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Om Prakash Narang Vs. Prabha Narang - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberLetters Patent Appeal No. 80 of 1976
Judge
Reported inAIR1978Delhi240; 15(1979)DLT181
ActsHindu Marriage Act, 1955 - Sections 10
AppellantOm Prakash Narang
RespondentPrabha Narang
Appellant Advocate M.C. Bhandare, Sr. Adv. and; Sunanda Bhandare, Adv
Respondent Advocate M.L. Lonial, Adv.
Cases ReferredDunn v. Dunn
Excerpt:
hindu marriage act (1955) - section 10--expression 'desertion'-- meaning of--elements necessary for-factum of separation and animus deserendi are two essential conditions for desertion--question to be decided on facts of each case--desertion not proved on facts of the present case--amendment of law during the pandency of the proceedings--benefit of, not available to the petitioner--appellant in this case.; that in this essence, desertion means the intentional permeant forsaking and abandonment of one spouse by the other without that other's consent and without reasonable clause. it is a total repudiation of the obligations of marriage. desertion is, however, not the withdrawal from place, but from a state of thins for what the law seeks to enforce is the recognition and discharge of the.....h.l. anand, j.1. this letters patent appeal of the husband against a judgment of the learned single judge of this court confirming in appeal the decision of the additional district judge, delhi, dismissing his petition for a decree of judicial separation under s. 10 of the hindu marriage act brings into bold relief the conflict between the matrimonial obligation of a husband and his duty to his widowed mother, as her only child.2. the parties, who are educated and gainfully employed - the husband as an engineer and the wife as a teacher -were married in july 1967, and a son was born of the wedlock in sept. 1968. the husband had lost his father during infancy and was maintained and educated by the mother, who is also an educated lady and is gainfully employed as a principal of a government.....
Judgment:

H.L. Anand, J.

1. This Letters Patent Appeal of the husband against a judgment of the learned single Judge of this Court confirming in appeal the decision of the Additional District Judge, Delhi, dismissing his petition for a decree of judicial separation under S. 10 of the Hindu Marriage Act brings into bold relief the conflict between the matrimonial obligation of a husband and his duty to his widowed mother, as her only child.

2. The parties, who are educated and gainfully employed - the husband as an Engineer and the wife as a Teacher -were married in July 1967, and a son was born of the wedlock in Sept. 1968. The husband had lost his father during infancy and was maintained and educated by the mother, who is also an educated lady and is gainfully employed as a Principal of a Government School. Since the marriage between the parties and until the unfortunate discord that led to a precipitate situation, they all lived together in a house which is and has throughout been under the tenancy of the mother. The matrimonial harmony has unfortunately been a short lived one and it appears that the relations between the parties took an un happy turn soon after the marriage even while the wife was pregnant, either because of the dissatisfaction with regard to the quantum of dowry, a reason which has proved fatal to many a marriage in this country, or because of inability of the wife and mother-in-law to make proper adjustment or perhaps because of the inability of the husband to maintain a proper or healthy balance between his matrimonial obligations to a wife and his loyalty and affection for a widowed mother, who had not only brought him, up, but had maintained and educated him or probably because of differences that may have arisen between the wife and the mother-in-law, who were both working, women, as to the allocation of domestic chores. Which out of these factors and to what extent may have contributed to the unfortunate situation that took the parties to Court has been the subject matter of controversy. By the petition, out of which the present appeal arose, the husband sought judicial separation on the ground of desertion and cruelty on the part of the wife. The petition was dismissed by the trial Court and the allegations of desertion and cruelty were repelled. In Appeal before a learned single Judge of this Court, the allegations of cruelty were not pressed and judicial separation was sought on the grounds of desertion which was repelled and the appeal was dismissed. The husband appeals and seeks divorce on the grounds of desertion in view of the amendment of the Act during the pendency of the proceedings as a result of which desertion has been made a ground for divorce rendering decree for judicial separation unnecessary.

3. Section 10 of the Act entitles the parties to the marriage to a decree for judicial separation, before its amendment, and to a decree of divorce, after the recent amendment, on the ground that, either party to the marriage-

(a) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.

