# V asumatiben Gaurishank.ar Bhatt v. Navairam Machharam Vora and Others - **Citation:** [1964] 4 S.C.R. 331 - **Court:** Supreme Court of India - **Decided:** 1963-08-14 - **Bench:** B. P. Sinha, S. K DAs, K. SuBBA RAo .• RA.GHUBAR DAYAL, N. Rajagopala Ayyangar - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-asumatiben-gaurishank-ar-bhatt-v-navairam-machharam-vora-and-others-3150 - **Pages:** 73 ## Headnote Husband and wife-fudicial separation-Desertion without justcause-Offer to return to matrimonial home must be shown to be bona fide-Petition for judicial separation-Burden of proof-Hindn Marriage Act, 1955 (25 of 1955), s. lO(l)(a). Where an application is made under s. lO(l)(a) of the Hindu Marriage Act, 1955, for a decree for judicial separation on the ground of desertion, the legal burden is upon the petitioning spouse to establish by convincing evidence beyond any reasonable doubt that the respondent intentionally forsook and abandoned him or her without reasonable cause. The petitioner must also prove that there was desertion throughout the statutory period and there was no hona fide attempt on the respondent's part to return to the matrimonial home and that the petitioner did not by his or her action by word or conduct provide a just cause to the other spouse to desist from making any attempt at reconciliation or resuming cohabitation; 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. 1963 V asumatiben Gaurishank.ar Bhatt v. Navairam Machharam Vora and Others Gaicndragadk.ar /. 1963 August 14 1963 ·Lachman · Utamchantl Kirpalani v. Meena Mata Ayyangar /. 332 SUPREME COURT REPORTS r 1964J An offer to return to the matrimonial home after sometin1e, though desertion had started, if genuine and sincere and repre~ sented his or her true feelings and intention, would bring to an end the desertion because thereafter the animus deserendi would be lacking, though the factuin of separation might continue; but on the other hand, if the offer \Vas not sincere and there was in reality no intention to return, the mere fact that letters were written expressing such an intention would not interrupt the desertion from contiriuing. Bipin Chander Jaisinghbhai Shah v. Prabhawati, [1956] S.C.R. 838, Dunn v. Dunn, [ 1948] 2 All E.R. 822 and Brewer v. Brewer [1961] 3 All E.R. 957, relied on. The parties were married in 1946 at Hyderabad in Sind (now in Pakistan) and a child, a son, was born in 1947. The married life Of the couple was not as harmonious as it should have been and it soon transpired that much of the t;-ou ble arose out of the fact that while the appellant and his parents appear to have been of an orthodox and conservative outlook and bent of mind the respondent and her parents apparently did not set much store by orthodoxy and were liberal and modern. As a result of the partition in 1947 the parties had to leave Sind. The appellant and his parents stayed in a house in Bombay, \Vhile the respondent's parents went to -Poona. The appellant's complaint was that the respon· dent was frequently going away to her parent's house. On February 26, 1954, the respondent left the appellant's house and went to Poona. The evidence was conflicting as to whether she obtained the permission of the appellant before going to Poona, but the facts showed that after that date the respondent did not go back to the appellant's house. The appellant along with a friend, Dr. Lulla, ·went to Poona with a view to bring back the respondent. The evidence as to what transpired at the interview with the respondent was somewhat conflicting, and the appellant's case was that the respondent intimated to him her fixed determination not to go back to him. On July 7, 1954~ the respondent along \Vith her father \Vent abroad to the Far Eastern countries, for the purpose of recouping her health, according to her. Before going abroad the respondent had to go Bombay for getting the passport and going through the formalities; and \vhile there she was staying in a house very near the appellant's but she did not visit him nor see their child. On learning that the respondent had gone abroad without intimation to him he cabled to her asking her to con1e back immediately but the responden ## Text _Characters 0–39,989 of 173,841. This is a partial read: ask again with offset=39989 for what follows._ 4 S.C.R. SUPREME COURT REPORTS 331 section came into force, and clearly the amended provision applies to the suit and governs the decision of the dispute between the parties. If that is so, the plain meaning of s. 12(3)(a) is rhat if a notice is served on the tenant and he has not made the payment as required within the time specified in s. 12(3) (a), the Court is bound to pass a decree for eviction against the tenant. Tha\ is the view taken by the Gujarat High Court and we are satisfied that that view clearly gives effect to the provisions of s. 12(3) (a) as amended in 1953. We must accordingly hold that there is no substance in the appeal. The appeal, therefore, fails and is dismissed with costs. Appeal dismissed LACHMAN UTAMCHAND KIRPALANI v. MEENA alias MOTA (B. P. SINHA, C.J., S. K DAs, K. SuBBA RAo .