawati
cording to the plaintiff, he found that on the fir,st
night after his return his bed had been .made in the
hall occupied by his father and that night he slept
away from his wife.
As this incid1lnt is said to have
some significance in the narrative of events leading
up to the separation between the husband and the
wife and about the reason for which the parties differ,
it will have to be examined in detail later.
Next
morning, that is to say, on May 21, 1947, the plaintiff's father handed over the letter aforesaid to the
plaintiff, who recognised it as being in the familia1
handwriting of bis wife. He decided to tackle his wife
with reference to the letter. He handed it to a photographer to have photo copies made of the same. That
very day in the evening he asked his wife as to why
she had addressed the letter to Mahendra. She at first
denied having written any letter and asked to see the
letter upon which the plaintiff informed her that it
was with the photographer with a view to photo
copies being made. After receiving the letter and the
photo copies from the photographer on May 23, the
plaintiff showed the defendant the photo copy of the
letter in controversy between them at that stage and
then the defendant is alleged to have admitted having
written the letter to Mahendra and to have further
told the plaintiff that Mahendra was a better man
than him and that Mahendra loved her and she loved
him.
The next important event in the narrative is
what happened on May 24, 1947. On the morning of
that day, while the plaintiff was getting ready to go
to his business office his wife is alleged to have told
him that she had packed her luggage and was ready
to go to Jalgaon on the ostensible ground that there
was a marriage in her father's family.
The plaintiff
told her that if she had made up her mind to go, he
would send the car to take her to the station and
offered to pay her Rs. 100 for her expenses. But she
Sinha J.
842
SUPREME COURT REPORTS
[1956]
1956
ref1;1se~ ~he offer. She left Bombay apparently in the
a;p;n c1ia .. der
plamtiff s absence for J algaon by the afternoon train.
Jaisinghbhai Shah When the plaintiff came back home from his office he
v.
"discovered that she had taken away everything ~ith
Prabhawati
her and had left nothing behind". It may be added
here that the plaintiff's mother had left for Patan
with his son some days previously.
Plaintiff's case
further is that the .defendant never came back to
Bombay to live with l;lim, nor did sbe write any letters
from Jalgaon, where she stayed most of the time. It
appears further that the plaintiff took a very hasty,
if not also a foolish, step of having a letter addressed
to the defendant by his solicitor on July 15, 1947,
charging her with intimacy .between herself o.nd
Mahendra and asking her to send back the little boy.
The parties violently differ on the intent and effect of
this letter which will have to be set out in extenso at
the appropriate place.
No answer to this letter was
received by the plaintiff.
In November, 1947, the
plaintiff's mother came from Patan to Bombay and
informed the plaintiff that the defendant might be
expected in Bombay a few days later. Thereupon the
plaintiff sent a telegram to his father-in-law at Pa tan.
The telegram is worded as follows:-
Sinha}.
"Must not send Prabha. Letter posted.
Wishing happy new year".
The telegram stated that a letter had been posted.
The defendant denied that any such letter had been
received by her or by her father. Hence the original,
if any, is not on the record.
But the plaintiff produced what he alleged to be a carbon copy of that
letter which purports to have been written on November 13, 1947, the date on which the telegram was
despatched. An English translation of that letter is
Ex. C and is to the following effect:-
"
Bombay, 13-11-47
To
Rajmanya Rajeshri Seth Popatlal & others.
There is no letter from you recently. You must
have received the telegram sent by me today.
Further, this is to inform you that I have received information from my Marni (mother) that
S;C.R.
SUPREME COURT REPORTS
843
Prabha is going to come to Bombay in 3 or 4 days. I
1956
am surprised to hear this news.
Ever since she has
J 1
th
h
b
.
l
l
Bipin Chand•r
gone to
a ga~n,
ere as een not a smg e etter Jaisinghbhai Shah
from her to this day.
Not only that, but, although
v.
you know everything, neither you nor any onf') on
Prabhawati
your behalf has come to see me in this connection.
What has made Prabha thus inclined to come all of
Sinha J.
a sudden!
.
After her behaviour while going to Jalgaon for
the marriage, (and after), berletter to Mahendra and
her words-'He is better than you-Has feeling for
me and I love him' and all this, I was afraid that she
would not set up a house with me.
Hence when my
mother gave me the news of lier return, I was surprised .
