Avadh Behari, J.
(1) This is a husband's appeal against the order of the subordinate judge, first class, dated January 10,1972.
(2) The husband Mohinder Pal Singh is serving in the Army. He is a lieutenant colonel. The wife Kulwant Kaur is a lecturer in Government Girls' College, Chandigarh. She is well educated. She is an M.A. in more subjects than one. She has foreign qualifications. She studied at the London University for three years. Today the husband is 46. The wife is 45 years of age. There is no child of the marriage.
(3) The husband and wife were married on December 25, 1953. The husband at that time was a captain. He was stationed at the Red Fort, Delhi. The wife's father had a guest house at Karol Bagh, New Delhi. The husband used to come and stay with the wife at Karol Bagh during his off-time. Till September 1954 it may be said that they lived together.
(4) In September, 1954, the husband left for Indo-China. The wife did not want him to leave India. But the husband was keen. He thought that it was an opportunity of a life time. Ultimately he left.
(5) In October, 1955, he came back to India. On his return he was posted at Kota. It was a non-family station.
(6) In 1956 the wife left for England for further studies. She came back to India in 1959. In 1960 she took up a job and started an independent economic career. For all these years, that is, from September, 1954 till this day the husband and the wife have not lived together. After 1954 they drifted apart. The gulf became wider and wider.
(7) On October 6, 1967, the husband filed a petition under section 10 of the Hindu Marriage Act, 1955, for judicial separation. He took two grounds. First he said that the wife is in desertion since September, 1954. Secondly he alleged that the wife had made his marital life 'a hell' by her conduct and he was labouring under a great mental strain and frustration.
(8) The wife defended the petition. She denied these charges.
(9) The trial court framed two issues. One was on desertion. The other was on cruelty.
(10) The husband in support of his petition examined his two cousins, his own father and himself. The wife in her defense examined only herself.
(11) On the issue of desertion the trial judge came to the conclusion that it was the husband who was in desertion and not the wife. On cruelty he found there was no evidence whatever. He dismissed the petition with costs. Now there is an appeal to this court by the husband.
(12) The main issue in this appeal is : Is the wife in desertion It is not disputed that the parties have been living apart since September, 1954 when the husband left for Indo-China, and after that they never came together. The factum of separation is admitted. The question is : Who is responsible for bringing the cohabitation permanently to an end In other words, who has the animus deserendi
(13) Apart from the evidence of witnesses on either side there are about 22 letters on record exchanged between the parties and their relations. They are a mine of information. They are the best evidence in the case. I have thereforee decided not to attach any great importance to oral evidence. The letters ought to be the primary source of our information. Oral evidence is at best secondary narratives. The earliest letter is of 1953. The last letter is of 1960.
(14) The husband's marriage was an arranged marriage. It was arranged by his father. Six years before the marriage it was settled between the two families that the appellant would marry the respondent. In 1953 the marriage was performed.
(15) The most unfortunate thing about this case is that the husband never liked the wife. He had no love for her. They lived together for a brief space of time and then drifted apart. The husband never made a secret of his dislike for the marriage. Even before marriage he wrote two letters to his uncle in 195 3. There he said that he was not interested in this alliance. He sought the help of his uncle to break off the engagement. But this was not to be.
(16) In his letter dated August 23, 1953, (R.1) he described the wife's features to his uncle. He said this :
'NOWI tell you what I felt about her. She is about 5'.2' dark thick set with thick features. She is older than me, atleast she looks past 23 years.'
(17) In the other letter dated October 1, 1953, he wrote to his uncle:
'ASfor giving a chance to marriage you know that once married cannot possibly break it off or get married again, as for seeing her saw her for long enough to know that our temparaments are completely opposite to each other.'
(18) On December 25, 1953, the marriage was performed. The husband hardly stayed for a day or two with the wife at their matrimonial home at Talania in Patiala. He came back to Army. For a few months the wife stayed with in-laws. In September 1954 she left for her parents at Ludhiana.
(19) The husband left for Indo-China and remained there for a year. Before leaving for Indo-China he returned the car and the lands to the wife which were given to her in dowry by her father.
