(1.) This appeal, by the husband, is directed against an order of dismissal of his petition under S.13 of the . Hindu Marriage Act, 1955 (hereinafter referred to as the). The case of the appellant-husband is that he was married with respondent 1 Smt. Raj Kumari Devi in June, 1955 and the Rokshadi of respondent 1 was performed in the month of February, 1964. After the Rokshadi respondent 1 stayed in the petitioners house for three days only, whereafter she was taken away by respondent 3 Narsingh Prasad Singh, who is the son of her Phupha. Respondent 1 was again brought to the petitioners village Nimi in May, 1964 and this time she stayed there for about a month, whereafter respondent 3 again took her, firstly to his own village on the ground of illness of his mother and from there to her fathers place. After one and a half month she was again brought to Nimi and she stayed in the house of the petitioner, sometime at Nimi and sometime at Patna for a total period of one year. In Jan. 1966 respondent 1 again went to her fathers place and returned to her husband after staying there for more than a year. By the conduct of respondent 1 the petitioner and his family members got an impression that she did not like to live with the petitioner and was eager to return to her Naihar or village Netar, the village of respondent 3. The apprehension of the petitioner further was that she was having adulterous intercourse with respondents. This apprehension was also based on the circumstance that she was very cold in her conjugal relationship with the petitioner and never participated willingly in any act of sex with him, the result whereof was that the petitioner never had the pleasure of married life. It was alleged by the petitioner that she used to write letters to her father making false allegations of ill-treatment.

(2.) The further case of the petitioner was that in October, 1968 the father of respondent 1, i.e., respondent 2 came to Nimi along with respondent 3 and wanted to take her with him, but the petitioner did not allow them to take her. However, respondents 2 and 3 again came to village Nimi after a few (Jays thereof and took her away, when the petitioner and his father were away at Patna in connection with the treatment of the petitioners mother. It has been stated on behalf of the petitioner that respondent 1 did not return to his house thereafter, even though repeated attempts of bringing her were made by his father. In such circumstances, the petitioner decided to take action for divorce against respondent 1 in March, 1975. Respondent 2, however, could get an idea about it and stole a march on the petitioner by getting a criminal case instituted by her daughter against him for his prosecution under S. 494 and other Sections of the I.P.C. on the allegation that he had married another girl, namely, Kanti Devi daughter of Jadunandan Prasad, on 30-4-1975 and since then he had been ill-treating her. When the petitioner came to know of this criminal case, he made enquiries about the said Kanti Devi and came to know that she was a lady of easy virtue because of which she was disowned by her parents and was living with her maternal uncle. He also learnt that she had two abortions at the place of her maternal uncle. The petitioner emphatically denied about his marriage with this girl.

(3.) Respondents 1 and 2 filed a joint written statement and contested the petition of the petitioner. Respondent 3 had also filed a written statement separately denying all the allegations made against him.

(4.) The case of respondents 1 and 2 is that respondent 1 was residing at her Sasural along with the petitioner since after her Rokshadi and she was quite faithful to her husband. As a result of the consummation of their marriage she also got a son named Rajnish alias Munna through the petitioner and both the husband and wife lived together in the house of the petitioner till February, 1975. She has denied to have ever gone with respondent 3 to his house or to have any connection with him. It has been alleged that she always remained faithful to the petitioner until he took another wife, namely, Kanti Devi without the consent of respondent 1. The latter came to know about this fact only on 24-7-1975 and since then he started to humiliate her and treat her cruelly in various ways. Indeed, she became a target of assault, abuse and neglect at the hands of the petitioner and consequently she had to lead the life of a captive. Finding no change in the behaviour of her husband, she left her Sasural and started living at her fathers place in village Mankipar. It has further been stated that her son Rajnish was already at her fathers place where he was prosecuting his studies she has denied that she was not co-operating with her husband and was not giving him full pleasure of married life. She has also denied to have deserted the petitioner , rather her case is that she had to come over to her fathers place consequent upon the taking of the second wife by the petitioner.

(5.) The learned Subordinate Judge, who tried the case, dismissed the petition of the petitioner after holding that (1) respondent 1 was not living in adultery; (2) respondent No. 1 did not treat the petitioner with cruelty;(3) respondent 1 was forced to leave the company of the petitioner in Sawan of 1975 because of the ill-treatment meted out to her after the petitioner took a second wife; and (4) she did not leave her house in 1968 as alleged by the petitioner.

