Bipin Chander Jaisinghbhai Shah vs Prabhawati.

Court: Supreme Court of India.

Case Type: Civil Appeal.

Case No.: 247 of 1953.

Citation: 1957 AIR 176 ; 1956 SCR 838.

Date of Judgement: 19/10/1956.

Appellant: Bipin Chander Jaisinghbhai.

Respondent: Prabhawati.

Bench:

• Justice Bhuvneshwar P. Sinha.
• Justice B. Jagannadhadas.
• Justice T.L. Venkatarama Aiyyar.

Statutes Referred:

• Bombay Hindu Divorce Act, 1947. (referred to as ‘the Act’)

Cases Referred:

• Thomas v Thomas, 1924.
• Bowron v Bowron, 1925.
• Pratt v Pratt, 1939.
• Lang v Lang, 1965.

Facts:

• The Appellant and the Respondent were married on 20th April 1942 in Patan according to Hindu rites of the Jain Community. They had a son who was born on 10th September 1945.
• The Appellant and the Respondent lived in a two-bedroom flat in Bombay along with the Appellant’s parents and two sisters.
• The Appellant’s mother mostly lived in Patan as she was an asthma patient.
• A family friend named Mahendra, after his discharge from the army, began to live with the family from 1946 onwards.
• On 8th January 1947, the Appellant left for England on business.
• The Appellant alleged that during his absence, the Respondent became intimate with Mahendra. When the Respondent left for Patan after his departure to England, she continued an ‘amorous correspondence’ with Mahendra, who continued to stay with the Appellant’s family in Bombay.
• The Respondent had written a letter to Mahendra from Patan in April 1947 while Mahendra lived with the Appellant’s family in Bombay.
• The Appellant returned to Bombay on 20th May 1947, and he was received by his entire family, including the Respondent.
• According to the plaintiff, on his first night back, he slept away from his wife as his bed had been made in the hall of their apartment.
• The next morning, the Appellant’s father handed him a letter, which he immediately recognized to be written by his wife. The husband gave the letter to a photographer to have its copies made. That very evening, he asked his wife as to why she had written a letter to Mahendra.
• The wife initially denied having written any letter and asked to see the letter. Upon this, the husband said that the letter was with the photographer for making copies.
• On receiving the letter from the photographer on 23rd May 1947, the Appellant showed the letter to the Respondent.
• The Respondent allegedly admitted to writing the letter and told the Appellant that Mahendra was a better man than him and that Mahendra loved her and she loved Mahendra.
• The next morning, on 24th May, the Respondent informed the Appellant that she was ready to go to her father’s place in Jalgaon as there was a marriage in her father’s family. The Appellant said that since the Respondent had made up her mind to go, he would send the car to take her to the station and also offered Rs.100 for her expenses. However, the Respondent refused this offer.
• The Respondent left for Jalgaon by the afternoon train while the Appellant was at work.
• When the Appellant returned home in the evening, he “discovered that she (respondent) had taken away everything with her and had left nothing behind.”
• The Appellant’s mother had left for Patan with his son some days previously.
• On 15th July 1947, the Appellant sent the Respondent a notice mentioning that she had left against his wishes and that he no longer intended to keep her in his protection and care. He also desired that their minor son should be sent to him. No answer to this letter was received by the Appellant.
• In November 1947, the Appellant’s mother came to Bombay from Patan and informed the Appellant that the defendant might be expected in Bombay in a few days.
• The Appellant sent a telegram to the Respondent’s father, which mentioned that there was no need to send Respondent and that he had posted a letter.
• On 15th November 1947, the Appellant’s father sent a letter to the defendant’s father mentioning that it was absolutely necessary that the plaintiff’s consent must be taken before sending the Respondent back to Bombay.
• Three interviews took place between the Appellant and the Respondent in the following years, but nothing fruitful happened.
• On 4th July 1951, the Appellant filed for divorce under Section 3(1)(d) of the Bombay Hindu Divorce Act. The ground for the suit was that the Respondent had been on desertion, since 24th May 1947, without any reason or cause, against his will and consent, for a period of over four years.
• At the trial held by Justice Tendolkar of the Bombay High Court, the issue in the case was held to be affirmative, and a decree for divorce in favour of the Appellant was granted. The learned judge observed that the letter written by the Respondent to Mahendra read like a love written by a girl to her paramour. He held that there was desertion with the necessary animus deserendi and that the Respondent had failed to prove that she had an honest and genuine interest in coming back to her marital home.
• Following this, the Respondent preferred an appeal under the Letters Patent, which was heard by Chief Justice Chagla and Justice Bhagwati. The Appellate Bench held that the Respondent was not guilty of desertion and set aside the order of the trial judge. The letter dated 15th July 1947 proved that it was the Appellant who had deserted the Respondent.
• The Respondent obtained a special leave to appeal from the judgement of the Appellate Bench of the High Court.

