Avadh Behari Rohatgi. J,
(1) This is a husband's appeal against the order of the Additional District Judge Delhi dated the 19th February 1977, refusing him divorce. The husband petitioned for divorce on the ground of desertion and cruelty under S. 13. of the Hindu Marriage Act. The trial Court dismissed his petition.
(2) The parties were married at Delhi on 11th May, 1968. There are two, children of the marriage. A daughter was born in July, 1969. Subsequently, a son was born on 6th January, 1971. Both husband and wife are in service. The husband at present is agent of the Bank of India at Ambala city drawing a salary of about Rs. 1500 per month. He is a graduate and 36 years of age. The wife is also a graduate. She is a senior investigator in the Ministry of Commerce and is getting a pay of about Rs. 1000 per month. She is 34 years of age.
(3) The marriage was performed at Delhi. For a few days the parties lived at Inderprastha College flat where the husbands elder brother and his wife are staying. On 15th June 1968, the husband and wife shifted to Sarojini Nagar flat which had been allotted to the wife by the Government. They lived there together from June to December 1968. The husband's mother and his handicapped sister were also staying with him in the wife's flat. According to the husband the wife used to insult his mother and that was his reason for leaving the flat in December 1968. The wife of course denies this. But as nothing turns on this I will not dwell on this point.
(4) From December 1968 to October 1969 the husband lived alone at his Model Town flat in Delhi. In October 1969 the husband left for Chandigarh. He joined the bank service there. He remained stationed at Chandigarh from October 1969 to July 1971. The wife visited him at Chandigarh a number of times. Her longest stay with the husband was from November 1970 to April 1971. During this period she conceived. She gave birth to a son on 6th January 1971 at Chandigarh. In April 1971 she came back to Delhi. The husband of course remained there till July 1971.
(5) The days at Chandigarh were the happiest. So it appears. The wife tried to show with the help of letters that she wrote to her friend that she was badly treated by the husband even during this period. I do not attach much importance to these letters. Every spouse bargains to endure when accepting the other 'for better or worse'. There may be little tiffs now and then. This is what may be called the reasonable wear and tear of married life.
(6) In July 1971 the husband came to Delhi and started living with the wife at her flat in Sarojini Nagar, New Delhi. He remained there till September, 1972. On 17th September, 1972, an incident happened. There was a quarrel. On 18th September, 1972 in the morning the husband left the wife's place with bag and baggage. There are two conflicting versions of this incident. According to the husband he came late from his mother's house in the evening of 17th September, 1972. This enraged the wife and as a result she turned him out of the house. In the course of the quarrel the husband was mauled and got some scratches on his face at wife's hands. The wife's -version is entirely different. She denied that she expelled the husband from the house. According to her, their child was unwell on the evening of 17th September. She requested the husband to take the child to the doctor. This led to a quarrel. The husband assaulted her and threw her on the dewan, beat her and suddenly left. These arc two diametrically opposite accounts. But I need not decide who was the attacker and who the defender for this petition is not to be decided on a solitary event. The upshot is that the husband left the wife's flat and never returned to it.
(7) During September to December 1972 the husband was posted at Jaipur. He lived there alone. From December, 1972 to March, 1973 the husband was stationed at Sri Ganganagar and there too he was all alone. In March, 1973 the husband was transferred to Banur, a place in Paliala, where the husband took charge as agent of the branch of Bank of India.
(8) On 15th May 1973 the wife reached Banur. She had decided to stay with the husband. She had taken 20 days leave from the office. But she stayed there only up to 22nd May, 1973. From 15th to 22nd of May the husband and wife lived together. The wife left Banur on 22nd May, 1973 and joined her duty in Delhi on 23rd May, 1973. Though the wife had planned to stay longer she came back to Delhi after 7 days. Again there are two versions of the happenmg on 22nd May, 1973 at Banur. The wife's side of the story is that on 22nd of May, 1973 the husband received a letter that her mother was coming to Banur and he became 'panicky'. On receipt of this letter he immediately asked the wife to leave without providing her funds for bus fare. She had 22 rupees on her person. Five rupees she got from the landlady as shagan. With difficulty she managed to travel from Banur to Delhi. The husband's version is contrary to this. According to him both of them lived happily till 21st of May, 1973 when the wife came down from upstairs in the afternoon that day in a fit of anger and humiliated the husband in the office in the presence of the customers: 'If you have to remain, in the office all day then why have you called me here ?' This is what she is stated to have said to the husband. A customer of the bank was produced by the husband in supoprt of the wife's insulting behavior and his own humiliation. The wife decided to leave immediately. The next morning the husband took her to Chandigarh, got her a seat in the bus and paid her Rs. 1501-. This is what the husband says in his evidence.
