B.C. Misra, J.
(1) This Letters Patent Appeal has been filed by the husband against the appellate order of the learned single Judge of this Court, dated 15th January, 1976 by which his Lordship has dismissed the appeal and upheld the order of the trial court dated 2nd January, 1975, finally maintaining the dismissal of the appellant's petition for a decree of judicial separation on the ground of desertion.
(2) The material facts of the case are that the appellant husband and the respondent wife were married on 29th January, 1959 and they have a son born on 30th March, 1961, who is still alive. The appellant had been studying at Gwalior from 1958 to 1963 during which period he was married. In 1966 he got a job in Delhi as Inspector of Weights and Measurements, and now he is working as the Sales-tax Officer. According to the appellant in 1966 he began to live in the house of his father at 1741, Sohan Ganj, Subzi Mandi, Delhi, (which we shall refer to as 'paternal home'), but on 1st February, 1968 the respondent wife, who had, as alleged, been treating the appellant cruelly left for Mathura, her father's house, and deserted him and since then the parties have been living apart. On 9th June, 1971 the appellant filed the petition and has claimed a decree for judicial separation on the ground of desertion.
(3) At this stage it may be mentioned that the petition as originally filed claimed judicial separation both on the ground of cruelty and desertion, but at an early stage of the litigation, the appellant abandoned the ground of cruelty and proceeded with the case only on the ground of desertion and so we are concerned only with this ground.
(4) The defense of the respondent was that she had never deserted the appellant. She further alleged that she had continued to live in the home at Sohan Ganj mentioned above, where she had arrived as a bride after marriage and where the parents of the appellant had been living. The respondent also asserted in her written statement that in the aforesaid matrimonial home at Sohan Ganj the appellant had also been living with her, but the appellant has led evidence to show that he had acquired other tenanted premises from time to time where he had been living from 1st February, 1968 till May, 1971 and as such the allegation of the 'respondent that she was living with the husband during this period has not been found to be established.
(5) The question that arises for consideration is whether the respondent wife is guilty of the matrimonial offence of desertion. The trial court and the learned single Judge on appeal have both concurrently found that the appellant has failed to establish the charge and as such the petition of the appellant has failed.
(6) Desertion is defined by section 10(a) of the Hindu Marriage Act, 25 of 1955 (hereinafter referred to as the Act) and read with the Explanationn thus :
'HAS deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of petition;'
The Explanationn states that the expression 'desertion' with its grammatical variations and cognate expressions, means 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.
(7) Raydon on Divorce, Tenth Edition, paragraph 124 on page 194, states-''The Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. But in its essence desertion is the separation of one spouse from the other. with an intention on the part of the deserting spouse of bringing 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.'
(8) In Bipinchandra Jaisinghbai Shah v. Prabhavati, : 1SCR838 (a case under Bombay Hindu Divorce Act), the Supreme Court laid down the rule of law in paragraph 10 that for the offence of desertion two essential conditions must exist, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). The court further observed that desertion was a matter of inference to be drawn from the facts and circumstances of each case, and if in fact there had been separation, the essential question always was whether that act could be attributable to an animus deserendi and the offence of desertion commenced when the fact of separation and the animus deserendi co-existed.
(9) In Dunn v. Dunn, (1948) 2 All. E.R. 822, Lord Dunning, L.J. observed on page 823, that the legal burden to prove desertion was on the husband. To discharge that burden the husband may rely on the fact that he asked the wife to join him and she had refused and from this fact the court may infer that she deserted the husband without cause, but it was not bound to do so, and once he proved the fact of refusal she may seek to rebut the inference of desertion by proving that she had just cause for her refusal. The question in all cases was whether the husband had discharged the legal burden and proved that the wife had deserted without cause. This rule of law has expressly been approved by the Supreme Court in a case under the Hindu Marriage Act, 1955-Lachman Utamchand Kirpalani v. Meena alias Mota, : 4SCR331 .
(10) In our opinion, if we can say with respect the learned single Judge has very properly appreciated and correctly applied the rule of law applicable to the case. It was for the appellant husband to prove the animus deserendi on the part of the wife.
