Virbala Sumant Lokhande vs Sumant Madhay Lokhande on 10 April, 1973

    Virbala Sumant Lokhande vs Sumant Madhay Lokhande on 10/4/1973

JUDGMENT

   1. The appellant original applicant held filed a petition for divorcee
against her husband under Section 10 of the Indian Divorce Act. The appellant
claimed divorce on two distinct grounds. She prayed that her marriage may be
dissolved on the ground that since the solemnization thereof her husband has
been guilty of adultery coupled with such cruelty as without adultery would have
entitled her to a divorce, a mensa et toro. She also claimed dissolution of
marriage on the additional ground that since the solemnization of the marriage
her husband was guilty of adultery coupled with desertion without reasonable
excuse for two years or upwards.

   2. The respondent-husband resisted the application and denied the allegations
about adultery, cruelty and desertion. After consideration of the evidence
adduced by the parties, the learned Extra Joint Judge at Poona came to the
conclusion that the petitioner failed to establish that the petitioner failed to
establish the ground based upon adultery coupled with legal circulate. However,
the learned Judge was sufficient for recording a finding that the respondent
husband was living in adultery for two years or more since the solemnization of
the marriage. But according to the learned Judge the evidence adduced to the
learned Judge the evidence adduced by the petitioner was not sufficient to
support a finding that the husband was guilty of desertion. As no case of
adultery coupled with desertion without reasonable excuse for two years or
upwards was made out by the petitioner, she was not entitled to any relief. Even
the separate application for alimony pendent lite was dismissed by the learned
Judge as the petitioner had not established that she had no other sufficient
means of livelihood.

   3. Mr. Salvi, who appears for the appellant, has challenged the decree mainly
on the ground that the learned Judge has committed an error of law while
recording a finding that the facts and circumstances placed on record by the
parties do not make out a case of adultery coupled with desertion. For
appreciating this contention a few more facts will have to be stated.

   4. The petitioner is a resident of Ahmednagar. The respondent is working at
Kirkee Factory. He is residing with one Anjani R. Kasab at the Nurses quarters
at Kirkee. Anjani R. Kasab is a spinster. She is more or less of the same age as
the husband. She may even be younger by about 4 or 5 years. The marriage between
the appellant and the respondent was solemnized at Ahmednagar on 29th May, 1964.
After marriage petitioner lived with her husband at Kedgaon, a place where her
mother-in-law stayed. Thereafter she went to her husband at Kirkee. She was with
her husband till the end of June 1964. She left gaon. She spent there a few days
and thereafter she returned to Ahmednagar. She is with her parent for all these
years thereafter.

   5. She had filed an earlier petition in the District Court at Poona. It was
Marriage Petition No. 7 of 1965. She had claimed divorce on the allegation that
the husband was guilty of adultery coupled with cruelty. The assertion in the
petition was that for a week after the marriage she was staying with her husband
at Kirkee. During this period her husband led an adulterous life with Anjanibai.
The learned District judge after consideration of the case came to the
conclusion that the evidence adduced by the petitioner was not sufficient to
warrant a finding that the husband was guilty of adultery. the application was
dismissed.

