F. A. No. 173 of 1984

8th March, 1991

Petitioner Counsel: A. B. Naik
Respondent Counsel: S. C. Bora

JUDGMENT

JUDGMENT :- This is an appeal from wife from the decree of dissolution of marriage on a petition filed by the respondent-husband under section 13(1)(ib) of the Hindu Marriage Act, 1955 (for short, the Act).

2. The parties were married some eighteen years ago and from this wedlock one daughter was born to them. In 1972 their relations appear to have become strained on account of the family dispute. It has been alleged by the respondent -husband that the appellant did not like to reside in the joint family and insisted him to separate from his brothers and on his refusal to do so the appellant left him voluntarily and has been residing with her parents.

3. Therefore, on January 25, 1974 the respondent filed a petition for restitution of conjugal rights under section 9 of the Act against the appellant which was ultimately dismissed on the ground that the respondent has failed to prove that the appellant has withdrawn from his society without any reasonable cause. After dismissal of his petition, the respondent also filed the present petition for a decree of dissolution of marriage on the ground of desertion under section 13(1)(ib) of the Act.

4. On going through the evidence, the learned trial Judge has granted the decree, as according to him the appellant has failed to prove the allegation of cruelty which she has attributed to the respondent. It is, however, to be noted that the learned trial Judge was conscious of the fact that the finding in the earlier petition for restitution of conjugal rights would operate as an estoppel in the present petition but for express pleading having not been made by the appellant in her written statement, the learned trial Judge was of the view that the principle of res-judicata cannot be applied and accordingly passed the decree for divorce in favour of the respondent which is being challenged by the appellant.

5. Before I turn to the argument of Shri Naik, the learned Counsel for the appellant, it is necessary to point out that during pendency of this appeal a fresh finding on the issue of estoppel was raised and remitted to the learned trial Judge for his finding. The learned trial Judge has certified his finding on January 10, 1989 holding that the present petition is barred by principle of res judicata.

6. Keeping reliance on the additional finding recorded by the learned trial Judge, Shri Naik the learned Counsel for the appellant urged that the petition for divorce is liable to be dismissed since it is barred by principle of res-judicata. In this context, it has been submitted that in the earlier petition the appellant has established that she has reasonable excuse for withdrawal from the society of the respondent and that being a legal ground for dismissal of the petition for decree of restitution of conjugal rights and the subsequent petition for divorce on the ground of desertion is not maintainable. In this context, he has relied upon a ruling in case of Devi Singh vs. Sushila Devi, AIR 1980 Raj 48 and Ranjana Kumari vs. V. Nand Kishore, 2 (1981) D.M.C. 236.

7. Shri Bora, the learned Counsel for the respondent, on the other hand, urged that the appellant cannot take advantage of additional finding when no express issue of estoppel was pleaded by her in her written statement in resisting the petition for decree of divorce. According to him dismissal of the earlier petition under section 9 is no bar for a petition under section 13(1)(ib) of the Act.

8. The contentions of the learned Counsel for the parties raise a short but important question as to whether the expression 'withdrawal from the society of the other' spouse as mentioned in section 9 of the Act is identical in its connotation and legal effect to the expression 'desertion' as used in section 13(1)(ib) of the Act.

9. At the outset, it may be pointed out that the decisions upon which reliance is placed by the learned Counsel for the appellant are not exactly on the question which I am required to deal with. In case of Devi Singh vs. Sushila Devi (cited supra) the husband's previous petition for decree of divorce by dissolution of marriage on ground of desertion was dismissed and when he filed second petition for similar relief and that too on same ground of 'desertion', the Court has held that subsequent petition for divorce was barred by principle of res-judicata.

10. In case of Ranjana Kumari vs. Nand Kishore (cited supra), the finding of the Court under section 9's petition was that the wife has failed to prove the sufficient cause to stay away from the husband and that finding was allowed to operate as res-judicata in the subsequent proceeding initiated by the wife. These decisions, therefore, are of no help in answer to the question in this petition.

11. Now, coming to the question as to whether the expression 'withdrawal from the society of other' spouse under section 9 of the Act is identical in its connotation and legal effect to the expression 'desertion' as used under section 13(1)(ib) of the Act. It is desirable to quote following relevant provisions of these sections :

"S. 9. Restitution of Conjugal Rights. - When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the District Court, for restitution of conjugal rights and the Court, on being satisfied of truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

Explanation. Where a question arises whether there has been reasonable excuse for withdrawn from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society."