(11) The husband seeks to discharge the burden by deposing that Mohan Lal tried to persuade the respondent and her father, but they declined to send her and so did the respondent 'on the pica that my (husband's) behavior towards the respondent was not good and I had been going to clubs, taking drinks and roaming wit other girls which allegations caused mental torture to me, being false. In any of these places (the four tenanted houses) the respondent never came to me nor brought the child.'
(12) With regard to the incident of the date of the alleged separation, the appellant husband deposed that in the month of January, 1968 there was a quarrel between the parties and the language used by the wife was intolerable and the respondent caught hold of the husband by his collar and this became a repeated phenomenon and ultimately on 1st February, 1968 she abruptly left for the house of her parents and put an end to her marital relations with him and in those days he was living in the paternal home in Sohan Ganj, Subzi Mandi, mentioned above, and thereafter the respondent wife never returned to him either in that or any other house.
(13) Mohan Lal has been examined as a witness as Public Witness 13. He is a cloth merchant residing in Karol Bagh. He deposed that he knew the appellant, who was the Inspector of the department of Weights and Measurements and he used to visit the office of the appellant for the purposes of verification of the meters of the dealers and in this way he became friendly with the appellant. The witness had deposed that the appellant came to him on 27th December, 1968 to state that a theft had taken place in his house at 13/28, W.E.A. New Delhi, and so the witness accompanied him to the Police Station for lodging the report. This is a very improbable statement as there was no valid reason for the appellant to take this witness to the Police Station for lodging the report, as this witness was neither a witness of fact nor did the appellant, who was a Government servant, need any moral strength to enter the Police Station. Again it has not been shown as to whether the statement of Mohan Lal, witness, was recorded in the Police Station.
(14) The story of the visit of Mohan Lal to the Police Station has been concocted as an introduction to what the witness has deposed further. He stated that on his return from the Police Station he asked the appellant as to why he was living alone and on this the appellant replied that his wife had deserted him since 1968 and he asked the witness to get the matter reconciled. The witness further deposed that on 29th December, 1968, the appellant met the witness in the morning and informed the witness that the appellant's father had died and they had to go to Nigambodh Ghat for cremation and the witness reached Nigambodh Ghat alone at 11.00 a.m. and on the day earlier than the Kirya ceremony of the appellant's father, the appellant took the witness to his father's house at Sohan Ganj and there the witness met the respondent's father, respondent's brother and the mother of the appellant, who on the arrival of the witness went away and so on the pointing out of the appellant the witness talked to the respondent's father and asked him to get the matter compromised, but he said that he had already made so many efforts, but the wife did not want to live with the husband. Then the witness asked the wife as to why she did not want to live with the appellant, but she refused to live with the appellant alleging that he was used to roaming about with other girls, visiting clubs and drinking and then she told him not to interfere in her personal affairs.
(15) This story of intervention by Mohan Lal has been disbelieved by the trial court as well as by the learned single Judge on appeal, and. In our opinion, rightly so. Mohan Lal, who claimed to be the Secretary of Cloth Merchnts Association is certainly not a person who could be supposed to exercise any influence on the respondent or on her father, or who knew them earlier in any way and so he would be the last person to be used for the purpose. Again, the mourning rites of the father of the appellant would hardly be an occasion for opening the subject. Moreover the alleged fact of intervention by Mohan Lal has never been put to the respondent wife when she appeared in the witness box. The story of Mohan Lal is improbable and utterly unconvincing and must be rejected. Apart from this there has not been shown any reliable evidence to prove animus deserendi on the part of the respondent wife.
(16) So far as the wife is concerned, she has appeared in the witness box as Rw 8. She has stated that soon after her marriage she was formally taken to the parents house of the appellant in Sohan Ganj mentioned above and since then she has been living there regularly and continuously, excepting for her visits to her parents home in Mathura, made off and on with the permission of her in-laws. She has further deposed that she had been living and always wanting to live with the husband but the husband did not want to keep her with him. She denied the suggestions relating to desertion.
