S.K. Mal Lodha, J.
1. This is an appeal under Section 28 of the Hindu Marriage Act (No. XXV of 1955) (for short the Act hereafter) by the husband, who was the petitioner, against the judgment and decree of the Additional District Judge, Sriganganagar dated March 22, 1979, by which he dismissed the husband's petition under Section 13 of the Act.
2. The marriage between the parties was solemnised according to the Hindu rites 12 years before the date of the presentation of the petition which was filed on January 13, 1977. The parties lived together as husband and wife for 10 years. Out of this wedlock, five children were born, four sons and one daughter. Two of the sons died. The remaining sons we are living with the wife while the daughter is living with the husband. It has been stated that in the months of November December, 1974, when the wife was to deliver 5th child, the wife's brother Maniram came and told him to send her. The wife was sent with him and since then, she has not returned to his house. In other words, the case of the husband is that the wife-respondent had withdrawn from his society for the last four years and since then, she has not returned to his house and living with her parents. The wife is said to have intiated proceedings for the grant of maintenance under Section 125, Cr. PC on December 12, 1974 on the ground that she has been turned out from the house as her parents had not given good dowry. The husband is said to have gone to bring her but she refused to come. The application filed under Section 125, Cr. PC. was contested by the husband. The Judicial Magistrate, by his order dated March 4, 1976, fixed Rs. 40/- per month as the amount of maintenance. The wife preferred a revision and the learned Additional District Judge enhanced the amount from Rs. 40/- p.m. to Rs. 80/- p. m. Thereafter, proceedings were initiated for the recovery of the arrears of maintenance. The averments have also been made that the husband had made the efforts to bring the wife, but she, without any reasonable cause, withdrawn herself from the society of the husband. The husband has filed the petition under Section 13 of the Act praying for the dissolution of the marriage by a decree of divorce on the ground of desertion by the wife for a continuous period of not less than two years immediately preceding the date of the presentation of the petition.
3. The wife contested the petition by filing a reply on May 4, 1978 Her case is that the husband had intentionally turned out the wife from the house some four years back and has contracted a second marriage with one Smt. Muni from whom the husband has begotten a son. She has also submitted a counter claim under Section 23A of the Act for the relief under Section 11 of the Act and has prayed that it may be declared that the husband's marriage with Smt. Muni was void. The learned District Judge made efforts for reconciliation between the parties, but they failed. The learned District Judge framed issues, which when translated into English, read as under :
(1) Whether the non-petitioner (wife has deserted the husband for more than two years against his wish and on this basis, the petitioner (husband) is entitled to obtain a decree under Section 13(1)(ib) of the Hindu Marriage Act, 1955.
(2) Whether the petitioner (husband) has contracted a second marriage with Mst. Munni, daughter of Bhadar resident of Maujgarh ?
(3) Whether the non-petitioner (wife) is entitled to get the marriage between her husband and Munni, declared void ?
(4) To what relief, the parties are entitled ?
The husband examined himself as PW 1 and Shree Lal PW 2 The wife examined herself as DW 1, Maniram DW 2, Laduram DW 3 and Surjaram DW 4. Issue No. 1 was decided against the husband. So far as issues No. 2 and 3 are concerned, the learned Additional District Judge was of the opinion that the declaration sought by the wife was uncalled for. In view of the finding on issue No. 1, the learned Additional District Judge dismissed the petition. Hence this appeal by the husband.
4. I have heard Mr. R.R. Vyas for the appellant and Mr. M.L. Garg for the respondent and have gone through the record of the case.
