NEHRU SONI Vs. NIRMAL

JUDGEMENT

(1.) The plaintiff husband has filed this appeal against the judgment and decree passed by the District Judge, Betul, in Civil Suit No. 67-A of 1977, whereby his suit claiming dissolution of marriage against his wife, the respondent, has been dismissed.

(2.) The marriage between the parties was solemnised in the year 1970. This union gave birth to a daughter in the year 1973 which died only after a fortnight of the birth. The parties were blessed with no further issue. In Dec., 1973, the respondent went to her parents' house. She rejoined the appellant in March 1974, at Betul. Her stay at the appellant's place thereafter has not been long and she loved the matrimonial home. The appellant's case had been that the respondent somewhere in March 1974 withdrew from his society without any reasonable cause and thereafter did not return-intending to bring cohabitation to an end. It was also alleged that she treated the appellant with cruelty by putting poison, by attempting to commit suicide and by burning appellant's house. All these allegations were denied by the respondent who asserted that the appellant wanted to marry some other woman and, therefore, somehow wanted to get rid of her. According to her, she had gone to live with the appellant who after sometime turned her away. She expressed that she ever was willing to join the appellant and render all services to him. She issued a notice dated 9-12-1977 (Ex. D-5) intimating her desire to rejoin the appellant but received no reply. The learned District judge after recording evidence tendered by the parties found that the appellant could not prove that the respondent has deserted him for a period of more than three years before the filing of the petition. Instead the finding is that it is the appellant who is guilty of deserting the respondent. All the alleged facts of cruelty, including the allegations that in May, 1971, before leaving the house, the respondent committed theft at the appellant's house, have been found to be not proved. On these findings, the petition has been dismissed.

(3.) Shri J. P. Sanghi, learned counsel for the appellant, first argued that from the evidence adduced and from the conduct of the respondent, the appellant should have been held entitled to a decree for divorce on the ground that the respondent had deserted the appellant for a period of more than three years before the filing of the petition. "Desertion" as is understood under the matrimonial law, has two essential ingredients ; (i) the factum of desertion and the (ii) animus deserandi, i.e , the intention to bring cohabitation permanently to an end. Before this offence of desertion can be said to have been established in a given case, both the ingredients must be established. The separate living during the requisite period should also be found accompanied by that necessary intention on the part of the deserting spouse. A temporary abandonment under some anger or disgust or the like will not meet the requirement of the law. Such desertion has to be inferred from the facts and circumstances of each case. Facts in one case leading to an inference of desertion may not be sufficient to draw a like inference in another case. Desertion would commence from the time when the fact of desertion and the intention to desert both co-exist. The burden is certainly on the petitioner to establish these two ingredients before he can be held entitled to a relief on that basis. Thus, even where the deserting spouse is not in a position to establish just cause for desertion, it is the petitioner who has to prove that the deserting spouse had started living separate with an intention to bring the cohabitation permanently to an end. Such is the law laid down by the Supreme Court in Lachman Vs. Heena (A.I.R. 1964 S.C. 40) . Again Dastane Vs. Dastane 1(1931) Divorce & Matrimonial Cases 293 (S.C.) , the Supreme Court has laid down the standard of proof required in matrimonial cases It has been stated that the proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issue of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. It is wrong to import such consideration in trials of a purely civil nature. It is indicated that the petitioner does not have to prove his case beyond reasonable doubt. The proceedings under the Hindu Marriage Act being purely of a civil nature, the word "satisfied" in Sec. 23, in the opinion of the Supreme Court, must mean "satisfied on a preponderance of probabilities" and not "satisfied beyond a reasonable doubt." Dealing with the question of cruelty, the Supreme Court in Dastane's case (supra) observed that what the Court must determine is not whether the petitioner has proved charge of cruelty having regard to the principles of English law, but whether the petitioner proves that tare respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent.