JUDGMENT
V.K. Singhal, J.
1. This appeal under Section 19 of the Family Court Act has been filed against the judgment of the Judge, Family Court, Jaipur dated 6.9.1991.
2. Shri Kaushik, learned Counsel for the appellant has raised only one objection that the petition for divorce, which was filed on 29th August, 1988 under Section 13(l)(b) of the Hindu Marriage Act, 1955 is not maintainable before the expiry of two years from the date of desertion.
3. Brief facts giving rise to the present appeal are that the marriage of Smt. Suman Nahar and Abhay Kumar was solemnized on 7th May, 1985. An application under Section 13(l)(b) of the Hindu Marriage Act was filed by Shri Abhay Kumar Nahar on 29th August, 1988 on the ground of desertion. In the said petition, it has been stated by the respondent that the appellant lived with him till 10th June, 1986 at Jaipur and at that time she was pregnant. At her insistence, the respondent had taken the appellant to her parental house at Kekari on 10th June, 1986. It has further been stated that thereafter, the respondent has gone to Kekari and has taken care of the appellant by showing her to the doctors. A male child was born on 3.10.86 of which it has been alleged that no intimation was given and thereafter the respondent went to take the appellant and the son, but she refused to come. The father, elder brother and brother-in-law and other relatives also went to Kekari to bring the appellant to Jaipur. She refused to come. It is alleged that a letter was written on 15th April, 1987 under U.P.C., but no reply was given by the appellant and, therefore, a notice by registered A.D. was sent on 8th May, 1987, the reply, of which was sent on 16th May, 1987. According to the respondent, the appellant has deserted the respondent since 10th June, 1986 Without any reasonable cause and a petition was filed on 24th June, 1987 for restitution of conjugal rights. The said petition was dismissed as not pressed on 14th April, 1988 since the appellant stated that she is not ready to live with the respondent as his wife. It was stated while withdrawing the said petition that the respondent shall take other legal action.
4. It has further been submitted in the petition filed by Shri Abhay Kumar before the Family, Court that he has made his efforts on, 1lth, May, 1988 and 30th July, 1988, but the appellant was not ready to live with him, but .has, insisted on divorce.
5. On behalf of the respondent, Abhay Kumar Nahar, and six witnesses were examined, while on behalf of Smt. Suman Nahar 3 witnesses wereexamined.
6. In the written statement filed by Smt. Suman various allegations with regard to harassment, demand of dowry, beating etc. were levelled, but the learned Judge, Family Court after examining the evidence came to the conclusion that the said allegations are not proved. The order and decree of divorce was passed on 6th September, 1991 on the ground that the appellant has deserted her husband without any reasonable cause for a period of more than 2 years.
7. Learned Counsel for the appellant has referred to the various statements and submitted that the burden to prove desertion from a particular date was on the respondent and that he himself has accompanied the appellant from Jaipur to Kekari for leaving her to her parental house for delivery purposes on 10th June, 1986. It has further been pointed out that the respondent has further admitted to have visited Kekari thereafter for the purpose of showing the appellant to the doctor and thus at that stage there was no desertion by the appellant. The appellant had to file an application under Section 125 Cr.P.C. as even after sending information for birih of male child, the respondent has failed to visit or take care of the appellant.
8. According to the learned Counsel for the appellant, if the appellant has refused on 14.4.1988 then that date should have been taken for the purpose of period of two years under Section 13(1)(b). Even if the period of 21/2 months after the birth of the male child is taken into consideration when the family members have visited the appellant, it comes to 18th December, 1986 and the period of two years has not lapsed at that time.
9. The submission of Mr. Lunia on behalf of the respondent is that the appellant has stated in her statement that she left Jaipur on 10th May, 1986 and had not come thereafter to Jaipur, therefore, it should be considered that she has deserted from this date and the subsequent conduct of the appellant should have also been taken into consideration.
10. We have heard the arguments of both the learned Counsel and have gone through the record. The provisions of Section 13(1) provides that any marriage solemnized, whether before or after commencement of this Act, may, on a petition presented by either husband or the wife, be dissolved by decree of divorce on the ground that the other party (i-b) has deserted the petitioner for a continuous period of not less than 2 years immediately preceding the presentation of the petition.