   6. The petition of the appellant was resisted by the husband. inter alia, or
the ground that the action of the petitioner is barred by res judicata. The
learned Judge examined this contention and negative the same on the ground that
the petitioner had then alleged that during the first week after marriage the
husband had committed adultery. The present application seeks relief as events
have happened after the expiry of that period. It is for this reason that Mr.
Dalvi for the respondent could not urge in this appeal that the petitioner's
application is barred by res judicata. The learned Judge after scrutiny of the
entire evidence has reached a conclusion that the respondent is living in
adultery with Anjanibai Kasab throughout the period after the marriage i.e.
since June 1964. His finding is based on both oral and documentary evidence. The
petitioner has examined herself and some two neighbours, who were residing in
the vicinity of Kirkee hospital and her brother Purshotam, who had visited her
once or twice. The residents of Kirkee have deposed about the adultery. She has
produced a number of letters and telegram sent by Anjabibai to their address at
Ahmednagar. Ex. 28 is the telegram dated 28th May 1964 sent by Anjanibai Kasab
to the appellant's father at Ahmednagar. It was received at Ahmednagar on 29th
May 1964, i.e, the day of wedding. This contains a caution by Anjanibai to the
appellant not to marry the respondent. Exs., 29 and 30 are the letters dated
27th May 64. Both these letters are posted from Kirkee by Anjanibai. One is
addressed to the appellant's father and the other is addressed to the
respondent. The letter addressed to the respondent. The letter addressed to the
respondent contains specific accusation which would leave no room for doubt that
there was long standing intimacy between the respondent and Abjanibai. The
learned Judge also referred to the evidence of the respondent and certain
important admissions given by him. He had made no secret of the fact that the
and Anjanibai have been residing in the room since 1942. Considering their ages
there can be no doubt that there must be illicit intimacy between them. As the
finding about adultery is based on overwhelming evidence, Mr. Dalvi for the
respondent was not in a position to advance any argument, to the effect that the
view of the learned Judge was either erroneous or not supported by sufficient
evidence.

   7. That leaves for consideration only the point of law raised in this appeal.
Section 10 of the Indian Divorce Act enables a wife to present a petition tot he
District Court praying that her marriage may be dissolved on the ground that
since the solemnization thereof her husband has been guilty of adultery coupled
with desertion without reasonable excuse for two years or upwards.

   8. The learned Judge has discussed the issue of desertion in para 9 of his
judgment. He rightly points out that the wife has to establish adultery coupled
with desertion after the end of June 1964. It is a fact that after June 64 till
the date of the filing of the petition, the wife Variable Lokhande and her
husband Sumant Lokhande have not come together or lived a husband and wife at
any time. Virbala has been staying with her father at Ahmednagar and the
respondent Sumant Lokhande has been residing with Anjanibai Kasab at the
quarters or house in the compound of the hospital of the Ordnance Factory at
kirkee after his marriage till the date of the petition. It is not disputed that
the wife Virbala at no time during this period attempted to go to her husband
and the latter refused to accommodate her. It is clear from the evidence that
the wife left the quarters of Anjanibai where her husband was with her after
their marriage and went to the mother of her husband for some time and then left
for her father's place at Ahmednagar. Relying on this material the learned Judge
says that the wife has not come forward with any allegation that her husband had
left her. In fact the wife left her husband's place on or about 20th June, 1964.
Then the learned judge referred to the specific admission of Virbala that even
if her husband was prepared to take her as his wife, she was not prepared to go
and stay with him . She did not intend to live with him as his wife. The husband
Sumant Lokhande swears that his wife left his mother's place at Kedgaon without
intimation to him and without his knowledge. He says that he had not deserted
his wife. In view of these facts and circumstances the learned judge made a
finding that the husband was not guilty of desertion. Mere proof of adultery
without desertion will not be a ground for divorce under the relevant clause of
Section 10 of the Indian Divorce Act.

   9. In Section 3 Claus e(9) of the Indian Divorce Act, the word "desertion" is
defined. "Desertion" implies an abandonment against the wish of the person
charging it. The definition of "desertion" by itself does not give much
assistance while considering all the implications of the act of desertion. The
term is judicially interpreted by courts. Desertion may be actual desertion in
the sense that the husband has driven away his wife and is not prepared to take
her back. But there may be cases where there may not be actual desertion of one
spouse by the other. It may be styled as a case of constructive desertion. Even
such desertion will amount to an abandonment against the wish of the person
charging it within the meaning of Section 3(9) of the Act.