5. Learned counsel for the appellant has only challenged the finding on issue No. 1 before me. Explanation to Section 13(1) of the Act lays down that the expression 'desertion' means the desertion of the petitioner by the other party to marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage. It is clear from the aforesaid Explanation that the burden was on the husband to show that the wife has deserted him without reasonable cause and without his consent or against his wish. The essentials of desertion are: (1) the factum of seperation; (2) the intention to bring cohabitation permanently to an end; (3) absence of consent; and (4) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. In Bipin Chandra Shah v. Prabhavati (1) : 1SCR838 , it was observed as under:
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 inference; 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-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 deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has prescribed a three years period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus posnitentiate thus provided by law and decides to come back to the deserted spouse by a bonafide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lease of that period,unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former. 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.
It is settled law that the burden of proving desertion-the 'factum' as well as the 'animus deserdandi'--is on the petitioner and he or she has to establish beyond reasonable doubt, to the satisfaction of the Court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. In other words, even if the wife where she is the deserting spouse does not prove just cause for her living apart, the petitioner-husband has still to satisfy the Court that the desertion was without just cause.
These decisions were noticed by me in Devi Singh v. Sushila Devi (3) AIR 1980 SC 48, I had occasion to consider the aforesaid two decisions of the Supreme Court and Devi Singh's case (3), in Balwant Singh v. Mst. Raj Kaur S.B. Civil Misc. Appeal No. 99 of 1979, decided on November 26, 1980. Keeping in view the principles laid down in the aforesaid decisions in regard to desertion, I proceed to examine whether the husband has been successful in establishing that the wife has deserted him for a continuous period of two years immediately preceding the presentation of the petition. The relevant averments in this regard are contained in para 3 of the petition. The husband as PW 1 has stated that the wife had withdrawn from his society in the year 1974 but he could not say as to why the wife had left his house, that at her parent's residence, she gave a birth to a son, who exaired after two months; that on the death of the newly born son his father, Shivlal PW 3, Mohanlal, Mamanram, Maniram and Gopiram went to her husband's house and told her to return to the matrimonial home and that thereupon, her in-laws told that the wife would only be sent after the expenses (Kharcha) are paid. He has further stated that he himself had gone to bring her after 10 days, but she refused and told him that she would only accompany after the expenses (kharcha) are paid. In the cross-examination, he has stated that he has gone to bring her at her parents house but she did not come. Thereafter, his father and other persons went to bring her and the version that they had gone to express their condolences on the death of the son was wrongly stated by her but in fact they had gone to bring her. According to his father, he had gone there in order to bring the wife. Sheo Lal does not support him. He stated that he had gone to wife's home (her parents' home) with the father of the husband for condolence only. Sheolal is the neighbour of the husband. He has stated that he does not know whether or not the husband has contracted a second marriage with Mst. Munni. The husband, in para 3 of the petition, has said that the wife had left his company in November-December, 1974 and on December 12, 1974, she moved an application under Section 125, Cr. P.C. It has been admitted that he had been in jail twice for not paying the maintenance allowance to the wife. He also moved an application for restitution of conjugal rights but when he was asked to pay litigation expenses to the wife, he got the petition for restitution of conjugal rights, dismissed. These are the circumstances under which he has filed the present petition for dissolution of marriage by a decree of divorce. D.W. 1 Smt. Kesar has stated that she was turned out of the house of the husband and was given beating. After this, on being told of this to her mother and her brother Maniram had gone for Panchayat at her in-laws' house and there, her husband, father-in-law and mother-in-law told him that they will not keep her and that the husband will contract a second marriage. She has also stated that 1 1/2 years before the date of her deposition, her husband has contracted second marriage with the daughter of Bhadar of Maujgarh for which she has filed a complaint under Section 494, IPC. It is clear from her statement that after she was turned out from the house, the husband never made any efforts to take her back to his house. The statements of DW 1 Kesar stands supported by the testimony of her brother DW 2 Maniram. DW 2 Maniram has deposed that on being told about beating, he with his brother-in-law Tarachand Ladhuram Choudhary and Surjaram went to the husband's house and told as to why the wife, was being beaten and not kept. Thereupon, they were told that the husband would contract a second marriage. D.W. 3 Laduram has also stated that he along with Maniram and Surjaram went to the husband's house and, there they were told that the huspand would not keep her. A second marriage of the husband was performed. D.W. 4 Surjaram has stated that he along with others made efforts to persuade the husband to live with the wife but he declined. It is clear from the statement of D.W. 3 Laduram and D.W. 4 Surjaram that the husband had contracted a second marriage with Smt. Munni. D.W. 3 Laduram and D.W. 4 Surjaram have also stated that 1 1/2 years before the date of the deposition, the husband has contracted a second marriage and out of that wedlock, a son was born to them. The statements of D.W. 3 Laduram and D.W. 4 Surjaram were recorded on February 21, 1979. The burden of proving issue No. 1 was on the husband. The testimony of the husband on point of desertion, in view of his conduct as mentioned above, is hardly convincing. In view of the answer given by Sheolal PW 2, he cannot be believed. The learned Additional District Judge, was, in my opinion, right when he held that the evidence produced by the husband on the point of desertion is unreliable.
