Dwarka Prasad, J.
1. This appeal has been preferred by Smt. Shanti Devi, who will hereinafter be referred to as 'the wife', against the decree and judgment passed by the Additional District Judge No. 2,Jodhpur dated 29-8-1980 for dissolution of marriage under Section 13 Hindu Marriage Act, 1955 (hereinafter referred as 'the Act'), on the ground of desertion.
2. The petitioner Govind Singh, who will hereinafter be referred to as 'the husband', filed a petition under Section 13(1) of the Act before the learned District Judge seeking a decree for dissolution of marriage by divorce against the wife on the ground of desertion and cruelty. It was alleged by the husband in his petition that the marriage between the parties was solemnised in January, 1964 according to Hindu rites in Jodhpur and after about four years, in June 1968, the wife went to the husband's house according to the custom prevalent in the community, on the performance of 'gona' or 'Muklawa'. Thereafter the parlies lived together in the husband's house. In August 1969, the wife's father took her away from village Palasani, where the family of the husband, resides, on the alleged ground that there was some marriage among their near relatives and promised to send her back to the matrimonial home soon thereafter. But according to the husband, the wife never returned to the matrimonial home after August 1969 and she is residing since then in her parents' house against the wishes of the husband and without his consent.
3. A ground of cruelty was also taken in the petition on the basis that the wife used to quarrel on every small matter. However, the allegation of cruelty has not been found proved by the trial court and as such it is not necessary for me to enter into the question of cruelty in this appeal.
4. The trial court, after discussing the evidence on record, came to the conclusion that the wife has been living separately since August, 1969 and has deserted the husband without any reasonable cause. Thus, a decree for dissolution of marriage by divorce was passed, on the ground of desertion by the learned Additional District Judge No. 2, Jodhpur oh 29-8-1980.
5. In this appeal, it was urged by the learned counsel for the appellant that even if it be held to be proved that the wife has been living separately from the husband since August 1969, yet as the 'animus deserendi' has not been proved beyond reasonable doubt, a decree for divorce could not have been passed. Itwas urged by learned counsel that merely the factum of separate living was not enough and unless the intention to bring cohabitation permanently to an end is also established, the offence of desertion cannot be complete. The decision of their Lordships of the Supreme Court in Lachman v. Meena, AIR 1964 SC 40 was relied upon by the learned counsel for the appellant in support of his contention. It was argued, that the trial court has come to a finding of desertion merely on the basis that the wife was living separately since August 1969, with-out further going into the question that there was no intention on the part of the wife to permanently leave the matrimonial home.
6. Learned counsel for the appellant also argued that if the desertion had taken place in August 1969, as alleged by the husband, then there was no reason for filing the petition for divorce as late as on 24-11-1978 and not soon after the period of two years of the alleged desertion came to an end. This argument was advanced by him in order to support the plea that the husband had turned out the wife from his house in January 1976 and thereafter the wife was living with her parents. It was also submitted by the learned counsel that neither the husband nor any one on his behalf went to fetch the wife and according to the statement of Govind Singh himself, he and his brother went to fetch the wife only once in the year 1969 but no one went to bring her back at any time thereafter. On the basis of these facts it was urged that the case was merely of living separately but there was no evidence about the intention to destroy the matrimonial relationship. It was also argued that the conduct of the father of the wife could not be attributed to her and if the father of the wife did not send her it could not be inferred therefrom that the wife had no intention of returning back to the matrimonial home or that she intended to permanently put an end to the matrimonial relationship.
7. On the other hand, the argument of the learned counsel for the respondent is that the story that the wife used to visit her in-laws' house up to 1975 has not been believed by the trial court and for good reasons. It was also argued by the learned counsel for the respondent that the intention to put the marital relationship to an end is a matterof inference to be drawn from the facts and circumstances of the case and that the requisite intention to establish desertion could be inferred from the conduct of the parties. It was submitted that the de facto separation for a very long period, without any reasonable cause and the failure of the wife to return to the matrimonial home, necessarily indicate the wife's intention to abandon the matrimonial home with the intention of permanently putting an end to the marital relationship between the parties.
