Rajeshwari Prasad, J.
1. This second appeal has come up before us on account of an order of reference made by Hon. Asthana, J. when the second appeal was listed before him for hearing.
2. The second appeal arises out of proceedings under Section 10 of the Hindu Marriage Act, 1955 and is directed against the order of the learned Civil Judge, Hamirpur, which was confirmed in appeal by the Distract Judge, Banda.
3. The respondent Sri Narendra Singh happened to be Yuvraj of the estate known as 'Sarela Estate' and he was married to the appellant, who is the daughter of Maharaj Kumar of Aliraipur Estate. The marriage had taken place sometime in January 1945. The marital life of the party went on smoothly for about two years when it is said that the appellant left for Alirajpur in February 1947 at a time when her husband was out of station. As she went to her father's place she took away all her belongings including valuables and jewelleries received by her either from her parents or from her father-in-law's side. In spite of repeated attempts on behalf of the respondent, she refused to come back to him and to perform her marital obligations. According to the case of the respondent, she is reported to have said that the respondent was at liberty to remarry and that she ceased to have interest in him. On such allegations, the respondent pleaded that the appellant deserted him without reasonable cause and without his consent early in 1947. Consequently, the respondent was entitled to an order of judicial separation under Section 10 of the Act.
4. The application was contested by the appellant on the ground inter alia that she was not treated well when she stayed at her husband's place till March 1947; she had developed serious heart trouble and her father-in-law himself had sent her for treatment to Alirajpur; she did not take away with her valuables and jewelleries as alleged by the respondent; she had not refused to return back to Sarila but she insisted upon an assurance of better behaviour; she had never permitted the respondent to remarry; and that the petition had been filed for the purpose of putting her to harassment with a view to negative her claim against the petitioner. The purpose of the petition was to justify his conduct in having married Countess Reita in Europe.
5. On such pleadings, the learned Civil Judge framed three issues as given hereunder:--
(1) Has the respondent deserted the petitioner since 1947? If so, its effect?
(2) Whether the petitioner has wilfully neglected the respondent since 1947? If so, its effect?
(3) What is the petitioner's relief, if any?
The trial Court decided issues 1 and 2 in favour of the petitioner-respondent and allowed the petition for his judicial separation from the appellant.
6. The lower appellate Court agreed with the findings of the trial Court and dismissed the appeal.
7. The concurrent findings of fact given by the two Courts below have rightly not been questioned before us as those findings must be taken to be finding in second appeal.
8. The findings of fact arrived at by the two Courts below are those:--
(1) During her stay at Sarela she was provided with decent accommodation, wholesome food and all such amenities which were available at Sarela;
(2) It is not correct that she was given inhuman treatment at Sarela during her stay there, and that she had developed heart trouble as a result of it;
(3) She had left Sarela with the intention of permanently giving up her marital relations with the respondent and of not returning back to Sarela or to her husband;
(4) The appellant left her matrimonial home without any reasonable cause and without the consent of the respondent and with the intention of bringing cohabitation to an end;
(5) Marriage of the respondent with Countess Reita did not have such an impact on the mind of the appellant that it caused her to continue to live apart and to continue the desertion.
All the above findings are necessarily findings of fact and ordinarily in a second appeal, this Court is bound by such findings.
9. In Tickler v. Tickler, (1943) 1 All ER 57 at p. 59 Scott, L.J. quoted the following words of Lord Romer in an earlier decision:--
'The question whether a deserting spouse has a reasonable cause for not trying to bring the desertion to an end and the corresponding question whether desertion without cause has existed for the necessary period must always be a question of fact.'
The second appeal has been sought to be supported on the submission that the desertion by the respondent, if any, came to an end when the respondent married Countess Reita in Europe in the year 1955. On that basis, it has been submitted that Section 10(1) of the Hindu Marriage Act was not applicable to the case,
10. The question that arises is whether the conduct of the respondent was such as to excuse the appellant from making an attempt to put an end to the desertion or from attempting at any reconciliation. The rule of law involved in the above question appears to be that such conduct on the part of the deserted spouse would legally operate as a consent to the existing separation and would have the effect of absolving the deserted spouse from any obligation to return to the matrimonial home or to make amends for her improper conduct. In a petition for judicial separation based upon allegations of desertion by the other spouse, it has to be proved that for the period of two years specified in Section 10(1)(a) the deserting spouse has been in desertion without cause and that the deserting spouse had further the intention of putting an end to marital relations. If during that period, the deserting spouse has a just cause to remain apart, desertion would come to an end and the relief for judicial separation must be refused.
