Bombay Hindu Divorce Act, 1947 - Case Law - Section 3(1)(d) -Bipin Chander Jaising Bhai Shah vs. Prabhawati
Bench:
Justice B. Jagannadhadas, Justice B.P. Sinha and Justice T.L. Venkatarama Aiyyar.
Facts:
- Marriage was solemnised between the parties in 1942 and a son was also born to them.
- A family friend named Mahendra lived with them for some time during which the Bipin Chander,herein the Appellant left for England due to business reasons.
- When the Appellant came back, he suspected that Prabhawati, herein the Respondent was having an illicit relationship with Mahendra as he found out a letter that the Respondent wrote to Mahendra.
- The Appellant confronted the Respondent with the letter and has claimed in his petition that she admitted her amorous relations with Mahendra.
- Thereafter, the Respondent left the marital home on the pretext of a marriage in her hometown but did not return for a long time.
- Consequently, the Appellant filed for dissolution of marriageunder Section 3(1)(d) of the Bombay Hindu Divorce Act, 1947 on the ground of desertion by the Respondent without reasonable cause and without his consent and against his will for a period of over four years and also for the custody of their minor child.
Issues:
- Whether physically leaving the marital home equivalent to desertion?
- Whether desertion on part of the deserting party subsists when there is no consent for such desertion from the deserted party?
Contentions of the Appellant:
- Admission of guilt by the Respondent of having amorous correspondence with Mahendra by stating that she loved Mahendra as he was a better man than the Appellant.
- Efforts were made by the Appellant to reconcile with the Respondent on various occasions for the betterment of their child. However, the Respondent evinced no desire to come back to the marital home and live with the Appellant.
Contentions of the Respondent:
- The life of the Respondent was made unbearable by the Appellant after his return from England which forced the Respondent to leave the marital home against her wishes.
- Confrontation by the Appellant regarding the letter and intimate relations with Mahendra have been denied by the Respondent.
- Respondent had always been ready and willing to go back to the marital home but the Appellant had been wilfully refusing to keep her and cohabit with her.
- A notice was sent to the Respondent through the solicitor of the Appellant mentioning that she had left without his consent and against his wishes and his desire to not keep her. He also asked for the custody of their minor son.
- Persistent efforts were made by the Respondent’s father to reconcile the parties but failed owing to the attitude of the Appellant.
Background:
The High Court of Judicature at Bombay reversed the decree of dissolution of marriage passed by the Single Judge on the ground of desertion by the Respondent. Aggrieved by the decision of the High Court, appeal was filed before the Supreme Court which pronounced its judgment below.
Judgment:
The Court deliberated upon the concept of desertion as a ground for divorce. Two elements are the sine qua non in order to prove desertion. As regards to the deserting spouse, first being factum deserendi that is, the actual fact of separation and secondly, animus deserendi, that is, the intention to desert.As regards to the deserted spouse, first is the absence of consent and second being absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.
In the present case, the Court upheld the judgment of the High court and observed that even though the Respondent was at fault initially as she left the marital home without any ‘animus to desert’, she made constant efforts to come back but the Appellant kept on refusing to live with her. Also, the burden of proof is on the deserted spouseto show elements of desertion without reasonable cause, which couldn’t be proved by the Appellant in the present case.
Further, it was observed by the Court that desertion is a matter of inference to be drawn from the facts and circumstances of each case and conduct and expression of intention of the parties must be considered at the time of separation and also after the act of separation.