8. The parties were married in January 1964 and the 'gona' was performed some lime in the year 1968. It is not disputed that the wife came to live with the husband after the 'gona' ceremony was performed. The case of the husband is that in August 1969 the father of the wife went to village Pala-sani, where the parents of the husband reside, and took away the wife on the ground that there was a marriage in their family. According to the husband, the wife did not return to the matrimonial home thereafter. But according to the wife she used to visit the house of the husband in village Palasani, where his parents resided, on and off until the year 1976 when she was forcibly turned out. It is in evidence that the parents of the husband resided at village Palasani while he himself was employed at Jodhpur. The wife stated that she used to go to the house of the husband's parents until January 1976 but he used to reside at Jodhpur. In the year 1974, a Panchayat is alleged to have taken place in which the parties, as also their parents and P. W. 5 Jagannath, who is related to both the parties, were present. According to P. W. 5 Jagannath, the dispute about sending the wife to her in-laws' place was discussed, but the father was not prepared, to send his daughter, although the witness advised both the parties at the panchayat that the wife should go back to her husband's place. Govind Singh at that lime was prepared to take his wife back, but the father of the girl did not send her to her husband's place.
9. The fact that the father of the wife had taken her away in August, 1969 from her in-laws' house on the alleged ground that there was a marriage in the family has been admitted in the written statement filed on behalf of the wife. But it was stated therein that the wife had thereafter visited her father-in-law'splace two or three times during the last 4 or 5 years, but the husband did not live with her as he resided at Jodhpur and that she was eventually turned out in January, 1976. Thus, the fact that the marital relations between the parties were not resumed after August, 1969 is not disputed; but what is alleged is that the wife continued to visit the house of her husband's parents in village Pala-sani, although the husband did not reside there and that this state of affairs continued up to the year 1975. The story put up on behalf of the wife, in respect of her visits to the house of her husband's parents during the period from August, 1969 to the year 1975, has not been found proved by the trial court and on a thorough consideration of the evidence on record I am not inclined to take a different view. No specific evidence has been produced on behalf of the wife as to when and why she was turned out in the year 1976. The wife Smt. Shanti Devi stated that she was turned out in the year 1975 from Poka-ran bungalow at Jodhpur, while the father of the wife as P. W. 3 stated that she was turned out from her father-in-law's house in village Palasani in the year 1975.
Thus the evidence on this aspect is apparently contradictory. The statements of these witnesses are not even consistent with the plea taken in the written statement in which it was stated that the wife was turned out by the husband from his house in January, 1976. Except the oral testimony of the wife and her father, which is in itself contradictory, there is no material on the record to show as to whether the wife visited the husband's or his parents' house between August 1969 to the year 1976 or that she was turned out of the house by the husband or his father in the year 1975 or 1976. Durga Singh, witness for the appellant, stated that she was turned out by her in-laws two or three years after the marriage. On the other hand, the witnesses examined by the respondent have stated that the wife did not come to the house of the husband's father after 1969. The fact that a panchayat took place in the year 1974, at the time of the death of the wife's maternal grandmother, and that the wife was also present there at that time, go to show that the parties were living separately prior to 1974. If they had been living together at that time, there could have been no reason for calling a panchayat for the purposeof persuading the father of the wife to send her to her husband's place.
Shaitan Singh, the wife's father, whoappeared as D. W. 3 has not denied, the fact that there was a talk about his daughter's returning to the husband's place, at the time of his mother-in-law's death, although he has denied the calling of a panchayat on that occasion. However, wife's father has admitted that Jagan-nath P. W. 5 had visited them at the time of the death of his mother-in-law. He also admitted that Balu Singh, father of the husband and their relatives also came at the time of his mother-in-law's death and at that time the wife Smt. Shanti Devi was also there. Shaitan Singh, stated that he asked his daughter's in-laws as to why they were not taking her. But Jagannath P. W. 5 has disclosed a different story in respect thereof. He stated that although Govind Singh was willing to take back the wife, yet her father, Shaitan Singh did not say that he was prepared to send his daughter. The witness also stated that he tried for reconciliation between the parties and suggested to both the parties that the wife should return to the matrimonial home. But neither Balu Singh nor Shailan Singh gave any reply.
16. 'Desertion' within the meaning of the provisions of the Act means the desertion of one spouse by the other spouse without reasonable cause and without the consent of or against the wishes of the deserted spouse, or the wilful neglect of the deserted spouse by the other party to the marriage. For constituting 'desertion', two essential conditions musl be fulfilled namely: (1) the factum of separation, and (2) the intention to bring cohabi-tation permanently to an end. Thus, the 'animus deserendi' is absolutely essential to constitute 'desertion', as a ground for obtaining a decree for dissolution of marriage by divorce. There must be a determination to put an end to the marital relationship and, mere absence, howsoever long, from the marital home does not necessarily cause an end of marital relationship.
