This article is written by Subhangee Biswas. The article discusses the judgement of Bipinchandra Jaisinghbhai Shah v. Prabhawati (1957) in the background of matrimonial law, in particular, divorce based on desertion. Stating the facts and background of the case, the article proceeds to cover the issues raised and the contentions presented by the parties, along with explaining the legal aspects related to the case. Finally, the article concludes with the verdict of the Supreme Court, adding a conclusion to the entire judgement.
Table of Contents
Introduction
Marriage is considered to be sacrosanct in India. With time, divorce also came to be accepted in society. Presently, all legal systems provide the right to claim divorce on certain grounds. Divorce in India is a lengthy and time-consuming procedure because the judiciary always endeavours to save the marriage. It is only when the marriage has irretrievably broken down or strong grounds have been proved that render the subsistence of the marriage impossible that the court grants divorce to the parties.
Desertion is a ground for divorce under all matrimonial laws. The Hindu Marriage Act, 1955, recognizes desertion as a ground for divorce under Section 13(1). Desertion, in simple terms, means abandonment. We will understand the term in detail in the later part of the article.
If a person deserts their spouse, without any reason and without the consent of the other, for a substantially long period of time, then the deserted spouse can claim divorce on that ground, provided that they can prove a valid desertion on the part of the other spouse under law.
The present case of Bipinchandra Jaisinghbhai Shah v. Prabhawati (1957) is a landmark case in Indian family and matrimonial law. The case essentially deals with the concept of desertion. In this case, the plaintiff had claimed divorce on the ground of desertion on the part of his wife, but he failed to prove the existence of the essential ingredients of desertion, in particular, the intention to desert, also known as animus revertendi. As a result, the Supreme Court dismissed the case and denied divorce to the plaintiff.
This case provided an example of the fact that if a spouse leaves the matrimonial house with an intention to desert or abandon but later wishes or displays a desire to come back, they will not be held guilty of desertion if they are prevented from returning by the other spouse. Let us discuss the case in detail.
Details of the case
- Name of the case: Bipinchandra Jaisinghbhai Shah v. Prabhawati.
- Case number: Civil Appeal No. 247 of 1953.
- Equivalent Citations: 1957 AIR 176, 1956 SCR 838.
- Laws and Statutes involved: Section 3(1)(d) of the Bombay Hindu Divorce Act, 1947.
- Court: Supreme Court.
- Bench: Justice Bhuvneshwar P. Sinha, Justice B. Jagannadhadas, and Justice T.L. Venkatarama Aiyyar.
- Plaintiff: Bipin Chander Jaisinghbhai Shah.
- Defendant: Prabhawati.
- Judgement date: 19.10.1956.
- Final decision: The appeal was dismissed.
Facts of Bipinchandra Jaisinghbhai Shah vs. Prabhawati (1957)
The plaintiff and the defendant were married as per the Hindu rites of the Jain community on 20th April 1942. Both the parties and their families belong to Patan, a town in Gujarat. The parties lived in Bombay with the plaintiff’s family, which consisted of his parents and two sisters. The defendant’s parents lived in the east Khandesh district of Bombay. The parties had a child out of their marriage named Kirit, who was born on 10th September 1945. A third party named Mahendra, who was a family friend, came and started living with the plaintiff’s family in the Bombay residence in 1946 after he was discharged from the army. The plaintiff left for England on business on 8th January 1947.
The plaintiff alleged that when he was absent from Bombay, his wife, that is, the defendant, became intimate with Mahendra. When the defendant visited Patan after the departure of the plaintiff, she still kept in touch with Mahendra, who continued to stay in Bombay with the plaintiff’s family.
The plaintiff returned to Bombay on 20th May 1947. His whole family, including the defendant, had gone to receive him. Upon his arrival, the plaintiff’s father handed a letter to the plaintiff, which was in handwriting similar to that of the defendant. This letter was written by the defendant to Mahendra in April 1947, when she was staying with her mother-in-law in the plaintiff’s house in Patan.
The plaintiff decided to confront his wife. He handed the letter to a photographer to get photocopies of it. The same day, in the evening, he confronted his wife regarding the letter, which she denied at first. He informed her about the photocopies being made. After receiving the photocopies, he showed a photocopy of the letter to his wife. The plaintiff alleged that, at this point, the wife, that is, the defendant, admitted having written the letter. She further claimed that Mahendra was a better man and that they loved each other.
