SC defines/explains desertion:
Meena Alias Mota vs Lachman Utamchand Kirpalani on 16/7/1959
JUDGMENT
Shah, J.
(1) In Matrimonial Petition No. 2129 of 1956 of the file of the Bombay City
Civil the learned Trial Judge passed a decree in favour of the petitioner for
judicial separation. Against that decree this appeal has been preferred.
(2) The petitioner and the opponent were married according to Hindu rites on
10th November 1946 at Hyderabad (Sind). At the time of his marriage, the
petitioner was residing as a member of a joint Hindu family with his parents,
brothers and sisters. After the marriage the opponent commenced living with
petitioner. On 19th July 1947, the opponent gave birth to a male child who was
named Ashok. In October 1947 the parties, on account of the Partition of India,
migrated to Bombay. As they were unable to obtain suitable accommodation in
Bombay, the petitioner took his mother, his sisters and one of his brothers as
also the opponent and the child Ashok to Ceylon and left them in the care of one
Narain - his maternal uncle. The petitioner and his mother stayed at Colombo for
some time an thereafter returned to Bombay. The opponent with her child Ashok,
however, continued to stay at Colombo. On 17th January 1948, the pponent left
Colombo with her son Ashok in company of one Khubchand - a cousin of hers - and
arrived on 21st of January 1948 at Lonavala, where her mother was residing.
Thereafter about the month of April 1948 the petitioner and his moher went to
Lonavala and brought the opponent from Lonavala to Bombay. Sometime in the month
of September 1948, the opponent came to Bombay and lived with the petitioner for
about three months, but in the month of December 1948, the opponent again left
for Poona to live with her father. At tat time, it is undisputed, the opponent
went to Poona with the consent of the petitioner. Sometime in the month of
February 1954. During this interval, it is undisputed that opponent visited her
parents at Poona occasionally, but on the frequecy of these there is dispute
between the parties. On 26th February 1954, the opponent left the Matrimonial
home and went to Poona and continued to reside with her prents till 7th July
1954. On the 7th July 1954, without informing the petitioner, the opponent left
for Hongkong where her father was conducting his business and till sometime in
the month of April 1956 she continued to live at different places such as
Hongkong, Singapore, Manila and Djakarta. On the 8th April 1956, the opponent
returned to Bombay and after some time she left for Kashmir. No attempt was made
on either side after the opponent returned to Bombay, to make a reapprochement
and the opponent even did not try to meet her minor son Ashok who was then about
nine years old and living with the petitioner. Thereafter on 20th September
1956, the petitioner filed a petition in the City Civil Court at Bombay for
judicial separation alleging that the opponent had deserted him for a continuous
period of not less than two years immediately before the presentation of the
petition, that the desertion was without reasonable cause and without the
consent and against the wish of the petitioner and that he - the petitioner -
was accordingly entitled to a decree for judicial separation.
(3) The petitioner's claim was resisted by the opponent. She contended that
she had left the matrimonial home on account of harassment from her parents-in-
law and also on account of the conduct of the petitioner, that after going to
Poona she accompanied her father to Hongkong, but she had at all material times
a desire to return to the matrimonial home which she could not put into effect
on account of her ill-health. She stated that after she returned to India the
petitioner had shown "gross and complete indifference" to her and that was why
she did not go to reside with him and that the rupture between her and the
petitioner was on account of the latter's refusal to live with her. She also
stated that during the time she was out of India the petitioner had made
"undignified allegations" against her in the correspondence stating that she was
living "a life of guilt and degradation." She submitted that in view of the
conduct of the petitioner and her intention evidenced by her conduct at all
material times to return to the matrimonial home and live with the petitioner, a
decree for judicial separation could not be passed against her.
(4) The learned trial Judge, in an elaborate judgment wherein he has dealt
with the incidents in the married life of the parties since the commencement and
has considered the material evidence and the arguments advanced before him, came
to the conclusion that for many years before she left the matrinonial home on
26th February 1954 the opponent entertained an animus deserendi, that when she
left the matrimonial home on 26th February 1954 she did so without the consent
of the petitioner, that she left India and failed to return ignoring the letters
and cables from the petitioner and that the protestations made by the opponent
in her letters and at the time of giving evidence that she was at all material
times ready and willing to live with the petitioner was not made bona fide. The
learned Judge was not willing, on points of conflicts between the testimony of
the petitioner and the testimony of the petitioner and the testimony of the
opponent, to accept the testimony of the opponent in preference to that of the
petitioner. Referring to the correspondence, on which reliance was placed on
behalf of the opponent, the learned Judge observed that the petitioner had not
chared the opponent with immoral conduct and, therefore, it was unnecessary to
consider whether the opponent was entitled to live apart from the petitioner on
that ground. He further observed that it was not even the case of the opponent
in her written statement that because she had been charged by the petitioner
with immoral conduct she was entitled to live apart from him and that the
petitioner was not entitled to a decree for judicial separation on that account.
Holding therefore, that there was no reasonable cause for the opponent to leave
the matrimonial home and to continue to remain away from the matrimonial home
for a continuous period of more than two years contrary to the expressed wishes
of the petitioner; the learned Judge passed a decree in favour of the petitioner
for judicial separation from the opponent.
(5) Section 10 of the Hindu Marriage Act, 1955 enables either party to a
marriage, whether solemnized before or after the commencement of the Act, to
present a petition praying for a decree for judicial separation on the ground
that the other party has deserted the petitioner for a continuous period of not
less than two years immediately preceding the presentation of the petition. By
the Explanation to sub-section (1) of section 10 of the Act the expression
"desertion" is defined to mean 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 to include the "wilful neglect of the petitioner by the
other party to the marriage". Mr. Jethmalani for the petitioner submits that by
this Explanation it was intended to extend what he calls the "traditional
connotation" of "desertion" of "wilful neglect of the petitioner by the other
party to the marriage" it was intended that animus deserendi, which is otherwise
an essential element of desertion, need not be proved by the petitioner before
qualifying for a decree for judicial separation. The submission is that if on
the part of either party to the marriage there has been wilful neglect to
perform the marital obligations, the Court will be justified in granting to the
aggrieved spouse a decree for judicial separation. By the Explanation to sub-
section (1) of section 10 within the connotation of the expression "desertion",
"wilful neglect of the petitioner by the other party to the marriage" is
undoutedly included; but on that account proof of the requisie animus to
establish desertion is in my judgment not dispensed with. Neglect to amount to
desertion must be wilful neglect of the other party to the marriage; i.e., there
must be a failure to perform the essential obligations of marriage. Conduct of a
spouse amount to wilful neglect must, in my judgment, be deliberate and
intentional failure to perform the obligations of married life indicative of a
total repudiation of the obligations of marriage. Mere neglect of opportunitie
of consorting or every indifference or want of proper solicitude for the other
spouse is not wilful neglect within the meaning of the Explanation. By the
Explanation the connotation of the expression "desertion" was somewhat extended
but thereby the basic concept of desertion, viz. intentional and permanent
abandonment of one spouse by the other without reasonable cause and without the
consent of such spouse, is not altered.
(6) The burden of proving desertion is upon the spouse who alleges desertion.
In a recent judgment of the Supreme Court, Bipinchandra Jaisingbhai Shah v.
Prabhavati, their Lordships
examined in detail the conditions which go to make "desertion" in the
matrimonial law. At page 850 of the Report (SCR): (at p. 182 of AIR), their
Lordships quoted with approval a passage from Halsbury's Laws of England (3rd
Edn.) Vol. 12, (pp. 242-243). It is necessary before dealing with the evidence
in this case to bear in mind with the evidence in the case to bear in mind the
following principles which have been set out by their Lordships of the Supreme
Court:
"In its essence desertion means the intentional permanent forsaking and
abandonment of one spouse by the other without that other's consent, and without
reasonable cause. It is total repudiation of 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, there 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' .........
The person who actually withdraws from cohabitation is not necessarily the
deserting party....
The offence of desertion is a course of conduct which exists independently
of its duration....... Desertion is a continuing offence."
(7) Their Lordships then observed:
"Thus the quality of permaence is one of the essential elements which
differentiates desertion from wilful separation. 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 the offence of desertion, so far as the deserting spouse is concerned, two
essential 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................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 sepaaration and the
animus deserendi concide 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."
