JUDGMENT
P.S. Patankar J.
1. By this Appeal, the wife has challenged the decree passed by the Family Court, Pune, granting decree for judicial separation in favour of the husband-respondent by exercising jurisdiction under Section 13-A of the Hindu Marriage Act, 1955 (hereafter called the Hindu Marriage Act) instead of decree of divorce on the ground of desertion. The parties hereafter shall be referred to as wife and husband.
2. A few facts are as follows :
The marriage between the parties took place as per the Hindu Vedic Rites on 8-12-1985. A male issue was born to them on 12.2.87. The father of the wife filed a complaint with the police on 2-5-87 alleging that the husband and his parents were ill-treating the wife and she was confined to the matrimonial house. Because of the said complaint, the police took both husband and wife and the parents of the husband to the Police Station. In the Police Station, the wife made a statement that there was no ill-treatment to her and she wants to continue with the co-habitation. However she wanted to go to her parents’ place for considering whether she should serve or not. Hence, she went to her parents’ place on 2-5-87. The husband issued a notice through Advocate dated 26.9.87 inter alia alleging that the wife was not co-operative. She was arrogant and insulting his parents. She was hysteric and tie asked for divorce by mutual consent. It was stated that she was not prepared to cohabit properly and, therefore, it was necessary that the marriage tie should come to an end. The wife sent a reply dated 31.10 87 through Advocate. She not only denied the various allegations made in the notice but she has further stated that she was prepared to reside or cohabit in the matrimonial house. She denied that she was not doing the domestic work or quarrelsome or that she was suffering from hysterical attacks or shouting at the top of her voice.
3. The husband first filed the petition seeking decree of divorce alleging cruelty on the parts of the wife. He sought decree under Section 13(1)(ia) of the Hindu Marriage Act. The said petition was bearing No. 371 of 1989 and was filed on 1.2.1988. In the said petition, the husband made allegations that the wife was quarreling on petty grounds. She was not respecting elderly persons and was behaving arrogantly. She left the matrimonial house without his consent as the husband refused to comply with her demand to stay separately from his old parents. She was loosening her heir and rolling on the ground. She was suffering from hysteria even prior to the marriage and that she was only interested in serving and not in the household.
4. The husband filed the petition for decree of divorce on the ground of desertion i.e. Section 13(1)(ib) of the Hindu Marriage Act. The said petition bearing No. 1185 of 1989 was filed on 21.8.89. In the said petition, the husband alleged that the wife has left the matrimonial house without his consent on 2.5.87 and she does not intend and was not prepared to come back to the matrimonial house as she was interested only in service. Two years have passed prior to the filing of the petition since she was staying separately and therefore, he was entitled to get the said decree.
5. Both the petitions came to be heard together by the learned Judge of the Family Court, Pune. The petition filed by the husband seeking decree of divorce on the ground of cruelty, being petition No. 371 of 1989, came to be dismissed holding that husband has failed to establish those allegations, while petition No. 1185 of 1989 seeking decree of divorce on the ground of desertion came to be allowed partly and as mentioned above, instead of decree of divorce, the learned Judge granted the decree for judicial separation by exercising jurisdiction under Section 13-A of the Hindu Marriage Act. The husband has not filed any appeal challenging the dismissal of the Petition No. 371/89. Only wife has filed this appeal challenging decree in petition No. 1585/S9 and husband has filed the cross-objections. By filing the cross-objections, he wants to get the decree of divorce on the ground of cruelty. in other words, the husband wants to succeed in his petition No. 371 of 1989 by filing the cross-objections even though he has not filed the appeal. In our opinion this cannot be done and it is not possible to grant the decree by exercising the jurisdiction under Order 41 Rule 33 as the said provision is not attracted. Therefore, we are left only with the Petition No. 1185 of 1989 in which the husband has sought the decree of divorce on the ground of desertion.