11. The relevant portion of Section 10(1) of the Hindu Marriage Act, 1955 is given hereunder:--
'Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the District Court praying for a decree for judicial separation on the ground that the other party--(a) has deserted the petitioner for a continuous period of not less than two years immediately before preceding the presentation of the petition ..........'
The explanation to Section 10 is in the following terms:--
'In this section, the expression 'desertion' with its grammatical variations and cognate expressions would mean, the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage.'
12. The petition in this case under Section 10(1) was filed on the 20th September, 1956. The precise argument is that inasmuch as the respondent married Countess Reita in the year 1955, a reasonable cause for desertion came into existence, and therefore, it is not a case where the appellant could be deemed to have deserted the respondent for a period of not less than two years immediately before preceding the presentation, of the petition.
13. The respondent admitted that he came in contact with a Dutch lady named Countess Reita in 1953, fell in love with her in 1954 and he ultimately married her in the year 1955, after she embraced Hinduism and adopted the name of 'Shrimati Reita Devi.' According to him, this development was due to the attitude of the appellant in having determined not to come back to the respondent in spite of several efforts made on his behalf for reconciliation. It was further pleaded that the appellant had gone to the length of expressing that she had nothing to do with the respondent and that the respondent was free to remarry.
14. Mr. Lalji Sinha appearing for the appellant has placed reliance on the decision of the Supreme Court in the case of Lachman Utamchand v. Meena, AIR 1964 SC 40. It was observed that if during the required period of two years, the wife had a just cause to remain apart, she would not be in desertion and the petition for judicial separation would fail. The learned counsel for the appellant, therefore, urges that in view of the conduct of the respondent in having remarried himself in the year 1955, desertion if any came to an end and the remarriage afforded a just cause to the wife for living apart. That also was a case for judicial separation under Section 10(1)(a) of the Hindu Marriage Act (1955). In that case, it was found that the wife had left the matrimonial home without justifiable cause and without the consent of the husband; that there was clear evidence and satisfactory proof that besides the factum of desertion, there was also animus deserendi at the time when the wife left the husband's house.
15. The learned counsel for the appellant then relied upon a decision in the case of Thenku Verriah v. Tamisetti Nagiah, AIR 1959 Andh Pra 547. The question that was referred to the Full Bench in that case was whether Clause (4) of Section 2 of the Hindu Married Women's Right to Separate Residence and Maintenance Act 1946 is applicable only if the husband contracts a second marriage after the Act was passed or whether the words 'marries again' are merely descriptive of the position of the husband as a twice married man at the date when the proceedings are taken under the Act and do not exclude from their operation the husband who has taken a second wife before the Act. The above question had arisen in a proceeding for restitution of conjugal rights. The petition was contested by the wife on the ground that the petitioner had a second wife living at the time of the suit. Under Act No. 19 of 1946, a wife is entitled to separate residence and maintenance if the husband married again. An observation was made that if the wife is entitled to separate residence and maintenance in case the husband marries again, suit for restitution of conjugal rights obviously would not lie. It was also observed that under the Hindu Marriage Act a wife can resist a petition for restitution of conjugal rights on the ground that the husband had married another wife before the Act. The conclusion at which the Full Bench arrived is quoted below:--
'Whatever might have been the rights of the respondent to claim restitution of conjugal rights before the Act, he ceased to have any after this Act in view of the second marriage, though contracted before the Act. Section 29(3) which saves certain proceedings, does not include in its ambit a proceeding for the restitution of conjugal rights. I, therefore, hold that after the Act of 1955 the respondent is not entitled to have a decree for restitution of conjugal rights against the second appellant.'