(6.) Learned counsel appearing for the petitioner has challenged all the findings arrived at by the learned Subordinate Judge, excepting finding No. 1 aforesaid, which the learned Subordinate Judge has discussed under Issue No. 4. Indeed, he conceded that he would not be in a position to press the petitioners case regarding adultery against respondent 1 in view of the evidence on the record. In fact, the evidence adduced by the petitioner on this point is only hearsay and it is not easily believable that respondent 1 would be living in adultery with respondent 3, who is the son of her own Phupha and was sufficiently older than her. A case was tried to be made out on behalf of the petitioner that the wife of respondent 3 was not living with him and hence his relationship with respondent 1. But, the wife of respondent 3 (Raj Kumar Devi) has examined herself as R.W. 12 and her evidence is that she has all along been living with her husband after their marriage. Respondent 3 has also been examined as R.W. 13 and he has denied all the allegations made against him. Indeed, he has denied that he had ever gone to his house at Nimi. In face of the clear cut evidence of these two persons and that of respondent 1, the learned Subordinate Judge was right in not accepting the hearsay evidence adduced on behalf of the petitioner on the question of adultery.

(7.) Learned counsel for the petitioner-appellant, however, submitted that the finding of the learned Subordinate Judge on the question of desertion by respondent 1 is wholly erroneous, as the evidence on the record is sufficient to establish the charge of desertion. It was contended that the petitioner was entitled to a decree on this ground alone.

(8.) The term desertion has not been defined under the or under any other Code. It has, however, been settled by a series of decisions that the essence of desertion is in the forsaking and abandonment of one spouse by the other without reasonable cause and without the consent or against the wish of the other. Indeed, desertion is a matter of inference which has to be drawn from the facts and circumstances of a particular case. There are two important elements of desertion-(i) factum of separation and (ii) the intention to bring cohabitation permanently to an end, i.e., expulsive conduct manifesting animus deserendi.

(9.) In the present case the factum of separation for more than two years prior to the date of the filing of the present petition under S.13 is undisputed. There is, however, difference between the parties regarding the actual date of separation. According to the petitioner, respondent 1 is living separately from the petitioner since October, 1968, whereas according to paras Nos.3 and 9 of the written statement, respondent 1 is living separately from the petitioner at her fathers place since Feb. 1975. At the time of trial her case was that she was living separately only since the Sawan of 1975 which fact has been accepted by the learned Subordinate Judge. It is really difficult to accept the finding of the learned Subordinate Judge regarding the date of separation, in view of the clear statements in paras Nos. 3 and 9 of the written statement that she has been living at her fathers place since February, 1975. The relevant statements in paras Nos. 3 and 9 are as follows :-

"3......... This respondent 1 had been residing permanently with her husband and child at the place of posting till some time in the month of February, 1975."

"9......... This respondent 1 resided with her husband petitioner in this case till Feb., 1975, when she had to come over to her Naihar and live with her father."

(10.) It is strange that the learned subordinate Judge accepted the case of respondent 1 regarding separation from Sawan of 1975 in face of the aforesaid admissions in her written statement. It may be pointed out that it has nowhere been stated in the written statement that she had left the house of her husband in the Sawan of 1975. Indeed, there is only one case made out in the written statement regarding leaving of the house of the, petitioner by the respondent 1 and this is regarding leaving last time in Feb., 1975. It appears that an attempt was made on behalf of the respondent 1 to wriggle out of her admissions in this regard in the written statement by stating in paragraph No. 13 of her deposition that the written statement was not read over to her. She has developed her case in this regard by stating that the written statement was not prepared on the basis of her instruction but of her father. She (A.W. 10) has further stated in para No. 37 of her evidence that her lawyer had read over the written statement to her father which she did not hear in full. It is, however, difficult to accept these statements in view of the verification and affidavit sworn by respondent 1 herself at the end of the written statement, wherein she has clearly stated that the contents of the written statement has been read over and explained to her in Hindi and are true to her knowledge. In such a situation the learned Subordinate Judge should not have accepted her plea that she was not aware of the recitals in her written statement, more so, when she is a literate lady and from her deposition it appears that she had herself read her deposition and had found the same correct. Even if her plea taken in court is taken at its face value, there can be no escape from the position that the written statement was prepared on the instruction of her father i.e., respondent 2. Evidently, her father must be knowing as to since when she had been living at his place after leaving her Sasural and it cannot be imagined even for a moment that he would have made a false or wrong statement in this regard. In such a situation her plea made out in her deposition that she left her Sasural in Sawan of 1975 and not in Feb. 1975, cannot be accepted and it must be held on the basis of the categorical statements in the written statement of respondents 1 and 2 that respondent 1 had left her Sasural in Feb. 1975 and had been living at her fathers place continuously since then. It shall further be deemed to be the admitted position that the son of respondent 1, namely, Rajnish was prosecuting his studies at his Nanihal from before that date, as stated in para No. 5 of the written statement.