6. There was no bonafide attempt on the part of the husband to bring the wife to the matrimonial home. The husband has contracted second marriage and has been living with the second wife Smt. Munni and out of this wedlock, a son was born to them. This stands corroborated by the testimony of DW 2 Maniram, DW 3 Laduram and DW 4 Surjaram. No good reasons have been shown to disbelieve the statements of the wife's witnesses.
7. It was held in Rangaswami v. Arvindammal (4) : AIR1957Mad243 that the test by which the offence is judged is not the abandoning of the matrimonial home but the fact that the other party has caused such abandonment by his actions, since he must be taken to intend the consequences of such actions.
8. The husband is not entitled to the decree for divorce for additional reasons also. On December 12, 1974, the wife had made an application under Section 125, Cr. P.C. for the grant of maintenance. That application was allowed by the Judicial Magistrate, Sriganganagar on March 4, 1976 and Rs. 40/- per month was fixed as the amount of maintenance. The wife went in revision and the amount was enhanced from Rs. 40/- to Rs. 80/- by the learned Additional District Judge by his order dated September 8, 1976. As the husband failed to pay the arrears of maintenance, an order was made on January 7, 1977 for sending him to jail for one month. An application for restitution of conjugal rights was made under Section 9 of the Act. As the husband did not pay the litigation expenses, the same was dismissed two years before the date of the filing of the application. The present application, as stated above, was filed on January 13, 1977 for dissolution of marriage by a decree of divorce, which was, admittedly, filed after the finality of the order for grant of maintenance and after four years from the alleged desertion by the wife. If there was no reasonable excuse for the wife to abandon the husband, ordinarily the husband would have moved a petition for restitution of conjugal rights under Section 9 of the Act. On the facts of the case in hand, I am unhesitatingly of the opinion that the husband has not been able to establish animus deserendi on the part of the wife. As the desertion on the part of the wife has not been established as required by Section 13(1)(ib) of the Act, the learned Additional District Judge was right when he decided issue No, 1 against the husband.
9. A learned single Judge of the Punjab and Haryana High Court in Jasmelsingh v. Guran Kaur (5) , held that where there is an unnecessary or improper delay in applying for divorce under Section 13 of the Act, the petition is liable to be dismissed, even though the plea of delay is not raised in the written statement. It was observed as under:
The Court is not to be used as a place to which a party to a marrigae could come for redress whenever it suited him or her, having meanwhile he held the weapon of redress over the head of the other party to the marriage. The policy of the law is not to encourage utilization of a decree for restitution of conjugal rights for malafide purposes.
The learned Additional District Judge was also right when he observed that on the ground of delay also he would have felt disinclined to grant the relief prayed for. Even under Section 23(1) of the Act, the husband is not entitled to the dissolution of marriage by a decree of divorce on account of unnecessary and improper delay.
10. No other point survives for my consideration.
11. The result is that the appeal has no force and it is hereby dismissed with costs.