The matrimonial offence of desertion is defined in the Explanationn to the Section as meaning-........... 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 willful neglect of the petitioner by the other party to the marriage.

In its essence, desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage. Desertion is, however, not the withdrawal from place, but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state. (Halsbury's Laws of England 3rd Edn., Vol. 11, P. 453.) Desertion thus is the separation of one spouse from the other with an intention on the part of the deserting spouse of bringing the cohabitation permanently to an end without reasonable cause and without the consent of the other spouse, but the physical Act of departure by one spouse does not necessarily make that spouse the deserting party (Reydon an Divorce 6th Edn., P. 128). Desertion, thereforee, requires two elements on the part of the deserting spouse, namely, the fact of separation and the intention to desert and there will be no desertion unless both elements are present(Tolstoy on the Law and Practice of Divorce, 6th Edn., P. S38.). For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there i.e. (1) the factum of separation and (2) the intention to bring cohabitation permanently to an end i.e. 'animus deserendi'. Similarly, two elements are essential so far as the deserted spouse is concerned, namely (1) the absence of consent and (2) absence of conduct giving reasonable cause to the spouse leaving matrimonial home to form the necessary intention. 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 had been a separation the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist : [1964]4SCR331. Where the deserting spouse leaves the matrimonial home under the compulsion of adverse circumstances which may either constitute cruelty or are otherwise harsh and is willing and prepared to Join the consortium on certain conditions being satisfied, the spouse, which is responsible for unreasonable behavior, would be guilty of desertion. Whether particular conditions (sic) (exist) for rejoining and whether a behavior is unreasonable would depend, upon the facts of each case.

4. It has been a common case of the parties that the matrimonial accord has unfortunately been rather short-lived in that soon after the marriage, minor differences and irritations, having their genesis either in the insufficiency of dowry or in the treatment of the husband by the relations of the wife or because of lack of adjustment between the wife and the mother-in-law, had introduced an element of unpleasantness in the relations between the parties. It has also been a common case of the parties that, even though on account of certain minor incidents, the wife stayed away from the matrimonial home voluntarily or under adverse circumstances or in normal routine for short periods between Feb.1968 and March 5, 1968, and between March 17 and April 18, 1968, the matters appeared to have come to a head only In July 1968, when the wife left the matrimonial home on 18th July, 1968, admittedly at a time when she was in an advanced stage of pregnancy, the child having been born on Sept 10, 1968, and had not entered the matrimonial home until the petition was Med in Dec. 1970 and thereafter. It is also an admitted case of the parties that during this period there were meetings between the common relations of the parties, a few casual meetings between the parties themselves at the initiative of the wife and two sets of correspondence, one that the parties had with each other and the other that the maternal uncle of the husband had with the brother of the wife. Through out the period the admittedly made no attempt to personally meet the wife or to participate in any discussion between common relations. Parties have attributed conflicting reasons for and sought to Justify different inferences from this attitude. It has also been a common case of the parties that both at the stage of the trial of the petition and in appeal before the learned single judge, the wife has been willing to return to the matrimonial home unconditionally but the husband turned down the offer either on the plea that the expression of willingness was not genuine or that the matter had reached a stage of so return. Even before us, an attempt was made to explore the possibility of an amicable settlement when counsel for the wife made an unconditional offer of return to the matrimonial home but here again the husband turned down the offer either because he felt it was not genuine or, as, the counsel for the husband put it because it would be futile as, owing to the passage of time, the marriage was as good as totally and irrevocably broken. There has, however, been serious contest between the parties as to the circumstances in which and the intention with which the wife loft the matrimonial home or was compelled to leave it on July 18, 1968, as to the nature of the

attempt through common relations at reconciliation made thereafter, the true effect of the correspondence exchanged between the parties and the nature and effect of the approaches made by the wife to the husband for a return to the normal matrimonial relationship.

