# ROHINI KUMARI v. NARENDRA SINGH

- **Citation:** [1972] 2 S.C.R. 657
- **Court:** Supreme Court of India
- **Decided:** 1971-12-02
- **Case number:** Civil Appeal No. 35 of 1971
- **Bench:** K. S. Hegde, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rohini-kumari-v-narendra-singh-5527
- **Pages:** 9

## Headnote

657
Hindu Marriage Act, 1955--Section 10(1) (a)
and. Exp/a11ationDesertion, elements necessary to · constitute-TVife leaving. 111atrinionial
honie without reasonable cause and lVithout consent and lllith intention of
bringing cohabitation to an end-Husband contracting second 1narriageSecond marriage did not have any inzpact on the 1ni11d of the lt>ife as to
cause her to continue to live apart and to continue the desertion-Desertion
cannot be said_ to be 1rit/z reasonable cause.
The appellapt and the respondenl were married in 1945. In 1947 the
appellant went to her parental home.
She never returned thereafter. In
1955, prior to the coming into force of the Hindu Marriage Act, 1955, the
respondent cont:r:acted a second 111arriage.
AJter the Act can1e into iorce
he filed a petition for judicial separati0n from the appellant, under s. 10
of the Act, on the ground of desertion. The trial court allowed the petition. This decision was affirmed by the first appellate court and the High
Court. The concurrent findings of the trial court and the first appc!:ate
court which were not questioned before the High Court "·ere : ( i) that
the wife had left for her parental ho111e \\ith the intention oi permanently
giving up her n1arital relation with the husband and not to return to the
husband; (ii) that the wife left her matrimonial home without any reasonable cause -and without the consent of the husband and with the intl.'.'ntfon
of bringing cohabitation to an end; (iH) that thr second n1arriage
contracted by the husband did not have anv such in1pact on the n1ind of the
wife as to cause her to conti-nue to live apart and to continue the de5ertion:
and (iv) that during her stav at the 1natrii110nial hon1e she \vas !_coked
after well and was not ill-treated. Jn the appeal to this Court it ,,·a~ contended on behalf of the appellant that (i) in view of the Explanation to
0 ection JO(! )(3) it could not 1'c Sl.id On th•o date On which the petition
was filec\ that tbe wife had deserted the husband \\'ithout reasonahie couse.
because. the latter had contracted a second marriage and as sud1 that had
to be regarded 38 a "reasonable cause" for staying 'a\VUV frOOl hin1; and
(ii) because of the r~ovisions contained in the Hindu Women's Righ.t to
Separate Residence and 1\faintenance, Act, 1~56. as well as the . Hmdu
Adoption anti t.:!aintenance Act. 1956. desertion could ,no~ be .des~nbed as
one without reQsonable cause if the h•1:;band had 1narned again since that
n1arriage afforded justifiable cause· to the \Yife to live aoart fron1 the hus·
hand.
Disn1issing the appeal.
HELD :
( t) To constitute desertion there n1ust be f\YO elements present on the side of the deserting spouse. rnn1clv. 1he factnn1 of phvsic&.1
separation and the anilnus deserendi, i.e .. the .intention to bring cohabifation
permanently to ~n end. and. so far as the deserted spouse is
con~erncd.
the absence of consent :ind :.1hscncc of conduct ghing rcasonabte ctJ.use to
the spouse leaving the matrimonial home to form the intention. [661 A-Cl
Jn order that desertion might come to an end t'1ere 111ust be conduct
on the part of the deserted spouse which afford just and reasonable cause
for the deserting spouse not to seek reconciliation, and, it is also of equal
importance that the conduct of the d-,scrtcd spouse should have had such
an in1pact on the n1ind of the deserting spouse that in fact it c:i.uses the
dc<crting spouse to live apart. [661 G]
658
SUPREME COU&T REPORTS
[1972] 2 S.C.R.