If one spouse left the matrimonial home, it is a matter of inference to be drawn from the facts and circumstances of each case as to whether there was an intention on the part of the deserting spouse to put an end to the marital relations. If in fact, there has been a separation between the parties to a marriage, then the acts, conduct and expression of intention, both anterior and subsequent to the actual act of separation, would be relevant for the purpose of determination as to whether there was an intention On the part of the deserting spouse of permanently leaving the marital home, with no intention of returning back.
11. The emphasis of the learned counsel for the appellant is that the mere fact that the wife left the matrimonial home could not amount to desertion unless both the essential conditions, namely, the factum of separation and the intention to bring cohabitation permanently to an end are established. There is no doubt that quality of permanence in the intention to leave the matrimonial home is one of the essential elements which differentiates desertion from wilful separation. If there is a temporary separation without any intention of permanently leaving the marital home, then the conduct of the spouse in such a case does not amount to desertion.
12. In Halsbury's Laws of England, (Fourth Edition) Vol. 13, the legal post-tion has been summarised in para 576 at page 284 as under :--
'In its essence desertion means the intentional, permanent forsaking and abandonment of one spouse by the other without that other's consent and without leasonafale cause. It is a total repudiation cf the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the court has discouraged attempts at defining desertion, 'here being no general principle applicable to all cases.
Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state, the state of things may usually be termed, for short, 'the home'. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated.
The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.
Consensual divorce is available in certain circumstances but consent to separation is not the same as consent to divorce and, if there is consent to separation, there is no desertion.''
13. Thus, it is apparent that merely living apart or separalion for mere than the statutory period by itself may not amount to desertion, because such separation may be caused on account of variety of reasons. It may arise out or the fact that one spouse may be living at a distant place on account of employment of exigencies of business or the spouses may be living apart by agreement or consent. Therefore, to constitute desertion there must exist both, the factum of separation as well as the intention to bring cohabilation permanently to an end, which is many times called animus deserendi; and both these factors must continue to exist throughout the statutory period for establishing irretrievable breakdown of marriage, founded on 'he ground of desertion for a conti-nuous period of two years. It is also not necessary that both the factors may start to exist at the same time. At the time when the wife lefl the husband's home, it is not necessary that she should have the 'animus desereudi'.
But if the parties to a marriage are living separately and if the animus supervenes, desertion will begin from that very moment. In such a case, it is not necessary that change of mind should be communicated to the other spouse. However, animus is a matter of inference to he drawn from the facts and circumstances and from the conduct and expressions of the parties. Where in fact there has been a separation, the essential question always is whether the act of separation could be attributed to an 'animus deserendi', because desertion would commence when the fact of sepa-ration and the 'animus deserendi' coexist, but while living separately if the diverting spouse decides within the statutory period to go back to the matrimonial home or makes a bona fide offer to the other spouse to resume cohabitation with all the obligations of marital life then the desertion would come to an end.
14. It is well settled that in the proceedings for divorce on the ground of desertion the petitioner must prove by the evidence the allegation about desertion, like any other matrimonial offence, beyond reasonable doubt. It has also been said that the petitioner should be able to show that he or she was all along willing to fulfil the marital obli-gations and that the desertion was against his or her will and continued assuch throughout the statutory period. But in practice it has been accepted that once desertion has started by the fault of the deserting spouse, it is no longer necessary for the deserted spouse to show that during the two years preceding the filing of the petition, he or she wanted the other spouse to come back, because the intention to desert may be presumed to continue, although such presumption may be rebutted. In paragraph 583 of Halsbury's Laws of England Vol. 13, it has been observed as under:--
'The mere act of one spouse leaving the matrimonial home in general makes it easy to infer that the departing spouse intended to bring the matrimonial consortium to an end.....The court mustbe satisfied on the evidence that desertion is proved. This appears to mean that desertion like other facts constituting irretrievable breakdown of marriage must be proved by a preponderance of probability, the degree of probability depending upon the subject-matter.'
15. Moreover desertion can be inferred not by a mere single act but by a series of acts. The intention may be inferred if the circumstances are such as to justify the inference. Ordinarily, a man must know the probable consequences of his act.
16. Pollock, M. R. in Bowron v. Bowron (1925) p. 189 at p. 192 observed that the party, who intends to bring the cohabitation to an end and whose conduct in reality causes its termination, commits the act of desertion.