16. The learned counsel for the appellant next relied on another Division Bench decision of the Andhra Pradesh High Court in the case of S. Pullaiah v. S. Rushingamma, AIR 1963 Andh Pra 323. The case which went in appeal was one under Section 13(1)(i) and Section 10(1)(a) of the Hindu Marriage Act for dissolution of marriage between the appellant and the respondent or in the alternative for a decree for judicial separation. After referring to the right of a wife to claim separate residence and maintenance from her husband given to her under the Hindu Married Women's Right to Separate Residence and Maintenance Act (Act 19 of 1946) as well as Hindu Adoptions and Maintenance Act, 1956, the Court proceeded to pose the following question:
'Now, if the wife could claim maintenance on the ground of the husband having taken a second wife, could it be posited that she had deserted her husband without reasonable cause within the ambit of Section 10(1)(a) of the Act?'
The answer was that obviously desertion could not be described as one without reasonable cause if the husband had married again, since that marriage would afford a justifiable cause to the wife to live away from her husband.
17. Reliance has also been placed by the learned counsel for the appellant on the decision of the Mysore High Court in the case of K. Siddegowda v. Parvathamma, AIR 1965 Mys 299. That decision also proceeded on the basis that under Section 18(2)(d) of the Hindu Adoptions and Maintenance Act, the respondent had a clear right to live separately from the appellant by reason of the fact that he had already another wife living, and that if she had the right to live separately in that way, it would be unreasonable to suggest that there was no reasonable cause for separate residence.
18. The learned counsel for the appellant also drew our attention to the decision of the Supreme Court in Bipinchandra Jaisinghbai Shah v. Prabhavati, AIR 1957 SC 176, but as this case has been fully considered and explained in the latter decision of the Supreme Court in the case of AIR 1964 SC 40 (supra), it is not necessary for us to point out the facts of this case.
19. The last case relied upon by the learned counsel for the appellant is Dunn v. Dunn, 1948-2 All ER 822. In the last mentioned case, however, the question, as to on which party, burden lay, in a case of this nature came up for consideration. It was held that the burden of proof, where the husband's petition is for a decree of divorce on the ground of desertion, is on the husband to show that she deserted him without a cause. The wife may seek to rebut the inference of desertion by proving just cause for refusal, but there is no legal burden on her to do so. Even if she did not prove just cause, the Court had still to ask itself whether the husband has discharged the legal burden resting on him.
20. Mr. Bishun Singh, learned counsel appearing for the respondent in reply to the argument advanced by Mr. Lalji Sinha submitted that unless it is shown that the fact or event had some impact on the mind of the respondent as a result of which, she deserted the respondent, the second marriage of the respondent did not determine the desertion or put an end to it. The appellant must be held to be continuing the desertion. Desertion must be held to be continuing even after the respondent married Countess Reita in the year 1955.
21. It has been pointed out by the learned counsel for the respondent that so far as facts of the instant case are concerned, it has been found by the two Courts below and there is overwhelming evidence in support of that finding that respondent was fully aware of the romance between the respondent and Countess Reita from the year 1953 and also of the fact that it ultimately resulted in the marriage of the two. The respondent sent a letter to the appellant on 13th October 1953 telling her that that state of affairs could not continue indefinitely and that it would be unfair to the respondent to be subjected to that state of affairs any longer. She was also told that she had failed to point out any extraordinary behaviour on the part of her husband which could be a valid reason for her desertion in that manner. She was asked to disclose the reason for her persistent refusal to come and live with her husband and she was told that the husband would be prepared to meet any reasonable wishes that she may express. She was asked to join her husband at his post at Hague. Assurance was given to her that arrangements would be made, for her going over to Europe, by the respondent. In the end she was requested not to force the respondent to take any further steps. The appellant sent a reply to that letter on the 17th April 1954 through her Advocate Sri M. B. Rege. Amongst other things, it was said that despite every thing, the appellant wished her husband happiness. It was further expressed that the appellant would appreciate if her stridhan which included her household effects and which she had taken with her to Alirajpur, jewellery and presents given to her by friends and her husband's family at the time of her wedding to the value of Rs. 90,000 and which had been left by her at Sarela were returned to her as soon as possible. It was also said that arrangements that may be agreed upon, be made for her separate maintenance and residence, with due consideration