5. Whether the wife left the matrimonial home on July 18, 1968, voluntarily with animus deserendi and continued to have that intention within the requisite period of two years preceding the filing of the petition? Whether the wife left the matrimonial home under the compulsion of unbearable circumstances and without animus deserendi and with a definite element of animus revertendi in the hope that the unfortunate circumstance which compelled her to leave, would perhaps be suitably dealt with and conditions would be restored which would make it possible for her to return to the matrimonial home and live in peace and with dignity? Whether the events subsequent to the departure of the wife from the matrimonial home establish animus deserendi or animus revertendi? Whether the attempts made by the wife to return to the matrimonial home were genuine and arose pursuant to her intention to restore the matrimonial unity and whether the husband has been guilty of compulsive conduct which would disentitle him to the relief? Whether, assuming that the offer of the wife to restore matrimonial unity was conditional on proper conditions being restored for her return, it was tantamount to continuing the state of desertion and whether parties were being unreasonable in their attitude and conduct in relation to the matter: These are some of the questions that are posed by the controversies between the parties and must thereforee, be answered in the light of the material on record and in the back-drop of the legal position of the matrimonial offence of desertion and the rights and obligations of the parties in relation thereto.

6. The material on record consists, in the first instance of the oral evidence produced by the parties including the evidence of the husband, the wife and the mother-in-law. The husband produced his mother's brother, Sohan Lal Chutani, A.W.-1, his uncle, C. L. Narang, A.W.-2, K. N. Budhiraja, A.W.-3, Sikander Lal, A.W.-5, his family Purohit, Pandit Ganpat Prasad, A.W.-6 besides examining himself and his mother, AW-7.

Of these, Sohen Lal, A.W.-I, S. L. Narang, A.W.-2, K. N. Budhiraja, A.W.-3 and Pandit Ganpat, A.W.-6 relate to the reconciliation efforts, while his statement and that of his mother by and large relate to other matters. On the other hand, the wife examined herself as R.W.-9 and produced her brother, Sohan Lal, R.W.-8, her brothers-in-law, Krishan Chand Khattar and Krishan Chand Munjal, R.W.-3 and R.W.-6 respectively, her brother's friend, Suraj Prakash Sachdeva, R.W.-7, her brother-in-law's friend, Soban Lal Grover, R.W.-4, K. A Gliagi, R.W.-51 Udho Das, Rma and Amar Singh Sharma of the Education Department, R.W.-1. In the second instance, there is a set of correspondence exchanged between the parties which is quite illuminating, A-5 to A-9 - and A-17 to A-20.Thirdly, there is the correspondence between the maternal uncle of the husband and the brother of the wife, who had maintained the wife before her marriage and had apparently borne the financial burden of the marriage with his admittedly modest means, the father of the wife having died earlier. R-2 to R-7. Both the trial court and the first appellate court attached considerable importance to the correspondence, particularly the correspondence exchanged between the parties, as constituting a clear index of the true intention of the wife when she left the matrimonial home and in continuing to stay away from it and of the attitude of the husband in relation to it. They have also placed considerable reliance on this correspondence, as indeed the correspondence exchanged between the common relative, in determining the reason for the discord and the circumstances in which the matrimonial home was broken up and have, thereforee, considered it fit to read the oral evidence of what may be described as by and large partisan witnesses in the light of the contemporaneous correspondence with a view to bring out the truth of the matters in controversy.