17. In Bipin Chandra Jaisinghbai Shah v. Prabhavati, AIR 1957 SC 176 it was observed by their Lordships of the Supreme Court as under (at p. 190):--
'It is true that once it is found that one of the spouses has been in desertion, the presumption is that the desertion has continued and that it is not necessary for the deserted spouse actually to take steps to bring the deserting spouse back to the matrimonial home.'
In the present case, the plaintiff has alleged, that the father of the defendant had taken her away in August, 1969 on the pretext that there was a marriage in his family and that since then the wife has not returned to the matrimonial home. It has also been stated that the husband and his brother thereafter went to bring back the defendant appellant but she failed to return. Further thatin the year 1974 after the death of wife's maternal grandmother the members of the families of the husband and wife gathered together and the husband, was willing to take back the wife but the father of the wife did not send her. On the basis of these facts that the husband and wife are living separately since August, 1969 and the wife has refused to return back to the matrimonial home. It has been urged on behalf of the husband that the intention of permanently leaving the matrimonial home and the intention to bring the cohabitation to an end must be inferred.
18. If the wife went with her father in August 1969, as is admitted in para 3 of the written statement, and her returning back to the matrimonial home or her visiting the matrimonial home on various occasions up to the year 1975 has not been established by the evidence on record and the story about the husband's turning her out from his house in January, 1976 also appears to be unfounded, then there is apparently no reason why the wife should not have returned to the matrimonial home. Moreover, as has been held by the trial court, at the time of the death of wife's maternal grandmother the families of the husband and wife gathered together and there P. W. 5 Jagannath suggested to both the parties that the wife should return to the matrimonial home and the petitioner was willing to take her back home, but the father of the wife did not express his willingness to send her.
The story put forward by the wife that she was turned out by the husband in the year 1976 from his house cannot be accepted as there are material discrepancies in the statements of the witnesses produced on her behalf. Some of her witnesses have said that she was turned out from village Palasani while she herself stated that she was turned out from Pokaran Bungalow at Jodhpur. In these circumstances, the inference is irresistible that she had permanently left the matrimonial home with the intention of never resuming the marital relations. No reason has been assigned by the wife or her father as to why she did not return to the matrimonial home. On the other hand, she has put forward the story which has been found to be false, that she used to visit her in-laws' place of and on, although the husband never resided in the village but he resided at Jodhpur, being in employment there.
19. Learned counsel for the appellant then argued that there was nothing on the record to show that the husband or any other person on his behalf had gone to bring the wife. It was stated by Govindsingh that he and his brother went in the year 1969 to bring the wife back from her father's place but she did not return. If the husband had gone once to the wife's place and she failed to return to the matrimonial home in spite of her entreaties then from this conduct On the part of the wife it could be fairly presumed that she did not intend to return to the matrimonial home and did not thereafter intend to resume the marital relationship. In the present case it may be true that at the time when the wife had gone along with her father from the matrimonial home in August 1969, she might not have the necessary 'animus deserendi', but later in that very year, after about two months, Govind Singh and his brother went to bring the wife back, but she did not return to the matrimonial home. Thus, the necessary animus appears to have developed during the intervening period of her living Separately in her father's house and the same was made apparent by her conduct in refusing to return to the matrimonial home in spite of her husband's going to her father's place with the intention of bringing her back to the matrimonial home. If thereafter the wife did not re-turn to the matrimonial home for several years, it can reasonably be inferred that the desertion continued, both in fact as well as with the necessary intention of not resuming cohabitation.
This intention is further re-empnasised by the fact that in the year 1974-75, at the time of the death of the wife's maternal grandmother, a further attempt was made on behalf of the husband and his relation to persuade the wife and her father, so that she could return to the matrimonial home. A panchayat was held on that occasion, in the sense that the members of the two families gathered together along with their common relations, including P. W. 5 Jagannath. It is not disputed even by the wife's father, Shaitansingh that Jagannath P. W. 5 had visited her mother-in-law's place scon after her death. According to Jagannath, he has suggested to the wife's father that he should send her daughter, but the father did not do so. In cross-examination, Jagannath P. W. 5 also stated that Govindsingh was prepared to take backthe wife, who was also present on that occasion, but the wife did not return to the matrimonial home even thereafter. Thus, if there could be any doubt about the existence of the necessary animus deserendi earlier, then the existence of the same was necessarily confirmed from the time when a further attempt was made to persuade the wife by calling the so called panchayat and, her father so as to facilitate the return of the wife to the matrimonial home. But that attempt also failed and the wife did not come back to the husband and join him in the matrimonial home.