. I have not the slightest objection to the return
of Prabha, but if she gives a.uch shameless replies to
me and shows such improper behaviour, I shall not be
able to tolerate the same. If she now really realises
her mistake and if she is really repenti.og and wants
sincerely to come, please make her write. a reply to
this letter. On getting a letter from her, I shall personally come to Patan to fetch her. Kirit is young,
For his sake also, it is necessary to persuade Prabha.
Further, I have to state that I have so far kept
peace. I have made efforts to call back Prabha.
Please· understand this to her my final effort. If even
now Prabha does not give up her obstinacy, I am not
responsible and (then) do not blame me.
Well, that is all for the present. Kirit must be
hale and hearty. My new year's greetings to you all:
Please do assign to me such work as I can manage.
Written by Bipinchandra".
The plaintiff stated that he received no answer either
to the telegram or to the letter. Two days later, on
November 15, the plaintiff's father addressed a letter
to the defendant's father, which is Ex. D. This letter
makes reference to the defendant's mother having
talked to the plaintiff's mother about sending the defendant to Bombay and to the fact that the plaintiff
had sent a telegram on November 13, and ends with
the expression of opinion by the plaintiff's father
1956
Bipin, Chander
J aisinghbhai Shala
v.
Prabhawati
Sinha J.
844
SUPREME COURT REPORTS
[1956]
that it was "absolutely necessary" that the plaintiff's
consent should be obtained before sending the defendant to Bombay. This letter also remained unanswered. According to the plaintiff, nothing happened until May, 1948, when he went to Pa tan and
there met the defendant and told her "that if she repented for her relations with Mahendra in the interests
of the child as well as our own interests she could
come back and live with me". To that the defendant
is said to have replied that in November, 1947, as a result of pressure from her father and the community,
she had been thinking of coming to livewith the plaintiff, but that she had then decided not to do so. The
defendant has given quite a different version of this
interview. The second interview between the plaintiff
and the defendant again took place at Pa tan some time
later in 1948 when the plaintiff went there to see her
on coming·to know that she had been suffering from
typhoid. At that time also she evinced no desire to
come back to the plaintiff.
The third and the last
interview between the plaintiff and the defendant
took place at Jalgaon in April-1\iay, 1949.
At that
interview also the defendant turned down the plaintiff's request that at least in the interests of the child
she should come back to him. According to the plaintiff, since May 24, 1947, when the defendant left his
home in Bombay of her own accord, she had not come
back to her marital home.
The suit was commenced
by the plaintiff by filing the plaint dated July 4, 1951,
substantially on the ground that the defendant had
been in desertion ever since May 24, 1947, without
reasonable cause and without his consent and against
his will for a period of over four years. He therefore
prayed for a decree for a dissolution of bis marriage
with the defendant and for the custody of the minor
child.
The suit was contested by the defendant by a written statement filed on February 4, 1952, substantially
on the ground that it was the plaintiff who by his
treatment of her _after his return from England had
made her life unbearable and compelled her to leave
her marital home against her wishes on or about May
•
<
,.
S.C.R.
SUPREME COURT REPORTS
845
24,, 1947. She denied any intimacy between herself
1956
and Mahendra or that she was confronted by the
8 ,,,. Ch
J
.
E
E
tyin
an er
plaintiff with a photos tat copy of the letter, x.
, Jais,.ghbhai Shah
or that she had confessed any such intimacy to
v.
the plaintiff.
She admitted having received the
Prabltawati
Attorney's letter, Ex. A, and also that she did not
reply to that letter. She adduced her father's advice
ae1 the reason for not sending any answer to that
letter.
She added that her paternal uncle Bhogilal
(since deceased) and his son Babubhai saw the plaintiff in Bombay at the instance of the defendant and
her father and that the plaintiff turned down their
request for taking her back. She also made reference
to the negotiations between the defendant's mother
and the plaintiff's mother to take the defendant back
to Bombay and that the defendant could not go to
Bombay as a result of the telegram of November 13,
1947, and the plaintiff's father's letter of November
15, 1947, aforesaid. She also stated that the defendant and her son, Kfrit, both lived with the plaintiff's
family at Patan for over four months and off and on
on several occasions. The defendant's definite case
fa that she had always been ready and willing to go
back to the plaintiff and that it was the plaintiff who
all along had been wilfully refusing to keep her and
to cohabit with her. On those allegations she resisted
the plaintiff's claim for a decree for a dissolution of
the marriage.
On those pleadings a single issue was joined between the parties, namely,-
"Whether the def~ndant deserted the plaintiff
for a continuous period of over four years prior to
t.he filing of the suit".
