A. Misra, J.
1. The appellant filed a petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter to be referred to as 'The Act') praying for a decree for dissolution of his marriage with the respondent. Subsequently, on his application, he was allowed to amend the petition by adding an alternative prayer for a decree against the respondent for judicial separation on the ground of desertion.
2. The parties were married on 8-5-51 according to Hindu customary rights in village Tulumtola. After marriage the respondent, Kumuduni came to appellant's house at Rasidpur and both of them lived as husband and wife for 3 years. About a year or so after the marriage, a child was born to the respondent, but died shortly after its birth. In January, 1954, the appellant, who was a Government servant, was deputed to Gandhigram at Madurai in the State of Madras to undergo a course of training. He left the village on 7-1-54 and according to him, at that time, the respondent was having her monthly period of menstruation. Shortly after the appellant's departure from the village, it is stated that the respondent also left for her father's place in village Guharisahi without the permission or knowledge of the appellant or his parents. The appellant returned home after completion of his training on 26-6-54 and proceeded to Guharisahi on the next day to bring back the respondent. His mother-in-law, however, refused to send her on the ground of her illness, but the appellant came to learn that at that time, the respondent was in the family way. In November, 1954, the respondent gave birth to a child at her father's house.
Thus, according to the appellant, as by the time he left the village in January the respondent was in her monthly period, the child, born in November, 1954, was not conceived through him but had been conceived through somebody else during his absence. Seven or eight months after the birth of the child in November, 1954, at the instance of the relations of the respondent, some sort of reconciliation was brought about between the parties and the appellant's father permitted the respondent to be brought to his house without the child on 28-9-56. The appellant returned home on leave and lived with the respondent as husband and wife for some time though her behaviour towards him was cold and indifferent. Even thereafter, the respondent used to go away to her father's house frequently without permission of the appellant or his parents and finally left his home in December, 1957 whereafter she has not returned to his house. He has further alleged that ever since she has left his house and has been living at her father's house, the respondent has been leading a life of depravity and promiscuousness though he is unable to say with which particular person or persons she has been committing adultery.
3. The respondent, in resisting this application, denied the allegations accusing her of commission of adultery and has also denied to have committed desertion. According to her by the time the appellant left for Gandhigram her conception through the appellant had taken place. She denies to have frequently gone to her father's house without permission or knowledge of the appellant or his parents. She states that two years after marriage with the appellant, she gave birth to a son who died eight days after the birth. Thereafter, she had normal conjugal relations with the appellant and again conceived before her husband left for Gandhigram.
During the appellant's absence from home, she was treated shabbily and in a cruel manner by the appellant's mother and sister which resulted in ill-feelings between them and it became dangerous for her to live in Rasidpur, Therefore, she had to go away to her father's house. After return of the appellant, his mother and sister poisoned his mind against the respondent who began abusing and rebuking her and in spite of it, she came and lived with the appellant at his house in Rashidpur. The appellant was posted to different places in the State where he indulged in immoral activities which led to his frequent transfer from place to place. As the respondent took exception to this conduct of the appellant, the latter filed the present case to get the marriage dissolved to enable him to contract another marriage with some gramsevika or other female social worker with whom he had come in contact. In spite of that, the respondent is all along ready and willing to live with the appellant as his wife.
4. In short, the appellant claimed a decree for dissolution of the marriage on the ground that the respondent has been living in adultery or in the alternative, for judicial separation on the ground that therespondent had deserted him for a continuous period exceeding two years immediately preceding the presentation of the petition. Therefore, the two questions, that arise for consideration in this case are, firstly, whether the appellant has proved the allegations of adultery levelled against the respondent which will entitle him to a decree for dissolution of the marriage and secondly whether the appellant has proved desertion which will entitle him to a decree for judicial separation. In all, four witnesses including the appellant were examined on his side while three witnesses including the respondent were examined on her side besides proving two letters, marked Exhibits A and B.
5. There is no direct evidence adduced on behalf of the appellant in proof of the allegations that the respondent is living in adultery. The evidence adduced in support of these allegations can be conveniently classified under two heads, namely:--
(1) The appellant having left his house for Gandhigram on 7-1-54 when the respondent was in her monthly menstrual period and his return to the village being only on 26-6-54, the child, born to the respondent in November, 1954, could not nave been conceived through him;
(2) The respondent, who has been continuously living at her father's place since December, 1957, has been leading a loose life of immorality and promiscuousness.
6. The learned District Judge has discussed the evidence on these two aspects in detail and, for very cogent and convincing reasons, has come to the conclusion that the appellant has failed to prove that the respondent ever committed adultery or is leading an adulterous life after she left the appellant's village, Rasidpur. I do not feel it necessary to deal with or repeat the various reasons mentioned by the learned District Judge for arriving at the aforesaid findings as in my opinion the following grounds practically clinch the matter. Exhibit A is a letter, admittedly written by the appellant to O.P.W. No. 1 on 28-8-1954 from Boudh where he was at that time serving. In his evidence the appellant has stated that in Exhibit A he mentioned that the respondent had written to him after he had reached Gandhigram that her menstrual flow had stopped. In this letter, he has stated that as he had gone and stayed in his house for two days before proceeding to Gandhigram the respondent cannot be blamed for her menstruation having stooped obviously a result of conception. He has mentioned that he had written to his father about it and requested O. P. W. No. 1 to meet his father and explain him the position.
This letter clearly proves that he did not attribute the conception to adultery by his wife nor even suspected herfidelity. In a way, he admitted the parentage of the child in the womb. The present version, sought to be made out by him, that the conception was through some agency other than him, is after thought and undoubtedly appears to be a concoction. This conclusion also finds support from the subsequent conduct of the appellant. It is admitted that after the birth of the child, the respondent came and lived with the appellant enjoying normal conjugal relationship from 1955 till about the end of 1957. If really the conception in 1954 was due to adultery, as alleged now, it is difficult to believe that subsequently the appellant would have led a normal conjugal life with her for about two years. Exhibit A itself shows that one Gula was responsible for generating some suspicion about the conduct of the respondent, but that was not believed by the appellant. Even if the appellant entertained any suspicion due to the machinations of Gula, it cannot amount to proof of commission of adultery by respondent in 1954.
Coming to the period from December. 1957 onwards the evidence is confined to the testimony of the appellant and his agnatic uncle, P.W. 2. Their evidence is more or less vague and does not refer to any specific act of adultery, P. W. 2 only states that he had seen the respondent, moving in the company of some young men who are strangers to the family of her parents either at some festivals or in the cinema. Even assuming that the respondent had accompanied some people to these places, it does not follow that she was indulging in sexual relationship with all or any of them. The evidence of the appellant, that he found his wife in the company of some young people in Muni Jatra in Balanga village in 1960 and at the Puja festival in 1961, is of a similar nature. These allegations were not made in the petition and no value can be attached to such general or vague statements for drawing an inference of adultery. For the aforementioned reasons, the Court below has rightly rejected the evidence of P.Ws. in proof of the allegation of adultery and I agree with the finding that the appellant has failed to prove that the respondent ever committed adultery or has been living in adultery. On this finding, therefore, the Court below has rightly rejected the prayer for dissolution of the marriage.
7. The alternative prayer made by the appellant is for a decree of judicial separation on the ground of desertion. Section 10(1) of the Act contains the relevant statutory provision for passing a decree for judicial separation. Section 10(1), so far material for the present purpose, runs as follows:--
'10 (1) Either party to a marriage whether solemnised before or after 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 2 years immediately preceding the presentation of the petition.'
This sub-section is followed by an explanation which runs:--
'Explanation-- In this section the expression 'desertion' with its grammatical variations and cognate expression means 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.'
8. The expression 'desertion' as made clear by the explanation, means desertion of the petitioner by the other party to the marriage without reasonable cause and without consent and against the wish of the former and imports in law a cessation of cohabitation and a wrongful refusal on the part of the spouse charged with desertion to live with the other involving an abrogation of all the duties and obligations resulting from and by reason of the marriage. In a decision of the Supreme Court in AIR 1964 SC 40. Lachman Utamchand v. Neena the import of the expression 'desertion' has been explained as follows:--
'If one spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential 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. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence ofdesertion commences when the fact of separation and the animus deserendi coexist But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time.'