(11.) Next it has to be seen as to who was responsible for this separation. In other words, it has to be seen whether respondent 1 left the place of the appellant voluntarily, as she did not like to stay at the place of appellant, as alleged by the appellant, or whether she had left that place on account of the ill-treatment meted out to her in her sasural after the alleged taking of second wife by the appellant, as alleged by her.

(12.) Evidence has been led on behalf of the respondents to show that the appellant took a second wife on 30-4-1975 which fact she came to know on the following day i.e. 1-5-1975, when the second wife came to live with the appellant. The date of the marriage of the second wife (Kanti Devi) is, however, not mentioned in the written statement, but the date of knowledge regarding this marriage has been mentioned as 24-7-1975 in para No. 5 of the written statement, wherein respondents 1 and 2 have stated as follows :-

".......... As aforestated the petitioner (should be respondent 1) remained faithful to her husband till before the petitioner took another wife named Kanti Devi D/o Jadunandan Prasad of village Diripar quite surreptitiously and without the consent of the respondent 1 and of which this respondent 1 came to know on 24-7-1975 and since thereafter misfortune surrounded the respondent 1."

So, there is a clear admission of respondents 1 and 2 that the former came to know about that marriage on 24-7-1975. In view of this clear admission she should not have been allowed to lead evidence to show that she came to know about the marriage on 1-5- 75 itself. Indeed, she could not know about the marriage and the arrival of the second wife in the house on 24-7-1975 as she was not living in her Sasural after February, 1975, as found above. For the same reason her allegation about the maltreatment after the said marriage would also fall on the ground, as there could be no question of maltreatment, as she had already left her Sasural in Feb. 1975, much before the alleged marriage took place.

(13.) It has been stated by respondent 1 in her evidence in court that she protested to the remarriage of the appellant with Kanti Devi when the latter came to the house of the appellant on 1-5-75, whereupon the appellant and others of his house started beati they drove her out of the house. Consequently, she had to spend the night in the house of one Sarjug Prasad, said to be the Bhagina of her father-in-law, and on the following morning Sarjug Prasad sent her to her fathers place along with his own Barahil Ram Sahai Gope. This is said to have taken place in the Sawan of 1975. No such story, however, finds place in the written statement and it is strange that even then the learned Subordinate Judge accepted this story and in face of her clear admission in two of the paragraphs of her written statement that she had left her Sasural finally in Feb. 1975, after which she had not returned to that place. Indeed, the said Sarjug Prasad or his Barahil has not been examined to support this story. A plain reading of para No. 9 of her written statement shows that she herself left her Sasural, of course, due to ill-treatment meted out to her. This statement gives an impression that she left the house voluntarily and this falsifies her story of being driven out by the appellant or any member of his family. The allegations made by respondent 1 in her evidence in court is quite serious and is not of a type which she could have missed to state in the written statement. In such circumstances her story that she was beaten and driven out of the house in the manner stated by her in her deposition has got to be rejected outright.

(14.) Indeed, the respondents have miserably failed to prove the factum of marriage of the appellant with Kanti Devi. It is surprising that the learned Subordinate Judge has avoided to give any finding on this question, even though he was requested on behalf of the appellant to do so. It appears from para No. 43 of the judgment of the learned Subordinate Judge that he refused to give any finding on two grounds. The first ground was that a criminal case under S. 494 of the Penal Code relating to this very marriage was pending against the appellant. In my opinion, the pendency of a criminal case is no bar to giving a decision on such a point in a civil matter when the finding on that point may turn the decision one way or the other in the civil matter. Indeed, both the courts have to arrive at their own findings on the basis of the evidence adduced before them and neither of them is bound by the finding given by the other in such matters. The question of prejudice also does not arise in such a situation. The second ground given was that it was not essential to give a finding on this point for deciding the issue involved in the suit. Here also the learned Subordinate Judge is not right as the whole structure of the defence case was built up on the basis of this marriage and, if the appellant had not taken a second wife, the entire story of the respondents would collapse like a pack of cards. I, therefore, propose to give a finding on this question also.