(20) From Indo-China the husband wrote letters. Before going to Indo-China be wrote letters to her. The gist of these letters is that the husband told the wife plainly and in no uncertain terms that it was impossible for him to live with her and that it was better for both of them if they could mutually decide to separate.
(21) On May 3, 1954, the wife wrote a long letter of 19 pages to the husband in which she made a passionate appeal that he should try to adjust and accommodate her so that they can live together. She pleaded lor amendment and reconciliation. She wanted to save the marriage.
(22) Apparently this letter had no effect on the husband. The husband's reply was of cryptic brevity. He called the wife's letter a psychiatrist's report'.
(23) In 1955 the wife made a complaint to the military authorities that she was not getting maintenance from the husband who was at that time away to Indo-China. She again made a complaint to the Indian High Commission in U.K. in February 1957 when she was in England. These complaints, it seems, greatly offended the husband. On March 12, 1957, he wrote to his uncle :
'Iam not going to have anything to do with Kulwant, if possible get a separation .. .However now I want to finish it' (the marriage) (R. 4).
(24) Then there are letters of 1960. These letters tell no different tale. They are in the same strain. In his letter dated January 30, 1960 (R. 12) the husband said :
'.... frustruated and at fault as I am convinced that we are not destined to live together.'
(25) Things were allowed to drift aimlessly for another seven years. Finally the petition was brought in 1967.
(26) The letters leaves one in no doubt that the marriage has broken down. The husband was not willing to accept the wife. There is such engaging frankness in avowing it.
(27) On July 29, 1975, I asked the parties to appear in court. I tried to know their points of view with a view to reconcile them. if I could. The husband's attitude remained the same. He said that it was now too late in life for him to adopt a different attitude. The wife, on the other hand, said that she was not willing to break the bond of marriage. Even now she hopes that some day better counsel will prevail and the husband will return to the conjugal fold. It appeared to me that she had Job like patience.
(28) The letters clearly show that it is the husband who has willfully broken off conjugal relations. There is foresaking and abandonment. There is disruption of the marriage by conduct inconsistent with its obligations. The husband has totally repudiated the obligations of marriage. (See Lachman v. Meena). All through be has been interested in the dissolution of the marriage 'either through mutual correspondence, arbitration by a third party mutually acceptable to us', as he put it in his letter dated January 30, 1960. But he was not willing to go to court till 1967.
(29) I he first two letters written by the husband to his uncle give us the background of this unhappy marriage. He wrote to his uncle that the wife was not beautiful and thereforee was not to his liking. He had no passion for her. He wanted his uncle to persuade his father to break off the engagement. After marriage he (the husband) did not change his attitude, It remained as before, rigid and inflexible. He could not reconcile himself to this marriage. He did not resign to his fate.
(30) Desertion means that one spouse has abandoned matrimonial cohabitation without consent and without cause. There are two elements of desertion-factum and animus. There is the physical separation and the animus deserendi i.e. the intention to bring cohabitation permanently to an end (See Bipin Chandra Shah v. Prabhavati).
(31) It was said that the husband did not desert the wife. I cannot accept this submission. The husband has repudiated a substantially blameless spouse. The letters are an eloquent testimony of the animus. The acts draw their significance from the purpose with which they are done as revealed by conduct or by expression of intention.
(32) Even the most fervant and sincere hope of one spouse that there will be a reconciliation cannot create a possibility of reconciliation when the other spouse is unreconciliable.
(33) For these 21 years the husband and the wife have not lived together even for a day. The letters clearly delineate the attitude of the husband towards this marriage and his emotional intensity. It appears that the husband has reached a point of no return. He lives in a world of his own believing. To him this marriage is not a partnership. It is a human bondage.
(34) I would, thereforee, in agreement with the trial judge, hold that the wife is not in desertion It is the other way round. Nor is there any evidence of cruelty. Separation unfortunately there is. But it is not of the wife's making.
