Dave Kantilal Kalyanji vs Bai Incumati Kalyani

Baxi, J.—This appeal is by the Plaintiff''s Appellant husband against the decree of the Assistant judge, Morvi dismissing his suit for divorce against his wife.

The Appellant belongs to Morvi, while the Respondent lives with her parents at Anjar in Kateh. They were married on 2-12-48 at Anjar. About months after the marriage the Plaintiff''s largest are right her to morvi according to the custom of the caste. She lived with the Plaintiff''s and her section in law for about 20 days and there custom to and her after her missing uncle Nanaial to her to his missing not understand. She was taken to Anjar by missing then the Respondent has been living with her parents.

On 19-6-53 the Appellant instituted this suit for divorce against her u/s 3(d), Saurashra Hindu Divorce Act, 1952on the ground of desertion for a continuous period of more than four years. The Respondent''s defense was that after she went to live with the Appellant, the Appellant and his father cruelly beat her and after taking away her Sridhar ornaments and clothes they turned her out and therefore she had to go to her maternal uncle and from there her father took her to Anjar. She denied the charge of desertion and contended that the desertion was on his uncle.

The learned Assistant judge hem that though it was not proved that the Respondent was actually beaten by the Appellant or his rather, it was proved that they had turned her out because they did not like her as she wag mentally decreed. He, therefore, held that the Respondent was not gunty, of desertion.

In the appeal before us the learned Advocate for the Respondent questioned the undoing of the learned Assistant Judge that it was not proved that the Plaintiff and his father had beaten the Respondent. He received to the evidence of the Respondent''s uncle Nanaial Ex. 8 and Kanaiyalax Ex. 14. Both or then are the Respondent''s relations. Nanaial is her maternal uncle, while Kanaiylal is a more distant relation. The Respondent herself did not go into the box and though according to Kanaiyalax marks or beating were seen by Jaishankar and Ors. , these persons have not been examined by the Respondent.

In this state of evidence we are not inclined to differ from the learned Assistant judge''s conclusion that the Respondent''s allegation of bearing is not proved. Therefore the only question which requires to be considered is whether the Respondent were away to her maternal uncle and from there to Anjar without the consent or against the will of the Appellant and with the intention of permanently breaking on the manual tie.

According to the Appellant Ex. 4 the Respondent''s maternal uncle took her away to his house on the occasion of the sacred thread ceremony of his son. Alter the ceremony was over the Respondent did not return home, but her lather; who had come to Morvi to attend the ceremony, asked for her clothes saying that he wanted to take her to Anjar.

In answer to the Court he stated that he was not at home when the clothes were delivered to her lather. They were delivered by his father and at that time his mother was also present. They had both voluntarily given the clothes and had permitted her father to take her away to Anjar.

When he came home his lather informed him of their action and he approved of it. He admitted that her entire stock of clothes including the clothes given to her in chap at the tune on her marriage was handed over to her lather and since then he had not asked her parents to send her back to Morvi.

The reason which he gave for not asking them was most she had with any gone away. It''s deposition clearly proves that the Respondent did not have the Appellant has with his content or against, in will be missing Moreover the fact that the entire store cal Ors. was handed over to her lather and that neither the Appellant nor his father cared to for many request the Respondent parents to send her back to Morvi, which they were parents to do, in view of the fact that this was her first visit to her parents house alter coming to Morvi, it would appear that the Respondent was sent away for good and there was no intension to call her back.

The inherence is father supported by the missing the Respondent sent a pleader''s notice to the Appellant alleging There in that she was citizen away by the Appellant''s father after giving her a severe beating without any reason and taking away her Sridhar clothes and ornaments. The Appellant had neglected to maintain her for 11 months of her stay with her father. The notice further stated that the Respondent had no objection to return to Morvi if proper security was given against beating. By the notice the Respondent asked for arrears of maintenance at the rate of Rs. 50/- per month and also for further maintenance. This last demand was presumably made in the event of the Appellant refusing to give security.

The Appellant sent a reply Ex. 6 to this notice dated 12-2-50 in which he denied all allegations of beating and alleged that the Respondent did not stay with him even for a month or performed her marital duties. She had no sense of decorum of demeanor or in Court mentally. The reply also alleged that the Respondents laugher had fraudulently suppressed the knowledge of her mental imbecility from the Appellant and his father and had of land her on set up and it The Appellant no doubt asked her by his reply lo return to Marvin but this offer appears to have been made with a view to evade liability to pay evidence We therefore agree with the learned Assistant Judge that the evidence proves that the Respondent did not leave her husband''s home nor continued to stay at Anjar without her husband''s consent and against his will.

On the contrary it would appear that the Appellant''s father sent her away with his approval with the intention that she should permanently live with her parents. There is therefore, no staying apart by the Respondent without the Appellant''s consent and against his wish and the question whether the Respondent intended to break off the marital the does not arise though we are satisfied that she never had that intention.

There is also Anr. aspect of the case. Desertion has been defined by the Act as desertion without the consent or against the wish of the other spouse. In Fowle v. Fowle 4 Cal 260 (A) which was a case under the Indian Divorce Act, it was held that the expression "against the wish of" is to be construed as meaning contrary to an actively expressed wish of the person charging abandonment and notwithstanding the resistance or opposition of such person.

It is the duty of the party seeking to prove desertion to give evidence of conduct on his part, showing unmistakably that such desertion was against his will. The Appellant is not in a position to contend that the Respondent''s departure was without his consent. He has therefore to show that her going away to her maternal uncle''s and subsequent stay at Anjar were contrary to his declared wishes.

It is not enough to show merely that he was unwilling that the Respondent should go and stay out. It is further necessary for him to show that he had expressly declared his wishes by calling the Respondent or otherwise giving her to understand that any further stay by her from his house was against his wish. The evidence, as we have shown above, is quite the contrary and therefore also the Respondent is not guilty of desertion.

The appeal therefore fails and is ordered to be dismissed with costs. The decree of the trial Court is confirmed.

Shah, C.J.

I agree.