In th~ present case, ordinarily, the fact that the respondent had contracted a second marriage would have furnished a just cause to the wife
to desist trom making any attempt at reconciliation or resuming cohabitation.
But the finding of the courts, including the High Court, was that
the second marriage of the husband did not have any such impact on tbe
mind of the wife as to cause her to continue to live apart and continue
the desertion. This together with the other findings would conclude the
ma

## Text

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ROHINI KUMAR!
v.
NARENDRA SINGH
December 2, 1971
[K. S. HEGDE AND A. N. GROVER, JJ.J
657
Hindu Marriage Act, 1955--Section 10(1) (a)
and. Exp/a11ationDesertion, elements necessary to · constitute-TVife leaving. 111atrinionial
honie without reasonable cause and lVithout consent and lllith intention of
bringing cohabitation to an end-Husband contracting second 1narriageSecond marriage did not have any inzpact on the 1ni11d of the lt>ife as to
cause her to continue to live apart and to continue the desertion-Desertion
cannot be said_ to be 1rit/z reasonable cause.
The appellapt and the respondenl were married in 1945. In 1947 the
appellant went to her parental home.
She never returned thereafter. In
1955, prior to the coming into force of the Hindu Marriage Act, 1955, the
respondent cont:r:acted a second 111arriage.
AJter the Act can1e into iorce
he filed a petition for judicial separati0n from the appellant, under s. 10
of the Act, on the ground of desertion. The trial court allowed the petition. This decision was affirmed by the first appellate court and the High
Court. The concurrent findings of the trial court and the first appc!:ate
court which were not questioned before the High Court "·ere : ( i) that
the wife had left for her parental ho111e \\ith the intention oi permanently
giving up her n1arital relation with the husband and not to return to the
husband; (ii) that the wife left her matrimonial home without any reasonable cause -and without the consent of the husband and with the intl.'.'ntfon
of bringing cohabitation to an end; (iH) that thr second n1arriage
contracted by the husband did not have anv such in1pact on the n1ind of the
wife as to cause her to conti-nue to live apart and to continue the de5ertion:
and (iv) that during her stav at the 1natrii110nial hon1e she \vas !_coked
after well and was not ill-treated. Jn the appeal to this Court it ,,·a~ contended on behalf of the appellant that (i) in view of the Explanation to
0 ection JO(! )(3) it could not 1'c Sl.id On th•o date On which the petition
was filec\ that tbe wife had deserted the husband \\'ithout reasonahie couse.
because. the latter had contracted a second marriage and as sud1 that had
to be regarded 38 a "reasonable cause" for staying 'a\VUV frOOl hin1; and
(ii) because of the r~ovisions contained in the Hindu Women's Righ.t to
Separate Residence and 1\faintenance, Act, 1~56. as well as the . Hmdu
Adoption anti t.:!aintenance Act. 1956. desertion could ,no~ be .des~nbed as
one without reQsonable cause if the h•1:;band had 1narned again since that
n1arriage afforded justifiable cause· to the \Yife to live aoart fron1 the hus·
hand.
Disn1issing the appeal.
HELD :
( t) To constitute desertion there n1ust be f\YO elements present on the side of the deserting spouse. rnn1clv. 1he factnn1 of phvsic&.1
separation and the anilnus deserendi, i.e .. the .intention to bring cohabifation
permanently to ~n end. and. so far as the deserted spouse is
con~erncd.
the absence of consent :ind :.1hscncc of conduct ghing rcasonabte ctJ.use to
the spouse leaving the matrimonial home to form the intention. [661 A-Cl
Jn order that desertion might come to an end t'1ere 111ust be conduct
on the part of the deserted spouse which afford just and reasonable cause
for the deserting spouse not to seek reconciliation, and, it is also of equal
importance that the conduct of the d-,scrtcd spouse should have had such
an in1pact on the n1ind of the deserting spouse that in fact it c:i.uses the
dc<crting spouse to live apart. [661 G]
658
SUPREME COU&T REPORTS
[1972] 2 S.C.R.