• RA.GHUBAR DAYAL AND N. RAJAGOPALA AYYANGAR, JJ.) Husband and wife-fudicial separation-Desertion without justcause-Offer to return to matrimonial home must be shown to be bona fide-Petition for judicial separation-Burden of proof-Hindn Marriage Act, 1955 (25 of 1955), s. lO(l)(a). Where an application is made under s. lO(l)(a) of the Hindu Marriage Act, 1955, for a decree for judicial separation on the ground of desertion, the legal burden is upon the petitioning spouse to establish by convincing evidence beyond any reasonable doubt that the respondent intentionally forsook and abandoned him or her without reasonable cause. The petitioner must also prove that there was desertion throughout the statutory period and there was no hona fide attempt on the respondent's part to return to the matrimonial home and that the petitioner did not by his or her action by word or conduct provide a just cause to the other spouse to desist from making any attempt at reconciliation or resuming cohabitation; 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. 1963 V asumatiben Gaurishank.ar Bhatt v. Navairam Machharam Vora and Others Gaicndragadk.ar /. 1963 August 14 1963 ·Lachman · Utamchantl Kirpalani v. Meena Mata Ayyangar /. 332 SUPREME COURT REPORTS r 1964J An offer to return to the matrimonial home after sometin1e, though desertion had started, if genuine and sincere and repre~ sented his or her true feelings and intention, would bring to an end the desertion because thereafter the animus deserendi would be lacking, though the factuin of separation might continue; but on the other hand, if the offer \Vas not sincere and there was in reality no intention to return, the mere fact that letters were written expressing such an intention would not interrupt the desertion from contiriuing. Bipin Chander Jaisinghbhai Shah v. Prabhawati, [1956] S.C.R. 838, Dunn v. Dunn, [ 1948] 2 All E.R. 822 and Brewer v. Brewer [1961] 3 All E.R. 957, relied on. The parties were married in 1946 at Hyderabad in Sind (now in Pakistan) and a child, a son, was born in 1947. The married life Of the couple was not as harmonious as it should have been and it soon transpired that much of the t;-ou ble arose out of the fact that while the appellant and his parents appear to have been of an orthodox and conservative outlook and bent of mind the respondent and her parents apparently did not set much store by orthodoxy and were liberal and modern. As a result of the partition in 1947 the parties had to leave Sind. The appellant and his parents stayed in a house in Bombay, \Vhile the respondent's parents went to -Poona. The appellant's complaint was that the respon· dent was frequently going away to her parent's house. On February 26, 1954, the respondent left the appellant's house and went to Poona. The evidence was conflicting as to whether she obtained the permission of the appellant before going to Poona, but the facts showed that after that date the respondent did not go back to the appellant's house. The appellant along with a friend, Dr. Lulla, ·went to Poona with a view to bring back the respondent. The evidence as to what transpired at the interview with the respondent was somewhat conflicting, and the appellant's case was that the respondent intimated to him her fixed determination not to go back to him. On July 7, 1954~ the respondent along \Vith her father \Vent abroad to the Far Eastern countries, for the purpose of recouping her health, according to her. Before going abroad the respondent had to go Bombay for getting the passport and going through the formalities; and \vhile there she was staying in a house very near the appellant's but she did not visit him nor see their child. On learning that the respondent had gone abroad without intimation to him he cabled to her asking her to con1e back immediately but the respondent did not do c;o as required by the appellant. There was some correspondence about the matter and the respondent continued to s;i,y in her letters that she would soon come back to his place. By his· letter dated April 1, 1955, the appellant used strong langliagc passing. severe strictures against her conduct and in her continuing to be abroad without. obeying his instructions. The responde,nt replied by letter dated April 12, 1955; saying: "As soon as my , - - 4 S.C.R. SUPREME COURT REPORTS 333 health has completely improved I shall, of course come back to you and to our son." After this there was no further correspondence between the parties. In April, 1956, the respondent returned to India, but she did not go to the appellant's home nor did meet him. On September 20, 1956, the appellant filed the present petition pravine for judirial separation under s. lO(l)(a) of the