(9) Which of the two versions is correct. The wife says one thing. The husband says the contrary. It appears to me that the wife's version is not believable. The reason is that she does not state mother's arrival as the cause of her sudden departure from Banur in any of the letters which she subsequently wrote to the husband. If this were true she would have felt deeply hurt and would have made it a condition of her joining the husband at Banur next time that he will not invite his mother during her stay there. If the husband had asked the wife to come to Banur as is the case he would not have dismissed her so unceremoniously. It is not imaginable that he will not even give her the fare to board a bus. So inherently improbable is this story that I cannot place implicit reliance on the wife's word of mouth. From the husband's side a customer of the bank was produced who corroborated the incident on 21st May, 1973 and deposed that the wife insulted the husband in his presence when she suddenly entered the office in rage and asked the husband why he had not come upstairs. This incident of 21st May, 1973 is a breaking point in the parties' relations and the starting point of desertion.
(10) In his petition for divorce which the husband brought on 27th April, 1976 his case was that never after 22nd May, 1973 did they live together. In fact this is the common case that there was no resumption of cohabitation after 22nd May. 1973. The wife in her statement admitted that 'after September, 1972 I lived with the petitioner at Banur in May, 73 and thereafter we had no cohabitation.' This establishes the factum of desertion. But did the wife have the necessary intention to desert That is the question I have to decide.
(11) From May 22, 1973 till 19th June 1974 there is a spell of silence. The husband and wife did not correspond. Nor did they live together. This silence was broken by a letter dated 19th June, 1974 which the husband wrote to the wife from Banur. This is the first letter in a series of correspondence. In this letter the husband asked the wife to come along with the children and stay with him during the summer holidays. He asked her to inform him about the date and time of their arrival so that he may come to receive them. The wife made no reply to this invitation.
(12) On 23rd September, 1974, the husband wrote another letter. From this letter it appears that the husband was yearning for the company of his wife and children. He longed to be near them. He wished to spend time with the family he had founded. The time was hanging heavy on his hands. He had started feeling the pangs of separation. He was forlorn and desolate. He made a powerful plea to the wife that they should forget the unhappy past and rebuild their home in the interest of children. In the end he said, 'Take leave for some days and stay with me. My doors are open and will always remain open'.
(13) To this letter too there was no response. On 6th October, 1974 the husband sent a telegram to the wife informing her that he had taken a month's leave from his office and in case she wanted to come to Banur she should 'reach Monday afternoon or wire programme, otherwise leaving Banur Tuesday morning.' The wife did not send any reply to the telegram. She kept quiet.
(14) On 18th November, 1974 the husband addressed another letter to the wife. In this letter he told her that he had joined the office on the next day after Diwali, that is, on the 14th November, 1974, and that he was sad and lonely. In this letter he again made a fervent appeal to the wife to come and join him at Banur. He wrote :
'Iam very eagerly and impatiently looking forward to the day when you will be coming to stay with me. I hope you will take as much leave as you can conveniently manage. I have no doubt that this time it will be all different from the past. We both should try to settle now. There is no choice except living together happily.'
(15) To this letter the wife made a reply on 20th November. 1974. She promised to come to Banur after 12th December, 1974. She wrote:
'DEARUmesh, It would have been far happier for us if you had spent your holidays with me and our children at Delhi or allowed us to stay with you. Any way I am making my programme for coming to Banur after 12th December.'
(16) On 25th November, 1974, the husband addressed another letter to the wife which shows how eagerly he was waiting for the arrival of the family. He said :
'Iwas impatiently counting the days left for your coming to Banur. From your letter I have come to know that you will be coming late by seven days. For me they will be seven years.'
(17) This shows his feeling for the family. How deeply attached he was to them. But there is a touch of sadness in this letter. He said:
'AFTERmeeting and talking to you in Delhi I have a feeling that you have adjusted yourself with the children and now you do not 'need me, so much so as to disturb the present set up. Whereas you appear to me to be more settled I am getting more disturbed day by day.'