On the morning of 24th May 1947, while the plaintiff was on his way to the office, the defendant informed him that she was to go to Jalgaon on the pretext that there was a marriage to take place in her father’s family. The plaintiff offered to send her a car and also offered to pay for her expenses, but she refused.
The defendant left for Jalgaon when the plaintiff was at his office. The plaintiff claims that when he came back, he discovered that the defendant had taken everything with her and left nothing behind. The plaintiff’s son, Kirit, was taken with the plaintiff’s mother to Patan a few days ago. The plaintiff alleges that the defendant never returned to him, contacted him, or sent him any letters from Jalgaon. Meanwhile, the plaintiff sent a letter via his advocate on 15th July 1947, addressed to the defendant, charging her for the intimacy that had developed between her and Mahendra and demanding to send their child back.
The plaintiff’s mother came back in November 1947 from Patan and informed the plaintiff that the defendant might come back in a few days. The plaintiff proceeded to send a telegram in November 1947 to his father-in-law, asking him not to send the defendant back.
The plaintiff produced a letter that he alleged to have written to his in-laws on 13th November 1947. The plaintiff, via the letter, had stated the present situation and also his efforts to reconcile for the sake of their child. He also mentioned that he does not object to the return of the defendant and that he is ready to personally bring her back in case she realises her mistake and repents of it. However, both the defendant and her father denied receiving such a letter.
Two days later, the plaintiff’s father addressed a letter to the defendant’s father stating that the mothers of both parties had a conversation about sending the defendant back to Bombay, along with mentioning the fact that the plaintiff had sent a telegram on 13th November. It was further mentioned that it was “absolutely necessary” to get the consent of the plaintiff before the defendant was sent back to Bombay. However, this letter was also unanswered.
The plaintiff filed a complaint on 4th July 1951, before the Bombay High Court on the ground that the defendant had deserted him since 24th May 1947, without reasonable cause, without his consent, and against his will, for over four years. He prayed for a decree for the dissolution of the marriage and also demanded the custody of their minor child.
Issue raised before the Supreme Court
- Whether the defendant deserted the plaintiff for a continuous period of over four years prior to the filing of the suit?
Contention presented by the parties
Plaintiff
- The plaintiff submitted that, considering the fact that the defendant left her matrimonial home without any reasonable cause or the plaintiff’s consent on 24th May 1947, and did not return to her marital house for over a period of four years following that, she is guilty of desertion.
- The plaintiff contended to have approached the defendant to return, to which the defendant refused. In May 1948, he went to Patan and met the defendant there. He told her that if she repented her actions in the interests of their child and themselves, she could return to him and live together again. To this, the defendant had allegedly replied that, due to the pressure from her father and the community, she considered going back but then decided not to do so.
- The plaintiff further argued that they met for the second time in Patan in the latter half of 1948 when the plaintiff went to visit the defendant, knowing that she was down with typhoid. During this time as well, she expressed her desire not to return to the plaintiff.
- The plaintiff argued that they met for the third and last time at Jalgaon in April-May of 1949, where the defendant again rejected the plaintiff’s request when he asked her to come back, at least for the sake of their child.
Defendant
The case of the defendant can be summarised by the following points:
- The defendant, in the written statement filed on 4th February, 1952, contended that she was forced to leave her marital house against her wishes due to the treatment meted out by the plaintiff after he returned from England, which made her life unbearable. She further stated that she did not wish to leave the matrimonial house, nor did she intend to desert her spouse.
- The defendant denied the existence of any intimacy between her and Mahendra; rather, she claimed to have a sibling bond with Mahendra. She further denied the occurrence of any confrontation about the letter by the plaintiff.
- The defendant admitted receiving the attorney’s letter and also the fact that she did not reply on the advice of her father.
- The defendant added that her paternal uncle and his son had visited the plaintiff in Bombay to request him to take the defendant back, which the plaintiff rejected.
- The defendant added that she had agreed to return to Bombay with the plaintiff’s mother or after a few days of her return to Bombay. But she changed her mind due to the telegram sent by the plaintiff in November 1947 and the letter from the plaintiff’s father dated 15th November 1947. However, both the defendant and her father denied receiving the letter from the plaintiff dated 13th November, 1947.