Hindu }\.farriage Act, 1955. The respondent's defences to the petition, inter aiia, were that she never left the appellant's matrimonial hQme with the intention of breaking it and that, in any case, the appellant charged her falsely with iiumorality in his letter dated April 1, 1955, and so she was justified in living separately. Held (Subba Rao, J. Dissenting), (1) that on the facts the respondent left the appellant's matrimonial home on February 26, 1954, with the intention of permanently, breaking it up, and that ~uch desertion continued during the requisite period of two years. (2) that the appellant's letter of April 1, 1955, did not con· stitute an interruption of the respondent's desertion by its being a just cause for her to remain away from the matrimonial home; and (3) that, in consequence, the appellant was entitled to a decree for judicial separation under s. JO(l)(a) of the Hindu Marriage Act, 1955. Per Subba Rao, f.-(1) Where a spouse seeks judicial separation on the ground of desertion a heavy burden lies on hixn or her to prove four essential conditions, namely ( 1) the factum of separation, (2) animus deserendi, (3) absence of his or he1 consent, and ( 4) absence of his or her conduct giving reason· able cause to the deserting spouse to leave the matrimonial home. The offence of desertion must be proved beyond any reasonable doubt and as a rule of prudence the evidence of the petitioner shall be corroborated. (2) The expression "includes the wilful neglect" in the explanation to s. 10(1) of the Hindu Marriage Act, 1955, does not enlarge the scope of the word desertion so as to take in by definition the conscious neglect on the part of that offending spouse without the requisite animus deserendi; it does not introduce a new concept in Indian law, but is only an affirmation of the doctrine of con· structive desC'rtion in English law. The ingredients of desertion as well as constructive desertion are the same, though in one case: there is actual abandonment and in the other there is expulsive conduct. The said doctrine is not rigid but elastic and without doing violence to the principles governing it, it can be applied to the peculiar situations that arise in an Indian society and home. (3) Sections 9 and 10 of the Act deal with different subjects and s. 9 does not throw any light on the construction of the expression "without reasonable cause" in the explanation to s. 10. Whether there was a reasonable cause or not in a given case could 1963 Lach man U t4mchantl KirpaJani v. Muna Mata Ayy@gar /. 1963 Lachinan Utamcha~d Kirpalani ·v. Meena Mata Ayyangar./. 334 SUPREME COURT REPORTS [1964] be decided only on the evidence and the peculiar circumstances of that case. ( 4) In the present case, the evidence was clear that the respondent left her matrimonial home with the permission of her husband and his parents and that it was not possible to infer from the evidence given by Dr. Lulla that the respondent decided to abandon the appellant. The letters demonstrated beyond any reasonable doubt that the wife did not demonstrated beyond band with the requisite animus, but on the other hand, showed her willingness to go over to Bombay as soon as she regained her health. In view of the false allegations made by the appellant in his letter dated April 1, 1954, in which he charged the respondent with unchastity and leading a fast and reckless life, from that date the desertion, if any, on the part of the respondent came to an end and from that date the appellant was guilty of desertion. CIVIL APPELLATE JuR1so1cTION :. Civil Appeal No. 292 of 1961. Appeal from the judgment and decree dated July 16, 1959, of the Bombay High <::ourt in Appeal from the Original Decree No. 802 of 1957. /. C. Bhatt and N. N. Keswani, for the appellant. C. B. Agarwala, C. M. Mehta and V. /. Merchant, for the respondent. August 14, 1963. The Judgment of B. P. Sinha, C.J., S. K. Das, Raghubar Dayal and N. Rajagopala Ayyangar, JJ. was deliyered by Ayyangar, J. Subba Rao, J. delivered. a dissenting Opinion. Avv ANGAR J .-This is an appeal against the judgment of the High Court of Bombay reversing the judgment and decree of the City Civil Court at Bombay by which a decree for judicial separation granted by the trial Judge was reversed and it comes before us on a certificate of fitness granted by the High Court under Art. 133(1)(c) of the Constitution. The appellant, the husband, filed a petition in the City Civil Court, Bombay, under s. 10(1) (a) of the Hindu Marriage Act, 1955 (which ~e shall hereafter refer to as the Act), praying for a decree against the respondent, his wife, for judicial separation on the ground that in terms of that provision she had "deserted" him for "a continuous period of not less than two years. immediately preceding the presentation of his petition". The petition was presented on September 20, 1956, and the material allega- - - ' - -· - ' .. 