KAMAL KUMAR Vs. KALYANI

JUDGEMENT

(1.) The appellant-husband petitioned under S.13 of the Hindu Marriage Act for dissolution of his marriage with the respondent-wife on the ground of desertion as well as cruelty. Both the grounds having been negatived and the petition having been dismissed by the trial court, the husband has preferred this appeal, but the learned counsel appearing for him has, however, pressed before us the ground of desertion only and has given up the ground of cruelty. The only question falling for our consideration in this appeal, therefore, is whether the respondent-wife deserted the appellant-husband to warrant a decree for divorce at the instance of the husband under S.13(ib) of the Hindu Marriage Act and after hearing the learned counsel for the parties and after giving the materials on record our best consideration, we, in agreement with the learned trial Judge, propose to answer the question in the negative.

(2.) The facts of the case, stated in details in the judgement of the trial court, need not be restated as the real controversy lies within a very narrow compass. The husband, Kamal, has a widowed elder sister Umarani, staying with him, who brought him up since he lost his mother at the age of four. The husband wants, as one should, that his mother-like widow elder sister should stay with them. But unfortunately the relation between his sister Umarani and his wife Kalyani appears to have been strained beyond measures, so much so that while the elder sister says that "I shall never live at the family of Kamal if he lives with Kalyani", the wife Kalyani also says that "I like to live with him (i.e. the husband) separately as well as jointly with others, but not with his elder sister Umarani". The categorical assertion of the wife in her written statement as well as in her deposition is that she has all along been severely maltreated by the elder sister, making it impossible for her to live with the former. Even PW-2 Sajal, an elder brother of the husband, corroborates her and he goes further to say that the elder sister has misbehaved with the wives of the other brothers as well and as a result the other brothers also have had to live separately. But PW-1 Umarani however, has clearly admitted in her evidence that Kalyani never misbehaved with her "nor had she ever illtreated me". Now if the evidence of Umarani is that even though Kalyani never misbehaved with her, yet she would not live with Kamal if Kamal lives with Kalyani and the evidence of Kalyani and the husband's brother Sajal is that Umarani has always misbehaved with Kalyani and also with the wives of the other brothers as a result whereof the other brothers are residing separately from Umarani, and if, under these circumstances, the wife Kalyani takes up the attitude that she would live with her husband and also his other relations, but not with Umarani, then it would not be possible for us to hold, on the materials on record, that the wife has taken an unreasonable attitude. And if, under these facts and circumstances, the wife, finding that the husband is in no mood to stay away from the elder sister, moves to her mother's place, it would be difficult for us to hold that she had no reasonable cause to do so and has deserted the husband.

(3.) In the Matrimonial Jurisprudence, desertion means, desertion of one spouse by the other without reasonable cause and without the consent of that other. It has been defined in the Explanation to S.13(1) of the Hindu Marriage Act as "desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party". It might sound almost tautologous to define desertion with the aid of that very expression, as has been done in the Explanation to S.13(1). But what is sought to be emphasised is that a state of affair, which would otherwise amount to desertion, would cease to be so if there is reasonable cause therefor or if the other party has consented thereto. In our view, however, consensual desertion or desertion by consent would almost amount to contradiction in terms as a state of affair emanating from consent of both the parties can never amount to desertion of the one by the other and therefore it seems that the provision providing that desertion must be without consent has been incorporated ex abundanti cautela, unless what is meant is that desertion would cease to be so if the deserted spouse has subsequently consented thereto.