In th~ present case, ordinarily, the fact that the respondent had contracted a second marriage would have furnished a just cause to the wife
to desist trom making any attempt at reconciliation or resuming cohabitation.
But the finding of the courts, including the High Court, was that
the second marriage of the husband did not have any such impact on tbe
mind of the wife as to cause her to continue to live apart and continue
the desertion. This together with the other findings would conclude the
matter, bec~use, it is quite clear that within the meaning of the Explanation
to s. IO(l)(a) the desertion by the wife had been proved without reasonable caUSl! and without the consent of the husband. (661 F]
Lac/unan Utamchand Kirpalani v. Meena alia; Mota, (1964] 4 S .C.R.
331 and Bipin Chander Jaisinghbhai Shah v. Prabhawati, [1956] S.C.R.
833, referred to.
(ii I The consideration that in case the husband remarries, the wife is
entitled to separate residence and maintenance under the Hinclu Married
Women's Right to Separate Residence and Maintenance Act, 1956, or any
other enactment could not be utilised as a reason for coming to the conclusion that the fact of remarriage of the husband must necessarily afford
a reasonable cause for desertion. The object of the Hindu Marriage Act,
beina not only to amend but also to codify the law relating to marriage
among Hindus unless -in any other enactment there is a provision which
abrojlates any provision of the Act or repeals it expressly or by necessary
imphcation the provisions of the Act alone will be applicable to matters
dealt with or covered by the same. The Hindu Marriage Act and
the
Hindu Adoptions and Maintenance Act, 1956, prO\ide different remedies
to a wife whose husband has been guilty of desertion. Section 18 of that
latter Act does not amend or abrogate the provisions of s. · 10 of the
formoc. [663 H, 665 BJ
Sirigiri Pullaiah ·,,. Sirigiri Rushingamma,· A.l.R. 1963 A.P.
323;
and A. Annamalai M11da/iar v. Perumaee Amma/ & Ors.,
A.I.R.
1965
Mad. 139, held. inapplicable.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 35 of
1971.
Appeal by special leave from the judgment and order dated
October 5, 1968 of the Allahabad High Court in second appeal
No. 1508 of 1966.
S. K. Gambhir and S. K. Dhingra, for the appell:itn~.
C. K. Daphtary, J. B. Dadachanji and S. S. Shukla, for the
respondent.
The Judgment of Court was delivered by
Grover, J.
This is an appeal from the judgment of the
Allahabad High Court wherein special leave was granted limited
to the question of law as to the interpretation of s. 10(1) (a)
read with the Explanation of the Hindu Marriage Act 1955,
hereinafter called the 'Act'.
The undisputed facts are that the parties got married in 1945
and in February 1947 the wffe went to Alirajpur her parental
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ROHINI KUMAR! v. NARENDRA SINGH (Grover, J.)
659
home.
She never returned thereafter.
In 1953 the
husband,
who was a member of the Indian Foreign Service met a Dutch
lady-Countess Rita-while he was posted abroad.
He married
her only a day before the Act came into force.
In August 1955
the husband filed a petition in the court of a Munsif for judicial
B separation under s. 10 of tl:ie Act on the ground of the wife's
desertion.
An ex parte degree was passed
against the wife
which was later on set aside.
The wife also raised an objection
that the Munsif had no jurisdiction to grant the decree.
That
objection was accepted and the plaint was returned for being
presented to the proper court.
In 1959 the husband divorced
Countess Rita. The trial court delivered its judgment in July
c 1964 allowing the husband's petition for judicial separation and
granting a decree for that relief.
The matter was taken in appeal
to the first appellate court which affirmed the decision of the
trial court. A second appeal was filed to the Hig;h Court by the
wife which was heard by a learned single judge but he referred
the same to a division bench.