20. The argument of the learned counsel for the appellant in this respect is that it was not the wife but her father who is said to have refused to send his daughter to her in-laws' place, but no such intention has been attributed to the wife. In this connection it may be pointed out that two attempts were made, one in the year 1969 and then again in the year 1974-75, on the part of the deserted spouse and the members of his family to bring the deserting spouse back to the matrimonial home. Both the attempts failed on account of the uncompromising attitude adopted by the wife's father. How could it be held that the wife did not share the intention of her father that she should not return to the matrimonial home at any time? Although the wife might not have said anything either when the husband and his brother went to fetch her in the latter part of the year 1969 and at the time when the so-called panchayat was held in the year 1974-75, but her conduct in not returning to the matrimonial home even thereafter is sufficient to give rise to the necessary inference that she did not intend to resume cohabitation or to return to the matrimonial home for that purpose.
It was open to the wife to send a letter or even a message to the husband that in spite of her father's refusal to send her, she was willing to return to the matrimonial home. She could have at least indicated her intention of returning to the matrimonial home or could have asked him to take her. On the other hand she failed to accompany the husband when he went to her father's place in the year 1969 to bring her back and again failed to express her intention of returning to the matrimonial home at the time of her maternal grandmother's death when the families of boththe two parties had gathered together and an attempt was made to sort out the problem. No evidence has been produced on behalf of the wife in this respect. The father of the wife rather showed his ignorance and, stated that he did not know as to why the husband and wife were not living together.
21. As a matter of fact, the case which was developed on behalf of the wife was that she was turned out from the matrimonial home by the husband in the year 1976 and as such there was no question of her returning back to the matrimonial home, as it was the husband who was responsible for constructive desertion. As observed earlier, the story about turning out the wife from the matrimonial home has not been established. In the written statement it was stated that the wife was turned out by the husband from his house in January 1976, but in her statement as N. P. W. 4 Smt. Shanti Devi stated that she was turned, cut' by the husband from Pokaran bungalow. She also stated that she did not know the reason why her husband did not desire to keep her with him. Her father also stated that he did not know as to why the husband and wife were not living together. It is surprising that the wife did not take any action even after she is alleged to have been turned out by the husband from his house. Neither any notice was given nor any claim for maintenance was advanced nor any effort in any other manner appears to have been made by the wife or her father either for reconciliation or for asserting her rights. The aforesaid conduct on the part of the wife is sufficient to disbelieve the story advanced by her about turning her out by the husband from his house.
22. To establish the factum of desertion is rather simple, as the act of the absconding party leaving the matrimonial home can be easily proved. But in most of the cases where divorce is sought on the ground of desertion, the contest is almost mainly on animus as in the present case, and what has to be peen is whether the intention of the party leaving the matrimonial home is to bring cohabitation permanently to an end for good or something short of it. But in this respect the inference is to be drawn largely from the conduct of the parties. As observed by their Lordships of the Supreme Court in Dr. N. G. Dastane v. Mrs. S. Dastane AIR 1975 SC1534 the normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. As a prudent man and so the cour' applies this test that if on weighing the various probabilities the preponderance is found in favour of the existence of a particular fact, then the fact may be held to be established.
23. The main basis of the contention of the learned counsel for the appellant has been the decision of their Lordships of the Supreme Court in Lachman Utamchand Kriplani's case (AIR 1964 SC 40) wherein it was held that the burden of proving desertion, the factum as well as the 'animus deserendi' is on the petitioner and it is for him to establish beyond reasonable doubt, to the satisfaction of the court, that the desertion, continued during the entire period of two years before the petition and also that such desertion was without just cause. It was argued on that basis that even if the wife is held to be the deserting spouse, it is not for her to prove just cause for her separate living but it was for the petitioner husband to satisfy the court that the desertion was without just cause and without the consent of the petitioner. In that case AIR 1964 SC 40 it was observed as under (at p. 49) :--
'Once desertion, as defined earlier, is established there is no obligation on the deserted husband (taking the case where he is the deserted spouse) to appeal to the deserting spouse to change her mind, and the circumstances that the deserted husband makes no effort to take steps to effect a reconciliation with the wife does not debar him from obtaining the relief of judicial separation, for once desertion is proved the deserting spouse, so long as she evinces no sincere intention to effect a reconciliation and return to the matrimonial home, is presumed to continue in desertion .....Or again, if before the end of the period of two years or the filing of the petition his or her conduct is such as to provide a just cause for the deserting spouse for not resuming cohabitation, the petition cannot succeed, for the petitioner would have to establish that the desertion was without just cause during the entire period.'