At the trial held by Tendolkar, J. of the Bombay
High Court on the Original Side, the plaintiff examined
only himself in support of his case.
The defendant
examined herself, her father, Popatlal, and her cousin,
Bhogilal, in support of her case that she had been all
i:tlong ready and willing to go back to her marital
home and that in spite of repeated efforts on her part
t.hroμgh her relations the plaintiff had been persistently refusing to take her back.
110
Sin/la J.
846
SUPREME COURT REPORTS
(1956]
1956
The learned trial Judge answered the only issue in
B ,A. Ch. 4
the case in the affirmative and granted a decree for
,,,,,.
an er d'
' ,.
f th
1 '
'ff b
d
d
Jaisinghbhai Shah ivorce m 1avour o
e p amt1 , ut ma e no or er
v.
as to the costs of the suit.
He held that the letter,
Prabhawali
Ex, E "reads like a love letter written by a girl to
her paramour.
The reference to both of them having been anxious about something and there being
now no need to be anxious any more can only be to a
Sinha}.
possible fear that she might miss her monthly periods
and her having got her monthly period thereafter,
because, if it were not so and the reference was to
anything innocent, there was nothing that she should
have repented later on in her mind as she says· she
did, nor should there have been occasion for saying
'after all love is such an affair'."
With reference to
that letter he further held that it was capable of
the interpretation that she had misbehaved with
Mahendra and that she was conscious of. her guilt.
With reference to the incident of May 24, the learned
Judge observed that having regard to the demeanour
of the plaintiff and of the defendant in the witness
box, he was inclined to prefer the husband's testimony to that of the wife in all matters in which there
was a conflict.
He held therefore that there was
desertion with the necessary animus deserendi and
that the defendant had failed to prove that she
entertained a bona fide intention to come back to the
marital home, that is to say, there was no animus
revertendi.
With reference to the contention that the
solicitor's letter of July 15, 1947, had terminated the
desertion, if any, he held that it was not well founded
inasmuch as the defendant had at no time a genuine
desire to return to her husband.
He made no reference to the prayer in the plaint that the custody of
the child should be given to the father, perhaps because that prayer was not pressed.
The defendant preferred an appeal under the
Letters Patent which was heard by a Division Bench
consisting of Chagla C.J. and Bhagwati J. The Appellate Bench allowed the appeal, set aside the decision of the trial Judge and dismissed the suit with
oosts. It held that the defendant was not guilty of
-
I
S.C.R. . SUPREME COURT REPORTS
· 847
desertion, that the letter of July 15, 1947, clearly
1956
established that it was the plaintiff who had deserted
8 .,,. Ch
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Al
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})
C
r,.rn
an et•
the de1en ant.
ternahve y, t e
ppe ate
ourt Jaisinghbhai Shah
held that even assuming that the defendant was in
v.
desertion as a result of what had happened on May
Prabhawati
24, and subsequently, the letter aforesaid had the
effect of putting an end to that desertion. In its
SinhaJ.
judgment the letter, Ex. E, did not justify the plaintiff having any reasonable suspicions about his wife's
guilt sind that the oral evidence of the defendant and
her relations proved the wife's anxiety to return back
to her husband and of the obduracy of the husband
in refusing to take the wife back. The plaintiff made
an application to the High Court for leave to appeal
to this Court. The leave asked for was refused by
another Division Bench consisting of the Chief Just.ice
and Dixit J. Thereafter the plaintiff moved this
Court and obtained special leave to appeal from the
judgment of the Appellate Bench of the High Court ..
In this appeal the learned Attorney-General ap·
pearing on behalf of the appellant and the learned
Solicitor-General appearing on behalf of the respondent have placed all relevant considerations of fact
and law before us, and we are beholden to them for
the great assistanqe they rendered to us in deciding
this diffic~lt case. The difficulty is enhanced by
the fact· that the two courts below have taken
diametrically opposite views of the facts of the case
which depend mostly upon oral testimony of the
plaintiff-husband and the defendant-wife and not
corroborated in many respects on either side. It is a.
case of the husband's testimony alone on his side and
the wife's testimony aided by that of her father and
her cousin. As already indicated, the learned trial
Judge was strongly in favour of preferring the husband's testimony to that of the wife whenever there
was any conflict. But he made no reference to the
testimony of the defendant's father and cousin which,
if believed, would give an entirely different colour to
the case.
Before we deal with the points in controversy, it is
convenient here to make certain general observations
848
SUPREME COURT REPORTS
[1956]
1956
on the history of the law on the subject and the well
apCh
1
established general prinniples on which such cases
Ja;:;:;hbh;;"s~;ah are determined. The suit giving rise to this appeal
v.
is based on section 3(l)(d) of the Bombay Hindu
Prabhawati
Divorce Act, XXII of 1947, (which hereinafter will
Sinha J.
be referred to as "The Act") which came into force
on May 12, 1947, the date the Governor's assent was
published in the Bombay Government Gazette. This
Act, so far as the Bombay Province, as it then was,
was concerned, was the first step in revolutionizing
the law of matrimonial relationship, and, as the
Preamble shows, was meant "to provide for a right
of divorce among all communities of Hindus in certain circumstances". Before the enactment, dissolution of a Hindu marriage particularly amongst what
were called the regenerate classes was unknown to
general Hindu law and was wholly inconsistent with
the basic conception of a Hindu marriage as a sacrament, that is to say, a holy alliance for the perform·
ance of religious duties. According to the Shastras,
marriage amongst the Hindus was the last of the ten
sacraments enjoined by the Hindu religion for purifica·
cation. Hence according to strict Hindu law as given
by the Samhitas and as developed by the cornmenta·
tors, a Hindu marriage could not be dissolved on
any ground whatsoever, even on account of degradation in the hierarchy of castes or apostacy. But
custom, particularly amongst the tribal and what
used to be called the lower castes recognised divorce
on rather easy terms. Such customs of divorce on easy
terms have been in some instances held by the courts
to be against public policy. The Act in section 3 sets
out the grounds of divorce. It is noticeable that the
Act does not recognise adultery simpliciter as one of
the grounds of divorce, though cl. (f) renders the
fact that a husband "has any other woman as a concubine" and that a wife "is a concubine of any other
man or leads the life of a prostitute" a. ground of
divorce. In the present case we are immediately concerned with the provisions of s. 3(l)(d), which are
in these terms:-
"3. (1) A husband or wife may sue for divorce on
--
S.C.R.
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849
any of the following grounds, namely:-
1956
....................................................
Bp' C
( d) that the defendant has deserted the plaintiff Ja;;,:;hb~·;;·~~;~h
for a continuous period of four years".
v.
"Desertion" has been defined in section 2(b) in these
Prabhtm>ati
terms:-
" 'Desert' means to desert without reasonable
cause and without the consent or against the will of
the spouse".
It will be seen that the definition is tautological 11,nd
not very helpful and leads us to the Common Law of
England where in spite of repeated legislation on the
subject of matrimonial law, no attempt has been made
to define "desertion". Hence a large body of caselaw has developed round the legal significance of
"desertion".
"Marriage" under the Act means "a
marriage between Hindus whether contracted before
or after the coming into operation of this Act". "Husband" means a Hindu husband and "wife" means a
Hindu wife.
In England until 1858 the only remedy for
desertion was a suit for restitution of conjugal rights.
But by the Matrimonial Causes Act of 1857, desertion
without cause for two years and upw1trds was made a
ground for a suit for judicial separation. It was not
till 1937 that by the Matrimonial Causes Act, 1937,
desertion without cause for a period of three years
immediately preceding the institution of proceedings
was made a ground for divorce.
The law has now
been consolidated in the Matrimonial Causes Act,
1950 (14 Geo. VI, c. 25). It would thus appear that
desertion as affording a cause of action for a suit for
dissolution of marriage is a recent growth even in
England.
What is desertion? "Rayden on Divorce" which is
a standard work on the subject at p. 128 (6th Edn.)
has summarised the case-law on the subject in these
terms:-
"Desertion is the separation 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
Sinha J.
850
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[1956]
1956
consent of the other spouse; but the physical act of
departure by one spouse does not necessarily make
BiPin Chander th t
th d
t ·
t ,,
Jaising11bhai Shah
a . spouse . ~ eser mg par y. .
.
v.
The legal pos1t10n has been admirably summarised in
Prabhau•aU
paras. 453 and 454 at pp. 241 to 243 of Halsbury's
Laws of England (3rd Edn.) Vol. 12, in the following
Sinha].
words:-
"ln its essence desertion means the intentional
permanent forsaking and abandonment of one spouse
by the other without that other's consent, and without reasonable cause. It is a total repudiation of the
obligations of marriage. In view of the large variety
of circumstances and of modes of life involved, the
Court has discouraged attempts at defining desertion,
there being no general principle applicable to all
cases.