7. What then were the circumstances which impelled or compelled the wife to leave the matrimonial home on the fateful day of July 18, 1968? It was not disputed that for a variety of reasons, rights and wrongs apart, the matrimonial home had for some time past been an unpleasant place with frequent bickerings and minor irritations to which one or both of the parties and some of their near relations, including the mother of the husband, may have contributed in different measure. The wife was admittedly in a stage of advanced pregnancy, added to which was the burden of her normal work as a teacher. Obviously, she needed to be looked after in this state and had a claim not only to proper nutrition, happy and congenial surroundings as well as some, if not total, relief from the domestic chores, particularly it she was to continue to discharge her obligations as a working woman. Admittedly, the mother-in-law was also a whole-time employee. The husband was not in a position to make any contribution in running the household and there was no domestic assistance available either. Added to this must have been the strain arising out of tension in the family not only on-account of the past bickerings and irritations but also on account of a recent event of the death of the sister of the mother-in-law, a fact which was graphically brought out by the mother-in-law, the husband as well as the wife in the course of their evidence. It appears that the sister of the mother-in-law had died in Chandigarh only a week or ten days before and there was some argument in the family on or about the 14th or 15th of July as to the alleged impropriety on the part of the mother of the wife not to have gone to Chandigarh for condolence, even though the wife apparently had. This was per haps a minor incident, but had assumed more than the usual proportion in view of the unpleasant background. What then a woman in an advanced stage of pregnancy without any possibility of prenatal nutrition or care being possible in the matrimonial home, which had become a source of constant irritation, causing anguish and tension and burdened with duty in school and part, if not the whole, of the burden of the chores at home, is to do in such a situation? If such a woman, and one may assume that there were no other compelling reasons such as a physical expulsion or taunts with regard to dowry, etc. decides that any further stay in the matrimonial home until she had delivered herself of the child would perhaps be not conducive either to her own health or that of the child and left, with or without the permission of the husband, to take refuge in the home of a mother, where she would always be welcome and where such possible help, as may be consistent with the modesi mearle of the mother or the brother, would in any case be assured without being required to do more than the minimum work she was able to, it would be perhaps uncharitable, if not cruel, to describe it as an act of desertion in any civilised society, whatever be the standard to measure such an act or conduct Such a decision, apart from the surrounding circumstances, would be consistent with the custom, however unfortunate, that prevails among the Hindus that the entire burden, monetary and otherwise, of pre-natal and post natal care and the childbirth falls on the parents of the wife, irrespective of their financial capacity to bear it.

8. If that be the true position on the basis of common hypothesis, the conduct of the wife in leaving the matrimonial home would be pre-eminently Justified if one were to believe the version of the wife as what she was compelled to pass through on the eve of the departure and during some time before it, such as frequent taunts with regard to the rather Paltry dowry that an Engineer husband was able to get, the refusal of the mother in-law to share any part of the burden of the domestic chores and the consequential compulsion, even in the state in which she was, to cook and wash for the entire family in addition to her normal duties in the school, a version which has been accepted by the trial Court and the learned single Judge of this Court. But in view of our conclusion on the basis' of the admitted facts, it is unnecessary for us to embark on a course of reassessment of the material for determination of this aspect of the controversy.

