Sultan Singh, J.
(1) This appeal u/s 28 of the Hindu Marriage Act, 1955 is directed against the judgment and decree of divorce dated 7.1.83 of the Add. District Judge, Delhi. The parties were married on 8,9.73. A son was born out of this wedlock on 18.1.75. On 3.10.78 the respondent-husband filed a petition u/s 13 of the Act for dissolution of the marriage by a decree of divorce on the ground of cruelty and desertion. The trial court negatived the ground of cruelty but passed a decree of divorce on the ground that the wife had deserted the husband for a continuous period of two years. The wife has filed this appeal. The finding regarding alleged cruelty is not challenged by the respondent-husband.
(2) The husband in his divorce petition has alleged that on 31.7.75 he reached home after attending office and found his wife was not there. He made enquiries from his mother. She told him that the wife had left telling that the husband was waiting for her at Vivek Cinema and that they both had to go
(3) The wife in her w/s denied the allegations of cruelty. Regarding desertion she has aged that respondent expected his wife to be more beautiful than him, that he has always been representing that she should take divorce from him, that she requested him not to utter such words as she was a Hindu wife and did not believe in re-marriage. She has alleged that two or three days before 31.7.75 the husband had threatened that if she did not leave the house, he would not come to the house and might stay somewhere else, that on one day he came very late in the night and on 31.7.75 he had not come at all. In these circumstances, he had alleged that her mother- in-law told her that since the husband had become obstinate and had made it a prestige issue, it would be better for her to go her parents house for a day or two and she could come when he cools down. She has further alleged that she acted on her advice and went to her parents house on 31.7.75. She has denied that she left the house of her husband against his wishes. She has also alleged that after two days she went to the house of her husband but her mother-in-law told her that the circumstances were not favorable till then and she should stay back at her parents house for some more time, that several attempts were made thereafter but he refused to keep her, that she approached him at his office all alone and aho in the company of her colleagues to persuade him to keep her but his attitude had been that he did not like her.
(4) Learned counsel for the appellant-wife submits that the respondent has failed to substantiate the ground of desertion, that the respondent has remarried 'during the pendency of the present appeal in violation S of 15 of the Hindu Marriage Act, and his second marriage as such is null and void. |S. 13(1)(b)is then reproduced. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (i) the factum of separation and (ii) the intention to bring cohabitation permanently to an end (animus deserendi). Two elements are also essential so far as the deserted spouse is concerned (1) the absence of consent and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. In proceedings for divorce the onus to prove all the four ingredients constituting the offence of desertion is on the spouse seeking divorce. Learned counsel for the wife submits that she left the house other husband orr 31st July, 1975 at the instance of of her mother-in-law with the implied consent of the respondent that she never had intention to bring cohabitation permanently to an end, that she has always tried to live with the respondent but he refused to keep her and it was on account of his conduct that she had to go to her parents' house.
(5) In Bipinchandra vs . Prabhavati, : 1SCR838 it has been observed ;
'If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For offence of desertion, so far as deserting spouse is concerned, 2 conditions must be there, namely, (1) the factum of separation and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned : (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Desertion is a mailer 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 inference that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been 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-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus descend coincide in point of time. If a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decides to come back to the deserted spouse by a bona fide offer of resuming the matrimonial 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 unreasonably refuses the offer, the latter may be in desertion and not the former .....It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law, the courts insist upon corroborative evidence, unless its its absence is accounted for to the satisfaction of the court'.
