TRIVENI BAI Vs. TEJ SINGH

JUDGEMENT

(1.) This first appeal is under Sec. 28 of the Hindu Marriage Act against the decree of divorce passed against the appellant- wife and in favour of the respondent-defendant dissolving their marriage which took place in the year 1975. The decree has been granted on the finding that the appellant had deserted the respondent for a period of more than two years before the presentation of the petition. .

(2.) It is common ground that for more than two years, prior to the filing of the petition the parties are living away from each other although in the same city i. e., in Bhopal. The respondent's case is that the appellant left his company without any just cause. According to him, the appellants insistence was that the respondent should live with her in her parents' home. As he declined. she left the matrimonial home. As against this, the appellant's contention had been that the respondent turned her away only with an intention to remarry. He is wrongly accusing her of adultery saying that the child begotten to her is not from him. She had always been willing to go to the respondent but the respondent only came to her once with goondas and wanted to forcibly take her away. In the lower Court as also in this Court, she expressed her willingness to go back to the respondent. The parties led oral evidence. The learned District Judge, on assessment of evidence, held the appellant guilty of deserting the respondent and, therefore, passed the decree dissolving the marriage.

(3.) After hearing the learned counsel for the parties, I am of the opinion that the judgment of the lower Court cannot be upheld. It is now settled law that in order to obtain a decree, it has to be established that the erring spouse not only left the matrimonial home voluntarily but has done so with an intention to bring co-habitation at an end. This latter requirement which is usually expressed as animus deserendi, has to co-exist with the factum of separation. In my opinion, the respondent could not successfully establish this latter requirement and his suit, therefore, must be dismissed.