- The defendant stated that she was always ready and willing to return, but the plaintiff had been continuously refusing to accept her back or to cohabit with her. She added that the three meetings that took place between her and the plaintiff were because the plaintiff wanted to take away the child and was not to take her back home.
- The defendant contended that she and her son Kirit stayed with the plaintiff’s family at Patan for over four months, with occasional breaks in between.
Background of Bipinchandra Jaisinghbhai Shah vs. Prabhawati (1957)
Trial before Single Judge Bench in Bombay High Court
The Trial Court answered this issue in the affirmative and granted a decree of divorce in favour of the plaintiff.
The Trial Court observed that the letter from the defendant addressed to Mahendra did come across as a love letter. The court interpreted the letter and concluded that the defendant might have misbehaved with Mahendra and felt guilty afterwards.
Regarding the testimony of the parties in the witness box, reliance was placed on the plaintiff’s testimony. The Court, thus, held that there was desertion in the presence of animus deserendi, which means the firm intention of a spouse to leave the marital home and the marriage. The defendant failed to prove her intention to return to her matrimonial home; thus, it was observed that there was no animus revertendi, which means the intention to relocate. However, the prayer that the custody of the child be given to the plaintiff was not considered by the Trial Court.
Appeal under Division Bench in Bombay High Court
The defendant filed an appeal, which was heard by a Division Bench composed of Justice C.J. Chagla and Justice Bhagwati. The Division Bench had allowed the appeal, and the judgement of the Trial Court was set aside.
It was held that the defendant was not guilty of desertion, and it was the plaintiff who had deserted the defendant. The same is corroborated by the letter of attorney from the plaintiff’s side dated 15th July 1947.
The Appellate Court also stated that even if it is assumed that the defendant was in desertion as a result of the incident that happened on 24th May, but the letter from the plaintiff dated 15th July 1947, via his solicitor had the effect of ending such desertion.
The letter by the defendant addressed to Mahendra was not proof enough to justify any reasonable suspicion that the plaintiff may have had for his wife’s guilt. Moreover, the oral evidence of the defendant proved that the wife was willing to return to her husband, but the husband was adamant about not taking her back.
Leave to appeal to the High Court
The plaintiff filed an application at the High Court of Bombay. The application for leave to appeal by the plaintiff was refused by the Division Bench, composed of the Chief Justice and Justice Dixit. This led to the plaintiff approaching the Supreme Court.
Judgement
The Supreme Court upheld the decision of the Division Bench of the Bombay High Court. It held that the defendant was not guilty of desertion and that the plaintiff had failed to prove his case of desertion against the defendant. Since there was no case of desertion, the court refused to go into the examination of the existence of “intention” and dismissed the appeal filed by the plaintiff.
The Supreme Court had pointed out the increased difficulty in deciding this case due to the opposite views taken by the two courts before. Both decisions depended heavily on the oral testimony of the plaintiff and the defendant, and in many situations, the testimonies were not corroborated.
Guilty intention of the defendant in writing the letter
The defendant had admitted writing the letter to Mahendra during the cross-examination. It was further stated by the defendant that she considered Mahendra as a brother and not a lover. However, the defendant failed to provide justifications for her usage of certain phrases like “such an affair” and “I very much repented later on in my mind.” Further, she admitted that, while writing the letter, she made sure that no one noticed her writing the same. She failed to provide answers regarding the letter as to the meaning of the words she used.
Again, the defendant also admitted to receiving at least one letter from Mahendra. Though it was suspected she received more letters as well, she stated preserving none.
The Apex Court inferred from the lack of proper explanation that anyone who read the letter would be under the impression that there was something between the defendant and Mahendra that she wanted to keep a secret. The Court upheld the Trial Court’s decision to discredit the defendant’s testimony regarding the letter. The Apex Court agreed that the letter did prove a correspondence between the defendant and Mahendra and rejected her explanations.
The Supreme Court supported the reaction of the plaintiff and regarded his actions as correct, considering that his doubt was natural and so was his confrontation. It was accepted that the letter made the plaintiff question his wife, and that led to the plaintiff enquiring about the same, and in reply, his wife confessed that she loved Mahendra and considered him to be a better man than the plaintiff.
The court further held that the defendant was guilty in regard to the letter, and the same is proved by the fact that initially she denied writing the letter. On the other hand, the plaintiff provided a photocopy of the letter as evidence, and it was then that the defendant admitted writing the letter.
However, the Supreme Court did not agree with the Trial Court on considering a sole interpretation of the contents of the letter, which is that the defendant felt guilty after misbehaving with Mahendra in the plaintiff’s absence. The Court pointed out that the fact that a married woman wrote such letters to another man is reasonable enough for the husband to doubt the wife’s infidelity. The court held that the plaintiff was justified in his actions.
Then, the Supreme Court proceeded to examine the observations of the Appellate Court. The court did not agree with the Appellate Court in considering the letter as evidence of “platonic love” between two married persons who are restrained by their marital obligations and thus chose to only show love and devotion for each other. The Court also disagreed with the Appellate Court on their criticism of the plaintiff’s side for asking questions that suggested the defendant had intercourse with Mahendra. The Supreme Court accepted that the case was not regarding adultery and that even the Act did not recognise adultery as a ground for divorce. However, asking such questions in the cross-examination was justified as the plaintiff was trying to prove that the discovery of the letter containing such statements was the reason why the defendant decided to desert the plaintiff.
Failure of the plaintiff to prove desertion on the part of the defendant
The Court accepted that in this background, the natural reaction of the defendant would have been to escape, given the fact that her love letter had been discovered by her husband. Though the defendant had pleaded for “constructive desertion” on the part of the plaintiff, the same was not proved as she failed to provide reliable evidence to support her contention. This contention of hers was corroborated neither by the circumstances nor by her direct testimony. Even her father and other family members had not mentioned her, stating that the plaintiff had forced her out of the house when she arrived at Jalgaon. The Supreme Court had referred to the case of Lang v. Lang (1955) and stated that the plaintiff-husband would have been guilty of “constructive desertion” if the defendant was forcibly turned out of the house by the plaintiff. Thus, the allegation of “constructive desertion” by the defendant failed. But that does not infer that the plaintiff succeeded in proving beyond reasonable doubt the desertion by a defendant for a continuous period of four years.
It has been highlighted that the plaintiff had sent a letter via his attorney in the name of the defendant, which in no way showed the plaintiff’s inclination to invite the defendant back to the matrimonial house. One of the essential conditions that the deserted spouse must be willing to fulfil their part of the matrimonial duties was not fulfilled by the plaintiff. In the letter, it was clear from the plaintiff’s side that he was not ready to take the defendant back to the matrimonial home.
The court recalled the incident when the plaintiff’s mother returned from Patan and informed the arrival of the defendant. Hearing that, the plaintiff sent a telegram, and his father also sent a letter, both of which conveyed their unwillingness to take her back. Both of these documents contradicted the testimony of the plaintiff, who said that he was ready and willing to take the defendant back. However, it was also pointed out that the statement of the plaintiff that he expects the defendant to show repentance and confess her mistake prior to his taking her back is reasonable in the given circumstances.
Then the Apex Court went to examine the three attempts made by the plaintiff to persuade the defendant to come back. Though the three visits were accepted by both parties, both have provided different versions of the purpose of the visit and the conversation that took place between them. Whereas the plaintiff stated that he had visited to bring her back, the defendant stated that the plaintiff had visited to take away their child.
At this point, it was considered necessary to take into account the evidence presented by the defendant’s cousin and her father. According to them, after receiving the letter from the plaintiff, they both visited the plaintiff in Bombay and requested him to take the defendant back but he expressed his desire to not take her back.
Another incident that was highlighted was that the defendant, along with her parents, had visited the plaintiff’s mother in Patan, and after discussion, they had come to a common ground as to make arrangements to send the defendant back to her matrimonial house in Bombay. But before taking any action regarding it, due to the telegram and the letter from the plaintiff’s side, the idea was given up.
The witnesses of the defendant’s relatives rightly corroborated her contention that she was always willing to go back and resume her matrimonial relationship with the plaintiff. Moreover, the fact that she did stay with the plaintiff’s family, especially with his mother in Patan along with the child, further proved her case.
It was also added that the defendant’s mother-in-law had advised the defendant to send her child back to Bombay so as to induce the plaintiff to let her come back. The child refused to stay without his mother after staying for a few weeks. The Court assured that the only reason a mother would allow her child of three years to go to Bombay alone would be in the hope that it might result in reconciliation between her and her husband. All such evidence led up to the conclusion that the defendant was all along ready and willing to return to her matrimonial home.
The witnesses provided by the defendant’s relatives were believed since it is natural for them to be in support of the reconciliation between the parties. The plaintiff’s evidence was uncorroborated; his testimony in court and the letters sent from him are contrary to each other.
Thus, the defendant’s case was accepted because she was ready and willing to come back to her matrimonial house after the completion of the functions that were taking place in her matrimonial house. It was held that even though it was the wife who had physically left the husband’s house, she was not in desertion. It was also accepted that the defendant had made numerous attempts to go back to her husband’s house. On the other hand, the plaintiff failed to prove the case of desertion by his wife.
Relevant laws discussed
The entire case revolves around desertion as a ground for divorce. As per the law prevalent during that time, which is the Bombay Hindu Divorce Act, 1947, the relevant section was Section 3(1)(d) of the Act. Let us first get into a little background on the Act, then we will proceed to discuss the concept of desertion in detail.
Bombay Hindu Divorce Act, 1947
It is pertinent to mention that the Bombay Hindu Divorce Act, 1947, is now repealed by the Hindu Marriage Act, 1955. But at the time this case came up before the Supreme Court, the Bombay Hindu Divorce Act, 1947, was in force. There are references to the provisions of the Act of 1947. This Act was operative only in the then province of Bombay and was the first step in changing the laws related to matrimonial relationships.
The Preamble of the Act stated that the Act was to “provide for a right of divorce among all communities of Hindus in certain circumstances.” Section 3 of the Act provides the grounds for divorce.
The case is mainly based on Section 3(1)(d) of the Bombay Hindu Divorce Act, 1947. Section 3(1)(d) includes the following grounds among the other grounds based on which a spouse may sue for divorce:
“that the defendant has deserted the plaintiff for a continuous period of four years.”
Unlike the Hindu Marriage Act, the period of desertion under this Act is four years, and it should be continuous. On the other hand, the Hindu Marriage Act, under Section 13, provides that desertion must be for a period of at least two years.
The Act also provides the definition of “desertion” for the purpose of divorce under Section 2(b), along with the definitions of “marriage”, “husband” and “wife” as follows:
- Desertion: “‘Desert’ means to desert without reasonable cause and without the consent or against the will of the spouse.”
- Marriage: “a marriage between Hindus, whether contracted before or after the coming into operation of this Act.”
- Husband: Husband is meant to refer to a Hindu husband.
- Wife: Wife is meant to refer to a Hindu wife.
Meaning of desertion
To understand the laws involved in this case, we need to understand the meaning of “desertion” and what the Supreme Court has mentioned in this case regarding the definition of “desertion.”
The Supreme Court, in this case, has referred to two books for the definition of desertion.
The first one is “Rayden on Divorce” (Page 128, 6th edition), where “desertion” has been defined as:
“the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party.”
The following elements can be drawn from this definition:
- Separation of one spouse from another,
- The deserting party must possess the intention to end the cohabitation,
- The ending of cohabitation is for a permanent period,
- Such an intention must be without a reasonable cause,
- The other spouse does not consent to the ending of cohabitation.
The other book referred to is Halsbury’s Laws of England (3rd edition, volume 12, page numbers 241 to 243, paragraphs 453 and 454), which defines “desertion” as
“In its essence, desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and modes of life involved, the Court has discouraged attempts at defining desertion; there being no general principle applicable to all cases.
Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, ’the home’. There can be desertion without previous cohabitation by the parties or without the marriage having been consummated.
The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.
The offence of desertion is a course of conduct that exists independently of its duration, but as a ground for divorce, it must exist for a period of at least three years immediately preceding the presentation of the petition or, where the offence appears as a cross-charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence of founding the cause of action of desertion is not complete but is inchoate until the suit is constituted. Desertion is a continuing offence.”