6. It will be necessary to state at the outset that both the parties are well educated. The wife has passed B. Com. Examination. The husband has passed G.D. Art Exam, and Diploma in Pottery. The wife was serving since 1982. She was not serving during period when she was staying with the husband. She is presently employed. The husband is having workshop and manufacturing and selling tiles, pottery, etc. 26th April, 1993.
7. The allegations sought to be levelled against the wife by the husband to support the decree of divorce on the ground of desertion are as follows :–
The wife has quarreled and she left the matrimonial house on 2.5.87 at night voluntarily. Thereafter she is staying with her parents and she is serving. She did not intend to return to the matrimonial house.
The wife filed the written statement and inter alia contended that she has not left the matrimonial house voluntarily. She has left the same on 2.5.87 because of the ill-treatment meted out to her by the husband and her in-laws. She was assaulted by the husband and his mother on that day. Because of the said assault, her father filed the police complaint and they were all called at the Police Station and thereafter she went to her parents’ place. It was also contended that the husband demanded a scooter on his birth day. Her parents were unable to meet the said demand. Therefore, there was ill-treatment and her sister was required to stand surety for the loan which the husband took from the Bank for the purpose of purchasing the scooter. She stated that she was prepared to cohabit with the husband and never intended to permanently give up the matrimonial house.
9. The learned Judge of the Family Court, Pune held that the parties were living separately for more than 2 years before filing of the petition. Therefore, the husband has proved desertion and entitled to get the decree of divorce. However, he held that the parties are young. The wife’s statement before the police showed that she left as she wanted to have some peace and to think about her service or career. Therefore, he felt that there was some misunderstanding and suspicion between the parties and which may be removed incourse of time and the parties may come together. Therefore instead of passing the decree of divorce, the learned Judge exercised the jurisdiction under Section 13-A of the Hindu Marriage Act and instead granted decree of judicial separation.
10. In view of the contentions raised by the learned Counsel appearing for the parties the main point that arises for our consideration is whether the husband has established the ground of desertion as requires by Section 13(1)(ib) of the Hindu Marriage Act. The provisions relating to desertion are as follows :-
“13(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party :-
(i) X X X X (ia) X X X X (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition;" There is an explanation to the said Section which is as follows :- "Explanation-In this sub-section, the expression "desertion" 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, and its grammatical variations and cognate expressions shall be construed accordingly." The law relating to desetion is well settled by the Apex Court. The first of its judgment is , Bipinchandra Jaisinghbai Shah v Prabhavati. The Apex Court dealt with the concept of desertion while dealing with the case under the Bombay Hindu Divorce Act, 1947. The Apex Court has observed as follows :- "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 Apex Court further observed as follows:-
“……The law in England has prescribed a three years period and the Bombay Act prescribed a period of four years as a 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 bonafide 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 divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses to 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.”
11. In the present case, the husband alleged that the wife deserted him on 2-5-87 by leaving the matrimonial house. However, it will be necessary to note at the outset that he first filed the petition for divorce on the ground of cruelty on 1.2.1988. Therefore, certainly from that day onwards he was not prepared to cohabit with her or to welcome her back in the matrimonial house on any terms. Section 13(1)(ib) of the Hindu Marriage Act requires that a party claiming divorce on the ground of desertion should prove that it was ready to cohabit throughout the said period of 2 years prior to the filing of the petition for divorce. This petition on the ground of desertion came to be filed by the husband on 21.8.89. Therefore, during the 2 years period prior to it the husband should have established that he was ready to cohabit with the wife but the wife was not prepared for the same. This is clearly absent in the present case, if the dates of filing of the petitions by the husband for divorce are taken into consideration. The learned Advocate for the husband submitted that it was not necessary in the present case since the wife made serious allegations against the husband when she filed the written statement in the petition filed by the husband seeking decree of divorce on the ground of cruelty. He pointed out that all those allegations were repeated even for the second time in the written statement filed in the petition for divorce on the ground of desertion. The wife made false allegations particularly of assault on her and that of ill-treatment. He further pointed out that the wife made false allegation regarding demand of dowry by the husband. He pointed out that except her bare word, there is absolutely nothing on record to support such a case and the same has not been corroborated by any independent evidence. It is not possible to accept the submission of the learned Advocate for the husband for the simple reason that the husband filed the petition seeking decree of divorce on the ground of cruelty by making serious allegations against the wife. In the petition, it was inter alia mentioned that she was hysteric patient. He has also stated that the wife was quarreling and was having the habit of loosening her heir and rolling on the floor. Therefore, even assuming that the wife has not established those allegations against the husband, it cannot be said it was not necessary for the husband to prove that he was ready and willing to cohabit with the wife throughout the period of 2 years prior to the filing of this petition. In fact, the Court below as mentioned above, dismissed the petition filed by the husband seeking decree of divorce on the round of cruelty holding that the husband has failed to prove all those allegations. Further, when the husband made serious allegations of cruelty and hysteric behavior in the earlier petition, it was not expected that the wife should return to the matrimonial house for co-habitation. Her living separately was quite justified and reasonable in the facts and circumstances of the case and she cannot be blamed on that count. In our view on the contrary this showed that the husband was not prepared to accept her.
