1. This appeal by the respondent-wife is directed against the order dated 10-2-1981 passed by the Civil Judge, Kodagu at Madikeri in H.M.C. No. 14 of 1978 on his file decreeing the petition of the husband for divorce from the respondent-wife, under Section 13(i)(b) of the Hindu Marriage Act.
2. The husband-petitioner married the respondent in the petition on 23-5-1969 at Madikeri. After the marriage, according to him, the wife resided with him a, Mathur till 31-12-1970. Thereafter she left the house of the petitioner from Mathur without his consent and against his wishes. She never cared to return thereafter. Qn 12-12-1972 when the petitioner-husband was not in the village, she came in a car and took away all her belongings. In spite of his efforts and persuasion, the respondent did riot come back to live with him as hi,; wife. Respondent instituted H. M. C. 3 of 1977 on the file of the Civil Judge, Kodagu, for restitution of conjugal rights. Thereafter he withdrew the said petition and find the present petition for divorce under the Amended Act.
3. Respondent-wife resisted the petition while admitting the marriage with the petitioner and that she lived with him for about 1 1/2 years as his wife, she complained that during that period her husband ill-treated and neglected her. He insulted her and made her to stiffer. mental agony. Because of the cruel treatment meted out to her, she apprehended that it was dangerous for her to live with him and that her health would be in jeopardy. Accordingly, with a view to avoid further ill-treatment, the sister of the petitioner-husband Namely, Vimala Vijaya, took her to Bangalore and she lived with her during the year 1971. She denied that the petitioner-husband was not in the house when she came to take her articles. She further averred that the behaviour of the petitioner-husband forced her to leave the marital house and she denied that she had deserted her husband.
4. The learned Civil Judge made efforts to bring together husband and wife by reconciliation but according to him the parties took rigid attitude. Hence he proceeded to decide the matter on merits. The learned Civil Judge raised the following points as arising or his consideration from the pleadings :
'1. whether the petitioner proves that the respondent deserted him by leavings his house on 31-12-1970?.
2. Whether the respondent establishes that the petitioner treated her with crucially as to compel her to leave the petitioner's home?
3. Is the petitioner entitled to a decree of divorce?
4. To what reliefs are the parties entitled?'
During hearing, the petitioner examined himself and 2 other witnesses on his behalf. As against that the respondent-wife examined herself and 2 other witnesses on her behalf. Petitioner got marked Exhibits P1 to P7 and the respondent produced on documentary evidence. The trial Court appreciating the evidence on record held that the petitioner proved that respondent deserted him by leaving the marital home on 31-12-1970. It is further held that the respondent wife failed to establish that the petitioner-husband treated her cruelly so as to compel her to leave the home. In that view, the learned Civil Judge decreed the petition of the husband for divorce under Section 13(1)(i)(b) of the Hindu Marriage Act. Aggrived by the said decree, the respondent-wife has instituted the above appeal.
5. The learned Advocate for the appellant strenuously urged before us Chat the learned Civil Judge was not justified in coming to the conclusion that the wife namely, the, present appellant deserted her husband without reasonable cause and against his wishes on 31-12-1970. He further argued that it was the husband who constructively deserted the wife in as much as he treated her cruelly, neglected her and made her life intolerable. Hence he submitted that the learned Civil Judge was not justified in coming to the contrary conclusion. He further submitted that the learned Civil Judge ought to have dismissed the petition on account of the long delay which was not explained properly by the husband and the ,delay was unnecessary and improper, As against that the learned Advocate appearing for the respondent husband in Ibis appeal argued supporting the decree of the trial Court. The points therefore that arise for our consideration in this appeal are :-
(1) Whether the learned Civil Judge was justified in holding that there was no constructive desertion on the part of the husband?
(2) Whether the learned Civil Judge was justified in holding that the present appellant-wile deserted her husband without reasonable excuse and against the wishes of the husband and that the application was presented after more than two years of such desertion?
(3) Whether the petitioner-husband has not explained the delay and there is unnecessary and improper delay in presenting t1he petition and what order?