(17) In her deposition, the respondent wife is supported by the brother of the appellant husband. He is Ratti Ram Sharma. Rw 4. He has stated that the appellant husband and the respondent wife had been living in the family home in Sohan Ganj mentioned above, although the witness had a separate kitchen, but for five or six years ago prior to the giving of the statement, the appellant husband had been living in another house in Rajinder Nagar. The witness further deposed, 'the respondent continued living in H. No. 1754, Sohan Ganj along with her in-laws ; parties have a child who is 13 years old son, and he lives with the respondent; the behavior of the respondent towards the petitioner was generally good; She never deserted the petitioner to my knowledge.' This witness was cross-examined at length by the appellant and he deposed that his father died on 28th December, 1968 and that the appellant had left the paternal home 5/7 months before his death. The witness further deposed that there were often disputes between the appellant and his father regarding the non-payment of his salary, but between the spouses there were hardly any abnormal quarrels except what is usual with the married couples, (what we would like to describe as natural wear and tear of married life). The witness further deposed that the respondent wife was not of quarrelsome and angry nature to any appreciable extent, although her voice was a bit of high pitch.
(18) This witness, Rw 4, was the real brother of the appellant husband. He has, in our opinion, given a truthful and impartial statement. His statement inspires conviction. His truthfulness is further shown by the fact that he stated that he did not know which of the parties deserted the other and which did first. Naturally, this is a question to be determined by the court and the witness could not truthfully give any opinion, but he has impartially and fairly deposed a number of facts from which it can be safely concluded that the respondent wife had never broken up the matrimonial home and that she continued to live in the paternal home of the appellant's father where she came as a young bride and she has ever since continued to live there with the parents and brothers of the appellant. This disproves any intention on the part of the respondent to break the matrimonial home and be guilty of the offence of desertion.
(19) At this stage, it may also be mentioned that the mother of the appellant examined as a witness on behalf of the respondent wife, gave evidence in her favor, but as her cross-examination could not be completed, the learned single Judge rightly did not use her statement, which had been used by the trial court.
(20) Mr. Manchanda, learned counsel for the appellant has severely commented upon the observation of the learned single Judge that the appellant had never expressed a sincere desire to resume married life and 'he had to show that he made an approach to the other side and the approach was rejected. Nor is there any evidence that he was willing to maintain his wife and child and that he was solicitous of their welfare or longed for their company. Marriage is an institution which depends upon give and take. But the husband's attitude of mind is, if anything, indicative of the fact that he was prepared to see the marriage founder rather than to give way to the other parly's point of view.'
(21) In our opinion, it was certainly not necessary for the husband to make an offer to the wife to resume the married life. The factum of an offer by the husband is only an evidence of proof or disproof of the requisite animus on the part of the opposite party. In a given case if the wife unreasonably refuses to accept the offer of the husband to resume the marital life, then the courts would be entitled to safely infer animus desrendi on her part, but if there is no such offer on the part of the husband, the court would be left with the other evidence on record to determine whether the offence had been established,. If a deserting spouse takes advantage of the locus poenitentiae provided by law and decides to come back, while the deserted spouse means a bona fide offer of resuming the martimonial home with all the implications of marital life before the statutory period is out or even after the lapse of that period, (unless proceedings for divorce have been commenced,) desertion comes to an end and if the deserted spouse reasonably refuses the offer, the latter may be in desertion and not the former.
(22) In the instant case, the appellant husband left the paternal home in February, 1968 and up to a period of October, 1970 he changed four tenanted houses. The respondent wife continued to live in the paternal home of the appellant in Sohan Ganj, which she had entered as a bride and never left the same, except for periodic visits to her parents' home in Mathura. The respondent had no intention to desert and the appellant never invited the respondent to come and live in any of his rented houses and he never wrote to the respondent about the change of his address. Under these circumstances, the submission of the counsel that from the mere fact that the respondent did not go to live with the appellant in any of the tenanted houses during the said period her intention to desert must be inferred is fallacious. In Pulford v. Pulford, (1923) P D 18, the court observed at page 21 that desertion is not the withdrawal from a place, but from a state of things and the husband may live in a place and make it impossible for his wife to live there, though it is she and he that actually withdraws and that state of things may constitute desertion of the wife. thereforee, it cannot be held that in the circumstances of the instant case the respondent wife can be said to be guilty of the offence of desertion and we are satisfied on the material on record that the learned single Judge has rightly come to the conclusion, in agreement with the trial court, that the respondent wife has not been shown to be guilty of the matrimonial offence of desertion and she has never entertained any intention to desert the matrimonial home.
