1. This is an appeal by the petitioner in the court below who applied under Section 10(1) of the Hindu Marriage Act, XXV of 1955, for a decree for judicial separation from his wife (respondent) on the ground of desertion by her for the previous six years. The broad facts are simple, and undisputed for the most part, they are as follows :
2. The parties were married in March 1934, and till about 1950, that is for a period of nearly 16 years, they appear to have led an amicable and happy married life. They had two daughters and a son born of this marriage. Subsequently, differences undoubtedly arose between them and the wife instituted a suit, O. S. No. 260 of 1956, (or a decree for separate maintenance On the ground that the husband (appellant) brought into the house a girl Pankajammal whom he kept openly as his mistress, and also that he physically ill-treated the wife and drove her out of the house.
The wife claimed maintenance at the rate of Rs. 30 per mensem together with a sum for clothing and arrears of maintenance for a period of two years prior to her suit, with a charge on the properties. It was after this suit became ready for trial that the petitioner (appellant) filed, O. P. No. 97 of 1956 in the District Court under Section 10(1)(a) of Act, XXV of 1955. Ultimately, both the proceedings were tried together by the learned Subordinate Judge of Tiruchirapalli, as indisputably that was the course moat convenient to parties, and most consistent with the interests of justice,
3. It is not necessary to go into the minute particulars of the oral and documentary evidence. The learned Subordinate Judge has dealt with all the facts of the record in a lengthy order, in which he has analysed the oral evidence and the probabilities. In paragraph 9 of his judgment the learned Subordinate Judge refers to the fact that the petitioner (appellant) charged the wife with immoral conduct and adultery. But later he was compelled to concede that these allegations were unfounded, and he was unable to bring forward a single specific averment relating to the alleged misconduct of the wife.
On the contrary, the wife was able to prove that the petitioner did bring into the house one Pankajammal, whom he openly kept as his concubine or mistress, who belonged to a different community from that of the parties. The wile was also able to prove that she was cruelly treated, beaten and driven out of the house. I need not point out that even making such unfounded allegations of adultery against a chaste wife would certainly amount to cruelty under the law. The learned Judge, therefore, held that the respondent (wife) was entitled to separate maintenance in her suit, and he gave her a decree therefor, with the particulars of which we are not concerned. In the petition of the appellant, the learned Judge held that the appellant was not entitled to any relief under Section 10(1)(a) of the Act, since the alleged desertion was not proved.
4. When this appeal was first argued before me, I found that the respondent (wife) was unrepresented in the appeal. Later, at the instance of the court, Sri Amjad Nainar has appeared as amicus curiae for the wife, and I have had the benefit of full arguments on behalf of both sides, upon the facts and probabilities of the record. I may briefly state that, as far as the findings of fact are concerned. I see no justification to differ from the appreciation of the evidence, by the learned Subordinate Judge.
We may therefore take it as established that it was the husband (appellant) who was guilty of cruelty and of openly keeping a mistress in the house, so that the wife was compelled to leave the house. This entitled her to the decree for separate maintenance granted in the suit, the merits of which are not really now before me. Since the wife did not desert the husband without reasonable cause for a continuous period of not less than two years before his petition, the husband was not entitled to judicial separation under Section 10(1)(a) of the Act.
5. But the matter docs not merely end there, for the circumstances themselves reveal a possible lacuna in the Act, and a difficulty in applying it to situation like the present. I do not propose to go into the extensive case law upon the subject of desertion, but we may take it that the principles are well settled. Section 10(1)(a) itself has to be read with the explanation to Section 10 upon the topic of desertion winch specifies that 'the expression 'desertion' with its grammatical variations and cognate expressions means the desertion of the petitioner by the other party to the 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'.
6. In the Supreme Court decision in B.J. Shah v. Prabhavati, : 1SCR838 , their Lordships of the Supreme Court referred with approbation to the exposition of the concept of desertion in Halsbury's Laws of England, 3rd Edn. 12, in paras 453 and 454. In brief, desertion means ''the intentional permanent forsaking and abandonment of one spouse by the other without the other's consent, and without reasonable cause.'
It is important to note that as observed by Sir Henry Duke in Pulford v. Pulford, (1923) 92 LJP 14 : 128 LT 258, 'Desertion is not a withdrawal from a place but from a state of things'. In the present case, the difficulty is not to apply the concept to the facts, and to come to a conclusion. The sole conclusion upon the. facts must be that there was no desertion of the husband by the wife, because the husband was guilty of cruelty towards the wife, and also of compelling her to. leave him.
The difficulty is whether, in the indefinite future also, this state of things is to subsist between the parties, without any possibility of beneficial modification. This is all the more urgent in that courts, functioning as matrimonial courts, are there to support and to encourage the state of matrimony by an means, and not merely to acquiesce in or to support a stale of affairs in which the marriage is only in name, and its true purpose of connubial living is permanently frustrated :
7. My point is a simple one. It is perfectly possible that the present appellant, who seems keen on the benefits of matrimonial living, for apparently that has impelled him to file this appeal, might repent of his cruelty towards the wife and the open infidelity that he was then guilty of. If we assume for a moment that he so repents, and the repentence is genuine, nevertheless the wife may refuse to resume matrimonial living with the husband, on the ground that a court has held that she is entitled to separate living and to separate maintenance.
But, if this state of affairs is to continue indefinitely, the children may suffer; certainly, the interests of both the husband and wife with regard to matrimonial living may equally suffer. I think that, for such cases, a guarded but beneficent provision could have been introduced in Section 10 by which, if the husband gives notice to the wife that he desires to resume matrimonial living with her and assures her of kind treatment, and either the wife accepts this offer only to find that the husband continues in his old ways, or she flatly refuses to do so, the husband can at least apply for a decree for judicial separation, thus thereby constituting one of the grounds for such decree.
If the court is satisfied that the wife desires to cling to her decree for separate maintenance even after the husband has truly repented and is earnest to resume matrimonial living the court may then consider the grant of a decree for judicial separation in such cases, as under the present scheme of the Act, an enforcement of this judicial separation for a sufficient period by the conduct of the parties may be held to entitle the party obtaining the separation to seek for divorce (Section 13(viii)).
8. With these observations, the appeal, which fails on the merits, is dismissed. Under the circumstances, I direct that the parties shall bear their own costs. I must record the obligation of the court to Sri Amjad Nainar for his assistance as amicus curiae in the matter.