24. In Smt. Kako v. Ajit Singh AIR 1960 Punj 328, it was held that Kako (the wife) without just cause left the matrimonial home and ID spite of theefforts made by Ajit Singh (the husband) and his parents, she never returned to it. It was held that it was the wife who left the house of her husband and if the evidence of beating was disbelieved, then it must be held that there was no reasonable cause for her so doing. It was also observed that it was reasonable to deduce from these circumstances that the intention of Kako was to permanently leave the husband. The learned Judge of the Punjab High Court observed as Under (at p. 330) :--
'The claim of the plaintiff could only have been defeated if he had been guilty of constructive desertion which could have been proved by his own conduct in compelling his wife to have taken the course which she adopted. Neither the iactum nor the animus in support of such an assertion has been established,. The wife has been living apart from her husband of her own choice and her conduct is attracted by the principle laid down by Lord Penzance in Fitzgerald v. Fitzgerald, (1869) 1 P and D 694 cited in Pulford v. Pulford, 1923 P. 18, that 'desertion' means abandonment, and, implies an active withdrawal from a cohabitation that exists.'
25. In Vimla Sharma v. Satya Kam Sharma 1977 Mat LR 245 a learned Judge of the Delhi High Court held that desertion is a matter of inference to be drawn from the facts and circumstances of each case and that desertion commences when the facts of separation and the animus deserendi co-exist The learned Judge of the Delhi High Court observed in that case that once the desertion is established there is no obligation on the deserted spouse to appeal to the deserting spouse to change her or his mind and the circumstance that the deserted spouse makes no efforts to take steps to effect a reconciliation with the deserting spouse does not debar the deserted, spouse from obtaining the relief of judicial separation after the end of the statutory period of two years. It was observed in that case that there was no statement by the wife that they have ever cohabited together within two years immediately before the filing of the petition and that it was clear from the evidence that the wife was living with her parents in their house against the wishes and without the consent of the husband.
26. In Ramesh Kumar Gambhir v. Sudesh Gambhir 1978 Mat LR 279(Delhi), it was held that the spouse who has withdrawn from the society of the other spouse is to prove that there is reasonable excuse for such withdrawal It was held in that case that from the evidence it appeared that neither partly is coming out with the true reason for the separation between the appellant and the respondent, while according to the appellant in spite of his efforts the respondent has not come back to the matrimonial home and it was for her to show reasonable excuse for staying away from it. In that case, the husband averred that he had made several efforts to get back his wife, while the wife said that he never met her to fetch her from her parents house and she was willing to go and live with her husband without any reservation. The learned Judge of the Delhi High Court held that in such a case there was 110 serious allegations and yet there has been prolonged separation, the case could be decidted only on probabilities. If the wife went away with her father, as alleged by the husband, then she would not be justified in staying away and demanding that the husband should fetch her. Although the burden of proving his case was undoubtedly on the husband originally, yet if he was not at fault then the burden would shift and the wife shall have to show reasonable excuse for staying away.
27. In Madan Mohan Behl v. Vinay Behl 1978 Mat LR 194 a learned Judge of the Delhi High Court held that the marriage between the young couple has obviously gone on the rocks and it would serve no useful purpose at this stage in trying to apportion the blame between the two. What has to be found is whether there was 'animus deserendi' in the wife when she left the matrimonial home or whether the intention or this thought came up at any subsequent point of time in her mind and two years have elapsed since then. Learned Judge found that the wife had left the husband of her own and the condition which was imposed by her to live with her husband was not only unreasonable but impractical. The husband was employed in Delhi and he could not be expected to leave his job and try to win back the affection and confidence of his wife in her parent's house at Aligarh. Putting such a condition only showed that for good reason or bad, the wife was not prepared to live with the husband. Thus, applying the test of probabilities, the learned Judgecame to the conclusion that desertion without just cause stood established.
28. In Umesh Kapoor v. Smt Shakuntala Kapoor 1979 Mat LR 116 a learned Judge of the Delhi High Court held that the onus to prove desertion is on the husband. To discharge that burden he relied on the fact that he asked the wife 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 reasonable cause for her for not joining the husband at the place of his business. All that the wife said in her evidence in that case was that she was still ready and prepared to live with the husband even by resigning her job. The learned Judge held that such a statement at the trial could, not be of any avail to the wife; who has proved to have deserted the husband for more than two years before the filing of the petition.