From this definition, the following elements can be drawn:
- The abandonment must be intentional,
- It must be permanent,
- It must be without the consent of the other spouse,
- It must be without any reasonable cause,
- There is a total repudiation of the marital obligations,
- Desertion is a withdrawal from a state of things,
- To form a ground for divorce, the desertion must exist for at least three years immediately preceding the presentation of the petition for divorce,
- Desertion is a continuing offence.
It is also mentioned in the definition that it is not necessary that the deserting party is the one who withdraws from cohabitation.
Now, if we have to conclude a simple definition of “desertion,” it would be sufficient to mention that it is an act of one spouse to withdraw from the company of the other:
- for a permanent period,
- without the consent of the other spouse, and,
- without a reasonable cause.
We can also find the definition of desertion in the explanation provided under Section 13 of the Hindu Marriage Act, 1955, which states that,
“The expression desertion means the 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, and includes the wilful neglect of the petitioner by the other party to the marriage…”
The concept of desertion can be narrowed down to two essential conditions that need to be fulfilled:
- The factum of separation, and
- The intention is to bring cohabitation to an end permanently, which is also known as animus deserendi.
On the other hand, there are two elements that are necessary to be fulfilled from the side of the spouse who has been deserted, which are:
- Absence of consent on the part of the spouse who has been deserted, and
- Absence of such an action, which can give rise to some reasonable cause to their significant spouse to desert them or develop an intention to desert.
The offence of desertion begins when the factum of separation and animus deserendi co-exist, though they may not have started at the same time.
As per the Bombay Hindu Divorce Act, 1947, the two elements of desertion must continue throughout the period of four years. If the deserting spouse repents and decides to come back with an intention to resume the matrimonial relationship and offers to do so before the statutory period of four years ends, or even if it ends, then until the proceedings of divorce have been started, desertion comes to an end.
Now, if the spouse who has been deserted refuses to take the other spouse back without any reasonable cause, then it will be considered that desertion is now being done by the other spouse. Thus, the spouse who has been deserted must stand by the marriage and must always be willing to take the other spouse back and resume the married life under reasonable conditions.
If the case is such that one spouse, by their words or conduct, forces the other spouse to leave the matrimonial home, then the former spouse would be guilty of desertion even though it is the latter spouse who has physically left the house.
Judgements referred to in the case of Bipinchandra Jaisinghbhai v. Prabhawati (1957)
The Supreme Court had referred to a few judgements to give more clarity regarding the concept of desertion. The following judgements have been referred to:
- Thomas v. Thomas (1924): In this case, it has been stated that desertion is not a single act that is complete by itself. There must be a purpose behind the act of leaving the party. A mere temporary parting away, unless accompanied by a purpose or object, does not amount to desertion.
- Wilkinson v. Wilkinson (1894): It was stated in this case that desertion is not a specific act but a course of conduct.
- Sickert v. Sickert (1899): It was held in this case that the party who intends to bring the cohabitation to an end and whose conduct has resulted in such termination is the one who commits desertion.
- Pratt v. Pratt (1939): In this case, it has been stated that the petitioner needs to prove, in order to get a divorce, that throughout the whole statutory period required to constitute desertion, the defendant has, without cause, been in desertion. It has to be proved that the deserting spouse has had a continuous intention to desert throughout the period.
- Bowron v. Bowron (1925): From this case, the relevant portion that has been highlighted is that it is not necessary that the guilty party is the one who leaves the matrimonial home. The party who harbours the intention to end the cohabitation and whose conduct causes the termination of cohabitation is the one who commits desertion. In the case of desertion, one must consider the conduct of the spouses to conclude their real intentions.
- Lang v. Lang (1955): In this case, an appeal was made from the decision of the High Court of Australia to the Judicial Committee of the Privy Council. It was held that, in England and Australia, two things need to be proved to establish desertion:
- The factum of desertion, which is some outward or visible conduct, and
- The animus deserendi, which is the intention to end the matrimonial relation behind the conduct.
The factum of desertion simply means to leave the matrimonial house. The intention is to be considered in such a case, that is, whether the deserting party left the house permanently to break off ties or intended it to be a short break.