4. S.C.R. SUPREME COURT REPORTS 335 tion was that the wife had left the matrimonial home on February 26, 1954, and had not thereafter come back to him and that this constituted "desertion" whithin the meaning of the provision just cited. The learned trial Judge held that the appellant had established to the satisfaction of the Court that the respondent-wife had left the matrimonial home with the intention of permanently breaking it up and that such desertion continued during the requisite period of two years and in consequence granted the decree for judicial separation, as prayed for. The wife preferred an appeal to the High Court and the learned Judges disagreeing with the finding of the learned trial Judge that the leaving, by the wife, of the matrimonial home was with the intention of deserting the appellant, reversed the decree of the trial Judge and directed the dismissal of the appellant's petition with costs. It is the correctness ofthis reversal that is canvassed in the appeal before us. Even at the outset we might state that the decision of the appeal does not depend so much on any substantial question of law but rather on an appreciation of the facts on two matters on the basis of which the learned Judges of the High Court have decided the case against the appellant: ( 1) whether the appellant had established that the respondent had an irrevocable determination to break up the matrimonial home when she admittedlv left the petitioner on February 26, 1954, and did not returii to him thereafter, it being cotmnon ground that the onus of proving this to the reasonable satisfaction of the Court was on the appellant, and (2) whether the respondent had a justifiable cause for not returning to the husband the existence of which prevented her admitted absence from the matrimonial home from constituting "desertion" as to serve as the foundation for an order for judicial separation under s. 10( 1) (a) of the Act. Before, however, dealing with these two points which form the crux of the matter in dispute in the appeal, it is necessary to summarise, briefly, the history of the married life of the parties. The parties are Smdhi Hindus of the Bhai Bund community. The appellant is a practising doctor while the respondent is said to have had read up to the High school classes. While. the appellant's father and his family were people of but moderate :1963 Lach man Utamchand Kirpalani ... Meroa Mata .. Ayyangar /. 1963 Lackmdn u 1ar11chan'd Kirpalizm v. Meena ·Maia . Ayyangar' .,. 336 SUPREME COURT REPORTS [1%4] means, the respondent's father was a very affluent businessman-his business spreading over almost the entire South East Asia. He had business houses in Singapore, Djakarta, Hong Kong, Manila etc. Besides, while the appellant and his parents appear to have been . of an orthodox and conservative outlook and bent of mind, the respondent and her parent's apparently did not set much store by orthodoxy, and were liberal and modern. It looks to us as if it is possible that the trouble between the spouses was in part at least due to these variations. The parties were married at H yd era bad in Sind (now in Pakistan) on November 11, 1946. The appellant was living with his father and mother and his two sisters and after her marriage the respondent commenced to live with him in this household. The parties are not agreed as to whether their marital life was happy even to start with, for while it was the case of the husband that the same was unhappy even from the very beginning, the respondent's version was that for the first month or so her relationship with her husband was happy, but nothing much turns on this because from soon thereafter both of them agree in saying that they were not pulling on well together. It is not necessary either to trace the source of the friction between the spouses or narrate the incidents which are related in connection therewith as they are hardly relevant for the decision of the real points arising in the appeal. The only other circumstance to be noted in connection with the early period of their married life was that on July 19, 1947, a son, Ashok, was born to the respondent who, it may be mentioned, is now living with the appellant. It is common experience that in some cases, the birth of a child puts an end to minor misunderstandings and bickerings between the spouses, for the parties concentrate on lavishing in common their love on the child and thus the two are brought together but in the case on hand, it does not seem to have had this effect and the relation between the parties does not appear to have been smoothened by Ashok' s birth. With the partition of the sub-continent the parties migrated to India. The appellant, his parents and his two sisters who were all living with him moved over to Bombay along with the respondent and their young child but apparent- - - ·I S.C.R. SUPREME COURT REPORTS 337 ly the accommodation which they could then secure was