It is evident, that in order to establish a plea of desertion there must be a
separation in fact between the two spouses and there must also be, on the part
of the desrting spouse, an intention to forsake or abandon the other spouse.
from the point ot time when it is claimed that desertion has commenced, the two
conditions must co-exist, though it is not necessary that when separation
commenced there must be the animus deserendi, i.e., the intention to forsake or
abandon the other spouse. This elaboration is necessary because Mr. Jethmalani
has strrenously contended that on 26th ebrouary 1954,when the opponent left the
petitioner, there was not only a separation of the two spouses in facd but there
was also on the part of the opponent the animus deserendi, and, therefore, the
desertion commenced on that date. Alternatively, as we understood Mr.
Jethmalani,he contended that the conduct of the opponent subsequent to 26th
February 1954 showed that she had entertained a desire to terminate cohabtiation
and the separation having taken place on 26th february 1954, the subsequent
intention entertained by the opponent enabled the petitioner to obtain a decree
for judicial separation. But it is not merely on proof of separation and the
existence of the requisite animus deseerendi that a decree for judicial,
separation will be passed. There must be two other elements on the co-existence
of which alone the deserted spouse will be entitled to a decree for judicial
separation; and those elements are (i) the absence of consent on the part of the
deserted spouse and (ii)the absence of conducdt on the part of the deserted
spouse giving reasonable cause to the spouse leaving the matrimonial home to
form the necessary intention.s
(8) We may now briefly set out the case of the respective parties. It ws the
case of the opponent that since the commencement of her married life she was
ill-treated in the petitioner's house because her mother-in -law was
dissatisfied with the dowry given by her parents and that at the instigation of
her mother-in-law even the petitioner illtreated her. She further alleged that
the petitioner had "little individuality of his own" and that he was, in his
relation and attitude towards her, guided by his mother and his sisters. On the
other hand, it was the case of the petitioner that the opponent was a daughter
ofa rich family accustomed to unorthodox ways of life and that she was given to
rinking, to ball-room dancing, to playing cards at stakes and to othrwise living
"a gay life", and having regard to the orthodox mode of living of the members of
his family the opponent found herself in an atmosphere which was not congenial
to her and, therefore, she could not adapt herself to the life lin his house and
was dissatisfied with her marriage with the petitioner. Says the petitioner, the
opponent was rude, insulting and indifferent in her behaviour towards himself
and his parents, that she did not pay any attention to his comforts or to the
comforts of the child and spent her days reading magazines and novels and
"lazily lying down" and that she used to go ot at any time of the day and absent
herself for hours from home without informing him or any other members of his
family and did diverse things deliberately to irritate him. He also alleged that
she used to insuit him and tell him tha he should mind his own business and that
in order to win the sympathy of the guests who visited his place she picked up
quarrels with him on petty grounds and shouted and wept before them. He also
stated that she had an aversion to s*xual intercourse because she did not desire
to be "burdened with another child".
(9) Evidently,in a matrimonial dispute, when the relations between the
spouses have become bitter, in their respective versions by the spouses there is
bound to be some exaggeration. It is, therefore, a settled rule of law that the
matrimonial offence must be established to the satisfaction of the Court beyond
reasonable doubt, and, though not as a matter of law, as a rule of prudence,
independent corroboration of thev version of the parties is sought. Such
corroboration, however, need not be of direct testimony; it may be obtained from
the conduct of the parties and the surrounding circumstances.
(The rest of the judgment of his Lordship is not material for reporting.)s
Desai, J.
(10) I agree with my learned brother that this appeal must succeed. I also
agree with him on the conclusions on facts reached by him and the reasons given
by him for the same. The evidence - and particularly the documentary evidence -
on the record of this case has been examined by him in some detail and I need
not reherse the same.
(11) A rather ingenious contention has been raised beofre us by Mr.
