JUDGMENT
S.P. Khare, J.
1. These are two appeals under Section 28 of the Hindu Marriage Act, 1955 (hereinafter to be referred to as ‘the Act’) by the husband against the judgment and decree by which his application under Section 13 of the Act for divorce has been rejected and the application of the wife under Section 9 of the Act for restitution of conjugal rights has been allowed.
2. It is not in dispute that Chandra Kripa was an Advocate and practising at Sidhi. Umesh Kumar Soni was working as a Chemist in a Cement Factory at Manawar in District Dhar. They married on 7-12-1989. The distance between Sidhi and Manawar is about 1000 kilometers and it could be easily foreseen that it was bound to create trouble in the matrimonial life unless there was a deep understanding between the couple. The wife lived in Manawar at some intervals and the couple had two daughters. The wife did not leave her practice and continues to work as an Advcoate at Sidhi. From the various letters exchanged between the parties which are on record and marked as Ex. D-1 to Ex. D-20 it appears that the husband encouraged his wife to pursue her career as an Advcoate and to enter into politics. The wife initially by her letter dated 27-12-1989 (Ex, D-12) expressed that she is prepared to leave her practice and shift to Manawar to live with her husband. But the husband continued to insist upon his wife to pursue her career as an Advocate at Sidhi.
3. The case of the husband is that there was an agreement between the present parties before the marriage that the wife would shift to Manawar and live with her husband there. After the marriage the wife lived with the husband for about one and half months and then came back to Sidhi for giving her briefs to other lawyers or to make some alternative arrangement. According to the husband his wife revealed to him that she has illicit intimacy with the husband of her elder sister. She started treating him with cruelty. She deserted him without reasonable excuse. She used to quarrel and abuse him. She made a proposal for divorce in May, 1990. The same story was repeated in November, 1992. In April, 1994 the papers for divorce were prepared but the wife refused to sign the same. He has claimed divorce on the grounds of curtley and desertion.
4. The case of the wife is that after the marriage she was always prepared to leave her practice and live with the husband at Manawar, but he made her to continue her practice at Sidhi and encouraged her to do so. She had no illicit relation with anyone and the charge of adultery levelled against her by her husband is totally false. She has expressed that she is still willing to live with her husband. She has not treated her husband with cruelty nor she has deserted him.
5. The Trial Court after recording the evidence of both the sides has held that the wife has not treated her husband with cruelty and she has also not deserted him. On these findings the relief of restitution of conjugal rights has been granted to the wife and suit of the husband for divorce has been dismissed.
6. In this appeal the husband appeared and argued his case. It was stated that he is no longer in employment. He has argued that the parties are living separately for more than 10 years and there has been irretrievable breakdown of the marriage and, therefore, the decree for divorce should be granted. On the other hand, it has been argued on behalf of the respondent that the marriage should be kept intact as there are two grown-up daughters of the couple and in the absence of proof of cruelty or desertion on the part of the wife, there can be no decree of divorce.
7. The evidence on record has been scanned by this Court. A perusal of the letters (Ex. D-1 to Ex. D-20) written during the period of 3 years after the marriage goes to show that the husband was insisting upon his wife repeatedly to continue her practice as an Advocate and to take part in politics. He did not unequivocally ask her to come and live with him at Manawar. In such a situation the wife was living at Sidhi with the consent of her husband and he was also encouraging her to continue her practice as an Advocate and also to take part in politics. It cannot be said that she has deserted him. The letters reveal that the husband wanted that he should get some employment at Sidhi through the political influence of the persons with whom his wife was having contacts. A already stated, the wife had already expressed her desire in her letter dated 27-12-1989 (Ex. D-12) to leave her practice and shift to Manawar to live with her husband. Thereafter the husband made his wife to stay at Sidhi through several letters written by him to her.
8. Umesh Kumar Soni (P.W. 1) has deposed that his wife told him that she was having illicit intimacy with the husband of her elder sister. That has been denied by the wife. There is no evidence in support of the stand taken by the husband on this point. Therefore, the allegation of the husband that his wife is having illicit relationship with any other person has been rightly disbelieved by the Trial Court. Umesh Kumar Soni (P.W. 1) has described various incidents showing that his wife used to insult him and show her supremacy but these allegations have not been substantiated. He has admitted in his cross-examination that he was encouraging his wife to continue her practice as an Advocate at Sidhi. Vinod Kumar Jain (P.W. 2), Krishnanand Dwivedi (P.W. 3) and Haneef Khan (P.W. 4) have been examined on behalf of the husband, but their evidence does not advance his case for divorce. Their evidence is of general nature and is not sufficient to establish that the husband was being treated with cruelty by the wife or she has deserted him.
9. On the other hand Chandrakripa (D.W. 1) has deposed that she went to Manawar with her husband and lived with him for sometime at various intervals and during this period she conceived twice and gave birth to two daughters. According to her, the husband was always insisting that she should continue her practice as an Advocate at Sidhi. She is still prepared to live with him. In cross-examination she has denied that she treated her husband with cruelty or quarrelled with him or tried to show her upper hand. In Para 18 of cross-examination she has stated that in view of the changed circumstances it is not possible for her to leave Sidhi and go to Manawar. It has been admitted during the course of hearing of this appeal that the husband is no longer in the employment of the company at Manawar. Therefore, the proper course for the husband is now to go to Sidhi and live with his wife and children.
10. The essence of desertion is the forsaking and abandonment of one spouse by the other without reasonable cause and without the consent or against the wish of the other. The ‘desertion’ is ‘a withdrawal not from a place, but from a state of things’. In Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi, AIR 2002 SC 88, the Supreme Court has held that the essential ingredients of ‘desertion’ in order that it may furnish a ground for divorce are (i) the factum of separation; (ii) the intention to bring cohabitation permanently to an end – animus deserendi; and (in) the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period. It has been further observed that from the Explanation to Section 13(1)(i-b) of the Hindu Marriage Act, 1955 it is clear that the legislature intended to give to the expression a wide import which includes wilful neglect of the petitioner by the other party to the marriage. Therefore, for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned: (1) 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 petition for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period.
11. In Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591, it has been observed that the approach of the Court should be to preserve the matrimonial home and be reluctant to dissolve the marriage on the asking of one of the parties. The marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive. The sanctity of marriage cannot be left at the whims of one of the annoying spouses. Irretrievable breakdown of the marriage is not a ground by itself to dissolve it,
12. In the present case the wife was practising as an Advocate at Sidhi at the time of her marriage and the husband was employed in a private company at Manawar in District Dhar. It has been established that the husband was encouraging and prevailing upon his wife to continue her practice as an Advocate at Sidhi and to take part in politics. Thus there was consent of the husband and because of his encouragement she continued to live at Sidhi. The essential ingredient i.e., absence of consent on the part of the husband is not proved and, therefore, the wife cannot be held guilty for deserting the husband. So far as the charge of cruelty is concerned, the evidence on record falls sort of the proof to establish cruelty. It is an admitted fact that during 3 years of the married life there was no problem between the parties to the marriage except that there was frequent travelling by one or the other from Sidhi or from Manawar. During this period the wife gave birth to two children. The relations appear to have fallen a part after 3 years and then each party started making allegations and accusation against each other. Now the daughters have grown-up and the husband is no longer in the employment and, therefore, he should leave his obstinate and obdurate approach and think of living with his wife as per decree of restitution of conjugal rights granted by the Trial Court.
13. In view of the above discussion the appeals filed by the husband are dismissed. The parties will bear their own costs.