Bipinchandra Jaisinghbai Shah v. Prabhavati (1957)

This is the classic statement of what desertion is. It supplies the four elements — two on the side of the deserting spouse and two on the side of the deserted — and the rule that desertion is a continuing offence which ends the moment the deserting spouse makes a genuine offer to return. For a woman who has left the matrimonial home after a quarrel, or who has been sent away, this case decides whether the law will treat her as the deserter.

The parties married at Patan in April 1942 according to the rites of their community. They lived in a two-room flat in Bombay with the husband's parents and two sisters; a son was born in 1945. They lived happily until a family friend came to live with the family in the Bombay flat in 1946 after his discharge from the army.

In January 1947 the husband left for England on business. While he was away the wife went to Patan and wrote a letter to the friend, unsigned except for a word of greeting where the signature should be, whose contents she could not explain in the witness box. She had first denied writing any such letter, and persisted in the denial in her written statement, but her counsel admitted it at the trial. In cross-examination she said she had felt for the man as for a brother, could not explain the passages put to her, admitted that the letter read like a letter written by a girl to her lover, and admitted that she had taken care that her mother-in-law and sisters-in-law should not see her writing it.

The husband returned in May 1947, was given the letter by his father, had photographic copies made, and put it to his wife. On 24 May 1947 she left, ostensibly for a marriage in her father's family, and did not return to the matrimonial home. He sent a solicitor's notice, followed by a telegram and letters; he admitted in the witness box that the notice was sent by way of shock treatment so that her family might persuade her to come back.

Her cousin and her father deposed that on receiving the notice they went to Bombay, pleaded her cause and asked the husband to forgive and forget and take her back, and that he said he did not wish to keep his wife; that her father was told matters would be settled amicably; and that arrangements were made with the mother-in-law to send her back, abandoned when the telegram and letters arrived. Between 1948 and 1951 the wife stayed with her mother-in-law at Patan whenever she was there, sometimes for months. At the mother-in-law's suggestion she sent her three-year-old son alone to Bombay in the hope that he might induce his father to send for her; the boy stayed about twenty days and was brought back by his father because he would not stay without his mother. The husband did not examine either of his parents.

The husband sued for dissolution on the ground of desertion. A single judge decreed; the appellate bench of the High Court reversed; he appealed.

The appeal was dismissed. The husband had failed to prove desertion. The wife was not in desertion, although she had left without any fault on his part that could justify her leaving, because after a few months at her father's house she was ready and willing to go back. The Court added that there was no doubt that it was the wife who by her objectionable conduct had brought about the rupture and caused the husband to become cold to her.

1. Permanence is the distinguishing element. The quality of permanence differentiates desertion from wilful separation. A spouse who abandons the other in a state of temporary passion — anger or disgust — without intending permanently to cease cohabitation is not in desertion.

1. Four elements. For the deserting spouse: the factum of separation, and the intention to bring cohabitation permanently to an end. For the deserted spouse: the absence of consent, and the absence of conduct giving the other reasonable cause to form that intention. The petitioner bears the burden of proving all four.

1. The two elements need not begin together. Desertion begins when the fact of separation and the intention co-exist, but the separation may start without the intention, or the two may coincide — as where a spouse leaves the home meaning, expressly or by implication, to end cohabitation for good.

1. It is a matter of inference. Desertion is inferred from the facts and circumstances of each case, and facts that support the inference in one case may not in another. The acts are to be viewed for the purpose they reveal, including conduct and expressions of intention both before and after the actual separation.

1. Desertion is a continuing offence, and inchoate until suit. It exists independently of its duration, but as a ground for relief it must subsist for the statutory period. Unlike adultery or cruelty, the cause of action is not complete until the suit is constituted.

1. There is a locus paenitentiae. If the deserting spouse decides to come back by a bona fide offer to resume the matrimonial home with all the implications of marital life — before the statutory period is out, or even afterwards so long as proceedings have not been commenced — desertion comes to an end. And if the deserted spouse then unreasonably refuses the offer, that spouse may be the one in desertion.

1. The deserted spouse must keep the door open. Throughout the period of desertion the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable.

1. Some further rules stated. There can be desertion without previous cohabitation or without consummation. The person who actually withdraws from cohabitation is not necessarily the deserting party. And a husband's making an allowance to a wife he has abandoned is no answer to a charge of desertion.

1. Apply it to the evidence. The wife's relatives' evidence was ample corroboration that she had all along been ready and willing to return, and was in consonance with the natural course of events: having received the husband's shock-treatment notice, the family would naturally be up and doing to bring about a reconciliation. Their being her relatives was no reason to disbelieve them; they were the persons most anxious to reconcile the couple. Her staying for months with her mother-in-law over those years was wholly inconsistent with the husband's case that she was in desertion throughout. Sending her little boy alone to Bombay made sense only as a hope of reconciliation. And the husband's own evidence stood uncorroborated on many points although his parents could have been called.

It opens every desertion question. The method is fixed: state the four elements; ask when the factum and the intention co-existed; ask whether the deserted spouse consented or gave reasonable cause; then ask whether a genuine offer to return was made and unreasonably refused.

It disposes of the assumption that the spouse who physically leaves is the deserter, and the argument that leaving in anger, without more, is desertion.

It does not decide anything about constructive desertion beyond noting that the one who withdraws is not necessarily the deserter, and it did not need to decide the arguments on the intention to return, the case having failed on the primary elements. Note the change in the statute: the period is now two years under the divorce provision, not the four years applied here, and desertion is a ground for divorce.