Jethmalani, learned Counsel for the petitioner, as to the essential ingredients
of the matrimonial offence of desertion, and I shall permit myself some
observations on the point. But before I do so I shall examine one or two other
legal submissions made by him. It was argued that the learned Judge below had
before him the evidence of a number of witnesses and had the opportunity of
watching their demeanour. It was said that having regard to all that oral
testimony before him he reached his findings of fact and this Court would not
readily disturb those findings. I wholly agree that this Court would not readily
disturb the findings of fact arrived at by the trial Court. It has often been
said, and I have myself said it on more than one occasion, that where a case
turns entirely on questions of fact and the credibility of witnesses, the Court
of appeal will hesitate a good deal before it disturbs the findings of the trial
Judge based on verbal testimony of conflicting withnesses whom he has seen and
heard. In such case, a heavy burden of necessity is thrown upon those who
challenge those findings. On the other hand as has so often been said, where
findings as regards facts have been drawn from argumentative inferences drawn
from the testimony - oral and documentary - and depend upon the weight of the
evidence, and the inherent probability of the story, and not merely on
credibility of witnesses induced by their demeanour or the manner in which they
answer questions, and where the documentary evidence has to be taken into
consideration and weighted, the trial Court is in no better position than the
Court of appeal in discovering the truth. Two principal reasons have weighed
with me in this case in deciding that this is one of those appeals in which the
ordinary practice followed by this Court should not apply. Firstly. I am
convinced that the approach of the learned trial Judge to this question of
desertion and that essential ingredient of it - animus deserendi - was
erroneous. After examining certain facts relating to the married life of the
spouses from the date of the marriage till 26th February 1954 - which he
undoubtedly was entitled to bear inmind and have on record for certain purposes
- he stated his conclusion as follows:-
"From the facts and circumstances aforesaid and from the acts and conduct
on the part of the respondent prior to the date of the actual act of separation,
I am of the opinion that there was animus deserendi on the part of the
respondent". Now, in the case before us, there was no dispute that separation
did exist. But th crucial question for the determination of the Court was
whether there co-existed with that separation the ingredient of animus deserendi
on the part of the opponent-wife. That animus deserendi could obviously not be
prior to the factum of separation. Animus deserendi may co-exist with the factum
of separation, or, as it happens in some cases, it may be subsequent to the
factum of separation. But it appears that the learned trial Judge misdirected
himself in law when he took the view that it was open to him to reach the
conclusion that the acts and conduct of the opponent prior to the date of the
actual act of separation could lead him directely to the determination of the
question relating to animus deserendi. Secondly, in this case it is not as if
the evidence consists of oral testimony alone. The oral testimony, I may
observe, is indeed very conflicting. When there is a mass of conflicting oral
testimony, it is always desirable - and indeed safe - to let the documents speak
for themselves; and in this case there is documentary evidence which throws a
flood of light on the vital question of animus deserendi. That documentary
evidence consists of certain correspondence which took place between the
contesting spouses. It has been carefully examined by my learned brother and I
have nothing to add to the observations made by him while examining that
evidence. I am in agreement with him on the interpretation and effect of that
correspondence.
(12) I may make one or two observations on the question of the standard of
proof required in matrimonial cases. It is a firmly established rule that the
ground for relief in a matrimonial cause should be strictly proved. The standard
of proof in cases arising under the Hindu Marriage act is that the Court must be
satisfied beyond reasonable doubt that the ground for relief is proved, and
normally the Court requires that the evidence of a spouse, who charges the other
spouse with a matrimonial offence, should be corroborated. This expression
'satisfied" is to be found in section 23(1) of the Act which deals with decree
in proceedings and contain some vital clauses of considerable importance and
consequences relating to the power and duty of the Court in the matter of
granting any of the reliefs recognised under Act. It is true that in some
decisions of Courts, both in England and in India, analogies have been drawn and
precedents of criminal law referred to;but it is now wholly recognised that the
standard of proof in matrimonial cases cannot be the same as required in
criminal cases. While such analogy is not permissible, the Court does, in
matrimonial causes, ordinarily require - not as a matter of law but as a rule of
prudence -that where possible satisfy the Court that the allegations made are
well-founded. It is in this sense that it is said that the ground for relief in
a matrimonial case should be strictleyt established. The oral evidence in the
case and the documentary evidence to which I prefer to attach greater importance
does show to my mind that the petitioner has failed to discharge the burden of
proof which rested on him
(13) It has been strenuously argued before us by learned Counsel for the
petitioner that we have to decide this question of desertion having regard to
the provisions of section 10(1)(a) of the Hindu Marriage Act, 1955, and the
explanation to that sub-section. I wholly agree that such is the position. It
will be convenient here to set out the relevant provisions of that section and
the explanation.
"Section 10(1) either party to a marriage, whether solemnized before or
afte the commencement of this Act, may present a petition to the district court
praying for a decree for judicial separation on the ground that the other party
(1) has deserted the petitioner for a continuous period of not less than two
years immediately preceding the presentation of the petition.
Explanation - In this section, the experssion 'desertion', with its
grammatical variations and cognate expressions, means the desertion of the
petitioner by the other party to the mariage 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.".