(18) This passage expresses the husband's fears. He refers to the ' 'set up' which in fact was a set up of separation in which they had ceased to live together as married couple.
(19) On 1st December, 1974 the wife wrote to the husband and said:
'SINCEyou have invited me I will come to you only during the vacations of our children.'
(20) On 3rd December, 1974, the husband addressed a letter to the wife which seems to have crossed her letter. The husband wrote : 'I am waiting anxiously to hear from you regarding your programme.' The wife made no reply. On 4th December. 1974 the husband wrote another letter in which he complained of the want of 'warmth' and 'lack of rapport' on the part of the wife. In this letter the husband told the wife in plain terms :
'Ican now visualise a situation where children to a woman become more important than the husband.'
It is indeed a good thing to be devoted to the children. But 'willful neglect' of the husband by the wife will constitute desertion within the meaning of the Explanationn to S. 13. Then the husband said : 'from your letter I gather that if I get myself transferred to Delhi you will stay with me otherwise.......?' This letter too remained unanswered. But it brings out clearly the wife's insistence that the husband should come to Delhi and live with her in her flat. If he was not prepared that was the end of the marriage. It was not possible for the husband to leave Banur where he was posted. The location of a husband's work is a most important consideration to be borne in mind in selecting the situation of the matrimonial home. For wife it was not difficult to get leave for a few days and go to Banur. I have also asked myself the question : Was the husband asking for too much from the wife
(21) At long last the husband wrote on 16th December, 1974 to the wife a brief letter which I will read in full:
'MYpeace of Mind, I wrote you two letters but neither you come nor you replied my letters. What is the matter ?. I am worried. I have been waiting anxiously for your arrival yesterday. If there is any change in your programme please do write to me immediately. Please convey my love to Vandana and Vikas. Yours Servant Umesh.'
(22) The wife made no reply to the husband's entreaties. This is the last letter in the series. The husband waited and waited. She never came. This shows that the parties had reached a point of no return. There was a dead end. The husband was repeatedly writing to. the wife to join him. The wife made a promise to come during winter break. This promise she did not fulfill. One can presume that she had forsaken and abandoned the husband.
(23) After 16th December, 1974 there is no correspondence on the record till we reach 19th May, 1975 when the husband wrote a short note to the wife in which he said that he was returning her photograph as he had no longer any use for it. He told her that this photo was being returned after tearing off the children's photograph from it. The wife's photograph he returned, but the children's photos he retained. This note was sent in an envelop addressed to the wife as 'Miss Shakuntala Chopra.'
(24) What is the picture that we form of this marriage In spite of her repeated promises that she would be coming to Banur she never went there to join the husband even when she was being repeatedly invited by the husband with moving appeals to resume conjugal lire. The husband's plea 'to forget the unhappy past' seems to have had no effect.
(25) These letters have a commanding significance in the history of this marriage. They afford a deep insight into the mutual faults and shortcomings of the parties. The wife's charge against the husband was that he was under the thumb of his 'dominating mother' and other relations. The husband's complaint was that the wife was being misguided by her relations. There were allegations and counter-allegations. Each was blaming the other for breaking the home and wrecking the marriage.
(26) The main question is : Was there intention (animus deserendi) on the part of the wife to desert the husband? Intention is to be inferred from the surrounding circumstances. It is a mental state. It is a condition of the mind. It is to be inferred from the course of conduct. I consider that the wife's 'acts and conduct in failing to return to the husband's house are entitled to more weight as evidence of her true intention than her assurances contained in her letters'. [See Lachman v. Meena : 4SCR331 ]. In this connection it is necessary to bear in mind the rule that a man or woman must be assumed to contemplate the natural consequences of his or her acts. When the wife refused to return to the conjugal fold what would one presume That she was obstinate and prepared to see the marriage founder rather than give way. 'The essence of desertion is the breakup of the matrimonial home caused by the withdrawal of one spouse' (Tolstoy Divorce p. 42 6th ed.). It is 'the cessation of cohabitation brought about by the fault or act of the deserting spouse.' (Tolstoy Divorce p. 3 8). -
(27) Was there a sincere intention and a bona fide offer on the part of the wife to join the husband at Banur? This is the question that looms large on the horizon. The trial judge held that the wife was not in desertion. On the contrary he thought that the husband was in desertion. I cannot endorse that view. I have ventured to differ from the trial judge. My conclusion is based on, this bunch of letters. Oral evidence I find unhelpful and conflicting.
