N. Sreenivasa Rau, Officiating C.J.
1. This is an appeal under Section 28 of the Hindu Marriage Act, 1955, against the decree granting judicial separation to the Respondent (husband) from the Appellant (wife) made by the Civil Judge (S. D.) at Bijapur and confirmed on appeal by the District Judge Bijapur.
2. It is not disputed that the parties were married in 1948 and lived amicably till about March 1950 when the Appellant went to her father's house and that she did not join her husband till the date of the petition for judicial separation in October 1956. The parties were at variance In regard to the reasons for their being so separated. While it was the husband's case that in spite of repeated efforts to get Ms wife back she stayed away, the latter averred that, even though she was willing to rejoin her husband and made efforts in that direction, he would not take her back. The two courts below, after having gone through the oral and documentary evidence in the case, have concurrently held that it was the wife who deliberately stayed away and since that was for a period of more than 2 years mentioned in Section 10(1)(a) of the Act the husband was entitled to judicial separation.
3. The scope of an appeal under Section 28 is the same as that under any law for the time being in force, which means the Code of Civil Procedure. This being a second appeal, there can be no interference on findings of fact. The learned Advocate for the Appellant, however, contends that the Courts below have not properly appreciated the scope of Section 10(1)(a) of the Act, inasmuch as they have taken the view that mere separation between the parties would amount to desertion on the part of the wife, that they have not properly appreciated the evidence, particularly the documentary evidence in the shape of letters, and that the trial court did not make every endeavour to bring about reconciliation between the parties as it was its duty to do under Section 23(2) of the Act.
4. We have been taken through all the evidence in the case including the documentary evidence and it is difficult for us to accept the contention that the material on record was not such as to enable the courts below to come to the conclusion that it was the wife who had deliberately stayed away from her husband for a period of over two years. It is no doubt true, as explained by the Supreme Court in the decision reported in Bipinchandra Jaisinghbai v. Prabhavati, (S) : 1SCR838 , that, in addition to the factum of separation, the animus deserendi, viz., the intention to bring cohabitation permanently to an end without the consent of the other party, should also be established. But such intention normally has to be gathered from the circumstances of the case and in particular the conduct of the party against whom desertion is alleged. In the case on hand there is material to show that even though the wife went to her father's house with the knowledge and consent of her husband and at one stage she expressed her desire to rejoin her husband she later on deliberately stayed away in spite of the fact that the husband offered to take her back. It is not in dispute that much more than two years had elapsed since she so stayed away.
In these circumstances, it cannot be held that the lower courts merely proceeded on the footing of separation, in fact without going into the question of intention. Nor is it possible to say that the conclusion in regard to such intention has been arrived at on a misappreciation of the documentary and oral evidence in the case. The two courts below have believed the evidence of the husband and his witnesses in support of his case that he made efforts to get his wife back and disbelieved the wife's evidence that she went to join her husband and that the latter refused to take her. They found that the husband's case was corroborated by the evidence of his witnesses and by the correspondence between the parties, while the wife's case was uncorroborated as she did not examine the persons who, according to her, were present when she made efforts to rejoin her husband. They have also taken the view that the wife's failure to respond to her husband's appeal made in his letter dated 1-12-1951 (Exhibit 31) indicated that 6he deliberately stayed away from him. We cannot say that this assessment of the material on record was unreasonable. We therefore find no substance in the contention that the evidence has been grossly misappreciated.
5. Turning to the last contention, viz., that the trial court did not make any endeavour to effect a reconciliation between the parties, the relevant provision, i.e., Section 23(2) of the Act may be reproduced. It reads :
'Before proceeding to grant any relief under this Act, it shall be the duty of the Court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties.'
There can be no doubt that a duty is laid on the Court to make every endeavour to bring about a reconciliation between the parties whenever the nature and the circumstances of the case permit it to do so. It is urged by the learned Advocate for the Appellant that the failure to make such an endeavour deprives the Court of the jurisdiction to try and decide the case. In the case on hand, we have no material on the basis of which it can be said that the trial court did or did not make such) an endeavour. It is worthy of notice that no such ground was urged before the appellate court below though such a ground has been taken before this court. It is seen that in the appellate court below the case was adjourned on several occasions to enable the parties to arrive at a settlement. The record seems to show that the wife did not appear before the Court. It is difficult to see what the court could do in such circumstances. In this court we sent for the parties and tried to see if any reconciliation was possible and found that there was no possibility of reconciliation.
It is contended by the learned Advocate for the Appellant that it is only the trial court that has the right and duty to make an endeavour to bring about reconciliation and that that function does not fall within the scope of the functions of an appellate court. In a way this contention flows from the contention mentioned above relating to the question of jurisdiction. While we agree that the trial court has a duty to perform by making every endeavour to bring about a reconciliation between the parties we do not see how the matter, goes to the question of jurisdiction. It will be noticed that the endeavour is to be made, where it is possible to do so consistently with the nature and circumstances of the case. It cannot be said that the full nature and circumstances of the case can always be gathered exclusively from the pleadings. It is no doubt true that the provision says that such endeavour is to be made 'in the first instance'; but to say from this that the court cannot make use of its good offices at any later stage would be to defeat the very object of the provision. The intention of the provision undoubtedly is to render all possible assistance in the maintenance of the marital bond and if at any stage of the case the circumstances are propitious for reconciliation it will be the court's duty to make use of such circumstances irrespective of the stage. The use of the words 'in the first instance' can in this context only mean that the court's efforts in the direction of reconciliation should commence right from the start of the case and not that such effort should not be made at any later stage. It would therefore follow that the matter is not one of jurisdiction. If no endeavour had been made by the court, it will undoubtedly be a serious omission which has to be taken into account. But it cannot affect the jurisdiction of the court to try the case. It also follows that, as It is the constant duty of the court to bring about a reconciliation, such efforts are not only open to the appellate court or courts but that it is appropriate that those courts also should make the endeavour.
6. We thus see no good ground to interfere with the decision appealed against. This appeal is accordingly dismissed. No costs.