Argument of learned Counsel proceeded that the Explanation to sub-section (1)
of section 10 has widened the definition, described by Counsel as the
traditional definition, of "desertion". Sub-section (1) (a) of section 10 states
that a decree forjudicial separation may be granted inter alia on the ground
that the other party to the marriage has deserted the petitioner for a
continuous period of not less that two years immediately preceding the
presentation of tpetition. The explanation states that to amount to a
matrimonial offence, desertion must be without reasonable cause and without the
consent and against the wish of the petitioner and that wilful neglect of one
spouse by the other is desertiuon within the meaning of that section. It will be
seen that the meaning given is somewhat tautological but the explanation has the
merit of making it abundantly clear that the Legislature intended to give to the
expression "desertion" wide import which includes wilful neglect of the
petitioner by the other party to the marriage. So far, I fine myself in
agreement with the submission made by learned Counsel for the petitioner.
(14) But the argument ran that though ordinarily one of the essential
ingredients of desertion is animus desendi the position in law is different
where the matrimonial offence chargedis wilful negiect of te petitioner by the
other party to the marriage. In the latter case, it was urged, there need be no
proof whatever of animus deserndi. It was argued that this was te only manner in
which the explanation to sub-section (1) of section 10 could be read. That, it
was said, was the material language of the section. The aterial language of the
section has, of course, in these matters to be always borne in mind, for if a
court is prone too much to indulge in exposition and attempted definition, there
will be substituted for the language chosen by Parliament some other form of
words and in an attept at wide survey some essential factor be omitted or some
inessential factor be subtituted or added. This seems peculiarly applicable to
the matrimonial offences of desertion and cruelty, cases relating to which are
by far the most common of the matrimonial causes contested before the courts.
The circumstences vary infinitely from case to case and the modes of life
involved at times present sharp contrasts. The importance, therefore, of
satisfying the language of the section cannot be overstressed in a branch of the
law which has been preominently judge-mde. In view of the observations which I
have already made, I shall refer onlyto one decision on the subject in a case
which was carried to the Supreme Court. In their Lordships of the Supreme Court
made some general observation and summed up some important principles which
afford considerable guidance in deciding cases arising under the Hindu Marriage
Act. It was observed by their Lordships:
"Desertion is a matter of inference to be drawn from the facts and
circumstances of each case. The inference may be dawn 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 subsequentto
the actual acts of separation. If, in fact, there has been a separation,
essential question always is whether that act could be attributable to to an
animus deserendi. The offence of desertion commences when the fact of searation
and the animus deserendi co-exist. But it is not necessary that they should
commence at the same time. Te de facto separation may have commenced without the
necessary animus or it may be that the separation and the animus deserendi
coincide n point of time; for example, when the separating spouse abandons the
marital homke with the intention, express or implied of bringing co-habitation
permanenly to a close."
(15) To turn to the argument of Mr. Jethamalani, I am prepaed to read section
10(1)(a) and the Explanation to that sub-section as he asked me to do, as laying
down the rule, that silful neglect of the petitioner by the opponent without
reasonable cause and without the consent, or against the wish of the petitioner
for a continuous period of not less than two years immediately prefeding the
presentation of the petition is tantamount to desertion.
(16) When the allegation is desertion by wilful neglect, two requirements
must be satisfied: (I) the conduct must amount to neglct of the petitioner by
the opponent, and (ii) the conduct complained of must be silful. What is neglect
need not presen any difficulty, but difficulty sometimes arised in deterining
what neglect can be said to be wilful. The expression "wilful neglect" has not
been defined in the Act. An act or omission done by accident or inadvertence is
not wilful; nor is it on the other hand absolutely necessary in the present
context that to be wilful, the act or omission which constitutes neglect should
be deliberate and intentional. In the contedt of matrimonial law, wilful neglect
seems to me to mean that the person charged with it is consciously acting in a
reprehensible manner in the dscharge of his marital obligations or is
consciously failing in a reprehensible manner in the discharge of those
obligations; and connotes that degree of neglect which is shown by an abstention
from a obvious duty, attended by a knowledg of the likely results of the
abstention. Breach of every tie of marriage or failure to discharge of every tie
of marriage or failure to discharge every marital obligation cannot be regarded
s wilful neglect. The neglect to become desertion must be such as amounts to
forsaking or abandonment of one spouse by the other by a conscious isregard of
the duties and obnligations of the married state considered as a whole. I had
occasion to state these principles in another place, and have here recapitulated
the same.