(28) Counsel for the wife argued that the statutory period of 2 years necessary to constitute desertion should be rackoned, if at all from 16th December, 1974 which is the date of the last letter. He submitted that if the period is taken from 16th December, 1974 two years did not elapse as the petition was filed on 27th of April 1976. This argument has not appealed to me. The husband's case is that the wife was in desertion from May 22, 1973. The subsequent acts and conduct of the wife lend support to the husband's contention. The physical fact of separation for more than two years is not contested. Intention is disputed. Intention has to be inferred from the course of conduct over the entire period. The past has to be seen in the light of the present. Right from 19th June. 1974 till 16th December, 1974 in his numerous letters and telegram the husband repeatedly asked the wife to join him at Banur and bring the children with her. He was asking for the company of the wife for a brief period. He asked her to take leave as much as she could manage. It was a modest demand on matrimony. If the wife was living apart there has to be a just cause. A promise to join the husband will not interrupt desertion. Bona fide and sincere attempt to live together will interrupt desertion.
(29) Counsel for the wife then referred me to R-2, the envelope carrying the address as 'Miss Shakuntala Chopra'. He submitted that the husband by writing this letter had clearly shown that he no longer wanted the wife at his place. Capital was sought to be made of this mode of address. But it appears to me that it is much ado about nothing. The husband was frustrated. He had waited for long, for more than Ii months for the wife to join him. She never came. In a state of resignation he addressed the wife as a spinister. I do not think it is a just excuse for the wife to remain behind. The wife made no grievance of this mode of address in her written statement nor did she protest in any letter. In truth it did not operate on her mind. As before she continued to be in desertion.
(30) Counsel for the wife laid a good deal of stress on the husband's conduct. He tried to show that the husband was a callous man who did not care for the wife and children, never went to see them at their Sarojini Nagar flat at Delhi, and never sent any maintenance. This argument is devoid of force. The wife in her evidence admitted : 'In November, 1974 on Diwali day I again met the petitioner at Nehru Park along with my children. The petitioner at that time asked me to. come to Banur for some time.' It is not, thereforee, correct to say that when the husband was on vacation in October 1974 for one month he never saw the wife and the children at Delhi. On 13th November, 1974, the Diwali day, he met them and asked all of them ' to come to Banur and stay with him. His letters confirm this. After he joined the office on the 14th November, 1974 again and again, he wrote to the wife that he was anxiously waiting for her and the children and that each day of waiting was an aeon to him.
(31) Counsel for the wife said that the wife was prevented from joining the husband in December, 1974 for two reasons. Firstly because of the examinations of the children and secondly because they got measles. Except for the bald statement of the wife that the children got measles and she was prevented by that reason, from going to Banur, there is no other evidence on the record. There is no letter informing the husband about the children's illness. In her cross-examination the wife did refer to the illness of the children in September and October, 1974 as a cause preventing her from joining the husband when he had taken leave for one month from his office. That the children fell ill in December, 1974 is not borne by the record.
(32) I go further. Assume that the wife could not leave Delhi in December, 1974 nothing prevented her from joining the' husband in the whole course of the next year of 1975 and till April 1976 when the petition was brought. There was the summer vacation of 1975. There was Christmas of 1975. Why did the wife not go to the husband There is no Explanationn on the record why and for what reason the wife did not join the husband during 1975 and 1976 when in April of that year the husband went to court.
(33) At the end of the case I have asked myself the question : Has the husband discharged the legal burden in this case My answer is : Yes. The onus to prove desertion is on the husband. To discharge that burden, he relies on the fact that he asked her to join him and she persistently refused. It was for the wife to rebut the inference which was pointed out by the circumstances by showing that there was a reasn,able cause for her not joining the husband at Banur. All that she said in her evidence was :
'Iam still ready and prepared to live with the petitioner even by resigning my job.'
But this is a statement made after the expiry of the period of 2 years. This does not avail her.