Desertion is not the withdrawal from a place but
from a state of things, for what the law seeks to enforce is the recognition and discharge of the common
obligations of the married state; the state of things
may usually be termed, for short, 'the home'. There
can be desertion without previous cohabitation by
the parties, or without the marriage having been consummated.
The person who actually withdraws from cohabita·l;ion is not necessarily tho deserting party. The
fact that a husband makes an allowance to a wife
whom.he has abandoned is no answer to a charge of
desertion.
The offence of desertion is a course of conduct
which exists independently of its duration, but as a
ground for divorce it must exist for a period of at
least three years immediately preceding the presentation of the petition or, where the offence appears as
a cross-charge, of the answer. Desertion as a ground
of divorce differs from the statutory grounds of
adultery and. cruelty in that the offence founding the
cause of action of desertion is not complete, but is
inchoate, until the suit is constituted. Desertion is
a continuing offence".
Thus the quality of permanence is one of the essential elements which differentiates desertion from
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wilful separation. If a spouse abandon the other
1956
spouse in a state of temporary passion, for example,
8 .,,. Ch
d .
l•
• l
•
d'
tl
t
i,-tt!
a1t Cl
anger or c isgust, wit 10u t in ten mg perm an en y o Jaisinghbhai Shah
cease cohabitation, it will not amount to desertion.
, ..
For the offence of desertion, so far as the deserting
Prabliawati
spouse is concerned, two essential conditions must be
there, namely, (I) the factum of separation, and (2)
SillhaJ.
the intention to bring cohabitation permanently to
an end (animus deserendi).
Similarly two elements
are essential so far as the deserted ispouse is concerned: (I) the absence of consent, and (2) absence of
conduct giving reasonable cause to the spouse leaving
the matrimonial home to form the necessary intention
aforesaid. The petitioner for divorce bears the burde1i
of proving those elements in the two spouses respectively. Here a difference between the English law and
the law as enacted by the Bombay Legislature may
be pointed out. Whereas under the English law those
essential conditions must continue throughout the
course of the three years immediately preceding the
institution of the suit for divorce; under the Act, the
period is four years without specifying that it should
immediately precede the commencement of proceedings for divorce.
Whether the omission of the last
clause has any practical result need not detain us,
as it does not call for decision in the present case.
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
the 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
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[1956]
1956
and the animus deserendi coincide in point of time; for
BiJ>i>• Chana-.
exa~ple, when ~he sep~ratin~ spouse abandons the
Jaisinghbhai Shah manta! home with the mtent1on, express or implied,
v.
of bringing cohabitation permanently to a close. The
Prabhawati
law in England has prescribed a three year period and
the Bombay Act prescribes a period of four years as a
SinhaJ.
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 dinirce have been
commenced, desertion comes to an end and if the desert'ed 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.
Hence, though corroboration is not required
as an absolute rule of law, the courts insist upon
corroborative evidence, unless its absence is accounted
for to the satisfaction of the court. In this connection the following observations of Lord Goddard,
C.J. in the case of Lawson v. Lawson(') may be referred to:-
"These cases are not cases in which corroboration
is required as a matter of law. It is required as a
tt
f
t .
"
ma er o precau 10n... ......... .
With these preliminary observations we now proceed
to examine the evidence led on behalf of the parties
to find out whether desertion has been proved in this
case and, if so, whether there was a bona fide offer by
the wife to return to her matrimonial home with a
view to discharging marital duties and, if so, whether
(1) [1955] 1 All 1'.R. 841, 342.
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853
there was an unreasonable refusal on the part of the
1956
husband to take ~er back. .
.
.
.
Bipin Chandet' ·
In this connect10n the plamtiff m the witness box Jaisinghbhai Shah
deposed to the incident of the night of May 20, 1947.
v.
He stated that at night he found that his bed had
Prabhawati
been made in the hall in whieh his father used to
sleep, and on being questioned by him, the defendant
told him that it was so done ,with a view to giving
him the opportunity after a lbng absence in England
to talk to his father. The plaintiff expressed his
wish to the defendant that they should sleep in the
same room as they used to before his departure for
England, to which the wife replied that as the bed
had already been made, "it would look indecent if
they were removed". The plain tiff therefore slept in
the hall that night.
This incident was relied upon
by the plaintiff with a view to showing that the wife
had already made up her mind to stop cohabitation.
This incident has not been admitted by the defendant
in her cross-examination.
On the other hand, she
would make it out that it was at the instance of the
plaintiff that the bed had been madein the hall occupied by his father and that it was the plaintiff and
not she who was responsible for their sleeping apart
that night. As the learned trial Judge has preferred
the plaintiff's testimony to that of the defendant on
all matters on which there was simply oath against
oat.h, we would not go behind that finding.
This
incident by itself is capable of an innocent explanation and therefore has to be viewed along with the
other incidents deposed to by the plaintiff in order
to prove his case of desertion by the defendant.
There was no reason why the husband should have
thought of sleeping apart from the wife because there
was no suggestion in the record that the husband was
aware till then of the alleged relationship between
the defendant and Mahendra.
But the wife may
have been apprehensive that the plaintiff had known
of her relations with Mahendra. That apprehension
may have induced her to keep out of the plaintiff's
way.
The most important event which led to the ulti111
Sinha J.
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mate rupture between the parties took place on May
21, 1947, when in the morning the plaintiff's father
mpin Chander
1
d M h
d , I tt
f
"d .
h
I . "ff'
J .. gl bh . Sh h p ace
a en ra s e er a oresa1 m t e p am tJ s
amn 'v. ••
a hands. The letter which has rightly been pointed out
Pmbhawati
in the courts below as the root cause of the trouble is
in its relevant parts in these terms:-
Sinha J.
"Mahendrababu,
Your letter has been received.
I have read
the same and have noted the contents. In the same
way, I hope, you will take the trouble of writing me
a letter now and then. I am writing this letter with
fear in my mind, because if this reaches anybody's
hands, that cannot be said to be decent.
What the
mind feels has got to be constrained in the mind only.
On the pretext of lulling (my) son to sleep, I have
been sitting here in this attic, writing this letter to
you. All others are chitchatting below. I am thinking now and then that I shall write this and shall
write that.
Just now my brain cannot go in any
way.
I do not feel like writing on the main point.
The matters on which we were to remain anxious and
you particularly were anxious, well we need not now
ha. I very much repented later on in my mind. But
after all love is such an affair. (Love begets love).
"While yet busy doing services to my motherin-law, the clock strikes twelve. At this time, I think
of you and you only, and your portr.ait shoots up before my eyes.
I am reminded of you every time.
You write of coming, but just now there is nothing
like a necessity, why unnecessarily waste money?
And again nobody gets salvation at my hands and
really nobody will.
You know the natures of all.
Many a time I get tired and keep on being uneasy in
my mind, and in the end I weep and pray God and
say, 0 Lord, kindly take me away soon:
I am not
obsessed by any kind of anxiety and so relieve me
from this mundane existence. I do not know how
many times I must be thinking of you every day ....
"
This Jetter is not signed by the defendant .and in
place of the signature the word "namaste" finds
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855
place.
The contents of the letter were put to the
1956
defendant in cross-examination. At thattime it was
B·p· Ch
d
d d
h d fi d
,
i in
an er
no more a conteste
ocliment, t e e en ants coun- Jaisinghbhai Shalt
sel having admitted it during the cross-examination
v.
of the plaintiff. She stated that she had feelings for
Prabhawati
Mahendra as a brother and not as a lover.
When
the mysterious parts of the letter beginning with the
words "The matters on which" and ending with the
words ''such an affair" were put to her, she could not
give any explanation as to what she meant. She denied
the suggestion made on behalf of the plaintiff in these
words:-
"lt is not true that the reference here is to our
having had sexual intercourse and being afraid that
I might remain pregnant".
The sentence "l very much repented later on in my
mind" was also put to her specifically and her answer
was "I do not know what I repented for.
I wrote
something foolishly". Pressed further about the meaning of the next sentence after that, her answer was
"l cannot now understand how I came to write such
a letter. I admit that this reads like a letter written
by a girl to her lover. Besides the fact that my brain
was not working properly I had no explanation to
give as to how I wrote such a letter".
She also admitted that she took good care to see that the other
members of the family, meaning tlae mother-in-law
and the sisters-in-law, did not see her writing that
letter and that she wanted that the letter should remain a secret to them. Being further pressed to explain the sentence "We need not be anxious now",
her answer was" I did not intend to convey that I
had got my monthly period about which we were
anxious. I cannot say what the normal natural
meaning of this letter would be". She had admitted
having received at least one letter from Mahendra.
Though it would appear from the trend of her crossexamination that she received more letters than one,
she stated that she did not preserve any of his letters.
She has further admitted in cross-examination "I
have not signed this letter.