LACHMAN UTAMCHAND KIRPALANI Vs. MEENA ALIAS MOTA

JUDGEMENT

(1.) This is an appeal against the judgment of the High Court of Bombay reversing the judgment and decree of the City Civil Court at Bombay by which a decree for judicial separation granted by the trial Judge was reversed and it comes before us on a certificate of fitness granted by the High Court under Art. 133 (1) (c) of the Constitution.

(2.) The appellant - The husband - filed a petition in the City Civil Court, Bombay under Sec. 10 (1)(a) of the Hindu Marriage Act, 1955 (which we shall hereafter refer to as the Act) praying for a decree against the respondent - his wife, for judicial separation on the ground that in terms of that provisions she had "deserted" him for "a continuous period of not less than two years immediately preceding the presentation of his petition". The petition was presented on September 20, 1956 and the material allegation was that the wife had left the matrimonial home on February 26, 1954 and had not thereafter come back to him and that this constituted "desertion" within the meaning of the provision just cited. The learned trial Judge held that the appellant had established to the satisfaction of the Court that the respondent-wife had left the matrimonial home with the intention of permanently breaking it up and that such desertion continued during the requisite period of two years and in consequence granted the decree for judicial separation, as prayed for. The wife preferred an appeal to the High Court and the learned Judges disagreeing with the finding of the learned trial Judge that the leaving, by the wife, of the matrimonial home was with the intention of deserting the appellant, reversed the decree of the trial Judge and directed the dismissal of the appellant's petition with costs. It is the correctness of this reversal that is canvassed in the appeal before us.

(3.) Even at the outset we might state that the decision of the appeal does not depend so much on any substantial question of law but rather on an appreciation of the facts on two matters on the basis of which the learned Judges of the High Court have decided the case against the appellant:(1) whether the appellant had established that the respondent had an irrevocable able determination to break up the matrimonial home when she admittedly left the petitioner of February 26, 1954 and did not return to him thereafter, it being common ground that the onus of proving this to the reasonable satisfaction of the Court was on the appellant, and (2) whether the respondent had a justifiable cause for not returning to the husband, the existence of which prevented her admitted absence from the matrimonial home from constituting "desertion" so as to serve as the foundation for an order for judicial separation under S. 10(1)(a) of the Act.