6. It may be noted at once that there is no denial that the I wife -went away from the marital home on 31-12-19K But her case is that she was being ill treated and there were frequent quarrels and in order to afford a break to get some peace of mind, Vimala Vijava who was staying in Bangalore took the respondent-wife to Bangalore in the year 1971. On the other hand, it is the case of the petitioner-husband that without telling anybody and without his consent, she suddenly disappeared from the because on 31-12-1970 when he was not in the house.
7. In order to appreciate the rival versions, it is necessary to read the evidence of the witnesses especially the testimony of Vimala Vijaya who was examined before the learned Civil Judge as FW-3. She has in her evidence stated that she did not take the respondent-wife from the house of her brother namely, Srinivasa but respondent-wife herself carne lo her house in Bangalore and stayed with her for about an year after the marriage. It is respondent-wife bar asserted during her evidence that her husband assaulted her and deserted her but the tilting evidence is that of Vimala Vilaya. There is no reason why her testimony should not be believed, especially so when nothing is elicited against her even by the present appellant Rukmini the respondent in the petition. The learned Civil Judge relying on her evidence has come to the conclusion that it was Rukmini who left the house without telling her husband and against his wishes and stayed with Vimala Vijaya in Bangalore.
8. The probabilities in the case also would lead to the same inference. The evidence on record disclose, that Rukmim was not willing to stay in a small village and she loved city life and that she was bored of her husband's home. In these circumstances, it is probable that she went away to stay with Vimala Vijaya in Bangalore.
9. Desertion to be made a ground of 4.3vorce does not really consist' of mere separation from the matrimonial home. In order to constitute legal desertion that should not only consist of the factum of desertion but also the intention of a party to bring cohabitation permanently to an end (animus deserendi).
10. It is not enough therefore if it 'I established that the wife left the marital home without reasonable excuse and against the wishes of the husband; it must further be shown that the intention was IG bring cohabitation permanently to an end. The husband has in his deposition started that the wife came in a car in his absence on 12-12-1972 with her brother and took away all her belongings. The wife in her evidence has no doubt stated that she did come to the house and took away only her sarees and not ornaments and jewels as averred by the husband. But the fact that she again came and took away her sarees and necessary things to live away separately would clearly show that it was her intention to bring permanently to an end cohabitation with the husband. That satisfies the second ingredient of desertion.
11. The wife further in her evidence made it clear that she had to leave #her house because she was neglected by her husband and was ill-treated and it is he who made her life intolerable.
In the Explanation given to Section 13 of the Hindu Marriage Act, it is stated inter alia thus:
'Explanation:- In his sub-section the expression 'desertion' means the desertion of the petitioner by the other party to the marriage without reasonable cause and without 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 Supreme Court of India explaining the including clause has stated that the Explanation contains what is known as constructive desertion. (vide : 4SCR331 ). We have therefore to see whether there is any substance in the averment made by the wife that her husband made her life intolerable so as to compel her to leave the marital home or in other words whether the husband is guilty of constructive desertion. Speaking on this aspect in her evidence, RW-1 has stated thus:
'.............I cannot say how the petitioner was not making my life happy, or wound my feelings. After one hand half months after my marriage, petitioner was not properly looking after me. I had no difficulties with regard to the ordinary things of life from petitioner's house. The petitioner used to go to the lands come back for lunch and again go to the lands till the evening. I was being treated like a servant in their house for cooking and I have no other happiness. The petitioner never used to take me to conference and tell me where he was going whenever he went out and he never used to show any affection towards me. I had no other happiness from him for above reasons ...........'
She has further no doubt stated :-
'The petitioner assaulted me before the servants and my mother-in-law'.
12. Apart from the interested assertion, there is no corroboration to the allegation that the husband assaulted her before servants. Looking to the nature of the complaint made against the, husband, it is obvious that these little bickerings in household life could be adjusted after some time if both husband and wife showed proper attitude. In fact the wife RW-1 has herself stated in the course of her examination-in-chief thus:
'The only advise from my parents and brothers was that I should adjust to him'. She admits that her husband sent for her parents three times within two months after the marriage with him. They came and advised her and the petitioner to adjust themselves. That is quite under standable. Love and affection are reciprocal. If the wife shows love and cordiality towards husband and tries to please him, it is obvious that the same would be the response from the husband. But if the wife starts insisting on her rights, putting up a stiff attitude towards the husband, she would in return get the same. Perhaps that is what happened in this case. That cannot be described as cruelty and creating cruel conditions by the husband so as to compel his wife leave the marital home. The wife has further complained that her husband attends the coffee estate and did not spend time with her. That may be so. The husband owns coffee estate and he looks after the estate and spends time there but it is not her case that she is prevented from going to the estate. The husband no doubt had to attend conferences of coffee planters but her complaint is that she was not taken to the conferences. If she had perhaps approached him properly, he would not have objected to her coming to the conferences. Instead she has made a grievance of it. It is not understandable what she means by saying that he has not shown affection towards her. She admits that she was not finding difficulty, in the ordinary things of life. Having regard to these, we feel that it was necessary for her to give a fair trial to live with her husband and find out whether she or he could adjust temperamentally and live happily instead of rushing out from the marital home.