not sufficient for this large family, and as a result the appellant took the respondent, his child and his two sisters to Colombo and left them in the care of his maternal uncle, one Narian Das, to stay there till he could find a sufficiently commodius home in Bombay. The respondent stayed for a very short time at Colombo and though she admitted that she was treated with kindness and affection by this uncle, apparently all was not well in the relationship between the appellant's sisters and the respondent. What emerged out of this was that she left Colombo without informing either Narian Das or the appellant and came over to India. She came to Poona and Lonavala and started staying with her mother who was there. There is a complaint by the appellant against her leaving his uncle without informing him and ·on the other hand there is a complaint by the respondent about the way in which her sistc;rs-in-law behaved towards her but we pass over these incidents and the respective cases as not having any material bearing on the points at issue in the appeal. The appellant having come to know of her arrival at Lonavala, it is common ground that he went there and induced her to come over and stay with him at Bombay. This was sometime towards the end of January, 1948. The period from January, 1948, to 1954 might be dealt with together. During this period she was staying most of the time with the appellant at Bombay but his complaint is that she used to leave him very often and that pressure had to be exerted or inducements offered to get her back to Bombay to stay with him. This is, of course, denied ,by the respondent whose story is that every time it was with his consent that she went and that she came back of her own accord. It is not, however, necessary to decide which of these versions is correct, though the learned trial Judge who had an opportunity of seeing these two as witnesses was inclined to accept the version of the husband in respect of any matter on which he was contradicted by his wife. It is only necessary to add that though during these 4 or 5 years or so, the parties were living together most of the time, the relations between them had not become normalised. Be1963 Lach man Utamthand KirpahtJi .... Meena Mata Ayyongar /. 1963 Lach man U tamchrintl Kirpalani v. Meena Mata . Ayyangar . f. 338 SUPREME COURT REPORTS [1964] sides, it might be mentioned that the relationship between the parents ·of the two spouses were also strained and similarly the relationship between the appellant and his wife's parents as also between the respondent and her husband's parents. We next come to a crucial event. On February 26, 1954, the respondent left the appellant's house at Bombay ( Colaba) and went to Poona. She was taken from the house by her father who had come there in the evening and she travelled with him to Poona by train. It is the case of the appellant that the respondent left his home with the main items of her jewellery and clothes without the know- . ledge and consent of himself and his parents and at a time when there was no one in the house except a maid-servant and that he came to know of the respondent's departure only from the maid-servant, when he later returned to the house. On the other hand, it is the case of the respondent that she left the house after permission had been obtained by her father from her fatherin-law and after she herself had obtained the permission of her husband and that at the time of the departure when her father came to take her, her father-in-law, mother-in-law and the appellant were all present in the house and that the jewels etc., were given to her by her mother-in-law who bade her good-bye and wished her a happy journey. The learned trial Judge accepted the appellant's story that the respondent did not seek or obtain anyone's permission for quitting the house and that she left the house without the knowledge or consent of anyone. The materiality of the acceptance of the appellant's version stems from the fact that in order to constitute desertion the withdrawal of the deserting spouse from the matrimonial home should' be without reasonable cause and "without the consent or against the wish of such party" [vide Explanation to s. 10(1) of the Act]. On the other hand, the learned Judges of the High Court were inclined to accept the wife's version that she had the consent ·of her husband to leave the home. For reasons we shall set out in its proper place we are in agreement with the learned trial Judge and do not share the views of the learned Judges who accepted the wife's version of this event. We shall, however, reven L0 1t after comple- ' - 4 S.C.R. SUPREME COURT REPORTS 339 ting the narrative of the events leading up to the filing of the petition. It is the case of the ~ppellant that he came to know a few days after her leaving him that his wife was staying at Poona with her parents. According to his evidence he considerc