9. The further question that, thereforee, arises for consideration is as to the intention of the wife when she left the matrimonial home and as to the intention, with which, assuming that she left, it without the animus deserendi, with which she continued to stay away from the matrimonial home or felt compelled to do so as appears to be the case of the wife. On this question as well, both the trial Court and the learned single Judge of this Court have returned a concurrent finding, on a consideration of the conduct of the parties before, as indeed, after the incident, including the correspondence on the record, that the wife left under the compulsion of adverse circumstances and did not have animus deserendi either at the time of the departure or thereafter while staying away from the matrimonial home, and that it was the unreasonable attitude of the husband and her mother which virtually compelled her in a near distress condition to leave her home and it was the persistent indifference of the husband to take her back and his refusal to assure to her life of respect, peace and dignity which was responsible for her attitude, that the wife had animus revertendi not only at the time she left the home but during the entire period thereafter, and that it was on the other hand the husband who was not only responsible for creating conditions which were inconducive for her stay in the matrimonial home, but throughout adopted an attitude which made a return to the matrimonial home an impossibility. In this context, the observations of the courts as to the resort to the Police report by the husband, the rather legalistic language of some of the letters sent by him, his failure or refusal to see the wife or the child during the entire period and to participate in the parleys and his eventual indifference and irresponsiveness when the wife personally made attempts to meet him to sort out the differences so as to restore matrimonial harmony appear to us to be appropriate. We have heard learned counsel for the parties at considerable length both on the legal aspect of animus deserendi, as indeed, the material available from which the true intention of the parties could be gathered, but we see no reason to differ from the conclusions arrived at. In the first instance, It is difficult to believe that a wife who was due to give birth to a child would so readily jeopardise the future of the child by entertaining an intention to break up the matrimonial home even when she physically left the matrimonial home, assuming that in the circumstances in which she left, it could still be said to be a voluntary act. It is important to bear in mind, and it has been pointed-out above, that desertion is not merely a physical act of leaving one place, but withdrawing from a state of things. It is not merely physical, it is primarily mental. Such a mental framework to our mind could not have been possible for a wife even in worst circumstances when she was bearing a child. Secondly, the wife left to attend to her normal work in the school on the material date, but did not return at the end of the day and instead went to her mother's house and her contention that in view of the stage of pregnancy and the consequent compulsions of it, she had told the husband that she proposed to go from the school to her mother's house. We see no reason to differ from the conclusions arrived at on this question either. If the wife had entertained the idea of a departure with no plan of return, she would have ordinarily made the necessary preparations. It is unfortunate that in his apparent anxiety to create evidence of desertion, the husband took a reckless step of making a report to the police that the wife had left the home with considerable jewellery and had on an earlier occasion taken with her a few sarees, a canard that has been rightly disbelieved by the courts. It is significant that the husband made the report to the police without having cared to see the wife or any of her relations and in utter disregard of the state of her pregnancy and the admitted unpleasantness at home, as indeed, the difficulty in assuring for her such care and rest, if not congenial atmosphere, which in her condition she deserved. Secondly, having regard to the normal course of events, all that may have happened in the matrimonial home during the time preceding the date of departure, however harsh and unfair it may be, had not assumed such serious proportions as would have persuaded a wife in an advanced stage of pregnancy to sever all connections with the matrimonial home. Eventually, the rather formal and legalistic tone of first letter of Dec. 1968 (Exhibit A-5) from the husband after her departure, as indeed, also after the child had been born, gives a complete lie to any allegation of animus deserendi, but on the contrary provides a good basis for a finding that for reasons of his own, the husband had decided to take advantage of the departure with a view to bolster up a false case of desertion eventually. But for such an intention, it is not possible to justify the legal demand contained in it by a husband requiring the wife to rejoin and threatening legal action with not a word about the wife's welfare or that or that of the child. The wife's reply of Jan. 7, 1969 (Exhibit A-17) graphically brings it out when she regrets that in the letter which reached her on the eve of the New Year and after the birth of the first son, she should have got threats of legal action rather yhan comforting word for the wife, a cheer for the child and, if nothing else, New Year greetings for the mother and the new born son. Thirdly the letters of the wife Exs. A-17 to A-20, which have been reproduced by the courts ring a death knell to any theory of animus deserendi, either at the time she left the home or thereafter, because every letter contains liberal expressions of a willingness to join the matrimonial home and beseeches the husband again and again to come and see the face of the child and to take them both home. That the husband did not have either or the heart to reciprocate or to meet either the child or the mother only confirms what his plans had been as to the fate of the matrimonial cosortium. Fourthly if any doubt was ever left to as to the true intention of the wife during this entire period, it is absolutely scotched by the number of attempts made by the wife to personally meet the husband and beseech him to discuss the matter and facilitate her return to the matrimonial home. It is significant that on one of these occasions she even carried the child with her because, as she explains in her letters, she thought that the heart of the husband may perhaps melt at the sight of the child, if not at his unfortunate mother. What happened at these casual meetings hardly adds to the stature of the husband, because even one were to ignore the insulting behavior on his part in virtually refusing to talk to her, the fact remains that he neither made an attempt to take her home or to express any willingness to discuss the matter with her or to at least pursue the offer to rejoin by going to her mother's house to bring her and the child or at least deputing someone to do it. That he took no such steps appears to us consistent with the attitude he had adopted right from the time lodged a police report, if not participate in any of the parleys between the common relations, never went to the hospital to see the child's face or to go to the house of the wife's mother to bring the wife and the child back and instead rushed to the court with the petition for dissolution immediately after the expiry of two years from the crucial date, as if eagerly waiting for the day when he could initiate action for his apparent deliverance and, what is worse, spurned the consistent expression of willingness on the part of the wife at all stages of the proceedings, including present appeal, to rejoin unconditionally, and continued to have a closed mind. One would have ordinarily have expected better conduct on the part of a husband in such a situation, particularly where the unfavorable circumstances partly, if not wholly arose out of his own failure to ensure proper adjustment between the wife and the mother and to strike a reasonable balance between his conflicting obligations. For a husband in such a situation to make allegations against the wife of desertion appears to us to be a complete travesty of human conduct.