"13. Divorce. - (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party :-

(i) xxxxxxxxxx

(ia) has after the solemnization of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(ii) xxxxxxxxxx

(iii) xxxxxxxxxx

(iv) xxxxxxxxxx

(v) xxxxxxxxxx

(vi) xxxxxxxxxx

(vii) xxxxxxxxxx

Explanation - In this sub-section, the expression 'desertion' means the desertion of the petitioner by the other party to the marriage withoutreasonable 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; and its grammatical variations and cognate expression shall be construed accordingly.

(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground -

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceedings to which they were parties.

2. xxxxxxxxxx

It is well settled that desertion is not the withdrawal from the 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'. Merely living apart or separate for the statutory period by itself may not amount to desertion, such separation may be called on variety of reasons. It may arise out of the fact that one spouse may be living at distant place on account of employment or exigencies of business or the spouses may be living apart by agreement or consent. Therefore, to constitute desertion there must exist both, the factum of separation as well as the intention to bring co-habitation permanently to an end, which is many times called 'animus deserendi'; and both these factors must continue to exist throughout the statutory period for establishing irretrievable breakdown of marriage, founded on the ground of desertion for a continuous period of two years.

12. The animums is a matter of inference to be drawn from the facts and circumstances and from the conduct and expressions of the parties. Where in fact there has been a separation, the essential question always is whether the act of separation could be attributed to an 'animus deserendi' because desertion would commence when the fact of separation and the 'animus deserendi' co-exist, but while living separately if the deserting spouse decides within the statutory period to go back to the matrimonial home or makes a bona fide offer to the other spouse to resume cohabitation with all the obligations of marital life then the desertion would come to an end.

13. Non-resumption of co-habitation for a period of one year or upwards after the passing of decree of restitution of conjugal rights becomes a ground for divorce under section 13(1A)(ii) of the Act, section 9 of the Act attracts where 'one spouse has withdrawn from the society of other' without any reasonable excuse and in view of amendment to section 9 by section 3 of the Marriage Laws (Amendment) Act, 1976 a petition for restitution of conjugal rights can be resisted only on legal ground. If the Court is satisfied that there exists no reasonable 'excuse' for the opposing spouse to withdraw from his or her society, the decree for restitution of conjugal rights can be passed. Speaking of a wife what grounds are legal grounds within meaning of section 9 of the Act regard may be had to section 12 or 13 of the Act. 'Cruelty' is only one aspect to withdraw from the society in case of wife. Even if the wife is 'deserted spouse' and the court satisfies that the desertion was the just cause in a petition for living apart that also becomes a good ground to deny a decree for divorce on ground of desertion.

14. Section 9 of the Act, no doubt, gives remedy which is made to preserve the marriage and not to dissolve it on the concept that the husband and wife are life partners and live together for their common good, but section 13(1A)(ii) makes a ground for divorce where there is non-resumption of co-habitation for a period of one year or upwards after passing a decree of restitution of conjugal rights. In that view of the matter, the 'withdrawal from the society of the other' spouse would constitute 'desertion' where there is withdrawal without any legal ground or non-resumption of co-habitation for a statutory period. In such circumstances, the expression 'withdrawal from the society of other' spouse as appearing in section 9 of the Act would be identical in it's connotation and legal effect with the expression 'desertion' as used in section 13 of the Act.

15. In the instant case it is common ground that the earlier petition filed by the respondent against the appellant for a decree of restitution of conjugal rights was dismissed on the ground that the appellant had shown reasonable excuse for withdrawal from the society of the respondent. That decision in the former petition would thus operate as an estoppel in the subsequent petition for divorce on the ground of 'desertion'.

16. It seems that the learned trial Judge was not justified in giving effect to the above position merely on the ground that appellant has not expressly taken that plea in the written statement.

17. The present petition for divorce by dissolution of marriage will have, therefore, to be dismissed.

18. The result is that the appeal is allowed. The judgment and decree passed by the trial Court is set aside. The petition of the respondent is hereby dismissed with no order as to the costs.

Appeal allowed.