P.N. Khanna, J.
(1) This first appeal under section 28 of the Hindu Marriage Act is directed against the judgment dated June 10, 1968 of the Sub-Judge, 1st Class, Delhi, exercising the powers of a District Court under the Hindu Marriage Act, 1953 (herein called 'the Act') passing a decree for judicial sepiration in favor of the hasband, Krishan Lal Khanna, the respondent herein, against the appellant-wife Smt, Raj Khanna, under siction 10 of the Act.
(2) The parties were married on July. 5, 1956 at Delhi. On May 21, 1957 a daughter was born oat of the wedlock According to the husband, ti'e appellant left his house on October 24, 1957onthe plea that she was to visit her parents for the Tikkaf estival the next day. She had stated that she would stay on with her parents till the marriage of her brother in November, 19.17, which however, took place in April 1958. But she never returned, inspire of the several alleged approaches from the respondent's side. The appellant was ins ervice ; and the respondent considered that perhaps to be the cause of her indifferent attitude- and separation. He, thereforee, asked her to leave the service, which she refused to do. Under the circumstances, the appellant was accused of having deserted the respondent which now is for over 13 years.
(3) On October 26, 196 the respondent filed a petition under section 10 of the Act the judicial separation as according to him, the appellant had abandoned him without any reasonable cause and with no intention to return The appellant in reply contested the respondent's claim and stated that she never had the intention of living apart from him She was fore-d to live with her parents as the respondent made things hot for her. Regarding her service, the appellant stated that this fact was known to the respondent before the marriage and this was in fact one of the attractions for him in seeking her hand in m-marriage. She denied that she had left the respondent's house on any pretext with the intention of leaving for good. On the other hand. all her Jewellery and valuables were still with the respondent and the appellant infact, was never allowed their use. According to the appellant the respondent and his fimily regarded her as inauspicious Various unfortunate events in the family were attributed to her presence in the house. She was in fact asked to go to her parents place on the plea that the respondent was extremely busy in preparing for his law examination. She was not invited to the respondent's sister's marriage in April 1957. inspire of that she attended the same on her own accord, but was mal-treated and insulted on that occusion. The birth of the female child further annoyed the respondent's parents and she as also the child was conidered inauspicious. The respondent's failure for a second time in his law examination and subsequent illoess were all atributed to the inauspicious advent of the ceild in the family. It was on the repeated asking of the repondent and his parents that the appellant had to go to her parents house. The appellant also alleged that she and bar chid were mal-treated and beaten.
(4) By his judgment dated April 10, 1963, the Additional District Judge, Delhi, granted a decree for judicial separation to the respondnt, but on appeal to the Circuit Bench of the Punjab High Court, in Delhi, Mr. Justice S.K.Kapur accepted the appeal and set aside the judgmen of the Addititional District Judge. The application for judicial super ation was dismissed leaving the parties to bear their own costs, the learned Judge came to the conlusion that the appellant was right in asserting that the atmosphere obtaining in the house of the raspondent was such that made it defficult even turn the respondent himself to in vite the aopellant to his house just for meeting him. lt was for that reason that he had been writing to her letters, fixing apoointments for meeting her outside his own house, at places like the bus stop. Tm learned Judge agreed with the learned Additional District Judge regarding the uncalled for and unreasonable nature of the restrictions that were imposed on the appellant from time to time with respect to her conduct in the house and the use by her of the kitchen, etc. Some of her jewellery was also held to have been retained by her parents-in-law Some in cidents as is alleged to have happened on the occasion of the manage of the sister of the respondent weie found to have taken place when the respondent tried to assuit the appellant. The alleged incident in Mussoorie hotel was also found to have happened. She was, thereforee, held to have been living apart with justification and evpn the respondenwas held to have consented to her so living epart The learned Judge was of the opinion that either spouse may by miscorduct or cruelty drive the other away, in which case the former and not the latter, is the deserter. If the wife is persistently insulted without any reasonable cause by the relations of the husband, and is not allowed to use the house as her own and the husband instead of giving her the necessary protection, joins the relations in such activities, the wife may in certain circumstances be justified, observed the learned Judge, in saying 'I will not live under this roof'. The perusal of the entire evidence convinced the learned Judge that even the husband appreciated her position and was the con:enting party to her living apart. This course of conduct continued atleast till 2nd June, 1959, when he wrote his post-card exhibit D 3, which was the last letter available on record. This showed that till then, she lived apart with cosent of the husband; and n't that the attitude of the husband or his family changed then or thereafter As desertion for a statutory period of two years preceding the date of the petition was not established, the respondent's application for judicial separation was dismissed. A Letters Patent Appeal against the said judgment was rejected in liming on December 24, 1965. An application for the grant of certificate of fitness to appeal to the Supreme Court was also dismissed.
