Avadh Behari, J.
(1) Om Wati, appellant, was married to the respondent Kishan Chand, on 28.2.76. A female child was born to them. The child lived for about 2 years and then died on 10.9.79. On 1.9.80 the wife brought a petition for divorce against the husband on two grounds. (1) Desertion and (2) Cruelty. Mr. K.S. Gupta, Add. District Judge tried this petition. He came to the conclusion that the parties were living apart since Feb. 79. On this finding he found that 2 years period had not elapsed and thereforee a case for desertion had been not made out. On cruelty he found that there was no sufficient evidence to establish that ground. So he dismissed the petition on 3.4.81. This was the first litigation between the parties.
(2) On 22.5.81 the wife brought the present petition. This petition is founded only on the ground of desertion. This time the wife has not pleaded any cruelty. The learned Additional District Judge dismissed the petition on 14.7.82. From the decree of dismissal the wife appeals to this court.
(3) The Judge has found as a fact that the parties are living separately since Feb. 1979. That was the finding in the first petition by Shri K.S. Gupta, A.D.J. The same is the finding by Mr. M.A. Khan, Adj who has tied the second petition. But the learned judge has held that the petitioner has not proved animus deserendi and mere separation is not enough to prove her case of desertion He was of the view that the wife has not been able to establish that the husband intended to bring cohabitation permanently to an end. So he refused the decree of divorce to her.
(4) It is established on the record that the parties are living separately since Feb. 79. The wife's further case is that she was turned out of the house on 29.4.79. It is true that the husband has denied that he expelled the wife from the house. But there is positive evidence on this point of the wife and her father. But this may not be decisive. The decisive fact which lends support to the wife's case is the death of the child. The child died on 10.9.1979. The wife informed the husband on telephone about the death of the child and asked him to come to perform the last rites. The husband did not come. This is not denied by the husband. He has no where said that he attended the funeral of the child. All that he said was that he was never 'informed about the death of the child by the wife.' This part of the husband's case that he did not receive the information of the death of the child was disbelieved by the judge. He held that the husband had knowledge of the death of the child and that he did not come to the wife's house to attend the funeral of the child. The judge says : 'The husband has not given sufficient reason for not doing it. Anyhow this fact alone does not show that the husband wanted to severe his connections with the petitioner.' This is not a correct conclusion on evidence. This establishes atleast one thing. There is 'willful neglect' by the husband. Under the Explanationn to section 13 of the Hindu Marriage Act (the Act) desertion includes 'willful neglect' of the petitioner by the other party to the marriage.
(5) There are two elements of desertion : factum and animus, physical separation is established. The question remains of animus deserendi i.e. the intention to bring cohabitation permanently to an end.
(6) It is a question of fact whether any particular conduct is reasonable capable of having necessary deserting or expulsive meaning. Desertion may be inferred from certain facts in one case which in another would not justify the same inference ; the acts draw their significance from the purpose with which they are done as revealed by conduct or by expressions of intention. If a state of separation de facto exists during the relevant period, the primary question is whether or not that separation is attributable to the conduct of the respondent. (Rayden on Divorce-14th (1983) ed. p. 255.)
(7) When the husband refuses to attend the funeral of the child there is a conscious disregard of the duties and obligations of the married life. Failure to discharge marital obligations is 'willful neglect'. The child was of his own body. The husband's conduct shows that he had nothing to do with the wife and the child. He had forsaken and abandoned them to their fate. The event of Child's death on 10.9.79 is proof presumptive of the husband's animus. It is suggestive of desertion in the past as in the future. His conduct reveals that he harboured the intention from the day of physical separation i.e. Feb. 1979 Desertion is not the withdrawal from a place but from a state of things. Refusal to attend the funeral is indicative of a total repudiation of the obligations of marriage. This was a refusal to recognise and discharge the common obligations of the married state. This intention on the facts and circumstances of this case must be inferred from Feb. 79. The event of child's death is an eloquent testimony that the intention had been formed in Feb. 79.
(8) There is another important fact in this case. By order dated 20.4.83, Goswami, j. ordered the husband to, pay maintenance and litigation expenses to the wife from 8.3.83. The husband has not paid maintenance allowance or litigation expenses. He has absented himself from the court. He has not appeared to defend the case. If the husband does not pay the maintenance allowance or litigation expenses as ordered by the court his defense will be struck off. As he has not paid maintenance allowance, I strike off the defense of the husband.
(9) There is evidence that after the wife was turned out of the house the wife's father, her relations and friends of the family made efforts of reconciliation. They went to the husband's house and his relations to suggest that the wife be taken back in the matrimonial home. At one stage the husband agreed to take her back but never made any effort to bring her from her father's house. The learned judge has not believed the evidence of the wife on this point. But I see no reason why this evidence should not be believed. The reason is that on two important facts-firstly, the parties are living apart since Feb. 79 and secondly, that the husband did not come at the time of the death of the child to attend the funeral-the judge has accepted the case of the wife. Prom these findings it is just a short step to find, on the evidence adduced by the wife, that her efforts of reconciliation failed because the husband was not of any reconciling mind. His attitude throughout appears to be irreconcilable. The fact that the husband and the wife were living separately from Feb. 79 and that on the death of the child the husband did not care to attend the funeral show that there is an attitude of abandonment and forsaking of the husband to wards the wife. It would establish a case of 'willful neglect'. More so in view of the fact that he has not paid the maintenance allowance. Nor has he attended the proceedings in this court to contest this appeal.
(10) No other point has been argued before me. Counsel for the wife says that he may be allowed to take independent proceedings for the return of the dowry. On issue No. 2, I hold that the wife will be free to take independent proceedings, if so advised.