to her status and that of her family. A desire was expressed that the unfortunate matter be not given wide publicity. It is conspicuous to note that in spite of the fact that she was already aware of the friendship between the respondent and the Dutch girl, the appellant did not make any reference at all to that effect in her letter. She did not say that her refusal to go back to her husband was justified on the ground that the husband had developed friendship with that Dutch girl. It is, therefore, clear that the fact of friendship between the respondent and Countess Reita did not make any contribution (contrition) in the mind of the appellant for her determination to have nothing to do with the respondent and never to return to her husband's home. What she really insisted upon was, that separate arrangement for maintenance and residence for her be made and that her alleged belongings be returned to her. It is, therefore clear that as a matter of fact, the friendship of the respondent with Countess Reita which ultimately resulted in marriage, did not really have any impact on the mind of the appellant so as to afford a cause for desertion,
22. Mr. Singh in support of the submission that he has made also relied on the decision of the Supreme Court in AIR 1964 SC 40 (supra) on which reliance was placed by the learned counsel for the appellant himself. A clear observation in support of that rule of law has been made by the Supreme Court in that decision:
'But there is one other matter which is also of equal importance that is that the conduct of the deserted spouse should have had such an impact on the mind of the deserting spouse that in fact it causes her to continue to live apart and thus continue the desertion. But where, however, on the facts it is clear that the conduct of the deserted spouse has had no such effect on the mind of the deserting spouse there is no rule of law that desertion terminates by reason of the conduct of the deserted spouse. It appears to us that the principle that the conduct of the deserted spouse which is proved not to have caused the deserting spouse to continue the desertion does not put an end to the desertion, appears to be self-evident and deducible from the legal concepts underlying the law as to desertion.'
23. The Supreme Court then proceeded to make reference to a passage in the judgment of Wilmer, L. J. in 1961-3 All ER 957 laying down that rule of law. The submission made by Mr. Singh, therefore, finds support from the decision of the Supreme Court in the case of AIR 1964 SC 40 (supra).
24. Mr. Singh also relied on the decision in the case of Earnshaw v. Earnshaw, 1939-2 All ER 698 where it was held, approving the decision in an earlier case of Herod v. Herod, (1938-3 All ER 722) that the petitioner's adultery had clearly had no influence on the mind of the respondent and the period of desertion had, therefore, not been interrupted by it. The petitioner was found entitled to a decree nisi.
25. The above proposition has also been sought to be supported by the decision in Parrock v. Parrock, 1956-1 All ER 555. In that case also, the rule of law referred to above was clearly recognised. On the facts of that case, it was held that the wife had withdrawn from cohabitation to start life with another man in circumstances which raised the suspicion that adultery had been committed; the true inference from the facts was therefore, indifferent to the fact, which she must have known, that Mrs. M. became the husband's mistress; and that on such considerations, discretion would rightly be exercised in favour of the husband.
26. Our attention was also invited to paragraph 157 of the Eighth Edition of Rayden on Divorce at p. 188. The paragraph is couched in the following language:--
'A spouse who deserts may, during the statutory period, repent, of the intention to stay away, but may be prevented from returning because of the attitude or conduct of the other spouse, as where a husband who is deserted lives with another woman. If a spouse commits adultery after he or she had been deserted, or commits any other misconduct or neglect, the desertion is not terminated as a matter of law; the material question is whether the deserter knows of the adultery, or whether it had any influence on his or her conduct. In order to judge whether there has been any such influence, one must look not only at the conduct of the petitioner, but also at the conduct and declarations of the respondent. It is for the person committing the adultery to show that the adultery did not affect the deserting party's conduct at all, bearing in mind especially the impeding of a possible reconciliation by reason of that adultery. If it is left in doubt whether the respondent knew of the adultery, or if known, whether his or her conduct was affected by it, the petitioner would fail to discharge the burden of proof. The question is one to be decided according to the circumstances of each case'.
The same passage finds place in paragraph 489 of Halsbury's Laws of England Third Edition Vol. 12 at p. 259.
27. The submissions by Mr. Singh, therefore, have much force and we accordingly hold that the desertion by the appellant did not come to an end by the fact that the respondent contracted friendship with Countess Reita in the year 1953 and ultimately married her in the year 1955.