(5) The present petition for judicial separation was then filed on July 25, 1966 on the same grounds It was stated that the statutory period of two years which was not completed at the time when the earlier appeal was decided by Mr. Justice Kapur, had completed at the time of the filing of the present application. The desertion was again said to have taken place on October 4, 1957 since when the appellant had not returned to the respondent's home. No cohabitation took place between the parties at any time during this period and for this reason prayer for decree for junicial separation was made. By order dated June 10, 1668 the learned Sub-Judge, I Class, Delhi, accepted the respondants petition and passed a decree for judicial separation in his favor against the appellant under section 10 of the Act.
(6) On behalf of the appellant, her learned counsel, Mr Harbans Sirgh, contended that it has not been shown that the situation has changed since September 1 1965,when S.K. Kapur J. accepting the appeal had set aside the earlier decree for judicial separation. S K. Kapur J. had held that the atmosphere in the re pendent's house was a impediment to the respondent getting the appellant to his house. The said atmoshphere was such, which made it difficult for the appellant to continue to stay there. It was on the basis of those findings that he learned Judge had come to the conclusion, that even the husband was the consenting party to the appellant living apart. The respondent according to the learned counsel Lad failed to show a change since June 2, 1959 in the almoshphere in the respondent's house and in the attitude of the respondent and his relations towards the appellant. The considerations which prevailed with the learned Judge in the earlier proceedings to hold that the living apart of the appellant was justified still continued to prevail, as no change had been alleged or proved on record. Such being tie state of affairs the learned counsel contended, that the appellant, in not returning to the respondent's house continued to be justified even today. Toe decree for judicial separation was thereforee, liable to be set aside, submitted the learned counsel.
(7) The law on the subject has been succinctly laid down by the Supreme Court in Bipin Chandera v. Prabhavati, and Lachman v. Meena' where (in Bipin Chandra's case) it was observed : For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, (1) the factum of separation, and 1(2) the intention to bring cohabitation permanently to an and ( animus desarendi). Similarly, two elements are essential so far as the deserted spouee is concerned : (1) the absence of consent, and (2) absence of conduct gving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention afore said 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 interence: that is to say, the facts have to be viewed as to the purpose which is revealed by these acts or by conduct and expression of intention both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, 'the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exists. But. it is not necessary that they should commence at the same time. The defacto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time.'
(8) It was further observed in that case: 'Hence it is necessary that during all the period, that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable,' In this case, the respordent had filed a petition for judicial separation in October, 196 and since then litigation has been continuously fought, showing that the respondent was net prepared to resume married life.
(9) On the point of burden of proof in these cases, the Supreme Court in Lachman's case observed : It is settled-law that the burden of proving desertion the ' factum' as well as 'animus deserendi' is on the petitioner; and he or she has to establish beyond reasonable doubt, to the satisfaction of the Court, the dasertion throughout the entire period of two years before the petition as well .is that such desertion was without just cause, to other words, even if the wife, where she is the deserting spouce, does not prove just cause ''for her living apart, the petitioner-husband has still to satisty the Court that the desertion was without just cause.'
(10) On behalf of the respondent his learned councel Mr. H. R. Khanna, submitted that in this case the parties have been living apart since last about 13 years. The appellant has not returned to the respondent after she left on October 27 1957. Her intention to permanently renounce the mar taltie, according to the learned counsel, is clear from her Statement dated May l'i. 1935 recorded before D K. Mahajan J in the earlier proceedings whereas a result of a mutual settlement between the parties, she had agreed to gat the mairiage registered under section 15 of the Special Marriage Act in order to apply for divorce by mutel cosent under section 28 of the Act. But there were certain other technical difficulties, and the marriage could not be registered under the Special Marriage Act and the order based on the said mutual consent of the parties had to be varied. The learned counsel submitted that the mere statement of the appellant before Mr. Justice-Mahajan shows that the appellant had no mtentior of returning to the respondent If the intention was otherwise she would not have agreed to have the mairiage registered under the Special Mirriage Act.
(11) This statement, however, was made when the husband had been fighting a litigation to get rid of the wife In her statement before the court during the present proceedings the wife explained 'at the instance of Mr. Justice Mahajan I entered into mutual agreement as Mr. Justice Mahajan observed during the heariag that the lives of both the parties would be ruined in litigation. I did not ask for divorce myself. I signed the agreement after reading it and accepting it P.S correct. Although the statement had been made by the appellant, this does not show that she was really insisting on the ending of the marriage This statement appears to have been made in response to the apparent offer from the respondent during the course of a tiring litigation which was harassing the appellant. For, if she really intended that why, nothing would have prevented her from withdrawing her appeal against the decree for judicial separation, which was passed on April 10, 1963 and after the expiry of two years there from a petition for divorce could have been filed by any of the parties if the intention had been to get rid of the mairiage tie. The said statement before Mahajan J., thereforee, does not in it self show that the appellant had the intention of abandon' ing and permanently forsaking the respondent.