   10. The facts of the present case clearly show that the appellant Virbala
left the house of her husband within a short time after the solemnization of the
marriage. In view of the decision in the earlier Marriage Pwtion, it cannot be
said that during that short period the husband was guilty of adultery or any
such conduct which made it impossible for Virbala to stay with him or
cohabitation. But it cannot be denied that during the entire period since June
1964 till the presentation of the petition by the appellant the husband has been
living in adultery with Miss Anjanibai Kasab. The appellant, as the wife knows
full well that her husband leads such a life. She is justified in saying that
under the circumstances she is not prepared to go back to her husband for
cohabition. The husband had not concealed the fact that he has been staying with
Missi Anjanibai Kasab. It is true that he has stoutly denied the allegations of
the wife that he had deserted her. But when he continues to lead such a life and
makes it impossible for his wife to return to him for cohabitation, then it must
be held that he has abandoned or deserted her against her wishes.

   11. Mr. Salvi for the appellant has relied on two English decisions which
appear to be more or less identical with the facts of the present case.

   12. In Farmer v. Farmer , (1884) 9 PD 245, the facts were strikingly similar
to the facts of the instant case. Part of the headstone may be reproduced as it
given a clear outline of the facts of the case:

     "A husband in 1880 ceased to reside with his wife on the pretense that his
business compelled him to be absent, but he supplied her with necessaries and
correspondent with her and visited her occasionally, and a child was born in
February, 1884, In January 1884 the wife discovered that he had for years been
living with another woman".

   The President of the Division, Siri J. Hannen, rejected the petition on the
narrow ground that the husband's conduct did not amount to desertion for two
years. but whether the conduct amount to desertion or not is made clear in his
following lucid observations:-

     "I have on other occasions pointed out that if an is living with another
woman the wife is justified in saying 'I shall not return to you, nor shall I
allow you to have access to me while you are living in open adultery with
another woman'. And it may be that in this case that which amounts to desertion
has commenced, and that when the necessary time has elapsed the wife may claim
relief both on the ground of adultery and desertion".

   The above mentioned decision was cited with approval in (1888) 13 PD 216
Garcia v. Garcia. The facts here were that the parties were married as long ago
as the year 1866. After some years of apparently happy married life the husband
got into some financial difficulties and became bankrupt. He procured a house
for the wife in Manchester and to avoid creditors and for the protection of the
property he suggested that his wife should live under and assumed name. She
accepted the proposition and adopted a different name. The wife and her child
both lived under assumed names, During the whole period he made allowance for
the maintenance of his wife and child, while they removed to London in 1883 he
visited them occasionally. He always came by the backdoor. It was an odd way of
cohabiting. But still he continued to sleep in the house occasionally down to
some time in the year 1885. Thereafter the wife began to suspect and later on
she was convinced that he was later on she was convinced that he was living with
another woman. She instituted a suit for divorce on the ground of desertion and
adultery. Butt. J. followed the abovementioned decision in Farmer v/. Farmer and
held that the conduct of the husband did amount to desertion.

   13. Having considered all the facts and circumstances of the present case , I
have no doubt that the husband is guilty of desertion and this is a case of
adultery coupled with desertion within the menacing of the relevant clause of
Section 10 of the Indian Divorcee Act. The appellant will be entitled to a
decree for divorce on this ground.

   14. The learned Judge, has these considered the appellant's application for
alimony pendent lite. The application was rejected by the learned Judge on
certain ground mentioned by me above Mr. Salvi for the appellant and Mr. Dalvi
for the respondent agree that the appellant would not press her claim for
alimony pendente lite, but she will be entitled to claim alimony at the rate of
Rs. 80/- per month after the decree a confirmed under Section 37 of the Act,
Accordingly. I record the agreement of the parties that the appellant will be
entitled to permanent alimony at this rate from the date of the confirmation of
the decree under Section 37 of the Act.

   15. In the result the appeal is allowed, the order passed by the learned
Extra Joint Judge. Poona, is set aside and a decree for dissolution of the
marriage under Section 10 of the Indian Divorce Act is passed in favour of the e
appellant on the ground that the respondent-husband has been guilty of adultery
coupled with desertion without reasonable excuse for two years or upwards. The
appellant will be entitled to costs throughout.

   16. Appeal allowed.