Issue:

• Did the Respondent desert the Appellant for a continuous period of four years before the divorce suit was filed?

The contention by the Appellant:

• The Appellant alleged that during his absence, the Respondent became intimate with Mahendra. When the Respondent left for Patan after his departure to England, she continued an ‘amorous correspondence’ with Mahendra, who continued to stay with the Appellant’s family in Bombay.
• After leaving from Jalgaon, the Respondent never came back to live with him in Bombay, nor did she write any letters to him from Jalgaon.
• His marriage with the Respondent should be dissolved, and he must be given the custody of their minor child.
• The Respondent’s refusal for sleeping in the same room with the Appellant upon his return from England is proof that the Respondent had already decided to end the cohabitation.

The contention by the Respondent:

• The Appellant, by his treatment of her upon his return from England, made her life unbearable and forced her to leave her marital home against her wishes.
• The Respondent denied any intimacy between her and Mahendra or that she was confronted by the Appellant with a photocopy of the letter, or that she confessed to any such intimacy to the Appellant.
• Her paternal uncle Bhogilal (since deceased) and his son Babubhai saw the Appellant, at her insistence, in Bombay about taking the Respondent back, but the Appellant turned down their request.
• The Respondent had always been ready to go back to the Appellant, but it was the Appellant who refused to keep her and cohabit with her.
• The Appellant insisted that his bed be set up in the hall on 20th May 1947.
• The Respondent’s relationship with Mahendra was along the lines of that between a sister and a brother.

Obiter dicta:

• For desertion, the following conditions must exist:
• For the deserting spouse- a) the factum of separation and b) animus deserendi.
• For the deserted spouse- a) the absence of consent and b) the absence of conduct giving reasonable cause to the spouse leaving the marital home to form the necessary intention mentioned above.
• The burden of proof to prove that all four conditions exist is on the Appellant.
• 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.
• If a deserting spouse intends to come back to the deserted spouse with a genuine and honest to resume marital life before the period of separation is over, as prescribed in the Act, but the deserted spouse unreasonably refuses the offer, then the latter is said to be in desertion and not the former.
• The reading of the letter written by the Respondent to Mahendra clearly indicates that there was something between her and Mahendra that she intended to keep a secret. The correspondence between the Respondent and Mahendra was uncharacteristic of a faithful wife.
• The Respondent’s contention that she had been forced out of her marital home by the Appellant under duress cannot be accepted as the evidence, facts, context, and testimonies do not indicate the same.
• The reading of the Appellant’s letter to the Respondent dated 15th July 1947 indicates that when the letter was sent, the Appellant did not believe that the Respondent was in desertion.
• The plaintiff was not prepared to fulfil his part of the marital duties.
• The court did not find any convincing evidence supporting the alleged desertion by the wife (Respondent).
• It is not necessarily true that the party who leaves home is said to have committed desertion.
• Instead, the party whose actions make it absolutely clear that they have no intention of cohabitation is said to have committed desertion.
• The statements given by the defendant’s father and cousin provide ample corroboration that the defendant had been ready and willing to go back to her matrimonial home.

Judgement:

• The Appeal was dismissed.
• The Respondent was not held to be in desertion.

Rationale:

• ‘Permanence’ is a quality that differentiates desertion from wilful separation.
• Desertion is a continuing offence.
• When allowed to explain the more contentious parts of the letter, the Respondent could not come up with anything satisfactory.
• After having her illicit, amorous relationship with Mahendra was discovered by her husband, the Respondent could no longer face her husband, and as a result, she fled to Jalgaon.
• The letter dated 15th July 1947 makes no mention of the Respondent being in desertion.
• To prove that the desertion of the deserting spouse, the deserted spouse has to prove that he/she was willing to fulfil their part of the marital duties and that the desertion was against their will.
• In an attempt to re-establish herself in her husband’s home, the Respondent would go and live with the Appellant’s mother whenever she was in Patan.

Conclusion:

• The appellant-husband was unable to conclusively prove the desertion by the respondent-wife. On the other hand, the respondent-wife successfully established that she was willing to go back to her matrimonial home. Desertion is a continuous offence. The plaintiff must prove that the Respondent has been in constant desertion for the statutory period mentioned in the Act.

Prepared by Mihir Poojary.