(35) There is another reason why the husband's petition must fail. Section 23 of the Hindu Marriage Act provides :
23(1).In any proceeding under this Act, whether defended or not, if the court is satisfied that- (a) any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and (d) there has not been any unnecessary or improper delay in instituting the proceedings, and
(36) In my opinion this petition was instituted after great delay. The husband's case in the petition is that the wife is in desertion since September, 1954. The petition was filed in 1967, after a lapse of more than 13 years. There is no Explanationn whatever of this delay.
(37) The counsel for the husband said that the crucial period in this case is from September 1954 to 1959. During this period it was argued the wife ought to have lived at the husband's house at Talania. It was said that the husband's grand mother died in 1959. His two sisters were married in 1961 and 1966. The wife did not join the husband's family on any of these occasions. Next it was said that the husband was always willing to take the wife but she left for England without his consent
(38) These arguments do not appeal to me. The wife was not expected to live at her husband's father's house when the husband himself was not living there and was not willing to accept her. When the wife ieft for England this was not with an intention to put an end to cohabitation. The husband never objected to further studies by the wife. In fact he encouraged her to continue her studies (See R. 14 dated 15.1.54, R. Ii dated 7.6.1954 and R. 19 dated 2.11.1954). After the husband had abandoned her she had no other course except to build her own future by pursuing further studies and take up a job. There is no evidence that the husband paid maintenance at any time to the wife.
(39) In none of the letters not even in those which the husband wrote in 1960 did he ever take any exception to higher studies being prosecuted by the wife.
(40) There is a touch of sadness in this case. It appears to me that the husband and the wife are not 'made for each other'. There is no give and take. And that is the stuff of which marriage is made of. There is no play in the joints. Peaceful co-existence of husband and wife is now outside the realm of possibility.
(41) Marriage is an alliance. In this case it has proved to be an unresolved conflict. In 1934 Sir Alan Herbert, the promoter of the Matrimonial Causes Act 1937, wrote a book. He called it Holy Deadlock. I think this marriage can well be described as a holy deadlock. It has long ceased to be a holy wedlock. Such a case as this cries aloud for reform.
(42) Our matrimonial law is based on the doctrine of matrimonial offence. Divorce is for a real matrimonial wrong. Culpability is a ground of divorce It cannot just be granted for the trivial ups and downs of married life. It cannot be granted even where the court is satisfied that the marriage has completely broken down or broken up, whichever way one may put it.
(43) The Hindu Marriage Act has introduced the principle that a broken marriage can be treated like any other civil wrong; prove the wrong done to you and the law will grant its remedy. Here the finding is that the husband is in desertion. He cannot thereforee take advantage of his own wrong. Law cannot come to his help.
(44) This is a broken marriage. There is no reasonable prospect of a reconciliation. But in law no remedy can be given to the husband. We have to apportion the 'fault' or the 'guilt'.
(45) In England the twentieth century has seen fundamental changes in this law. The principle of matrimonial offence came under pressure and is now destroyed. The new Divorce Reforms Act, 1969 has eliminated the doctrine of the matrimonial offence. There is now only one ground of divorce-'irretrievable break down' of marriage.
(46) As Sir Jocelyn Simon President of the Probate Division has said :
'IFeven one of the parties adamantly refuses to consider living with the other again, the Court is in no position to gainsay him or her. The Court cannot say, 1 have seen your wife in the witness-box. She wants your marriage to continue. She seems a most charming and blameless person. I cannot believe that the marriage has really broken down.' The husband has only to reply I'm very sorry; it's not what you think about her that matters, it's what I think. I am not prepared to live with her any more,' He may add for good measure, 'What is more, there is another person with whom I prefer to live' The Court may think that the husband is behaying wrongly and unreasonably ; but how is it to hold that the marriage has nevertheless not irretrievably broken down ?' (Riddle Lectures 1970 -Reprinted in Raydon on Divorce (11th ed.) p. 3223).
(47) These observations aptly apply to the present case. But the law in India is different from the matrimonial law in England. Judges must administer the law as it is and not as it should be.
(48) For these reasons I would dismiss the appeal. I would leave the parties to bear their own costs throughout.