RADHAKRISHNAN Vs. JAYAKUMARI

JUDGEMENT

(1.) THE question of law, raised in the suit and the first and second appeals, which gave rise to the reference of the matter to the Full bench, is whether for the purpose of S. 18 (2) (a) of the Hindu Adoptions and maintenance Act, 1956, (78 of 1956), (hereinafter referred to as the maintenance Act.) animus is required to be established to prove desertion.

(2.) THE brief facts leading to this second appeal could be stated as follows:- THE first plaintiff Sathyabhama Jayakumari, on behalf of herself and her minor child, 2nd plaintiff, instituted a suit claiming maintenance at the rate of Rs. 100/- and Rs. 50/-per month respectively for herself and the 2nd plaintiff, from the defendant, Raghavan Radhakrishnan, who had married her on 12-11-1973. THE 2nd plaintiff was born in that wedlock on 11-8-1974. THE first plaintiff was residing with the defendant till 23-3-1974 on which date she left for her parents' home for confinement. THE trial Court found that the defendant had abandoned the plaintiffs without reasonable cause, and decreed the suit as prayed for.

(3.) IN Halsbury's Laws of England, Fourth Edition, Volume 13, at page 291, Para. 585 it is stated: "desertion is not to be tested merely by ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave home, it may be that the spouse responsible for the driving out is guilty of desertion; so, for example, if a husband without just cause or excuse persists in doing things which he knows his wife will probably not tolerate, and which no ordinary woman would tolerate, and then she leaves, the husband will have deserted her whatever his desire or intention may have been. " Counsel for the appellant relied on the decision of the supreme Court in Bipinchandra Shah v. Prabhavathi (A. I. R. 1957 S. C. 176 ). IN that decision in Para. 10 at page 183, Sinha, J. , who spoke for the Bench, has stated as follows: "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 (animus deserendi ). " This observation, we mast note, has been made with reference to the requirements for a decree for dissolution of the marriage under the Bombay Hindu Divorce Act, with particular reference to the essential requirements of 'desertion' as defined in S. 3 (d) of that Act. It has also to be pointed out that the expression used is the 'offence of desertion'. The standard of proof and rigidity of the requirement for constituting the 'offence of desertion' under the Divorce Act could not be equated to the right of the. deserted wife to claim maintenance under S. 18 of the Maintenance Act, which is a special provision. The Parliament has enacted it in its anxiety to preserve and protect the interests of Hindu wives.