MUNI LAL VERMA,J. - (1.) THE circumstances giving rise to this appeal may be briefly stated as under:--
(2.) TARA Chand appellant was married to Shrimati Narain Devi respondent on February 28, 1960 at Bassi Pathana, and thereafter they had been living' as husband and wife at different places, and had last resided as such, in the month of September, 1968, at Nangal Township. No issue was, however, bom from their wedlock. On September 26, 1968, Kishan Chand--the father of the respondent, accompanied by his nephew--Nandu Ram, Chhinku Ram and Jumma Ram, visited the house of the appellant at Nangal and asked him to send the respondent with them to enable her to participate in the marriage of Nandu Ram, which was to be performed a few days later. He declined and told them that he would be sending her in the first week of the following month after receiving his salary. The said representation did not find favour with them, and on the night intervening between September 26 and 27, 1968, the respondent left his (the appellant's) house without his consent in the company of her father, and the aforesaid three persons. She had then carried away clothes and ornaments of the value of Rs. 8,000 with her. Thereafter, she did not return to his house. Therefore, on April 16, 1973, the appellant, with the said allegations, made a petition for judicial separation under Section 10 of the Hindu Marriage Act, 1955 (hereinafter called the Act), on the ground of desertion by the respondent for more than two years, The other ground of cruelty raised by him for obtaining judicial separation was based on the averment that the respondent had been insulting, abusing and had also been giving beatings to him. The said petition w,as resisted by the respondent. She admitted the factum of marriage, but controverted the other material allegations. Hence, the petition was tried on the following issues: (1) Whether the respondent deserted the petitioner for the last more than two years? O. P. (2) Whether the respondent treated the petitioner with such cruelty as to raise reasonable apprehension in his mind that it will be injurious for him to live with her? O. P. (3) Relief. The learned Senior Subordinate Judge who heard the petition, answered issues Nos. 1 and 2 in the negative and dismissed it with costs. Dissatisfied with the said result, Tara Chand came to this Court in appeal. Mr. C. D. Dewan, the learned counsel for the appellant, challenged the judgment and decree recorded by the trial Court on law as well as on facts. He contended that the trial Court did not appreciate the evidence present on record rightly and its approach to law on the subject was incorrect. In my opinion, his contentions are not well founded. That the parties were married in the month of February 1960 and the respondent was taken by her father from the house of the appellant at Nangal in the month of September 1968 to enable her to participate in the marriage of her cousin--Nandu, and since then she had been living at the house of her parents are admitted facts. The deposition made by the appellant from the witness-box on August 17, 1974 is most damaging to his cause and discloses the following facts which are also deducible from the evidence- and circumstances of the. case: (a) that there had been lack of cordiality between the parties from the very beginning of the marriage; (b) that the appellant began to doubt the fidelity and character of the respondent after about six months of the marriage; (c) that he did not love her; (d) that in or about the year 1962, the respondent's father had taken her from the house of the appellant at Ambala; (e) that sometime in the year 1963, the appellant, on making an application under Section 100, Code of Criminal Procedure, obtained search warrant against her, and it is said in the written statement that when the appellant had gone to the house of the parents of the respondent for executing the said search warrant her grandmother was lying dead and she was taken into custody and was produced before the Magistrate First Class, Bassi; (f) that the respondent had made an application under Section 488, Code of Criminal Procedure (old), and succeeded in obtaining an order directing the appellant to pay Rs. 30 per month as maintenance to her; (g) that the appellant filed a petition, most probably as a counter-blast as represented in the written statement, for restitution of conjugal rights under Section 9 of the Act, and it was compromised; (h) that as a result of the said compromise the respondent returned to the house of the appellant in the year 1965, and thereafter they had lived together at Ambala, Gurgaon and Nangal, but their relations did not improve; (i) that in the month of August 1968, the respondent had poisoned the meals of the appellant; (j) that the appellant did not make any effort to bring back the respondent from the house of her parents, or to secure her society after she had left his house at Nangal in the month of September 1968.
(3.) 'desertion' as contemplated by Clause (a) of Section 10 of the Act, means intentional permanent abandonment of one spouse by the other without the other's consent and without reasonable cause. So far as deserting spouse is concerned, there must be two essential conditions; (i) factum of separation, and (ii) intention to bring marital life permanently to an end (animus deserendi ). Similarly, two elements are essential so far as deserted spouse is concerned; firstly, absence of consent, and, secondly, absence of conduct giving reasonable cause to the deserting spouse to form necessary intention aforesaid. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. I am guided in the aforesaid matters by Bipinchandra Jaisinghbhai Shah v. Prabhavati, AIR 1957 SC 176, and Lachman Utam-chand Kirpalani v. Meena, AIR 1964 SC 40, relied on by the learned counsel for the appellant. There may, however, be a case where a spouse is forced by the conduct of the other to live separately or to stay away. In such a case, desertion would not be attributed to the spouse who lives separately or stays away, for the simple reason that the said situation has been brought about by the act of the spouse who had misconducted himself or herself. So, if it is a natural consequence of the misconduct and misbehaviour of one spouse that the other spouse will have to stay away, the offending spouse must be presumed to have intended that such an eventuality will take place. Cases in which the parting of the spouses has arisen in such circumstances, are called constructive desertions end the apouse responsible for creating the situation in which the other spouse is forced to stay away, is guilty of constructive desertion. The words 'wilful neglect' in Explanation to Sub-section (1) of Section 10 of the Act, are designed to cover such constructive desertion, and mean that the guilty spouse has been acting knowingly or has been consciously failing in a reprehensible manner in the discharge of his or her marital obligations.;