Niranjan Singh vs Gurdev Kaur

S.S. Sodhi, J.—This Letters Patent Appeal arises from husband's petition u/s 13 (1) (ib) of the Hindu Marriage Act, 1955, for divorce on the ground of desertion.

The facts relevant to this matter are that the marriage between the parties took place in 1948. Two children, a daughter and a son, were born from this marriage and the parties have now been living apart from each other since 1953.

On July 30, 1955, the wife Gurdev Kaur applied for pension from the Social Welfare Department by making an application stating therein that her husband had died five years ago. Pension was thereafter granted to her on the basis of her being a widow which she continued to receive thereafter.

It was the case of the husband that his wife Gurdev Kaur had gone to her parents'' house at the time of the delivery of their son and she did not return to him thereafter in spite of the efforts made by him to bring her back Gurdev Kaur, on the other hand, put forth the plea that she had been turned out of the house by her husband fifteen days after the birth of their son and he had not cared thereafter to either keep her or their children or to maintain them.

Both parties led evidence with a view to show that efforts had been made by them to get the opposite party to agree to their living together. The evidence led by both parties in this behalf cannot be accepted as satisfactory. In the ease of the husband, there is only the testimony of his brother PW2 Karnail Singh. No other person was produced to depose that he had accompanied the husband as a member of any Panchayat taken to the wife for this purpose. Two Panchayats are said to have been arranged by the husband, but the time, date and persons who comprised these Panchayats was not disclosed.

Turning to the evidence led by the wife, she, no doubt, examined RW2 Arjan Singh and RW3 Gurdial Singh, both residents of the village of her husband, to depose that her father had gone to her husband in order to persuade him to take her back but it is noteworthy that they did not depose to the time when this happened. They did not state what year it was in that this happened.

The husband was granted the decree for divorce as prayed for by him. It was act aside on appeal, however, by the learned single judge holding that the requisite animus deserendi had not been established. It is this finding which has now been challenged in this appeal.

Desertion, as is now well settled, implies both the factum of separation as also animus deserendi i.e., the intention to bring cohabitaion permanently to an end. The Supreme Court in Lachman Utamchand Kirpalani Vs. Meena alias Mota, held that desertaion meant the intentional permanent forsaking and abandonment of one spouse by the other without the others consent and without reasonable total repudiation of the obligation of marriage.

In the present case, the factum of separation between husband and wife and their living a parts since 1953 is the common case of the parties. The question that thus survives for determination is whether the wife was living apart from the husband with the requisite animus deserendi. In this behalf it was the contention of Mr. G.R. Majithia appearing for the appellant husband that the filing of the application for pension by Gurdev Kaur describing herself as a window therein must in the circumstances be taken to establish animus deserenai on her part entitling the husband to the relief claimed. The contention of Mr. Y.P. Gandhi, conduct of Gurdev Kaur in describing herself as widow of the appellant during his life time was attributable to her being neglected by her husband for the past over 20 years and no maintenance being paid to her or her children during this period. The fact there fore, that she had applied for the obtained pension on this basis could not be construed as intention on her part to permanently live apart from her husband and abandon her maritalties with him.

Before proceeding further it would be pertinent to note that Gurdev Kaur had come forth with no explanation in terms of the contention advanced by her counsel as referred to above. In her written statement she had, in fact, denied having made any application to the Social Welfare Department describing herself as the widow of her husband Niranjan Singh. It was only when the Clerk from the Department concerned came to court with the relevant record that she was impelled to admit having made such an application. This cannot but detract from the value to be attached to her stand now in this behalf.

It will be seen that there has been a long period of living apart by Niranjan Singh and Gurdev Kaur, coupled with mutual allegation of neglect and beating and illicit relations with another woman, on the one hand, and of desertion, on the other. In the matter of their living apart there is also on escape from the conclusion that there was no meaningful effort on the part Gurdev Kaur to go back to her husband. In this situation, for Gurdev Kaur to describe herself as a window during her husband's life time must undoubtedly be taken as irrefutable evidence of animus deserendi on her part.

In the totality of the circumstances of the case and the evidence on record we are constrained to take a view contrary to that of the learned single and to hold that all the necessary ingredients of desertion by the wife stand established in this case. We consequently accept this appeal and grant to the husband Niranjan Singh a decree of divorce as prayed by him. There will, however, be no order as to costs.