13. It is in this context that we have to read the evidence of Appannaniaia, PW-2 He has stated:
'............... I also requested the respondent to return to her husband's house. She replied that she does not like the life of the village'. Having regard to the facts and circumstances of this case, that appears to be probable and that might be the reason why she thought of leaving the marital home and to live in Bangalore. Even so the husband did not altogether forget her though there is no bounden duty on the party of the deserted spouse to persuade the other spouse to persuade the other spouse to join him. Through his brother in-law PW4 and through PW-2 he made efforts to see that his wife would return home. PW-2, as stated already, has deposed that he requested Rukmini to return to her husband but she replied that she would not come to the village and she did not like the village life. P-W-4 in his evidence has stated that in spite of his advice, she did not care to go and join her husband. He further stated that the respondent-wife requested him to get her a change by transfer to Mysore and she was telling him that she wanted to live independently in Mysore. She also regretted for having married the petitioner. P. W 4. Somesh is the Deputy Secretary to Government of Karnataka. Thus it is obvious of the wife deserted the husband by going away from his house within a few months after the marriage for staying in Bangalore. The unsuccessful efforts to persuade her to come back and for taking away all her articles make it clear that she had no intention to continue cohabitation. It is in these circumstances that the learned Civil Judge has come to the conclusion that the husband has proved desertion and the wife has failed to establish constructive desertion on the part of her husband. Since the wife went away as early as in the year 1972 to reside permanently elsewhere and since she did not come back to her husband at any time, it is obvious that the desertion has continued for more than two years prior to the institution of the petition. which was instituted on 19-9-1978.
14. Then, remains the question whether the learned Civil Judge ought to have dismissed the petition for divorce finding that there was unnecessary and improper delay on the part of the husband to, institute the petition. it, is no doubt true that Section 23(1)(d) of Abe Hindu Marriage Act states:
'23 (1) (d): In any proceeding under this Act, whether defended or not, if the court is satisfied that (d) there has not been any unnecessary or improper delay in instituting the proceeding, and (sic) then, in such a ease, but not otherwise the Court shall decree such relief accordingly.'
Thus if there is unnecessary and improper delay on the part of the husband to institute the petition for divorce the petition is liable to be dismissed on that ground. The learned counsel for the appellant pressed into ser-Ace this clause and submitted that there was unnecessary and improper delay on the part of the husband to institute the present petition in the year 1978. According to him, she left the house in the year 1970 itself and from 1970 to 1978, nearly 8 years elapsed and therefore he submitted that there was unnecessary delay and it was obvious the delay was improper. Hence, he submitted that the petition was liable to be dismissed an that ground.
15. The learned counsel appearing for the other side, however, pointed out that no such contention was taken in the proceeding before the learned Civil Judge and hence there was no occasion for the husband to explain the delay as proper and necessary.
16. Of course, Section 23(1) says that in an)r proceedings under this Act, whether defended or not question of delay should also be considered Hence it is obvious that even if the proceeding is mat defended, the court is under an obligation to consider the delay in the proper perspective to find out whether the delay was unnecessary or improper.