(6) The appellant-wife in her statement as a witness (R.W.I) deposes that she was B.A.B. Ed. at the time of marriage and employed as a teacher that she never showed any disrespect to her mother-in-law, father-in-law, or younger brothers of her husband, that they had been treating her nicely, that she delivered a male child on 18.1.75 but in June-July, 1975 the respondent began to impress upon her that he did not want to keep her any more and she should take divorce, that on 28th July, 1975 the respondent came late and next day he did not come at all, that she waited for him on 31st July, 1975 up to 7 P.M. but he did not return and at that time her mother-in-law advised her that sometimes a man becomes obstinate and she should go to her parents house, and she may come back, after two/four days when her husband would be calm and quiet. She further deposes that she left for her parents' house on the advice of her mother-in-law on that date, that she never left of her own sweet- will and after two/four days she went to the matrimonial home and met her mother-in-law, who told her that the circumstances were not favorable and she should stay for some more days at her parents' house. She also deposes that she had no intention to live separate from her husband and she ever deserted him, that she is still prepared to reside with him, she had been visiting him generally on Saturdays in his office requesting him to keep her, but he always told her that she should not talk about taking her to matrimonial home, that her parents and colleagues accompanied her on some occasions and her father also approached the respondent- husband and his father but he always refused to keep her. She denies that she ever represented to her mother-in-law on 31st July 1975 that she was going to Vivek Cinema to join her husband, she denies that Ramesh, Atul or Dalip ever approached her parents for reconciliation. In cross-examination she has stated that in June, 1975 for the first time after the birth of the child her husband told her that he did not like her that she visited him 30 to 40 times after 31st July, 1975 in his office at Karol Bagh and Connaught place and practically every Saturday she used to visit him till the filing of the divorce petition. She further deposes that he was not at home on 31st July, 1975 and thereforee there was no question of her obtaining permission for going to the parents house, that she was compelled to leave the house on account of the acts of her husband, that on 28th July, 1975 he had asked her to leave the house, that on the advice of her mother-in-law she left the house to pacify him and there was nothing bad in leaving the house as she could come back after a few days. She denies that her husband ever visited her parents' house to take her back. She also denies that she ever refused to join his company, Smt. Ishwar Devi R.W.2 is a colleague of the appellant. She deposes that she had gone to the respondent along with appellant twice in July-August 1976 and had suggested that the parties should live together which would be in their interest and on both the occasions the respondent asked her not to talk about joint living. Smt. Sohni Devi R.W.4 is the Headmistress of the Primary School at Pathak Barwala, Billimaran, Delhi where the appellant is employed as a teacher. She deposes that during January and March, 197 / she visited the respondent along with appellant in his office at Connaught place Branch New Bank of India, and suggested for joint living to which the respondent replied that she should not talk on the matter at all. Smt. Vishno Devi RW.3, a peon in the School, deposes that she had gone to the respondent's office in the bank at Connaught Place Branch along with the appellant and requested him to live with the appellant but his reply was that she should not talk on this aspect. Shri Mahinder Kumar, R. W. 5. ie the father of wife. He deposed that he went to respondent in his office but he refused to talk on the subject and he met respondent's father who showed his helplessness in the matter. All the witnesses on behalf of the appellant wife have stood the test of cross-examination. The appellant tried her best by meeting the respondent almost on every Saturday to persuade him to keep her but he had been refusing without any cause. The three colleagues of the appellant-wife R.W.2, R.W.3 and R.W.4 went to the respondent's office suggesting him to live with his wife but he had always refused to talk on the subject. The appellant's father also tried but he failed. The evidence on behalf of the appellant suggests that she left the matrimonial home on 31st July, 1975 at the suggestion of her mother-in-law as the respondent was not in good mood. The appellant never left the house with any intention to bring cohabitation to an and. She tried on various occasions to live with the respondent her colleagues tried reconciliation in July-August, 1976, January, March and November, 1977 and January, 1978 but with no result. It is apparent that the respondent never wanted to keep the appellant in his house. Ne reason has been given why the appellant wanted to live separately from him. There is no suggestion at all. A Hindu wife without any cause dues not leave her husband's house. In the present case there is not even a whisper against the appellant- wife. The respondent-husband failed to substantiate the allegations of cruelty before the trial court. No attempt has been made by the respondent to substantiate the same before me. There is no allegation by the wife against the husband. The respondent-husband as Public Witness . 1 has deposed that 'I am not ready and willing to keep the respondent (wife) with me.' He has also deposed that he does not know whether the appellant is ready and willing to live with him or not. From the evidence on record it is apparent that prior to 31st July, 1975 the respondent had not returned home in the evening. The mother-in-law of the appellant thereforee rightly suggested her to go to her parents' house so that he may cool down. It is thereforee apparent that all this was done with the express or implied consent of the respondent.
(7) The respondent has examined himself as Public Witness . 1, his mother as Public Witness . 5, besides Atul Kumar, Public Witness . 2 Dalip Singh Public Witness . 6. All have deposed that they requested the appellant to join the matrimonial home but she refused. The respondent has not examined any independent witness. Those persons have deposed at the instance of the respondent. No reason has been given by any person why she left the matrimonial home and refused to join her husband. The respondent's mother as Public Witness . 5 has not supported his allegations made in the divorce petition regarding the incident of the July, 1975. She has deposed that the appellant wife had not told her where she was to meet her husband. In the divorce petition it has been pleaded that the appellant left the house telling her mother-in-law that the respondent was waiting for her at Vivek Cinema After appellant-wife left the matrimonial home on 31st July, 1975 it stands proved on record that attempts were made by her to return to the matrimonial home but the respondent resisted by refusing to talk on (he subject.