The division bench dismissed the
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appeal but directed the husband to pay Rs. 150/- per month to
the wife by way of maintenance.
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The concurrent findings of the trial court and the first appellate court which were rot questioned before the High Court were
the;e :-
(!) During her stay at Sarela (husband's home) the wife
was provided with decent accomodation, wholesome food and all
such amenities which were available at Sarela.
(2) It was wrong that she was given inhuman treatment at
Sarela during her stay there and that she had developed heart
trouble as a result' of it as alleged by the wife.
(3) The wife had left Sarela for her parental home (Alirajpur) with the intention of permanently giving up her marital relation with the husband and not to return to Sarela or to her
husband.
( 4) The wife left her matrimonial home without any reasonable cause and without the consent of the husband and with the
intention of bringing co-habitation to an end.
( 5) The marriage of the husband with Countess Rita did
not have any such impact on the mind ci the wife that it caused
her to continue to live apart and to continue the desertion.
Under s. 10(1 )(a) a decree for judicial separation can be
granted on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.
According to
660
SUPREME COURT REPORTS
(1972] 2 S.C.R.
the Explanation the expression "desertion" with it~ grammatical
variation and cognate expression 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.
The argument raised on behalf of the
wife is that the husband had contracted a second marriage on
May 17, 1955. The _petition for judicial separation was field
on August 8; 1955 under the Act which came into force on
May 18, 1955.
The burden under the section was on the husband to establish that the wife had deserted him for a continuous
period of not less than two years immediately preceding the presentation of the petition. In the presence of the Explanation it
could not be said on the date on which the petition was filed that
the wife had deserted the husband without reasonable cause
because the latter had married Countess Rita and that must be
regarded as '! reasonable cause for her staying away from him.
Ou.r attention has been invited to the statement in Rayden on
Divorce, 11th Edr .. page 223 with regard to the elements of
desertion.
According to that statement for the offence of desertion there must be tWo elements present on the side of the deserting spouse, namely, the factum, i.e. physical separation and the
animus deserendi i.e. the intention to bring cohabitation · pem1anently to an end.
The two elements present on the side of the
deserted spouse should be absence of consent and absence of
reasonably causing the deserting spouse to form his or her intention to bring cohabitation to an end. ' The requirement that the
deserting spouse must intend to bring cohabitation to an end must
be understood to be subject to the qualification that if without
just cause or excuse a man persists in doings things which he
knows his wife probably will not tolerate and which no ordinary
women would tolerate and then she leaves, he has deserted her
whatever his desire or intention may have been.
The doctrine of
".constructive desertion" is discussed at page 229.
It is
stated
that desertion is not to be tested by merely ascertaining which
party left the matrimonial home first.
If one spouse is forced by
the conduct of the other to leave home, it may be that the spouse
responsible for the driving out is guilty of desertion.
J'!Iere is no
su.bstantial difference between the case of a man who mtends to
cease cohabitation and leaves the wife and the case of a man who
with the same intention compels his wife by his conduct to leave
·him.
In Lachman Utamchand Kirpalani v. Meena alias Mota(')
this Court had occasion to consider the true meaning and ambit
of s. lO(l)(a) of the Act read with the Explanation. Reference
(I) [1964] 4 S.C.R. 331.
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ROHINI KUMAR! v. NARENDRA SINGH (Grover, J.)
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was made in' the majority judgment to the earlier decision in
Bipin Chander Jaisinghbhai Shah v. Prabhawati(') in which all
the English decisions as also the statement contained in authoritative text books were considered.
After referring to the two
essential conditions, namely, the fact um of physical . separation
and the animus deserendi which meant the intention to bring the
cohabitation permanently to an end as also two elements so far
as the deserted spouse was concerned i.e. (1) the absence of
consent and ( 2) absence of conduct giving reasonable cause to
the spouse leaving the matrimonial home to form the intention
aforesaid, it was observed while examining how desertion might
come to an end :
"In the first place, there must be conduct on the
part of the deserted spouse which affords just and reasonable cause for the deserting spouse not to seek reconciliation and which absolves her from her continuing
obligation to return to the matrimonial home.
In this
one has to have regard to the conduct of the deserted
spouse.
But there is one other matter which is also of
equal importance, that is, that the conduct of the deserted spouse should have had such an impact on the mind
of the deserting spouse -that in fact it causes her to
continue to live apart and thus continue the desertion.
But where, however, on the facts it is clear that the
conduct of the deserted spouse has had no such effect
on the mind of the deserting spouse there is no rule of
law that desertion terminates by reason of the conduct
of the deserted spouse".
Now the sole question in the present cas~ is whether during
the statutory period of two years in terms of s. lO(l)(a) the
husband had, by word or conduct, provided a just cause to his
wife t'1 desist from making any attempt at reconciliation
0r
resuming cohabitation.
Ordinarily the fact that he had married
Countess Rita on May 17, 1955 would have furnished a just
cause to the wife to desist from making any attempt at reconciliation or resuming cohabitation but this is subject to a very important condition, namely, that the second marriage should have had
such an impact on the mind of the wife so as to cause her to
continue to live apart and continue the desertion. If the conduct of the husband has had no such effect on her mind it cannot be said that the desertion on her part terminated t.y reason
of the conduct of the husband.
The finding of the courts including the High Court is that the marriage of the husband with
Countess Rita did not have any such impact on the mind of the
wife as is contemplated by law.
This finding together with the
(1) [1956] S.C.R. 838.
662
SUPREME COURT REPORTS
(1972] 2 S.C.R
other ~n~ings would ~onclude the matter because it' is quite clear
that wlthm the meanmg of the Explanation to s. 10 ( 1 )(a) the
desertion by the wife had been proved without reasonable cause
and without .the consent or against the wish of the husband.
Although it is not necessary to go into the facts but we may
recapitulate what has been proved, established or admitted. It
was the wife who left her husband's home In 1947 and thereafter
consistently refused to return to the husband notwithstanding the
fact that she had been treated properly when she ·lived with him.
The husband had been making persistent efforts to persuade the
wife to return.
After the husband joined the Foreign Service in
August 1948 he was sent for training abroad to Cambridge where
he remained till 1949. It is in evidence that while at Cambridge
he wrote to his wife asking her to join him in England. In
September 1951 he was posted as Second Secretary to the Indian
Embassy at the Hague in Holland.
Even then the husband made
efforts to persuade her to return to him. The husband sent a
letter to the wife in October 1953 saying that existing state of
affairs could not continue indefinitely and that she should resume
cohabitation.
She was asked to disclose the reasons for
her
persistent refusal to come and live with the husband.
The wife
sent a reply on April 17, 1954 through an advocate.
Amongst
other things she wrote that despite everything she wished
him
happiness.
She expressed a desire for her Stridhan including her
household effects, jewellery and presents of the
value of
Rs. 90,000/- which had been left at Sarela to be r~turned to her
for arrangements to be made for her separate maintenance and
residence. The High Court has pointed out that although by that
time the wife was aware of the friendship between her husband
and Countess Rita she never referred to that fact in her reply as
a factor which would stand in her way to return to him. yje have
no doubt, therefore, that the High Court came to the correct conclusion that the subsequent marriage of the husband with Countess
Rita in 1955 had no impact on the wife and she had !·~ft origina!ly
with the object of bringing cohabitation to an end and the d.esertion on her part continued throughout without any reasonable
cause. As a matter of fact during the pendency of the petition for
grant of certificate to appeal to this Court filed by the wife an
effort was made by the husband, who had divorced Countess Rita
by that time, to receive the wife back provided she was willing to
live with him.
Her counsel informed the court that she was not
aggreable to living with him as his wife.
