P. Ramachandra Raju, J.
1. This appeal Under Section 28 of the Hindu Marriage Act arises out of O. P. No. 76/73 on the file of Sub-Court, Rajahmundry. The appellant is the husband, who filed the said petition for a decree for judicial separation or for divorce under Sections 10(1)(a) and 13 of the Hindu Marriage Act. The appellant alleged desertion as a ground for judicial separation or divorce. The respondent-wife resisted the application, inter alia, on the ground that the separation was brought about by consent of parties, evidenced by the agreement Ex. B-1 dated 15-12-1968, in and by which the appellant gave his consent for her separate living and that the appellant is not entitled either for judicial separation or for divorce. This plea of the respondent found favour with the trial Judge, who, accordingly dismissed the petition with costs.
2. The appellant who is now working as the Head of the Department of Chemistry, Government College, Palakol, married the respondent in February, 1947, when he was aged 17 years and the respondent was aged 9 years. Their marriage was consummated in about the year 1957. During the period 1957 to 1967, they lived together at Rajahmundry, where the appellant was working as an Assistant Lecturer in the Government College, Rajahmundry. Their married life was not happy and they were having differences between them. In about the year 1967, the respondent went away to live with her parents. During the period 1967 and 1968, some efforts were made to compose their differences, but those efforts have proved a failure. Due to the intervention of elders interested in both of them, the appellant and the respondent agreed to live separate and the appellant agreed to pay to the respondent a monthly a maintenance of Rs. 150/-. The terms of the agreement are evidenced by Ex. B-1 dated 15-12-1968.
Ex. B-1 in its material terms, reads as follows:-
'Whatever be the reasons given by either to us for our separate living, the elders have advised both of us not to go to court and damage the self-respect of either of us. It is agreed that the appellant should pay to the respondent a monthly maintenance of Rs. 150 with effect from 1-12-1968. It is further agreed that the appellant and respondent should live separate in different houses, one having no other relationship with the other'.
The agreement was acted upon till about December, 1971, when the respondent sent the notice Ex. B-2 dated 16-12-1971, demanding the appellant to raise the monthly maintenance to Rs. 200 in view of the steep rise in prices. The appellant, thereupon, filed the O. P. in question seeking judicial separation or divorce on the ground of desertion.
3. The question which arises for determination is whether the desertion alleged by the appellant has been made out. Both the appellant and the respondent have been living separate from about 1967. In agreeing to live separate in different houses, one having no other relationship with the other, both the parties have expressed their intention to bring cohabitation permanently to an end. The period of separation had been for more than the prescribed period under the Act. Both the parties have not let in any evidence as to what exactly were the circumstances prevailing prior to 1967, when the respondent felt it compulsive to leave the matrimonial home. In subscribing to the recitals in Ex. B-1, both the parties did not wish to lay the blame against either of them. One of the essential requisites of desertion is for the deserted spouse to allege and establish that the respondent has left the matrimonial home without the consent of the deserted spouse. A large body of case law has developed around the legal significance of 'desertion' both in England and in India. The English Law as summarised in Halsbury's Laws of England, 3rd Edition, Vol. 12 paragraphs 453 and 454 is:
'In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without the 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 involved, the Court has discouraged the attempts at defining desertion, there being no general principle of all cases.'
4. In Bipinchandra Jaisinghbai Shah v. Prabhavathi, : 1SCR838 the Supreme Court considered the essentials of desertion and as to who should establish the ingredients of desertion. After referring to some English cases, the Supreme Court has observed:
'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 and so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively.'
In Lachman Utamchand Kirpalani v. Meena, : 4SCR331 the Supreme Court had again reiterated the same principles as aforesaid. In Vadranem Tikupathi Rao v. Vadranem Srikrishnamma, (1970) 1 Andh WR 13, a Bench of this Court made the observation that desertion necessarily implied absence of agreement between the parties to reside separately. In Adelaide Mande Tobias v. William Albert Tobias, : AIR1968Cal133 , it was observed that leaving the matrimonial home by consent or separate living by mutual consent, express or tacit, is not 'desertion'.
5. Mr. Ramachandra Rao, learned counsel appearing for the appellant, has submitted that Ex. B-1 agreement has come into existence only to provide a monthly maintenance to the respondent and we cannot infer from the terms of Ex. B-1 any consent of the appellant for the respondent to live separate from him. We are unable to accede to this submission in view of the specific terms in Ex. B-1 which we have extracted above, His next submission is that the appellant cannot be said to have given any such consent to endure for all times to come and the appellant has always the right to revoke the consent and expect the respondent to join him and live a conjugal life. In making this submission, he has ignored the attitude displayed by the appellant towards the respondent. The respondent made an offer to join the appellant, if only the appellant was prepared to receive her. The appellant who deposed as P. W. 1 has stated:
'There is no happiness at all for our family life. There is no guarantee for marital happiness.......... I did not offer to take back her. Family happiness cannot be purchased with money.'
If this then is the attitude of the appellant, the respondent cannot be expected to be treated by the appellant with the honour due to a wife. As the evidence on record now stands, there is not material to show that the appellant revoked his consent.
6. It is no doubt true that before this petition was filed, the appellant made a visit to the respondent to have some compromise, but those efforts failed. The respondent's evidence is clear that thought during such visits, she expressed her willingness to join the appellant, the appellant did not agree to receive her back into the matrimonial home. She has no doubt stated that during such visits made by her husband, they even had sexual intercourse. Having regard to the very strained relations between the spouses, we do not consider it probable that the appellant and the respondent shared the common bed as stated by the respondent. Even if they shared the common bed, it would only indicate that an effort was made to see if reconciliation was possible but then those efforts failed and the appellant left the house of the responder without taking her back along with him. Having regard to the express terms of Ex. B-1, there can be no doubt whatsoever that the separate living of the respondent was with the express consent of the appellant and, being so, the desertion alleged by the appellant has not been established.
7. Mr. Ramachandra Rao placed reliance on Smt. Kako v. Ajit Singh, . But that was a case where the separation without consent was established and the plea of desertion was accepted. Jivubai v. Ningappa Adrishappa Yadwad, AIR 1963 Mys 3 and Kirpal Singh v. Harbans Kaur, : AIR1967Delhi19 are alike cases where desertion was held to have been established on proof of separate living as absence of consent for such separate living was also there. Mr. Ramachandra Rao cannot therefore, seek any assistance from these decisions to support his contention that the appellant in this case has established desertion on the part of the respondent.
8. The appeal is, accordingly, dismissed with costs.
9. Appeal dismissed.