(23) Mr. Manchanda has invited our attention to a few authorities, which may be noticed. He has relied upon Pulford v. Pulford (supra), for the proposition that desertion means abandonment and implies an active withdrawal from cohabitation that exists and that the definition is not exhaustive and the conduct of the party must be looked at. There is no doubt about the proposition of law that the conduct of the parties may be looked at to find out if the opposite party has actively withdrawn from cohabitation and if so the inference of desertion may be properly drawn, but in the instant case we have found that the case set up by the appellant is not proved and from the conduct of the appellant as well , the respondent we are satisfied that the respondent wife has never deserted the appellant.
(24) He has also cited Pardy v. Pardy, (1939) PD 288. In this case, there had been a deed of separation between the parties, but the same had been repudiated and the other party had acquiesced in the repudiation. The court, thereforee, on appeal inferred desertion. The court held that the elements necessary to constitute a state of desertion were de facto separation and animus deserendi and absent of consent on the part of the spouse alleging desertion. These ingredients are found established in that case. The authority, thereforee, turns on different fact and does not help the appellant.
(25) In Buchler v. Buchler, (1947) P D 25, the court held that in actual desertion as well as .on constructive desertion, it is necessary to prove both factum and animus-acts amounting to expulsion in fact, of such a serious character that an intention to disrupt the marriage can reasonably be inferred having regard, inter alia, to the principle that a person is presumed to intend the natural and probable consequences of his acts. One learned Judge also observed that it is seldom that conduct relied on as constructive desertion will amount to a matrimonial offence, for if it did, the petition would be based on that offence and there would be no need to rely on constructive desertion.
(26) In Lane v. Lane, (1951) P D 284, the question was inference of animus deserendi from use of words and expressions. The court held that the words used in the circumstances were capable of meaning that the husband wished to be rid of the wife as soon as possible and there was evidence to find that the husband meant to drive her from the home. It was observed by Willmer J. that the question whether the facts relied on to prove an allegation of desertion constitute such a grave and weighty matter as to justify one of the spouses in withdrawing from cohabitation depends on the individual circumstances of a case; complaints of lack of affection, ' even if accompanied by taunting remarks, can hardly be interpreted as conduct driving a spouse away if viewed in isolation; but such words and conduct may take on an entirely different significance when viewed against the background of the previous history. There is nothing in this authority which can be used to the advantage of the appellant in the facts and circumstances of the case.
(27) Mr. Manchanda has lastly cited two authorities S. Kirpal Singh v. Harbans Kaur, : AIR1967Delhi19 , and Dr. N. G. Dastane v. Mrs. S. Dastane, : 3SCR967 . In the first mentioned authority, the learned single Judge of this court has stated and applied the well known ingredients of desertion, namely, cessation of cohabitation without cause and without consent, and animus deserendi. These principles have been authoritatively laid down by the Supreme Court and the learned single Judge has carefully applied them. In Dastane's case, the Supreme Court was concerned with the case of cruelty under the Hindu Marriage Act. It observed in paragraph 23, 'the burden must lie on the petitioner to establish his or her case for, ordinarily, the burden lies on the party which affirms the fact and not on the party which denies it, this principle accords with common sense as it is so much easier to prove a positive than a negative. The petitioner must, thereforee, prove that the respondent has treated him with cruelty within the meaning of section 10(1) of the Act.' The court further observed in paragraphs 25 and 26 of the report that proceedings under the Hindu Marriage Act are essentially of a civil nature and the word 'satisfied' occurring in section 23 must mean 'satisfied on a preponderance of probabilities' and not 'satisfied beyond reasonable doubt', while the proof by higher standard generally governs criminal trials.
(28) We are fully conscious of this rule of law. In our opinion, the learned single Judge has appraised the entire evidence correctly according to the well established principles of law and we have not found any legal infirmity in his finding which are in agreement with the trial court.
(29) As a result, the decision of the learned single Judge is unassailable and the same is affirmed. This appeal is dismissed with costs.