Critical analysis of Bipinchandra Jaisinghbhai Shah vs. Prabhawati (1957)
The case of Bipinchandra Jaisinghbhai Shah v. Prabhawati led to an important revelation in the concept of desertion that the abandoning party cannot be charged with the offence of desertion if they have shown their willingness to reconcile, and it is the other party who refuses to take them back.
In the present case, though the plaintiff had claimed that it was the defendant who had shown a negative attitude towards his efforts to resolve the matter, the same was not proved in the course of the proceedings. The only proof that the plaintiff could present was the letter addressed by the defendant to Mahendra.
On the other hand, it can be stated that the defendant, in order to escape from the difficult atmosphere created due to the discovery of her letter, considered it correct to take a leave from her marital house and take shelter in her father’s house. However, after the passing of a few months, she did show the intention to fix things and go back to her matrimonial house. Unlike the plaintiff’s contentions, the defendant could support her intention to return with the testimony of her relatives and even her in-laws.
The solicitor’s letter and the letter addressed by the plaintiff’s father contradicted the plaintiff’s testimony that he was always willing to take the defendant back. Both of them provided clear evidence from which it can be deduced that the plaintiff did not wish to continue his matrimonial relationship with the defendant.
The Supreme Court proceeded to decide that, though, as per the facts of this case, the initial fault was on the defendant to leave her matrimonial house, it was not accompanied with the intention to desert, that is, animus deserendi. It was out of guilt and embarrassment due to the disclosure of her love letter to Mahendra. Subsequently, she showed a willingness to return, but it was the plaintiff who opposed the same. The essential that the deserting party must possess the intention to desert was, thus, not satisfied.
The Court had also mentioned that it is the quality of “permanence” that differentiates desertion from willful separation. This statement is relevant in the present case as it can be seen that the defendant tried numerous times to reconcile their matrimonial relationship. It is common that, due to anger, disgust, or feeling overwhelmed, one spouse abandons the other, but that is for a temporary period. In such a scenario, it is not the intention of the abandoning party to permanently end the cohabitation, and thus, such an abandonment cannot be termed as desertion.
Finally, the Supreme Court concluded that there was no desertion, considering that the wife was ready to reconcile but the plaintiff was not willing to take her back. Thus, the plaintiff failed to satisfy his case of desertion, and his plea of divorce was unsuccessful.
Conclusion
This case led to some important deductions in the domain of matrimonial law, in particular, desertion as a ground for divorce. The most essential conclusion is that the intention to desert is the deciding factor in figuring out whether there was desertion. In the absence of the intention to abandon permanently on the part of the deserting party, there is no further need to delve into judging if the other essentials are fulfilled.
Another crucial conclusion that can be drawn from this case is that if the deserted spouse tries to reconcile before the minimum period mentioned in the concerned legislation for the continuation of abandonment to constitute desertion expires and the deserted spouse does not comply, then the offence of desertion shifts to the deserted spouse. This factor clears up the confusion regarding the question as to who is to be held guilty of desertion.
Moreover, the manner in which the Supreme Court has analysed not only the facts of the case but also the observations of the lower courts in a detailed manner enlightens us about the importance of evidence and corroboration of that evidence. Relying on only the testimony of one party is to be avoided, especially when it lacks support.
Thus, this case provides a crucial study to understand the intricacies of desertion to a great extent.
Frequently Asked Questions (FAQs)
What is the case of Bipinchandra Jaisinghbhai Shah v. Prabhawati (1957) about?
The case is about desertion. The plaintiff had applied for divorce on the ground that his wife had deserted him for four years.
What is meant by desertion?
In simple terms, desertion is the act of one spouse intentionally leaving the other spouse without their consent and without any reason for a permanent period to end their cohabitation.
What are the essentials of desertion?
The five essentials of desertion are:
- The factum of separation,
- The existence of animus deserendi (intention to end the cohabitation),
- The absence of any reasonable cause,
- The absence of consent of the other spouse, and,
- The permanent nature of the separation.
Who is said to commit desertion?
The spouse whose conduct is the reason for the end of cohabitation is charged with desertion.
Is it necessary that the abandoning party is always charged with desertion?
The party withdrawing does not become guilty of desertion if the conduct that has resulted in such withdrawal has come from the other party. Similarly, if the deserting party shows their willingness to come back and resume cohabitation and the party deserted resists such a return, then the later party is said to commit desertion, not the former one.
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