12. Further in our opinion, the learned Judge has committed an error in holding that the husband has proved desertion merely because the parties were staying separately for more than 2 years prior to the filing of the petition. It was necessary for the husband to establish that there was animus deserendi or intention on the part of the wife (deserting spouse) to bring the cohabitation permanently to an end The burden to prove this allegation was fully on the shoulders of the husband as he sought the decree. Now let us see whether this has been proved or not by scanning the evidence.
13. The material oral evidence on this aspect is that of the husband, his father and the wife. The husband entered the witness box at Ex. 65 and has deposed that on 2nd May at night, the respondent’s father came to the house with police and the members of his family were taken to Police Station. He has further deposed that the sister of the wife went to his house and packed her clothes. The wife left from the Police Station and went to her parent’s house without seeking any permission from him. He has also deposed that he had gone to the wife’s place at the time of Ganpati festival for bringing her back but she refused. He has stated that there was no reason for the wife to leave the matrimonial house. In the cross-examination, it was tried to be suggested that the husband and his mother beat the wife on 2-5-87. At that time, one Beena Rokde, friend of wife came to the house. The husband has denied the beating but admitted that the said Beena Rokde came to their house. He has also admitted that on 2-5-87, the father of the wife lodged a police complaint though he has further stated that the wife made a statement before the police that she had no complaint against the husband. He has also further admitted that he did not try to see the child thereafter or arranged for the maintenance. He has also admitted that he sent a notice to the wife for taking divorce by consent. From his evidence, there is nothing to show that the wife intended to sever the matrimonial relations permanently. We find no evidence to that effect at all. Similarly, the father of the husband by name Kalyanrao Karkhanis came to be examined at Exh. 75. He has deposed about going to the Police Station on 2-5-87 and that during the enquiry, the wife made a statement that she has no complaint against the husband or in-laws and that she was happily enjoying the married life. He has further deposed that the wife told the police that she wanted to go to her father’s house along with the child to think about doing the service and that she told that she did not want to come to the matrimonial house. In the cross-examination, he has stated that he did not lodge any complaint against the wife or her father for lodging the police complaint. The wife did not listen to his advice to behave properly and whether to accept the wife or not is the discretion of the husband. He went ahead and stated that he did not want to take risk in accepting her again so as to enable the husband i.e. his son to resume cohabitation. In our opinion, this evidence clearly shows that the husband and his parents were not at all prepared to allow the wife to stay with them. Perhaps this was because their ego was hurt due to the police complaint. This cannot show that the wife intended to forsake the matrimonial house permanently. On the contrary, the evidence of the wife who is examined at Ex. 76 is to the following effect :
On 2-5-1987 her friend Beena Rokade came to see her. At that time the wife was assaulted by the husband and the said Beena was insulted by her mother-in-law. The said Beena in formed the said incident to her father who in turn lodged the police complaint. She admitted that she made a statement before the police that she has not complained against the husband or her in-laws and wanted to continue cohabitation with the husband. She has further deposed that the husband himself told her that the atmosphere in the house was tense and therefore, he advised her to stay at her parents’ place for some days. The husband promised to take her back after some time She has emphatically stated that she was ready and willing to join the company of the husband and has not complained against him. In the cross-examination, her statement that as the atmosphere in the house was tense, the husband himself advised her to go to her parents’ place and to stay for some time and he would bring her back, was not at all challenged. Her statement that she was ready and willing to cohabit with the husband was also not challenged. Therefore, the evidence of the wife showed that she was ready and willing to join the company of the husband and never intended to give up the matrimonial house permanently.