(15.) Undoubtedly, the burden lies on the respondents to prove that the appellant had in fact married Kanti Devi on 30-4-1975 as alleged by them. This is more so, when the appellant has emphatically denied this fact and has asserted that he could not marry Kanti Devi, who was a woman of easy virtue. Then, even a marriage with the second wife has to be proved as a fact like any other marriage. There is, however, nothing on the record to prove that legal formalities of the marriage were performed in the case of this marriage, which is said to have taken place in the Sun temple at Hilsa. Neither the priest nor the barber connected with the marriage has been examined, nor any person connected with the said temple has been examined. There is also no document to prove this marriage, although in case of marriage performed in a temple, one would expect an entry about the marriage in the relevant register of the temple.

(16.) The witnesses, who have come to depose on this point, do not appear to be reliable. R.W. 1 Yamuna Prasad himself admitted that he did not see the marriage being performed. He had also no talk with either of the spouse. His evidence shows only this much that his Samdhi had told him that he had come to attend the marriage of the daughter of Jadunandan Prasad. Then, had he seen the remarriage of the appellant, it was expected that he would have told about | it to respondent 2 whom he knew from before, but he did not do so. R.W. 3 who claims to be the Gotia of the father of the appellant, has stated that he had attended this marriage on his behalf. It would mean that he was invited to attend the marriage by the father of the appellant. But, surprisingly, he could not give the name of the grandfather or great grandfather of Ramlakhan Babu whom he claimed to be his Gotia. Indeed, he is not at all conversant with his affairs, as he has stated that he has got six daughters, but the fact is that he has got only three daughters. It is really surprising that Ramlakhan Babu had invited this witness alone and had not invited other Gotias of his native place who were more nearer to him. Then, his evi gives an impression that Ramlakhan Babu had also invited a number of persons of Bunda and Nimi, but none of them has been examined. To crown all, he has admitted that he had not seen the girl and he could not give the age of the appellant at the time of that marriage. P.W. 4 Lalita Prasad claims to be present in the said temple on 30-9-75 as his daughter was married there on that day. He has also spoken of the marriage of the appellant there, but his evidence cannot carry any weight as he has stated that he had absolutely no talk with Lakhan Babu or the father of the girl on that day regarding this marriage. Indeed, he had not met him or his son (the appellant) before that day. He has further admitted that he had not seen the daughter of Jadunandan Prasad. R.W.6 Isri Singh has not claimed to have seen the marriage, but has stated that he had seen the second wife of the appellant in his house soon after the alleged marriage. It is, however, difficult to accept his claim, as according to him, the girl was aged about 10 to 12 years and was of dark complexion (Deep Sawla), whereas, according to respondent 1 herself, this girl was aged 15 to 16 years and was a beautiful one with white complexion.

(17.) On the basis of evidence of such witnesses the marriage cannot be said to have been proved. Indeed, the case of the appellant is that after the institution of the criminal case he had made an enquiry about Kanti Devi and had come to know that she was a woman of easy virtue and was, therefore, disowned by her parents, whereafter she started living in the house of her maternal uncle where she had two abortions. It is not easily believable that the appellant, who is an engineer, would make such a filthy allegation against his second wife, if he had really married her. According to him, the second abortion took place in the first week of May, 1975. In such circumstances, it is difficult to accept the case of the respondents that the appellant had married Kanti Devi and had taken her as his second wife on 30-4-1975. Indeed, no reason has been assigned for this marriage, as according to the respondents, the appellant had already got a son through respondent 1 and the relationship between them was quite cordial before the alleged marriage with Kanti Devi. For these reasons, I have no hesitation in holding that the respondents have miserably failed to prove the marriage of the appellant with Kanti Devi on 30-4-75.