(8) Heavy onus lies on the respondent- husband to prove that during the period of two years from the date of separation the appellant-wife intended to bring cohabitation permanently to end. He even refused to talk on the subject. His refusal to talk and take back his wife shows that he never intented to keep the appellant wife in the matrimonial home during the period of two years from 31st July, 1985 and thereafter.
(9) The trial court passed a decree of divorce on the ground of desecration holding that the wife did not join the husband aft 31st July, 1975 and that there was no justification for her to leave the matrimonial home on 31st July, 1975 that she left the house without the consent of the husband and as such animus deferent could be presumed on her part. It has been further observed that the onus shifted upon wife to show that there was no intention to bring cohabitation to an end. This is contrary to law. As already observed by the Supreme Court in Bipinchandra Jaising bhai Shah (supra) the onus to prove all the four essential ingredients constituting desertion is on the spouse seeking divorce. When the wife had been trying to join matrimonial home but the husband was refusing to talk on the subject it cannot be said that the wife ever had any intention to bring co-habitation to an end. The evidence on record does not make out ground of desertion in favor of the respondent-husband. The judgment of the trial court is contrary to law and is thereforee liable to be set aside.
(10) Learned counsel for the appellant further submits that the respondent has contracted second marriage after the filing of the present appeal and the second marriage in violation of S. 15 of the Hindu Marriage Act is null and void. Learned counsel for the respondent on the other hand submits that the appellant never informed the respondent that she was filing the present appeal, that the appeal was not filed within a period of 30 days although a copy of the decree was given free of cost u/s 23(4) of the Hindu Marriage Act. The trial court passed a decree of divorce on 7.1.83, certified copy was applied on 11.1.83. The copies of judgment and decree were ready for delivery on 15.2.83 and the present appeal was filed on 22.2.82 along with an application (C.M. No. 603 of 1983) for restraining the respondent from contracting second marriage during the pendency of the appeal. On 23.2.83 the respondent was restrained by this court from contracting the second marriage. The process server went to serve the notice on 17.3.83 but reported that the respondent had not returned home. On 23.3.83 fresh notice was issued for 13.4.83 when the counsel for the respondent put in appearance and the matter was adjourned to 20.4.83. It is now admitted that second marriage was performed by the respondent on 15.3.83. The appeal filed on 22.2.83 is within limitation after excluding the period spent by her in obtaining certified copies of the judgment and decree sheet. The appellant is entitled to deduct the time spent in obtaining the certified copies of the judgment and decree sheet u/s 12 of the Limitation Act as held by the D.B. of this court in Chander Dev v. Rani Bala, I.L.R. 1978 Del 331
(11) Section 15 of the Hindu Marriage Act reads as under
'When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, that time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.' It provides that after a decree of divorce it would be lawful for either parly to the marriage to marry again if time for filing appeal has expired without an appeal having been presented or an appeal presented has been dismissed. In the present case the appeal was filed on 22.2.83 and on that date the respondent was not entitled, to contract second marriage. Learned counsel for the respondent. submits that the appellant did not inform the respondent about her intention to file the appeal. It is not necessary for her to inform as such to the respondent. It is his duty to comply with the provisions of S. 15 of the Act. It is his duty to ascertain whether an appeal has been filed. It is no part of the appellant's duty to inform the respondent that she was intending to file an appeal. As a matter of fact it is for the respondent to make sure before marrying that no appeal has been filed by the appellant after the judgment of the trial court.
(12) In Chandra Mohini vs. Avinash Prasad Air 1967 S.C. 581 it has been observed by the Supreme Court that S. 15 read with S. 28 of the Hindu Marriage Act, on dissolution of marriage a spouse can lawfully marry only when there is no right of appeal against decree dissolving marriage or if there is right of appeal, time for filing appeal has expired or appeal presented has been dismissed. It has been further observed that it is not the duty of the appellant to inform the respondent that he was intending to file a petition for special leave to appeal, that it was for the respondent to know that the appellant has filed Special Leave Petition in the Supreme Court. I, thereforee, hold that the second marriage contracted by the respondent husband after the filing of present appeal within time is in violation of S. 15 of the Hindu Marriage Act and as such the second marriage is illegal.
(13) The respondent's act of contracting second marriage after the filing of the present appeal also shows that he wanted to get rid of the appellant-wife soon after obtaining a decree of divorce from the trial Court. He had also made a statement as a witness that he was not willing to keep the appellant with him any more. Appeal dismissed.