14. The husband issued the notice to the wife through Advocate dated 26th September, 1987. In the said notice, he made allegations that she was responsible for causing mental cruelty to him. She was suffering from the disease of hysteria. He has alleged that the wife wanted to live free life. Therefore, he asked her to relieve him from the marital tie by having consent divorce. The wife replied to the said notice through Advocate on 31st October, 1987. In the said reply, it was not only categorically denied that she was guilty of causing mental cruelty to the husband or that she was suffering from hysteria, but she has further stated that she was ready and willing to cohabit with the husband and to stay with them.
15. The complaint filed by wife’s father is at Exh. 72. It mentions that the wife was given mental torture and she was not treated properly. The Police recorded the statement of the wife on the very day which is at Exh. 73. She has made a statement that she was not ill-treated by the husband or her in-laws. She has stated that she was treated properly. There were minor disputes and she wanted to go to her parents’ place so as to have some freedom and think over whether she should serve or not. She has stated that she was going voluntarily and there should be no misunderstanding about her in-laws. She has further stated that she was ready and willing to cohabit with the husband and to stay with him.
16. Therefore, the reply given by the wife dated 31st October, 1987 showed that she was ready and willing to cohabit with the husband and to stay at the matrimonial house. On the contrary, the husband was not prepared for the same and was seeking divorce by consent. Similarly, her statement recorded by the police showed that she did not intend to forsake the matrimonial house forever. She therefore did not implicate or made any allegations against the husband or her in-laws. She had only taken some time to consider whether she should serve or not. Therefore, all this documentary evidence completely belies the case of the husband that the wife wanted to leave the matrimonial house permanently. The husband has completely failed to prove the animus on the part of the wife to bring to an end the marital tie permanently. On the contrary, we inter from the evidence on record that the wife wanted to cohabit with the husband and to stay with him, but the husband was not prepared for the same.
17. The learned Advocate for the appellant submitted that the wife was serving before the marriage, and after leaving the matrimonial house she had accepted the job and this showed that she was more interested in service than to have matrimonial relations. He submitted that there were two options available to her i.e. (1) to live with the husband or (2) to accept the job as the husband did not wish that she should serve. The wife has clearly exercised the second option. She has taken the conscious decision and has not honoured the wishes of the husband. He submitted that this clearly showed that the wife wanted to be independent and that she never wanted to come back to the matrimonial house. He further pointed out that the wife went to her parent’s place without seeking the permission of the husband and this also demonstrated a clear intention on her part to sever the matrimonial tie. It is not possible to accept either of this. It is not possible to accept the basis that there was only option available to the wife i.e. either to serve or to be a wife. Further, as pointed out above, that she had gone to her parent’s place as she wanted to have some freedom and to think whether to serve or not to serve. Both these cannot show that she intended to sever the matrimonial tie. We accept her case that the husband told her that the atmosphere of the house was tense because of the police complaint and that she should stay with her parents for some time and he would bring her back. We can very well visualise the position that the atmosphere at the husband’s house must be tense because of the police complaint made by the wife’s father and because of which they were required to go to the police station.