Before the High Court relianc ! was placed on certain decisions of the Andhra Pradesh High Court in support of the contention that owing to the provisions contained in the Hindu
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ROHINI KUMAR! v. NARENDRA SINGH (Grover, J.)
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Married Women's Right to Separate Residence and Maintenance
Act 1946 as well as the Hindu Adoj)'tion and Maintenance Act
1956 desertion could not be described as one without reasonable
cause if the husband had married again since that marriage
afforded justifiable cause to the wife to Jive apart from the husband.
In Sirigiri Pullaiah v. Sirigiri Rushingamma(')
it was held
that the effect of the two afforesaid Acts was that a wife was
entitled to claim separate maintenance and residence from her
husband if he should marry again. If the wife could claim
maintenance on the ground that the husband had remarried it
could not be said that" she had deserted her husband without reasonable cause within the meaning of s. lO(l)(a) of the Act. In
that case a petition had been filed for judicial separation under
s. 10(1) (a) of the Act.
The husband had taken a second wife
and she was e,ntitled to Jive separately and claim maintenance.
The husband, therefore, could not claim judicial separation on
the ground of desertion.
The husband had taken second wife
several years before starting proceedings under the Act and some
times after the wife had obtained a decree for maintenance. The
High Court was of the view that the second marriage of the husband was a good ground for the first wife to live separately and
that was a justifiable reason for doing so.
There would thus be
no scope for the argument that desertion was without reasonable
cause within the meaning of s. 10(1) (a) of the Act. The Madras
High Court, however, in A. Annamalai Mudaliar v. Perumayee
Ammal & Ors. (2 ) expressed the opinion that the right to live
separately from the husband given to the wife under s. 18 (2)'(d)
of the Hindu Adoptions and Maintenance Act 1956 could not be
the same as a right of judicial separation under s. 10(2) of the
Act.
The true principle behind s. 18 (2) was that it should be
open to the wife to claim to live separately from her husband in
case he had got another wife living when the wife did not want - ·
to seek divorce or judii;ial separation.
In the judgment under
appeal it has been pointed out that desertion within the meaning
of s. 10 (l )(a) of the Act read with the Explanation does not
imply only a separate residence and separate living.
It is also
necessary that there must be a determination to put an end to
marital relation and cohabitation. Without animus deserendi
there can be no desertion within the meaning of s.
lO(l)(a).
The consideration that in case the husband remarries, the wife is
entitled to separate residence and maintenance under the Hindu
Married Women's Right to Separate Residence and Maintenance
Act 1946 or any other enactment could not be utilised as a reason for coming to the conclusion that the fact of the remarriage
of the husband must necessarily afford a reasonable cause for
desertion.
(I) A.I,R. 1963 A.P. 323.
(2) A.l.R. 1965 Mad. 139.
664
SUPREME COURT REPORTS
[ 1972 j 2 S.C.R.
In our judgment the view of the Allahabad High Court in the
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present case must be upheld.
The preamble of the Act describes
it as one to amend and codify the law relating to marriage among
Hindus. It is well known that when a particular branch of law
is codified it is intended and the object essentially is that on any
matter specifically dealt with by that law it should be sought for
in the codified enactment alone when any question arises relating
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to that matter.
Ordinarily when it has been expressly stated that
an .enactment is meant for codifying the law the court is not at
liberty to look to any other law.
The Act not only amends but
also codified the law of marriage and it has made fundamental
and material changes in the prio·r law.
Section 4 of the Act gives
overriding effect to its provisions.
Therefore unless in any other C
enactment there is a provision which abrogates any provision of
the Act or repeals it expressly or by necessary implication the provisions of the Act alone will be applicable to matters dealt with
or covered by the same.
Sections 9 and 10 of the Act provide
for restitution of conjugal rights and judicial separation. Section
10 deals with judicial separation and once a decree for judicial
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separation has been granted a decree for dissolution of marriage
can be passed under s. 13(1A) provided there has been no resumption of cohabitation between the parties to the marriage for
a period of two years or upwards after the passing of the decree
for judicial separation. It may be mentioned that s.
