Case – Bipinchandra Jaisinghbai Shah v. Prabhavati, 1957
Fact – Bipinchandra filed the suit for divorce on the original side of the High Court in July, 1951. The trial court passed a decree in his favour in March, 1952. On Prabha’s appeal, the decree of the trial court was reversed in August, 1952. Bipin went in appeal to the Supreme Court.
The trial court passed the decree in favour of the husband as it found that the wife was in desertion, but the High Court reversed the decree as it found that the wife was ‘technically’ not in desertion.
Issue – Whether the defendant deserted the plaintiff for a continuous period of over four years prior to the filing of the suit?
Contentions and Judgement :
- A case under the Bombay Hindu Divorce Act, 1947, the court lucidly defined and explained the concept of desertion. It held that if a spouse abandons the other 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 i) the factum of desertion and ii) the intention to bring cohabitation permanently to an end (animus deserendi).
- Similarly, two elements are essential so far as the deserted spouse is concerned: (i) the absence of consent; and (ii) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.
- The petitioner for divorce bears the burden of proving those elements in the two spouses respectively… Desertion is a matter of inference to be drawn from the facts and circumstances of each case.
- 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 also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion like any other matrimonial offence, beyond all reasonable doubt.
- Desertion is a continuing offence, and it remains inchoate till the petition for the matrimonial relief is not filed; before that event the deserting spouse can bring the state of desertion to an end, inter alia, by making a genuine and sincere offer to return, and even if that offer is turned down, the state of desertion terminates.
- Though we do not find that the essential ingredients of desertion have been proved by the plaintiff, there cannot be the least doubt that it was the defendant who had by her objectionable conduct brought about a rupture in the matrimonial home and caused the plaintiff to become so cold to her after she left him.
- In view of our finding that the plaintiff has failed to prove his case of desertion by the defendant. For the aforesaid reasons we agree with the Appellate Bench of the High Court in the conclusion at which they had arrived.
Apex Court in this case clearly brings out the following ingredients of desertion as a ground for matrimonial relief:
- Factum of desertion by deserting spouse.
- Animus deserendi or intention to bring cohabitation permanently to an end.
- Absence of consent to such separation by the deserted spouse.
- Absence of conduct reasonably causing the deserting spouse to form his or her intention to bring cohabitation to an end. If the spouse who withdraws from the other has reasonable excuse for so doing, he or she cannot be charged with desertion.
- The desertion must have continued at least for the prescribed statutory period immediately before the presentation of the petition.
- The deserting spouse may put an end to desertion by coming back to the deserted spouse before the statutory period is over or even after that period, but before proceedings for divorce have been filed.
- If the deserted spouse unreasonably refuses the offer of the deserting spouse, then the latter will be in desertion and not the former.
- The offence of desertion has to be proved by the plaintiff who alleges desertion by the respondent.
