LACHMAN UTAMCHAND KIRPALANI versus MEENA ALIAS MOTA

Citation: [1964] 4 S.C.R. 331 · Decided: 14-08-1963 · Supreme Court of India · Bench: BHUVNESHWAR PRASAD SINHA · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

4 S.C.R. 
SUPREME COURT REPORTS 
331 
section came into force, and clearly the amended provision 
applies to the suit and governs the decision of the dispute 
between the parties. If that is so, the plain meaning of 
s. 12(3)(a) is rhat if a notice is served on the tenant and 
he has not made the payment as required within the time 
specified in s. 12(3) (a), the Court is bound to pass a decree 
for eviction against the tenant. Tha\ is the view taken 
by the Gujarat High Court and we are satisfied that that 
view clearly gives effect to the provisions of s. 12(3) (a) 
as amended in 1953. We must accordingly hold that there 
is no substance in the appeal. The appeal, therefore, fails 
and is dismissed with costs. 
Appeal dismissed 
LACHMAN UTAMCHAND KIRPALANI 
v. 
MEENA alias MOTA 
(B. P. SINHA, C.J., S. K DAs, K. SuBBA RAo .• RA.GHUBAR 
DAYAL AND N. RAJAGOPALA AYYANGAR, JJ.) 
Husband and wife-fudicial separation-Desertion without just-
cause-Offer to return to matrimonial home must be shown to be 
bona fide-Petition for judicial separation-Burden of proof-Hindn 
Marriage Act, 1955 (25 of 1955), s. lO(l)(a). 
Where an application is made under s. lO(l)(a) of the Hindu 
Marriage Act, 1955, for a decree 
for 
judicial separation on the 
ground of desertion, the legal burden is upon the petitioning spouse 
to establish by convincing evidence beyond any reasonable doubt 
that the respondent intentionally forsook and abandoned him or her 
without reasonable cause. 
The petitioner must 
also 
prove that 
there was desertion throughout the statutory period and there was 
no hona fide attempt on the respondent's part to return to the 
matrimonial home and that the petitioner did not by his or her 
action by word or conduct provide a just cause to the other spouse 
to desist from making any attempt at reconciliation or resuming 
cohabitation; but where, however, on the facts it is clear that the 
conduct of the deserted spouse has had no such effect on the mind 
, 
of the deserting spouse there is no rule of law that desertion ter-
minates by reason of the conduct of the deserted spouse. 
1963 
V asumatiben 
Gaurishank.ar 
Bhatt 
v. 
Navairam 
Machharam 
Vora and 
Others 
Gaicndragad-
k.ar /. 
1963 
August 14 
1963 
·Lachman 
· Utamchantl 
Kirpalani 
v. 
Meena Mata 
Ayyangar /. 
332 
SUPREME COURT REPORTS 
r 1964J 
An offer to return to the matrimonial home after sometin1e, 
though desertion had started, if genuine and sincere and 
repre~ 
sented his or her true feelings and intention, would bring to an 
end the desertion because thereafter the animus deserendi would be 
lacking, though the factuin of separation might continue; but on 
the other hand, if the offer \Vas not sincere and there was in 
reality no intention to return, the mere fact that letters were written 
expressing such an intention would not interrupt the desertion from 
contiriuing. 
Bipin Chander Jaisinghbhai Shah v. Prabhawati, [1956] S.C.R. 
838, Dunn v. Dunn, [ 1948] 2 All E.R. 822 and Brewer v. Brewer 
[1961] 3 All E.R. 957, relied on. 
The parties were married in 1946 at Hyderabad in Sind (now 
in Pakistan) and a child, a son, was born in 1947. The married 
life Of the couple was not as harmonious as it should have been 
and it soon transpired that much of the t;-ou ble arose out of the 
fact that while the appellant and his parents appear to have been 
of an orthodox and conservative outlook and bent of mind the 
respondent and her parents apparently did not set much store by 
orthodoxy and were liberal and modern. As a result of the parti-
tion in 1947 the parties had to leave Sind. The appellant and his 
parents stayed in a house in Bombay, \Vhile the respondent's parents 
went to -Poona. 
The appellant's complaint was that the respon· 
dent was frequently going away to her parent's house. On February 
26, 1954, the respondent left the appellant's house and went to 
Poona. 
The evidence was conflicting as to whether she obtained 
the permission of the appellant before going to Poona, but the 
facts showed that after that date the respondent did not go back 
to the appellant's house. 
The appellant 
along with 
a friend, 
Dr. Lulla, ·went to Poona with a view to bring back the respondent. 
The evidence as to what transpired at the interview with the res-
pondent was somewhat conflicting, and the appellant's case was 
that the respondent intimated 
to 
him 
her fixed determination 
not to go back to him. 
On July 7, 
1954~ the respondent 
along \Vith h

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