28. So far as the two decisions of the Andhra Pradesh Court and the one of the Mysore Court relied upon by the learned counsel for the appellant and referred to above, are concerned, it is clear that they proceeded on the assumption that as the wife had been given a right to separate maintenance and residence under other Acts, in case the husband marries a second wife, the husband's remarriage, without anything more affords reasonable cause, for desertion, by the wife. With great respect, we do not agree with the view taken by Andhra Pradesh and the Mysore Court in the above cases. 'Desertion' within the meaning of the provisions of the Hindu Marriage Act (1955) does not imply only a separate residence and separate living. It is also necessary that there must be determination to put an end to marital relations and to put an end to cohabitation permanently. Without such animus deserendi, there can be no desertion within the meaning of Section 10 of the Hindu Marriage Act (1955). If that be so, then it is clear that the consideration that in case the husband remarries, the wife is entitled to separate residence and maintenance, cannot be utilised as argument for coming to the conclusion, that the fact of the remarriage of the husband must necessarily afford a reasonable cause for desertion. It would not be correct to say that remarriage of the husband by itself without anything more affords reasonable cause for desertion. The question that would still remain to be answered would be as to what was the impact of the fact of remarriage of the husband, on the mind of the deserting spouse. In cases where the consideration of remarriage of the husband failed to have any impact on the mind of the wife, remarriage of the husband would not afford reasonable cause for desertion within the meaning of the provision under consideration.
29. Such view finds support from the decision of the Madras High Court reported in AIR 1965 Mad 139, A. Annamalai Mudaliar v. Perumayee Ammal. The view taken by the Madras Court is that the provision of the Hindu Adoptions and Maintenance Act No. 78 of 1956 and of the Hindu Married Women's Right to Separate Residence and Maintenance Act No. 19 of 1946 purported to give the trends, of what is claimed to be progressive thought in this country of placing women at par with men in the matter of their marital rights. The Court took the view that the right to live separately from the husband given to the wife under Section 18(2)(d) of the Act (78 of 1950) was not and could not be of the same character e.g. if he abandons the other wife, he could certainly call upon his previously separated wife to live with him. To respond to such request will be a duty which she owes to him as her husband. In support of the conclusion at which their Lordships of the Madras Court arrived, their Lordships relied on the argument that Section 18(2)(d) of Act No. 78 of 1956 says that a Hindu wife shall be entitled to live separately from her husband if he has any other wife living, and if the word 'living' was to be given its ordinary interpretation then all the wives that a man had married at a time when such marriages were legal, could live without him and yet claim maintenance. We are in respectful agreement with the view taken by the Madras Court in the last mentioned case.
30. As a result of the view that we have taken, the decree of the Court below for judicial separation of the respondent from the appellant must be maintained.
31. The appellant filed an application in the trial Court under Section 25 of the Hindu Marriage Act for fixing permanent alimony and maintenance. The lower appellate Court has arrived at the finding that the appellant was not entitled to receive any sum from the respondent by way of maintenance. In arriving at the conclusion, the lower appellate Court took notice of the fact that the appellant has been granted an allowance of Rs. 400 per month by the Ministry of States, Government of India and that she has been receiving that allowance. The appellant is possessed of a car and other household articles and that there was nothing on the record to show that she was not maintaining herself from her own income. The lower appellate Court also took into consideration the fact that the respondent was getting a salary of Rs. 1600 per month. The respondent pays income-tax and super tax on his income. He has also to deposit annuity and general provident fund. After those deductions, he would be receiving about Rs. 1200 per month only out of his salary. Apart from it, the respondent has a daughter from Countess Reita. On the date the lower appellate Court decided the appeal, the lower appellate Court speculated that he would have to pay at least Rs. 200 per month for the maintenance of that daughter.
32. Keeping in view on the one hand the present high costs of living and on the other the fact that the respondent is liable to pay allowance for the maintenance of the daughter, we consider that appellant is entitled to an allowance from the respondent at the rate of Rs. 150 per month only.
33. In view of our findings given above, the appeal is dismissed with this modification that the respondent will pay by way of maintenance a sum of Rs. 150 per month to the appellant beginning from the date of this order.
34. In view of the litigation being between husband and wife we do not make any order as to costs of this Court.