(17) Wilful neglect, in the context of the matrimonial offence of desertion,
must be such neglect as can be regarded as the "withdrawal from a state of
things." The neglect, wilful neglect, must be in the discharge of matrimonial
obligations, and there must be such a failue of the fulfilment of those
obligations - the commn obligations of the arital state - as would amount to a
total forsakng or abandonment of those obligations. Therefore, this failure,
this total forsaking or abandonment of consortium, evidences the factum of
separation and the wlful manner of inflicting it, evidences the requisite animus
deserendi. In my judgment, it would not be appropriate to dissociate animus
deserendi, which is the essence of desertion even when one speaks of deserton by
wilful neglect. It is implicit in the concept of desertion, and it is implicit
in wilful neglect. Animus deserendi is not merely an attribute or an incidence
of the matrimonial offence of desertion. It is of the very nature of that
offence and of the essence of it. Therefore, it would be fallacious to say that
there need be no proof of animus deserendi in a case of desertion founded on the
plea of wilful negiect.
(18) There remains for considertion one more legal aspect of the matter.
Referring to the conduct of the opponent, learned Counsel for the petitioner
argued that even if there was no animus deserendi on the part of the opponent
when she left the petitioner's home on 26th February 1954, thre was such animus
deserendi sometime later when she left Poona for Singapore nd other foreign
plces and, in any event so the argument ran, there was animus deserendi when she
refused to reutrn to the matrimonial home and hearth after the cables sent by
the petitioner which were of a peremptory nature. Learned Counsel in this
context found himself faced with the petitoner's letter, dated 1st/2nd April
1955 in which the petitioner had made the most serious allegations against the
charcter of the opponent. The contents of that letter have been fully dealt with
by my brother and I do not propose to refer to any part of that letter in this
discussion. The argument of elarned Counsel was that assuming that there were
serious allegations made by the petitioner against the character of the
opponent, that did not per se entitle the opponent to keep away from the
matrimonial home, and her conduct in doint so was tantamount to evidece of
animus deserendi. Now a reference to section 23(1) of the Hindu Marriage Act,
which I have already mentioned contains some vital clauses of considerable
importance and consequence, will clearly show that the Court, before granting
relief, must be satisfied that the ground for granting relief exists and the
petitioner is not is any way taking advantage of his or her wrong or disability
for the purpose of such relief, and there is no other legal ground why relief
should not be granted. If a husband makes serious allegations of unchasity
against his wife and the allegations are unfounded, and if the wfe in
consequence of such allegations refuses to co-habit with the husband and goes
aways from him, can it be said that she has committed the matrimonial offence of
desertion? Can it be said, in such a case, that the husband, who is himself the
cause of the conduct on the part of the wife complained of by him, is not taking
advantage of his own wring when he seeks relief? The answers to these seemto me
to be against the contention of learned Counsel for the petitioner. The way I
read the relevant sections, it seems to me that a petition founded on the charge
of desertion can b resisted by the opponent-spouse if she or he is able to show
that there was reasonable excuse or just cause for the seprartion. It has
sometimes been said that nothing short of matrimonial offence such as cruelty
would suffice in such cases. This question has been much debated in England and
judicial opinion on the question is not wholly uniform. But the more recent and
acceptable view seems to be that a just cause should suffice. Of course, the
"just cause" must be "grave and weighty" or, as it is sometimes and "grave and
convincing". But it can be something which falls short of a matrimonial offence.
It may be distinguished from cruelty to the extent that it falls short of what
is legal cruelty but nonetheless the reasons for withdrawl from the society of
the petitioner must be "grave and weighty". Therefore, one important question
that we have to consider in this case is whether there were "gave and weighty"
reasons on which the opponent-spouse can rely in resisting the charge of
desertion levelled against her. As I have already stated, I do not propose in
this judgment to examine again the evidence of allegations made against the
respondent and I have expressed my agrerment with the reasons given by my
learned brother for the conclusions reached by him. Being wholly in agreement
with him on those points, I need only add that, in my judgment, in this case the
wife had "grave and weighty" reasons for living apart from the husband after he
levelled those serious and unfounded allegations against her character.
(19) In the result, I am satisifed that the petitioner has failed to
establish the case of desertion.
(20) Appeal allowed.
