Bipin Chander Jaisinghbhai Shah vs Prabhawati 1956

Bipin Chander Jaisinghbhai Shah vs Prabhawati 1956

FACTS OF THE CASE

• The parties were married in 1942 and there was a child of marriage.
• In 1947 the husband left for England on business and on his return to India discovered that this wife has been having amorous correspondence with one M, and taxed her with having developed intimacy with him.
• She was unable to give any answer and went to her father’s place on May 24, 1947, on the pretext of the marriage of a cousin which was to take place in June. 
• On July 15, 1947, the appellant sent a notice to the respondent through his solicitor in which after mentioning the fact that she had, left against his wishes, stated that he did not desire to keep her any longer under his care and protection, and desired her to send the minor son to him.
• On July 4, 1951, the appellant instituted the suit for divorce under section 3 (1) (d) of the Bombay Hindu Divorce ACT, 1947, on the ground that the respondent had been in desertion ever since may 24, 1947, without reasonable cause and without his consent and against his will for a period 

ISSUES: – 

Whether the plaintiff’s claim for judicial separation under the pretext of desertion by the respondent can be allowed?

Appellant: – the appellant humble submitted that the respondent had been in desertion ever since May 24, 1947, without reasonable cause and without his consent and against his will for a period of over four years. There is a legal ground for divorce and she has no desired to leave with me.

Respondent: the respondent humble submitted that it was the appellant who by his treatment of her after his return from England had made her life unbearable and compelled her to leave her marital home against her wishes, was not proved but there was evidence that after the solicitor’s notice dated July 15,1947. Was received by the respondent, attempts were  made by her father and his relations to bring about reconciliation between the parties but they failed owing to the attitude of the appellant.

JUDGMENT: –

The court was held that , on that facts, though the initial fault lay with the respondent, her leaving her marital home was not  actuated by any animus to desert her husband but as the result of her sense of guilty, and as subsequently she was willing to come back but could not do, so owing to the attitude of the appellant , there was no proof that she deserted him, much less that she bad harboured that animus for the statutory period, and the appellant’s case must fail.

The essential conditions for the offence of desertion, so far as the deserting spouse is concerned, are (i) the absence of consent and (ii) absence of conduct giving the matrimonial home to form the necessary intention aforesaid. 

Deserting is a matter of inference to be drawn from the facts and circumstances of each case and those facts have to be viewed as to the purpose which is revealed by those facts or by conduct and expression of intention, both anterior and subsequent to the actual act of separation. 

CONCLUSION: – 

 Desertion means the intentional permanent forsaking and abandonment of one spouse by the they’re without that other’s consent and without reasonable cause. It is a total repudiation of the obligations of marriage.

Permanence is one of the essential elements. 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.

REFERENCE: – 

https://indiankanoon.org

https://ww.scconline.com

This Article written by Aarti Goyal of Sardar Patel Subharti Institute of Law, intern at Legal Vidhiya.  

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