10. Mr. Bhandare, learned counsel for the husband, was apparent1y fully conscious of his rather uphill task in the face of the overwhelming material and concurrent findings of facts and an almost reprehensible behavior and conduct of his client but nevertheless made a valiant attempt to salvage the position, inter alia, by raising an interesting proposition of law, even though the material would neither Justify nor attract such a proposition. In the first instance, it was urged that the conclusion arrived at by the learned single Judge was unnecessarily influenced by the cor-respondence exchanged between the parties and their common relations and that in determining the questions in controversy the learned single Judge had either ignored or not given due importance and weight to the oral evidence produced at the trial, particularly the statement of Sikander Lal Advocate, A. W. 5 said to be an independent witness. This criticism appears to us to be wholly unfounded. The Courts considered the oral evidence of the parties but rightly. In the context of the exchanged between the parties and their common relations. In cases where oral evidence Is. by and large, of a partisan nature, a reinforcement of it by the circumstances that do not lie, such as the contemporaneous correspondence, is an accepted Judicial norm to arrive at the truth. This contention was primarily raised by Mr. Bhandare with a view to invite a conclusion contrary to the conclusion arrived at by the courts, that the schism between the parties and the ultimate cause of the break up was neither the taunts regarding insufficiency, of dowry nor any economic conflict or controversy with regard to the apportionment of domestic chores, as has been the case of the wife, but the unreasonable demand of the wife, as indeed of her mother and brother, that the matrimonial home should be separate from the mother. It was in this context that learned counsel urged that the Courts ought to have accepted the testimony of Sikander Lal, who categorically stated that in the course of negotiations it became clear that on behalf of the wife there was insistence on the condition of a separate residence for the parties from the mother's influence. We were taken through the entire evidence, both oral and documentary, and find no reason to differ from the conclusion of the Courts that there was no insistance by the wife that they live separate from the mother. It is true, that vague references to it have been made by the relations of the husband and even Mr. Sikander Lal, Advocate, who, though claiming to be independent, was to an extent an interested witness. His wife was the Principal of the School in which the wife used to work and the wife of the witness had been approached by the mother of the husband apparently with a view to put pressure on the wife. The wife of the witness and the mother of the husband both hold the position of Principal. It is, thereforee, not possible to treat Sikander Lal, by any means, an independent witness. But what is worse his testimony and the assertion generally that the root cause was the insistence of the wife that the mother lives separate 'from the couple is amply falsified by the correspondence that the parties had during the material period. A re7sume' of this correspondence, which appears in the judgments of the courts, leaves no manner of doubt that while there were misunderstandings, conflicts, differences and tension between the parties, Partly, if not wholly, on account of the attitude of the mother with regard to the freedom for the wife and the allocation of domestic chores, as indeed, the compulsions of a pregnancy, there was nothing in any of the letters of the husband or of the wife which may, by any Process of reasoning, indicate that the wife had at any time taken the extreme position that the exit of the mother from the scene was a pre-condition for a pre-union or that she left the matrimonial home because the husband was not prepared to live separately from the mother. In such a situation, Courts were fully justified in ignoring the testimony, of Sikander Lal, as indeed vague references made by other witnesses of the husband, on this aspect of the controversy.

