BIPIN CHANDER JAISINGHBHAI SHAH versus PRABHAWATI.

Citation: [1956] 1 S.C.R. 838 · Decided: 19-10-1956 · Supreme Court of India · Bench: B. JAGANNADHADAS · Disposal: Dismissed

Judgment (excerpt)

1956 
October 19. 
838 
SUPREME COURT REPORTS 
(1956) 
BIPIN CHANDER JAISINGHBHAI SHAH 
v. 
PRABHAWATI. 
(JAGANNADHADAS, VENKATARAMA AYYAR and 
B. P. SINHA, JJ.] 
Husband and Wife-Divorce-Desertion-Ingredients of Deser-
tion-Intention-Animus Deserendi-Statutory period of separaticn 
-Burden of proof-Bombay Hind" Divorce Act, 1947 (Bom. XXII 
of 1947 ), s. 3(1)( d). 
The parties were married in 1942 and there was a child of the 
marriage. In 1947 the appellant left for England on business and 
on his return to India discovered that this wife (respondent) had 
been having amorous correspondence with one M, and taxed her with 
having developed intimacy with him. She was unable to give any 
answer and went to her father's place on May 24, 1947, on the pre· 
text of the marriage of her cousin which was to te.ke place in Jnne. 
On July 15, 1947, the appellant sent a notice to the respondent 
through bis solicitor in which after mentioning the fact that she had 
left against his wishes stated that he did not desire to keep her any 
longer under his care and protection, and desired her to send the 
minor son to him. On July 4, 1951, the appellant instituted the suit 
for divorce under s. 3(1)(d) of the Bombay Hindu Divorce Act, 1947, 
on the ground that the respondent had been in desertion ever since 
Ma.y 24, 1947, without reasonable ca.use and without his consent 
and against his will for a period of over four years. The respondent's 
case that it was the appellant who by his treatment of her after bis 
return from England had made her Ji£e unbearable and compelled 
her to lea.ve her marital home against her wishes, wa.s not proved 
but there was evidence that after the solicitor's notice dated July 15, 
1947, was received by the respondent, attempts were made by her 
father and bis relations to bring about reconciliation between the 
parties but they failed awing to the attitude of the appellant. 
The 
question was whether the respondent had been in desertion entitling 
the appellant to have a decree for divorce. 
Held that, on. the facts, though the initial fault la.y ·with the 
respondent. her leaving her marital home was not actuated by any 
animus to desert her husband but. as the result of her sense of guilt, 
and as subsequently she was willing to come back but could not do 
so owing t.o the attitude of the appellant, there was no proof that 
she deserted him, much Jess that she had harboured that anim"s for 
the statutory period, and the appellant's case must fail. 
The essential conditions for the offence of desertion, so far as 
the deserting spouse is concerned, are (i) the factum of separation 
and (ii) the intention to bring cohabitation permanently to an end 
-
'. 
• 
S.C.R. 
SUPREME COURT REPORTS 
839 
(animu& deserendi); and as regards the qeserted spouse the elements 
1956 
are (i) the absence of consent and (ii) absence of conduct giving 
reasonable cause to the spous;e leaving the matrimonial home to 
Bij>in Chander 
form the necessary intention aforesaid. 
Jaisinghbhai Shah 
Desertion is a matter of inference to be drawn from the facts 
and circumstances of each case a.nd those facts have to be viewed as 
to the purpose which is revealed by those facts or by conduct and 
expression of intention, both anterior and subsequent to the actual 
act of separation. 
In a suit for divorce on the ground of desertion the burden is on 
the plaintiff to prove that the deserting spouse has been in desertion 
throughout the statutory period of four yea.rs. 
Thomas v. Thomas ([1924] l'. 194), Bowron v. Bowron ([19115] 
P. 187), Pratt v. Pratt ([1939] A.O. 417) and Lang v. Lang ([1955] 
A.O. 402), referred to. 
Quaere, whether the statutory period of four years specified in 
s. 3(1)(d) should immediately precede the institution of the suit for 
divorce. 
CIVIL APPELLATE JURISDICTION: 
Civil Appeal 
No. 247 of 1953. 
Appeal by special leave from the judgment and 
decree dated August 22, 1952 of the Bombay High 
Court in Appeal No. 66 of 1952 arising out of the 
decree dated March 7, 19t>2 of Bombay High Court 
in its Ordinary Original Civil Jurisdiction in Suit 
No. 1177 of 1951. 
M. 0. Setalvad, Attorney-General for India, Pur-
shottam Tricumdas, T. God,iwala, J. B. Dadachanji, 
Rameshwar Nath and S. N. Andley, for the appellant. 
0. K. Daphtary, Solicitor-General of India and 
Sardar Bahadur, for the reE1pondent. 
1956. October 19. The Judgment of the Court 
was delivered by 
SINHA J.-This is an appeal by special leave

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