We have explained above that mere separation from the husband is not enough to constitute desertion. There must be the further factor of intention of the deserter to bring permanently to an end the marital cohabitation. Therefore the husband had to be satisfied that his wife had the necessary animus deserendi to permanently stop cohabitation with him. He could not rush to the court as soon as the wife went away from him. Though there was no obligation on his Part to persuade the deserting wife to come back, having regard to the tradition and custom in Hindus, he, an the facts of this ease, appears to have tried him best to persuade his wife to come back and live, with him. That is made clear from the evidence of P. Ws. 2, 3 and 4. It may be noted in this context that the wife, had instituted Cr. M. C. 77 of 1973 on the file of the Munsiff and First Class Magistrate, Virajpet, for maintenance and she admitted that she was persuaded to with draw the same with a view to join her husband. She did withdraw the petition. That clearly establishes, that during 1973 efforts were' made to persuade to her to go, and join her husband. It may further be noted that some time after going away from her husband, she secured a job in 1973 in the Industrial Training institute at Mercara. Till 1976 she was there and so long as Rukrniini was in Mercara, it must, be natural that, her husband expect ed that sooner or later she would join him as the distance between Mercara and Mathur where the husband was living was a few miles. When he came tip know that she got herself transferred to My sore in the year 106, he obviously made up his mind to sue for restitution of conjugal rights and instituted HMC 1 of 1977. Thereafter when he came to know that he could file a divorce petition under the Amended Hindu Law, he with drew HMC 1 of 1977 and presented H. M. C. 14 of 1978. In these circum stances it is Obvious that there is no improper or unnecessary delay on the part of the husband. In fact, in Key v. Key (1956) 3 All ER 955 it is ruled that the delay in order to defeat the claim must be culpable. It was held in that case that 1he delay by the husband in presenting the petition was not culpable (Hooper v. Hooper. The Times, October 15, 1953 p. 2. and Lowe v. Lowe, ( (1952) 2 All ER. 671,, considered) and the court could exercise !its discretion in his favour in respect on the alleged adultery and grant him a decree.
17. In Becker v. Becker, (1966) 1 All ER 894, Lord Denning, speaking on this aspect. stated -
'......... The husband was not asked why he had delayed for so long. He was not asked why at this late stage he had delayed for a divorce. He was not given an opportunity of explaining. We are told now that the reason is because he wishes to marry his cousin who is in Germ any.
The commissioner was I much, influenced by the passage in Rayden on Divorce (9th Erin.), p.269, dealing with unreasonable delay. That, however is dealing with cases of adultery or cruelty. Desertion is different. Our attention has been drawn to what Hodson, L. J. said in Crump v. Crump :
'In dealing with the question of desertion it seems to me entirely different considerations apply and the fact that a person does not, immediately the three years lapse, take proceedings for divorce is not of itself a matter calling for adverse criticism at all in. fact one would regard if rather from the opposite point of view. It would in many cases, and perhaps in most cases praiseworthy if a person who had been deserted by their spouse did not at the first possible moment when the law allowed it petition, for divorce. One knows in a great many cases such spouses endure with patient hope for many years before taking advantage of the right which is now available to them'. So delay in desertion cases is not on the face of it to be regarded as a reason for refusing a decree. If it went an for a great number of years and was completely unexplained it might be a gound or refusing divorce; but this is not such a case ... ... ... ... ...'
(Reported by F. Guttman, Esq. Barrister at law).
18. The learned counsel appearing for the appellant, however, invited our attention to a decision of this Court in Thimmappa v. Thimmavva, (1972 (1) Mys LJ 251) : (AIR 102 Mys 234) wherein a Division Bench of this Court has held that -
'Where the husband filed the petition for divorce 4 to 5 years after he came to know that his wife had committed adultery and had not explained the reason for the inordinate delay in filing the petition, a decree for divorce could be refused on the ground of delay alone.'
19. As explained by Lord Denning in the above decision, case of cruelty or adultery stands an a different footing. They may be instances of acquiescence or condonation or connivance in such cases. It is not so in the case of desertion. As rightly pointed out by Lord Denning far from being liable to be condemned, in such cases the spouses are to be congratulated for their enduring patience and hope to join each other. It is all the more so in the spouses in Hindu Society having regard to our tradition and custom. Thu we are satisfied that delay also cannot be a ground for rejecting the petition on the facts and circumstances of the present case.
In the result, therefore, we are satisfied that the learned Civil Judge was perfectly justified in awarding a decree for divorce and we have no reason to interfere said decree. Hence this appeal fails and is dismissed On the peculiar facts of this case, we make no order as to costs.
20. Appeal dismissed.