11. Secondly, a contention was vehemently raised by counsel that the Courts, should have held that the wife developed animus deserendi, even if she did not have it when she left the matrimonial home, because from her letters to the husband and the attitude of her relations, it was clear that her willingness to rejoin the matrimonial home was not unconditional, but subject to the condition either of the mother being eliminated from it or at least restoration of congenial atmosphere, respect and dignity. It was urged that where a wife left the matrimonial home and refused to return if certain conditions considered reasonable and proper for her were not satisfied she would nevertheless be guilty of the matrimonial offence of desertion. Reliance was placed in support of the contention on the cases of Buchler v. Buehler (1947) 1 All Er 319 and Hutchinson v. Hutchinson (1963) 1 All Er 1. On the other hand, learned counsel for the wife, while stoutly joining issue on the question as to whether the wife ever insisted on the elimination of the mother from the matrimonial home, urged that the wife, as an equal partner in the matrimonial consortium, and working for gain with the husband, was entitled to insist on minimum congenial conditions which ensured a place of respect and dignity for her and where the lack of these conditions, apart from the frequent taunts, etc. were the adverse compulsive circumstances which led to the rupture, it could not be said that a wife, who left the home, was being unreasonable and, thereforee, guilty of matrimonial offence of desertion where she insisted that proper conditions must be restored as a condition for her return even while reiterating that the wife was and has throughout been willing and ready to return unconditionally and suffer both in the body and mind as perhaps a necessary incidence of matrimony. In support of his contention that a conditional willingness to return, where the condition was not unreasonable, would not render the wife guilty of desertion, counsel relied on the decision of the English Court in the case of Dunn v. Dunn (1948) 2 All Er 822.

12. After hearing learned counsel for the parties it appears to us that whichever wav one looks at the controversy, it is not possible to hold that the wife was guilty of the matrimonial offence of desertion. We have already pointed out above the position that emerges on a common hypothesis as to the conditions that were prevailing when the wife left the matrimonial home. What happened subsequent to her departure does not in any way improve the case of the husband one bit. In all her letters, the wife expressed a desire to return and beseeched the husband to come and take her and the child away to his home. He failed to do so. The implied insistence of the wife, thereforee, that the husband should take her away to the home could neither be unreasonable nor ever form a basis for a finding of unwillingness or refusal to re turn. It is, in fact, the other way round. It is the husband who was either indifferent or wholly callous to the entreaties of the wife and cold-shouldered her repeated requests apparently because he had found in her departure some ground to base the ultimate claim for desertion for reasons in which we need not go in the present proceedings. The Position of the husband is no better even if one were to assume that the willingness of the wife throughout to return to the matrimonial home was in some way hedged by the condition that when she returns to the matrimonial home, she would be assured the respect, dignity and the position to which she was entitled as an equal partner in the consortium and would not be subjected to what she reasonably thought was a course of harsh treatment, indignities and an unbearable load of work. She is an educated lady and a whole time working woman. She was conscious of her rights and obligations and was perhaps not prepared to spend the rest of her life in distress and there was, thereforee, nothing unreasonable if she insisted that it must be assured that she would not be subjected to what she had Passed through in the past. Whatever be the position of an uneducated wife, or a wife who, though educated, is not an ermine her of the family, it is no more possible to expect an educated wife, who is an Independent earning unit, to agree to live in a voluntary matrimonial union with all Its obligations, but none of her rights or to agree to live the life of a slave, even if it be of a husband or his mother. In fact, the position of the husband is the better even if one were to assume that the allegation that an extreme position was taken up on behalf of the wife in the proceedings was correct. Marriage is essentially a union of two persons intended to bind them in wedlock and live together for ever. It carries no obligation on either side to be tied down to the relations of the parties irrespective of how close they are. Basically, thereforee, both a husband and a wife would be entitled to insist that they live by themselves and their children. There may, however, be certain special obligation which may constitute a departure. A husband may, for example, have a minor brother to support or an unmarried sister to look after; he may have infirm or sick parents to look after. It would be difficult for a husband in such a situation in spite of whatever may be said for the wife to forsake these relations and if a wife nevertheless insisted that the husband keeps them out of the matrimonial home and, what is worse, insisted an that as a condition for continued living to nether or for a return to the matrimonial home, it certainly would be unreasonable and may in a fit case amount to desertion. But not where, as in the present case, the mother is an able bodied woman and, what is more, has an Independent source of income as a Principal of a school. She is admittedly in good health and able to look after herself. She does not have to run around to find a home because she lives in a house which is under her own tenancy. If in such a situation there is threat of matrimonial disharmony on account of the unreasonable attitude of the husband or of the mother the wife would be entitled to ensure, for herself peaceful and dignified matrimonial life and an insistence that the couple live away from the mother, particularly where a common living had admittedly led to temperamental differences, tension and conflicts. Where a wife insisted on a separate living in such ' a situation as a condition for the return she could not be said to be acting unreasonably or be held thereby to be guilty of the matrimonial offence of desertion. It is true that the mother of the husband has been more than a mother to him. She had not only brought him up but maintained and educated him and was, thereforee in a position of a father as well. What perhaps lends a further dimension to the situation is the fad that the husband is the only child of the mother. In such a situation, the mother and son are bound to be attached to each other, and the mother in consequence would also be overbearing. In such a situation the son, thereforee, is bound to be under considerable influence of the mother and for all these reasons may, thereforee, be reluctant to accept such a condition. Setting up an independent matrimonial home may also have financial repercussions because it is not easy to get a rented house within a reasonable amount. In spite of these compulsions, however, the conduct of the wife could not be considered unreasonable, however, sympathetic one may be to the situations in which the husband is placed. But if these are the limitations, it is the duty of the husband to strike a reasonable balance between the two conflicting obligations. The fallout of the situation must, thereforee, be equally shared rather than be allowed to exclusively rest on the comparatively weaker shoulders of a wife. What is necessary in such a situation is a Proper adjustment between the other and the daughter-in-law perhaps by a better understanding by each of the fights and Obligations of the other. It is indeed unfortunate that many happy marriages have been damaged and even broken at the bedrock of lack of adjustment between the mother and the wife. The attitude of a woman to her daughter and to her daughter-in-law provides an unfortunate contrast Particularly in traditional Hindu Society. It is enigmatic that a mother of a husband would do to her daughter-in-law what she would frown at if done to her daughter by her mother-in-law This only confirms what a deep study of the human mind reveals that a human being is not merely confined to the human element, but encompasses the entire range from animality to divinity and is an amalgam of the animal, the human and the divine. The mother who is an image of a Goddess, a symbol of sacrifice and a foundation of unbounded love and affection for her children could become an instrument of oppression in the garb of a mother-in-law. Such is human nature. The human mind manifests itself in different forms at different times in different situations and in diverse relationships. There may be exceptions but they are hard to come across.