Thus, to constitute desertion mere separation is not sufficient In addition, the necessary animus also has to be proved. In the aforesaid decision the Supreme Court has also laid down that:--
'The burden of proving desertion --the 'factum' as well as the 'animus deserendi' is on the petitioner, and he or she has to establish beyond reasonable doubt to the satisfaction of the Court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause.'
In the light of the aforementioned principles, it has now to be seen how far the appellant has succeeded in establishing 'desertion' by the respondent to entitle him to a decree for judicial separation. Though after close of the evidence in this case, the appellant sought amendment of the petition by addition of an alternative prayer for judicial separation no amendments were made introducing averments for making out a case of desertion. The learned counsel for the appellant seeks to rely on the averments made in paragraph 23 of the petition as making out a case of desertion. Paragraph 23 of the petition runs as follows:--
'That in November. 1957 the petitioner demanded of the respondent to stop her disgraceful conduct. But she was adamant as would appear from the facts stated above. The respondent was given sufficient scope and opportunity to rectify herself. But as she did not listen to it, the petitioner cannot now like to cohabit with the respondent. The respondent since December, 1957 is living separate and there is no other alternative than to obtain a divorce.'
9. Paragraph 26 of the petition on which reliance has also been placed embodies only the prayers made by the petitioner for judicial separation. All that has been stated in that paragraph is that the respondent having voluntarily left the society of the petitioner for a period of more than two years preceding the institution of the suit a decree for judicial separation be passed. As already discussed to constitute 'desertion' both separation and animus deserendi must co-exist at some point of time. Even assuming that the averments in the petition make out a case that the respondent is living separate since 1957 December, there is no averment of the existence of the necessary animus to constitute desertion. On the other hand, the averment in paragraph 23 of the petition seems to suggest that it is the appellant who is not willing to cohabit with the respondent and not vice versa.
The evidence of the appellant is that both during the first spell of their living together between 1951 and 1954 as well as during the second spell from September. 1955 to 1957, the respondent's behaviour towards him was cold and indifferent and that she was not attending to domestic duties and frequently going away ,to her father's house. On the other hand, the evidence adduced on the side of the respondent is that there was no lacking of cordiality or warmth during those periods but troubles arose due to the hostile attitude of the appellant's mother and sister and the suspicions which they generated in appellant's mind against her. From 1957 December, the respondent has been living in her father's house though it is the evidence of O.P.W. 3 that a cousin of the appellant took and left her there. What transpired before December, 1957 is not very relevant to decide the question of the alleged desertion because in paragraph 16 of the petition it is admitted that the spouses last cohabited at the appellant's house on 14th November, 1957 where they last resided together.
It is to be considered from the con-duct of the parties subsequent to November, 1957 whether there is anything which can lead to an inference of the elements which will constitute desertion. Respondent's father is a railway employee. He deposes to have written two letters to the appellant's father, out of which one was in July, 1958. Exhibit B is the reply dated 27-9-1958 received from the appellant's father. There is one sentence in this letter suggesting that a reconciliation between the spouses would be brought after the appellant's return during the pujas. He also suggested that the respondent should be taken to Khurda where the appellant was serving. This clearly shows that on respondent's side there was no abandonment or animus to bring about an abrogation of duties and obligations of a married life between the couple. Respondent's father has also deposed that he again wrote in December, 1958 and January, 1959 to appellant's father but did not get any reply. Considering these circumstances. I agree with the finding of the Court below that the appellant has failed to prove the necessary animus on the part of the respondent which alone can constitute desertion. Even though she is living at her father's house since 1957, this is due to the appellant, as admitted in paragraph 23 of his petition, who does not want to resume marital relationship with her. Therefore, it has been rightly held by the Court below that the appellant has failed to prove desertion.
10. In the result. I find no merit in this appeal which is accordingly dismissed with costs.