18. The learned Advocate for the husband further submitted that the case of the wife that she wanted to return to the matrimonial house and was ready and willing to cohabit was merely an eye-wash as the same was not reflected in her conduct. As pointed out above, immediately after the husband gent the notice through his Advocate seeking a consent decree of divorce, the wife replied and emphatically stated that she was ready to cohabit and to stay with him. Further, it is also clear from the evidence that she was ready and willing to cohabit with him. Therefore, we do not accept this submission that her readiness and willingness was merely an eye-wash.
19. The learned Advocate for the husband further submitted that the husband had gone to the house of the wife to bring her back but she declined and his attempts were frustrated. We find from the evidence of the husband that he had vaguely stated that at Ganpati festival he went to bring her back but she refused. We first do not find any such attempt mentioned in the written statement. The father of the husband who is examined has not stated a word about this. On the contrary, he has stated that he was not prepared to take her back to his house. Thus, the allegation made by the husband is absolutely vague and is not at all supported and cannot be accepted at all. Hence, it is not possible to accept the submission of the learned Advocate for the husband that the wife was not ready and willing to cohabit with the husband or to stay in the matrimonial house in spite of his best efforts.
20. The learned Advocate for the husband relied upon , Sunatkumar Agarwal v. Nandini Agarwal. In the said case parties were separated for more than 10 years and the finding was recorded by the Court that the wife was not ready and willing to come back and to cohabit with the husband, it was further held by the Apex Court that the desertion was established by the husband in the peculiar facts and circumstances of the said case. However, in our case it is not possible for us to accept that the wife is not ready and willing to go back to the matrimonial house and to stay with the husband. As we have pointed out that the wife immediately after the notice was given by the husband for consent decree, she replied and expressed that she was ready and willing to cohabit and to stay with him. She has repeated this in the written statement and also in her evidence. Therefore, in our opinion, the ratio of the said judgment cannot help the husband in any manner.
21. The learned Advocate for the husband further submitted that more than one year has passed after the decree was passed by the Court below of judicial separation. He pointed out that there was no stay granted by this Court within the said period and, therefore, a right was crystallised in the husband to seek the decree of divorce as per Section 13(1A)(i) of the Hindu Marriage Act. The decree was passed by the Court below on 7-7-90. The appeal was filed on 29-11-90 and it came to be admitted on 11-4-91. The wife submitted Civil Application No. 4802 of 1992 for stay of the decree passed by the Court below on 30-9-92 and the Division Bench of this Court granted the same on 8-10-92. It is no doubt true that one year has elapsed after the decree was passed by the Court below and the stay was granted by this Court after the said period. It is also a fact that the husband tiled Hindu Marriage Petition No. 3001 of 1991 claiming decree of dissolution of marriage as provided under Section 13(1A)(i). However, merely because stay was not granted by this Court within a period of one year or that the husband has already filed the petition cannot mean that any right was crystalised or got vested in the husband to seek the decree of divorce under Section 13(1A)(i). The right which is conferred under Section 13(1A)(i) flows from the decree of judicial separation which was passed by the Court below. The said decree itself is under challenge and for consideration before this Court. If the said decree is reversed, then there can be no such right which can be exercised under Section 13(1A)(i) of the Hindu Marriage Act. The submission is, therefore, without any substance. It cannot be said that this appeal has become infructuous merely because the stay order was not passed by this Court within a period of one year or that the husband has already filed the petition under Section 13(1A)(i) of the Act. Hence, we reject this submission.
22. We may record that we desired that the parties should come together. This appeal was, therefore, adjourned after the hearing was over. The husband appeared to-day. The wife sent a telegram pointing out that her father was hospitalised because of heart attack and, therefore, she was unable to come and sought adjournment. We enquired with the husband about his wishes. However, he expressed his unwillingness to cohabit with the wife or to take her back.
23. Hence, the following order :
The impugned judgment and decree dated 7-7-1990 passed by the learned Judge of the Family Court, Pune, in A. Petition No. 1185 of 1989 is set aside. The said petition filed by the husband is dismissed. Appeal is allowed with costs.