(18.) If the appellant had not married Kanti Devi, the entire case of the respondents regarding ill-treatment of respondent 1 after his marriage with Kanti Devi and her expulsion from there, will have no legs to stand. It has, therefore, to be held that the respondents have failed to prove any ill-treatment meted out to respondent 1 at the hands of the appellant or any member of his family. If it is so, respondent 1 could have no justifiable cause for leaving the house of the appellant on permanent basis in Feb. 1975, as stated by her in para No. 3 of her written statement. The learned Subordinate Judge has given much importance to the question as to whether the parties had separated in 1968 or in 1975, but, in my opinion, it is unnecessary to go into this question, as it is the admitted position that respondent 1 had left the house of the appellant in Feb. 1975 and since then she is living at her fathers place almost on permanent basis. The present petition was filed by the appellant on 4th Feb. 1978 i.e. about three years after the said separation in Feb. 1975. This much alone is sufficient for entitling the appellant for a decree in view of the provisions of S.13(1)(ib) of the as the position is clear that respondent No. 1 deserted the appellant for a continuous period of more than two years immediately preceding the presentation of the petition under S.13. Indeed, the institution of a criminal case under S. 494 of the Penal Code by respondent 1 through her father against the appellant and others soon after she left the house of the appellant indicates that she had no intention to return to her husband. Then, as said above, the allegation of marriage with Kanti Devi was not true and the prosecution of the husband on such false allegation strengthens such a view and leads one to think that she had no intention to bring cohabitation . permanently to an end.

(19.) Indeed, the conduct of respondent 1 in launching a criminal prosecution against her husband with such allegation would amount to mental cruelty as well. Admittedly, the appellant is a Government servant of the State of Bihar and R. 23 of the Bihar Government Servants Conduct Rules, 1976, lays down that no Government servant having a spouse living can enter into a marriage with another person. In other words, a Government servant would be guilty of misconduct if he marries another woman during the subsistence of his marriage with one woman and this misconduct may lead to his dismissal from his service. In view of the said allegation by the might have drawn up a departmental proceeding against the appellant and, in any event, he would have an apprehension of such a proceeding and its possible consequences. The fact that she wanted to send her husband to prison and to face the possible departmental action against him are sufficient indications of the fact that she had separated from the appellant on permanent basis and had no intention to resume co habitation as no wife, who had even the least desire to return to her husband, could think of taking such drastic step against her husband. Then, as said above, her conduct also amounted to mental cruelty to the husband. These circumstances, in my opinion, are sufficient to prove her exclusive conduct manifesting animus deserendi i.e., desertion in the eye of law.

(20.) Indeed, there appears no sense in allowing the marriage to continue, when the husband and wife are living separately for about 12 years by now. Then, both the parties are making filthy allegations against one another. The wife has alleged bigamy and ill-treatment by the husband and the husband has gone to the extent of saying that Rajnis was not born through him. In such circumstances it can be inferred that the marriage has broken down permanently and the situation has reached such a stage which can be said to be irretrievable . The Law Commission in its 71st Report on the Hindu Marriage Act, 1955, has made the following observation regarding irretrievable break down of the marriage which by itself has been recognised by the Courts as a good ground for divorce :

"Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common, things of the matter and of the spirit and from showering love and affection on ones offspring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage breakdown and if it continues for a fairly long period, it would indicate destruction of the essence of marriage irretrievable breakdown".

(21.) Thus, on a careful consideration of all aspects of the matter, I feel that there can be no escape from the conclusion that respondent 1 had left the home of her husband, without any reasonable cause and the circumstances referred to above would indicate that she has abandoned her husband permanently without his consent. The appellant has been deprived of the company of his wife for long 12 years by now. As observed by the Law Commission living apart is a symbol indicating the negation of sharing of common life. It is indicative of a disruption of the essence of marriage and its long continuance would indicate destruction of the essence of marriage. So, evidently, there has been irretrievable breakdown of the marriage in the present case and there can be no sense in allowing the marriage to survive when the marriage itself has lost its essence for both the partners.

(22.) In view of what has been said above, the appellant is clearly entitled to a decree of divorce. In the result, the judgment and decree of the learned Subordinate Judge are set aside and the appeal is allowed. The marriage between the appellant and the respondent 1 is, accordingly, dissolved by a decree of divorce. In the peculiar circumstances of the case, the parties will bear their own costs.