(34) Counsel for the wife cited a recent judgment in Smt. Swaraj Garg v. K. M. Garg 1978 RLR 525. That was a case where both the husband and the wife were employed at two different places before their marriage and the question which arose for decision before the division bench was : Where should be the matrimonial home The court decided on the facts and circumstances of that case that the husband's demand that the wife should resign her job and come to his place was unreasonable. I do not think that case lays down anything more than a proposition of ordinary good sense. It does not lay down any proposition of law. Because the question whether there is desertion must always be a question of fact. It is not a question of law. [See Lachman v. Meena (supra)]. In Dunn v. Dunn (1948) 2 All E.R. 822 Denniag L.J. said on the choice of the matrimonial home that there is no proposition of law that the husband has the right to say where the matrimonial home should be. He said :
'Iwant to say a word also on the proposition that a husband has the right to say where the home should be, for, indeed, it is the same fallacy in another form. If that were a proposition of law it would put a legal burden on the wife to justify her refusal, but it is not a proposition of law...., ......... it is simply a proposition of ordinary good sense arising from the fact that the husband is usually the wage- earner and has to live near his work. It is not a proposition which applies in all cases. The decision where the home should be is a decision which affects both the parties and their children. It is their duty to decide it by agreement, by give and take and not by the imposition of the will of one over the other. Each is entitled to an equal voice in the ordering of the affairs which are their common concern. Neither has a casting vote, though, to be sure, they should try so to arrange their affairs that they spend their time together as a family and not apart. If such am arrangement is frustrated by the unreasonableness of one or the other, and this leads to a separation between them, then the party who has produced the separation by reason of his or her unreasonable' behavior is guilty of desertion. The situations which may arise are so various that I think it unwise to attempt any more precise test than that of unreasonableness.'
(35) So in choosing the matrimonial home the husband must act reasonably with give and take and proper regard for the wife.
(36) Applying this test to the facts of this case can it be said that the wife's defiant refusal to join 'the husband was reasonable The husband requested the wife to come for a few days and stay with him. It was not an extravagant claim. The wife had to fulfill the fundamental obligations of marriage. It is true that she could not take one year's leave and live at Banur as was suggested at one stage by the husband foi 'trial purpose'. But few days leave was' not difficult to get. The children could also go to their father in Christmas or in summer vacations.
(37) It is true that the institution of marriage has come under a severe strain in recent times. More so, when both the parties are working hands. More and more women are going to work. More and more they are leaving homes for the outside world. In industrialised societies women do not wish to interrupt their career or sacrifice their income and freedom. If will be unreasonable to demand of the wife that she should resign her job and join the husband. But it will be equally unreasonable to say that she can stay apart and refuse to perform the duties of marriage. There has to be give and take for which the husband pleaded in his letter of 23rd September 1974. In one of her letters the wife wrote to the husband that Banur was a small place and had no facilities for the education of the children. The husband did not accept this as a sufficient cause for her living apart and said 'I have nothing to say in this respect. When one is not very eager one can find many excuses.'
(38) In Rayden on Divorce 12th (1974) ed. p. 272 it is said :
'THEparties should so arrange their affairs that they spend their time together and not apart, and where there is a difference of view, reason must govern.'
(39) Reason will, thereforee, govern us in the choice of the matrimonial home. In Swaraj Garg's case (supra) the division bench came to the conclusion that the husband's deman,d was unreasonable. Here I have come to the conclusion that the wife's refusal to join the husband is unreasonable. This shows that the situations which may arise are so various that no universal rule can, be laid down. There is no one tag which can fit them all. We have to bear in mind the dictim of Lord Reid that it is not the function of judges ' to frame definitions or to lay down hard and fast rules. It is their function to enunciate principles' and much that they say is intended to be illustrative or explanatory and not to be definitive' Cassell & Co. Ltd. v. Broom (1972) Ac 1027.
(40) I hold the wife guilty of the matrimonial offence of desertion, from May 22, 1973 till the petition was filed on 27th April, 1976.
(41) The husband has' also pleaded cruelty as a ground of divorce. The trial judge came to the conclusion that the husband had condoned the acts of cruelty, if there were any. I agree with the trial judge. There is no worthwhile evidence of cruelty. I would, thereforee, reject the ground of cruelty.
(42) For these reasons I set aside the order of the trial court, allow the appeal an,d grant a decree of divorce to the husband on the ground of desertion. The parties are, however, left to bear their own costs.