11. From a perusal of the above provision two things have to be established by the petitioner (i) that there is a desertion by the other party to the petitioner; (it) the desertion should be for a continuous period of not less than 2 years immediately preceding the presentation of the petition. The burden to prove both these elements is on the petitioner.
12. In ViplnChand v. Prabhawati (AIR 1957 SCR 176) the Hon’ble Supreme Court has observed as under :
“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 present fragning and (2) absence the spouse leaving the matrimonial home to form the necessary intention aforesaid. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If in fact, there has been a separation the essential question always is whether that Act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close.”
13. The Apex Court has also taken into consideration the legal position as summarised in Halsbury’s Laws of England with regard to desertion as under :
“In the essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life attempts of desertion has dis- couraged being no general principle applicable in all cases. Desertion is not the withdrawal from a place but from a state of things for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, fpr ejprt, ‘the home’. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion. The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exists for a period of atleast three years immediately preceding the presentation of the petition or where the offence appears as a cross charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence.”
14. The Apex Court has interpreted that for the offence so far as deserting spouse is concerned, two essential conditions must be there; (1) factum of separation, (2) intention to bring cohabitation permanently to an end (animus deserendi). It has to be seen as to when there was a intention to bring to an end the co-habitation permanently and whether the date of 10th June, 1986 which has been stated by the petitioner as the date on which he has carried the appellant with him to her parental home, as the relevant date. It has further to be examined in the light of the observations with regard to the deserted spouse as to whether there was absence of consent and secondly, the absence of the consent giving reasonable cause to the spouse leaving the matrimonial home to form necessary intention.
15. In Dr. S. Venugopal Chandra, II (1988) DMC 58 the Keraja High Court has observed that the petitioner will have to prove that the respondent left his house without consent with the intention to desert him. In that case the evidence adduced on behalf of the respondent was that the petitioner took her to her father’s house and left her there and that fact was taken into consideration and it was held that she had no intention to bring cohabitation permanently to an end.
16. In the present case, it has been admitted by the respondent/petitioner in the written statement that he had taken the appellant to the parental home on 10th June 1986 for delivery purposes. It has also been stated in the statement given by him on 15.3.1990 that he had gone to Kekari even thereafter for her medical check-up. Both these admissions of the respondent/petitioner are sufficient to prove that there was no desertion on 10th June, 1986 or even thereafter till he had gone to Kekari for showing the appellant to the doctor for her medical checkup. He has further admitted in his statement that he had gone 21/2 months after the birth of the child when information was received from the Medical Store of Kekari (no information was alleged to have been sent by the appellant) and at that time it was stated that the child is small and therefore, she will see afterward and subsequently she has stated that she will not live in Jaipur in any condition.
17. From a perusal of this statement, it is evident that till this time there was no intention on the part of the appellant to bring cohabitation permanently to an end. There was an implied consent of the respondent/petitioner when she left the home on 10th June, 1986 and on that date it cannot be said that the appellant had deserted the respondent. The respondent/petitioner has not been able to prove that there was an intention of the appellant to bring cohabitation permanently to an end on 10th June, 1986 or on any subsequent date till 18th December, 1986 (21/2 months after the birth of the child). Even on that date, from the statement of P.W. 1 it is evident that the appellant has only stated that she would not live at Jaipur. She has not stated that she would not live with the respondent/petitioner or she has deserted him. We are not concerned with any subsequent date and the only thing which has to be seen is whether the presentation of the petition on 29th August, 1988 was after the expiry of two years, during which it could be said that the appellant had deserted the respondent/petitioner for a continuous period of not less than 2 years immediately preceding the presentation of the petition. We are also not called upon to adjudicate upon the various other disputes raised before the learned Judge, Family Court and this appeal is being decided only on the legal question of jurisdiction to entertain the petition under Section 13(l)(b) of the Hindu Marriage Act, 1955 before the expiry of two years.
18. As stated above, we are of the view that the burden on the respondent-petitioner that the appellant has deserted her on 10th June, 1986 has not been discharged. The learned Judge, Family Court was not justified in coming to the conclusion that there was desertion from 10th June, 1986.
19. In the result, the appeal is allowed. The order under appeal passed by the learned Judge, Family Court is quashed.
20. Parties arc left to bear their own costs.