(12) The appellant's intetition of permanetly forsaking and abandoning the respondent without his consent and without reasonable cause is further gathered, according to the learned counsel for the respondent from her refusal to return inspire of efforts made on behalf of the responpent to bring her back. For this he relied on the statement of certain witnesses prduced on behalf of the respondent. P. W. 1, Roshan Lal, a neighbour stated that at the asking of the respondent's father he had gone to the house of the appellant's father in October, 1962 to persuade the appellant to rrteturn lie house of the respondent but she refused saying that she would not like to live with an ordinary clerk. P. W. 3 Udho Dass, a friend of the respondent's family, also stated that in the year 196' be vent once to the appellant's father at the instance of the respondent for the purpose of bringing about a conciliation. Ha assured the appellant's fattier that prior happening should be treated as closed and that she would not feel any difficulty, but the appellant refused to return on the plea that the respondent was not liked by her. P. W. 4, Narinder Nath, brother-in-law of the respondent stated that he tried to bring the appellant back froii the house of the appellant's father, but she did not return
(13) In his statement, the father of the appellant as R. W. 1. stated that the respondent is prepared to live with the respondent provided be corrects himself. He admitted that during the proceedings before the Additional District Judge persons had come to his house as ordered by the court for tie conciliation and the appellant's had told them that she would return it the respondent would correct himself. The respondent did not bring even the appellants articles lying with him. From this the learned counsel for the respondent argued that the respondent had done all what he could to bring back the appellant but her refusal established that she had no intention to return and had decided to forsake the appellant permanently.
(14) It is significant to note that the burden of proving the absence of just cause for the appellant to live apart was on the respondent himself. He failed to prove that the atmosphere in his house, which according to earlier judgment, had been an impediment to the return of the appellant to live apart, had changed. The mere going to the house of the father of the appellant along with few neighbours and friends to show that the husband had made efforts for conciliation does not prove in this, a genuine change of heart. It was not disputed that the said persons had gone to the house of the father of the appellant under the directions of the court. Sincere efforts on the part of the respondent and his other members of the family to show a change in attitude towards the appellant, were not even alleged nor proved. Certain observations of Dunning L. J. Dunn v. Dunn quoted with approval in Lachman's case (supra) by the Supreme Court, deal with this aspect of the matter as follows : -
'THElegal burden throughout this case is on the husband, as petitioner, to prove that this wife deserted him without cause. To discharge that burden, he relies on the fact that he asked her to Join him and she refused. That is a fact which the court may infer that she deserted him without cause, but it is not bound to do so. Once he proves the fact of refusal, she may seek to rebut the inference of desertion by proving that she had Just cause for her refusal ; and, indeed it is usually wise for her to do so, but there is no legal burden on her to do so. Even if she dors not affirmatively prove just cause, the court has still, at the end of the case, to ask itself. Is the legal burden discharged Has the husband proved that she deserthim without cause Take this case. The wife was very deaf, and for that reason could not explain to the court her reasons for refusal. The judge thereupon considered reasons for her refusal which appeared from the facts in evidence, though she had not herself stated that they operated on her mind. Counsel for the husband says that the judge ought not to have done that. If there were a legal burden on the wife he would be right, but there was none. ..The legal burden was on the husband to prove desertion without cause, and the judge was right to ask himself at the end of that case. Has that burden been discharged ?'
'THIS,in our opinion, is as well the law in this country under the Act.'
(15) Thus, it is manifest that even if the husband relies on the fact that he asked her to join him and she refused to go the court may still not be satiafied because there is no legal burden on the wile to prove that she has just cause for refusal. Even it she does not affimatively prove the just cause. that court would still be ieit with the question : Did she leave without just cause? The legal burden being on the husband to prove desartion without cause the court be satisfirid that the SMd burden had been discnarged in this case. by merely sho wing that certain neighbours had gone to the house of the appellant's father to ask the appellant to return do not show that the cause which occasioned the appellant to leave the respondent's house had ceased to exist. This said cause has bean already held to be the justification turn the appellant to live apart Something further shoud have been thereforee, brought on record to show that the said cause had disuppeared There is nothing to snow that the appellant's presence in the respondent's house will now be tolerated. The husband while in the witness box. stated be had never ill treated her: but did not say if the attitude of bids mother or other relatives had changed sines June 2, la59 The justification for the appellant was found to consist in the hostile atmosphere in the respondent's house and the ill-treatment to which she had been subjected There was neither any allegation nor proof to show any change in this It was, thereforee, not established that. the appellant had been left with no justification in her persistence to have apart This not having been done, the husband has failed to prove the appellant's intention of permanetly forsaking and abandoning the respondent without reasonable cause
(16) In the result, the appeal is accepted and the judgment and decree dated June 10, 1968 for judicial separation passed by the learned Sub Judge, I Class, Delhi, is set aside, The patition for judicial separation in the circumstances of the case stands disinissed in view of the peculiar Circumstances of the case, however, there shall be no order as to costs.