29. In Atmaram v. Narbada Devi 1980 Mat LR. 63 : (AIR 1980 Raj 35) it was held that in a petition filed after 6'/2 years after the date of separation, relief could not be denied on the ground of delay, as incessant efforts were made for amicable settlement and the petition was filed as a last resort, when the withdrawal from the society of the wife by the husband was proved, the burden was on the husband to show that there was reasonable excuse for such withdrawal from the society of the wife and if the same is found to be without any just and reasonable cause, the petition for divorce could be maintained on the ground of desertion.
30. In Jivubai v. Nigappa Adrishappa Yadwad AIR 1963 Mys 3, it was held that animus deserendi i.e. the intention to bring cohabitation permanently to an end, without the consent of the other party should normally be gathered from the circumstances of the case and in particular from the conduct of the party against whom desertion is alleged. In that case, the wife went to her father's house with the knowledge and consent of the husband and at one stage she desired to join her husband, but later on she deliberately stayed away in spite of the fact that the husband offered to take her back and more than two years elapsed since she so stayed away. In such circumstances, it was held that the requisite intention is borne out from the conduct of the wife, inasmuch as she deliberately stayed away and failed to respond to theoffer of the husband to take her back.
31. In Smt. Ambujam v. T. S. Rama-swamy AIR 1973 Delhi 46 it was held that the evidence on record showed that in spite of the wife's repeated pleadings with the husband to take her back on any terms or at any cost, he completely neglected her and that by the course of conduct the husband was guilty of desertion. After pleading with the husband for such a long time to take her back, the wife reached a stage when she became convinced that there was no point in further pleading with him and so she thought that she must obtain separation, so that she may live at peace.
32. In Mst. Daljit Kaur v. Balwant Singh 1981 WLN (UC) 230 it was held that the wife left the house of the husband on her own accord and was not driven out by the husband, who was always willing and wanted to live with her, but she refused to return to the matrimonial home. It was also held that there was no reasonable excuse for the wife to live separately from the husband. In such circumstances, it was held that desertion was proved as it was a matter to be decided on the basis of inference to be drawn from the facts and circumstances of each case.
33. Applying the principles laid down in the aforesaid decisions, it is clear that the question which is to be determined in such a case is as to whether the deserting spouse has a reasonable excuse for withdrawing from the company of the other spouse or for remaining apart and the corresponding question is as to whether desertion without any excuse has continued for the statutory period.
34. It is admitted by the wife in her written statement that in August 1969 she left her in-laws' house with her father on the ground that there was a marriage in the family. The case set up by the wife that she used to visit her in-laws' house thereafter up to the year 1975 has not been believed by the trial court and I have also considered the evidence on record and have held above that the story set up by the wife does not appear to be believable. It is also difficult to believe the version given by the wife that she was thrown away by the husband from his house in the year 1975 or in January 1975, when it is so apparent that she was living separately from the husband, even prior thereto and the so-called panchayat was held in the year 1971 between the relations of thehusband and the wife and she did not even thereafter go to the husband's house. The argument of the learned counsel for the appellant that if the father of the appellant did not send her, the conduct of the father could not be attributed to the appellant, is also not acceptable. As I have already observed above, at no point of time since the wife left her husband's house in August 1969, she ever expressed or conveyed any intention or desire on her part to rejoin the matrimonial home. It is also evident that even the husband and his brother went to bring the wife after two months in the year 1969, but the wife did not return to the husband's house. Even at the so-called Panchayat, Jagannath P. W. 5 has stated that he tried to persuade both the parties and suggested that the wife should return to her in-laws' house and join the husband and that Govind Singh was prepared to take the wife back but even thereafter the wife did not return to the husband's house. It is not the case of the wife that she ever conveyed any message or intimation to the husband at any time about her alleged willingness or intention to return to the matrimonial home. The fact that after going back from the husband's house in August 1969 on the pretext of some marriage in the family the wife never returned, or agreed to return to the matrimonial home in spite of the husband's request to her and her father in this respect.