13. The English precedents relied upon on behalf of the parties do not appear to us to provide any parallel. So far as the principles enunciated in these decisions am concerned, there can be hardly any dispute and these have since been consistently accepted and applied by the Supreme Court and some of the Supreme Court decisions on the question have been referred to above. Whether or not a spouse is acting unreasonably in relation to his matrimonial rights and obligations Is a question that has to be determined on. the facts of each case and in the context of the given social conditions. The social conditions in India with its traditional society are different than those obtaining in England, even though the traditional society is under heavy pressure on account of the influence of modern thought and way of life. The mother of the husband is rarely a factor in British matrimonial relationship even though the mother of the wife in the history of English society has provided some material for British humour and perhaps caused some minor irritations. In the case of Buehler v. Buehler 1947 1 All Er 319 (supra) the demand of the wife not to join until the husband snapped his relationship with a male friend to which the wife was averse, was held to be unreasonable and consequently held guilty of the matrimonial offence of desertion. In the case of Hutchinson v. Hutchinson 1963 1 All Er 1 (supra) it was held that the husband's insistence on the refusal of sexual intercourse as, a condition for resumption of cohabitation constituted desertion. On the contrary in the case of Dunn v. Dunn 1948 2 All Er 822 (supra), the demand of the wife that she would not join until the husband shifted from a Particular house was held to be reasonable and not amounting to desertion. We are unable to seek any assistance from any of these decisions, as indeed certain other English precedents, which were pressed into service to reinforce the rival contentions.

14. In the wav we have looked at the matter the further question raised by the husband by C. M. 697/77 that the benefit of the amendment of the law during the pendency of the proceedings, would be available to him to claim divorce rather than judicial separation does not survival and the application is dismissed as in- fructuous.

15. In the circumstances, the appeal fails and is hereby dismissed with costs.

16. Appeal dismissed.


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