JUDGMENT
S.C. Mohapatra, J.
1. Decree for judicial separation at the instance of the husband is the grievance of the wife in this appeal under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’).
2. On the finding that the wife had no just cause to desert the husband, trial Court has passed the decree for judicial separation although the husband prayed for divorce, restitution of conjugal right or judicial separation, as the case may be. Husband has been satisfied with the decree for judicial separation.
3. For getting a decree for judicial separation by the husband on the ground of desertion by his wife, husband is to prove that (i) the wife is living separately for a period of two years continuously from before the date of presentation of the petition and (ii) such separate living is with the intention of abandonment of cohabitation of the parties to an end. Added to it, husband is to prove that he did not create any situation which became the cause of separate living of the wife and abandonment of cohabitation. This is the principle laid down by the Supreme Court in the decision reported in AIR 1957 SC 176 (Bipin Chander Jaisinghbai Soha v. Prabhawati), AIR 1964 SC 40 (Lachman Utamchand Kirpalani v. Meena alias Mota), AIR 1972 SC 459 (Smt. Rohini Kumari v. Narendra Singh) and of this Court in the decision reported in 1971 (1) CWR 734 (Chakradhar Mohanty v. Kumudini Dei) and 46 (1978) CLT 359 (Dhrubajyoti Chatterjee v. Dila Mukherjee). Desertion has been explained to mean the same principle as has been provided in Section 13(1) Explanation of the Act. It reads 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).
4. Case of the husband is that wife left his house in the morning of 3-10-1980 with the ornaments and did not come back inspite of being called and even did not give reply to the registered notice. Wife’s case is that her husband along with his grand father left her in her father’s house in the month of September, 1979 and declared that they were finally leaving her there and would no more take her back. Both parties have not been able to prove their respective cases. From evidence of the husband examined as PW 3, it is clear that when he went for treatment to Burla, his wife was in their house but by the time he returned she had left. This is also the statement of PW 1 who is independently related to both parties Discharge certificate (Ext. l) of Burla hospital is dated 19-4-1983. Thus, near about that period wife left the house of her husband. Petition with prayer for judicial separation having been filed on 26-5-1983, separate living is not for a period of two years continuously and accordingly, the requirement of Section 13(1)(ib) of the Act is not satisfied for a decree of judicial separation under Section 10 of the Act. Trial Court has not considered this question while passing decree of judicial separation.
5. Whether there was animus deserendi is a matter of inference from acts and circumstances proved in a case and such inference would depend on the facts and circumstances of each case. In the present case, parties belong to same village. DW 1 the wife stated that she married at the age’ of 14 years. PW 3 husband stated that after marriage, wife was kept in charge of cooking in the joint family. From evidence of PW 1, PW 3 and DW 3, it is clear that family of the husband consists of 11 to 12 members. From the evidence it is clear that there are other lady members in the family. There is no evidence that other lady members were assisting her in cooking. PW 3 husband stated that his wife was not cooking well which was the dissatisfaction of the members of his family for which responsibility of cooking was taken away from her to be entrusted to the wife of the second brother. On account of this, she left the house once but came back when requested. When a young rustic girl is put in charge of some responsibility to be discharged without any assistance and is deprived of the same on allegation of inefficiency, the stigma attributed to her can be a cause of humiliation in the family. Added to it, as PWs. 1 and 3 stated she was always complaining that she was not being given required food. PW 3 stated that his wife was not cooking well as she had an idea that the husband is having a concubine. DW 3 the wife stated that she was taken to her father’s house and abandoned there by her husband and his grand father. No member of the family even the grand father comes forward to give evidence under what circumstances, the wife left her marital home. Husband was not present when she left which is clear from his evidence as PW 3. Added to it, husband became ill to be treated in the hospital and had no intention to break away from the joint family where his wife was being blamed for bad cooking without any assistance from other female members. In such circum stances, leaving marital home by a young girl to remain in her parents’ house in the same village beyond the atmosphere of fault finding cannot lead to the inference of animus deserendi. Some more positive evidence was necessary to be adduced by the husband for the Court to draw the inference in his favour. It cannot be said that husband has not created any cause for the wife to leave the marital home. Trial Court has not given due importance to the cumulative effect of the circum stances as discussed by me.
6. In conclusion, separation was not for a continuous period of two years before presentation of the petition and separate living of the wife was not with animus deserendi.
7. In the result, appeal is allowed with costs and judgment of the trial Court is reversed.