35. Learned counsel for the appellant then argued that it was only once that the husband went to fetch the wife. It may be observed that it was not at all necessary for the husband to make repeated attempts to bring the wife back and the record shows that not only the husband went once to fetch the wife along with his brother in the year 1969, but another attempt was made in the year 1974-75 for the purpose of facilitating the wife's return to her matrimonial home, when the families of both the parties had assembled on the occasion of the death of the wife's maternal grandmother. Thus, it is apparent from the record that the wife kept herself away from performing her matrimonial duties without any reasonable excuse and against the wishes of the husband. From the conduct of the wife in not returning to the matrimonial home since August 1969 for a considerably long period and even her failure to express any willingness or intention on her partto return to the matrimonial home goes to show that her intention was to bring cohabitation permanently to an end. In the present case, animus deserendi is a matter of inference from the conduct of the wife since she left the husband's house. The requisite animus appears to be well established and no reason has been assigned, by the wife for living separately. The story that she was turn-ed out by the husband from his house having been disbelieved, there does not appear any plausible reason at all for the wife to have kept away from the matrimonial home for a long period of over 9 years since 1969, till the time the divorce petition was filed in November 1978.
36. Another argument which was advanced by the learned counsel for the appellant was that as unnecessary and improper delay was caused in filing the petition, this court should refuse to grant any relief to the petitioner. In this connection, reference has been made to the provisions of Clause (d) of Sub-section (1) of Section 23 of the Act, wherein it has been provided that if the Court is satisfied that there has not been any unnecessary and improper delay in instituting the proceedings, the court shall decree such relief as may be found to be established. Learned counsel for the appellant contended that the wife having left the husband's place in August 1969 there was no reason for the husband to wait for 9 years before proceeding to file the petition for dissolution of marriage by a decree for divorce on the ground of desertion and that the abnormal delay which was caused in filing the petition should be sufficient to refuse the relief sought for by the husband. It may be pointed out in this connection that it is not apparent from the record that there was any intention on the part of the wife to bring cohabitation permanently to an end when she left the husband's place in August 1969.
At that time a pretext was advanced that there was a marriage in the family of the wife. The intention only became apparent when the later in that year the husband and his brother went to fetch the wife and she did not return to the matrimonial home. Still the husband waited for sometime hoping that good sense may prevail with the wife and she may be willing after lapse of sometime to return to the matrimonial home. An-other attempt was, therefore, made inthe year 1974 or thereabout at the lime of the death of the wile's maternal grandmother, when the families of both the parties assembled and an attempt was made to sort out the differences, so as to bring the wife back to the matrimonial home. According to Jagannath P. W. 5, Govind Singh, the husband, was then prepared to take back the wife to her matrimonial home but even thereafter she did not return. Thereafter it became imperative for the husband to bring forward the petition for divorce as there was no alternative. In these circumstances, it cannot be said that there was any unnecessary or improper delay in filing the petition for divorce which could prove to be fatal.
37. In Anil Jayantilal Vyas v. Sudhaben AIR 1978 Guj 74 it was held that the conduct in applying Section 23(1) must be viewed in the broader aspect for advancing the legislative intent
38. In Atmaram's case (AIR 1980 Raj 35} referred to above, it was Held that mere delay of 6 1/2 years in filing the petition for divorce from the date of separation, was itself not enough to deny the relief to the petitioner because after-all the petition was filed, as the last resort when all attempts for an amicable settlement did not bear any fruit.
39. In Smt. Angoori Devi v. Balkishan 1976 WLN (UC) 367 a learned Judge of this Court held that mere delay is not sufficient to throw out a petition for divorce, when there are satisfactory explanations as to why the petition was filed after a considerable delay. In that case, desertion took place in March, 1963 and the petition for divorce was filed on December 5, 1970. The delay becomes material only when it remains unexplained and further the delay must be unnecessary or unreasonable. If the husband hopes that the wife may see reason and return to the matrimonial home, after living for sometime with her parents, it cannot be held that he waited for unreasonable time while he himself made repeated efforts to create an atmosphere to facilitate the return of the wife, by making the members of both the families to assemble together and consider the question of her return. These circumstances should have been sufficient to persuade the wife to return to the matrimonial home and join her husband, but she persisted in the act of desertion, without any reasonable cause. There is thus no basis for refusing appropriate relief to the husband in the present case. Neither the wife nor her father has given any valid reason as to why the wife dad not return to her husband's place, it cannot be, held that there was any reasonable excuse for the wife for keeping away from the company of her husband for a period of more than 2 years prior to the institution of the petition.
40. In the result, I hold that the appeal has no merit and the same deserves to be dismissed, consequently the appeal is dismissed. But the parties are left to bear their own costs of this appeal.