13 gives
several grounds for dissolution of marriage by a decree of divorce
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and one of the grounds is the one contained in sub-s. ( lA) of
that section.
The Hindu Adoptions and Maintenance Act 1956.
hereinafter called the 'Maintenance Act' also amended and codified the law relating to adoptions
and maintenance among
Hindus.
Section 18 (2) provides, inter alia, that the Hindu wife
shall be entitled to live separately from her husband without forfeiting her claim to maintenance if he is guilty of desertion, that F
is to say, of abandoning her without reasonable cause and without her consent or against her wish or of wilfully neglecting her
or if he has any other wife living. Indeed the last clause (g)_ of
s. 18(2) is very general i.e. if there is any other cause justifying
her living separately.
Section 10 of the Act and s. 18 of the
Maintenance Act are quite distinct and one cannot be said
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control the other.
The former provision deals with the matrimonial offences by either spouse which would justify the grant of a
decree for judicial separation.
Section 18 provides for grant of
maintenance to wife alone.
Sub-section ( 1) savs that a Hindu
wife shall be entitled to be maintained by her husband during her
lifetime.
Sub-s. (2) gives her a right to live separately from her
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husband without forfeiting her claim to maintenance provided
any of the conditions mentioned in clauses (a) to (g) exist or
are specified.
The essential ingredient
of desertion,
animus
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ROHINI KUMAR! v. NARENDRA SINGH (Grover, J.)
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deser~ndi i.e. intention on the part of the deserting
spouse to
remain separated permanently or to bring cohabitation to an end
for ever need not exist in case of a wife who has been given the
right to live separately in certain circumstances without forfeiting her claim to maintenance.
The Act and the Maintenance
Act provide different remedies to a wife whose husband has been
guilty of desertion.
Under the Act she can sue for judicial sepa·
ration if the conditions laid down ins. lO(l)(a) of the Act read
with the Explam.1tion are satisfied.
She can without resorting to
that remedy choose to live separately from her husband who
would be bound to maintain her if it is proved that he has been
guilty of desertion and the other conditions laid down in s.18(2)
(a) are satisfied.
It is significant that under s. 13 (2)
of the
Act a wife may present a petition for dissolution of marriage by
a decree of divorce on the ground that the husband had married
again before the commencement of the Act or that any other wife
of the husband married before such commencement was alive at
the time of the solemnization of the marriage of the petitioner.
But this can be done only if the marriage with the petitioner was
also solemnized before the commencement of the Act.
For
instance in the present case the wife could haye asked for dissolution of her marriage und~r the afor\'>'aid provisions because the
marriage of the husband with Countess Rita was performed before
the Act came into force. If she, however, did not choose to
resort to that remedy she could decide to live separately under
s. 18(2) (d) of the Maintenance Act.
This shows the sharp
contrast in the provisions of the two enactments.
When the wife
chooses to live separately under s. 18(2) (d) in the circumstances
mentioned before she would be entitled to maintenance from the
husband.
He could not compel her to return to him so long as
his marriage with the other wife is not dissolved but if that .mar·
riage is dissolved the husband can call upon the wife to return
to him and if she does not return it is very doubtful if she can
still claim maintenance from him under s. 18 of the Maintenance
Act.
However, this is a matter on which we need express no
final opinion: All that we are concerned with, in the present
case, is whether the provisions Of s. 18(2) of the Maintenance
Act can affect the matters proyided for by s. 10 of the A{;t.
It
is quite obvious that s. 18 of the Maintenance Act does not
amend or abrogate the provisions of s. I 0 of the Act which alone
must be looked at for the purpose of disposing of the appeal
before us.
We have no hesitation, therefore, in upholding the
view of the High Court with the result that the appeal fails and
i: is dismissed.
The parties are left to bear their own costs in
this Court.
K.B.N.
Appeal dismissed.