Shri R v. Smt. S

D.J. Moharir, J.

1. This appeal by the original petitioner husband is directed against the dismissal of his petition for a decree of divorce under section 13(1)(ib) of the Hindu Marriage Act filed against his wife Smt. S. By the judgment in Civil Appeal No. 150 of 1990 the appeal of the wife was allowed and the petition for divorce dismissed thus reversing the judgment and decree granted to the present appellant by the civil Judge, Senior Division, Thane in Marriage Petition No. 102 of 1989.

2. The petitioner Mr. R. is a resident of Mulund. The respondent Smt. S. was a resident of Ulhasnagar, Dist. Thane and until the year 1977 the petitioner husband was employed in the clerical staff of the Income Tax Office at Bombay. So also the wife Smt. S. and her brother S.G. who has been examined as a witness at the trial. However, it is not in dispute that the marriage between the petitioner and the respondent was not a result of their acquaintance or intimacy but was an arranged marriage as such. It would appear and it is not particularly in dispute also that it was mainly because of the approval of Shri R. by S.G. as a husband for his sister Smt. S. that this marriage came to be performed in April, 1986.

3. By 1977 the petitioner husband had however left his job and launched himself into business as a builder. In the Satguru Sadan Housing Society at Mulund the petitioner owned flat No. 11. The flat No. 11 stands in the name of the petitioner. The adjoining flat No. 10 stands in the name of one N.A. who is, as claimed by the petitioner, his foster father and one Mrs. N.B. the foster mother. There is also no dispute that these two flats have eventually come to be connected by opening the door in the common wall between the two flats so that flat Nos. 10 and 11 become a one single establishment. Alongwith N.A. and Mrs. N.B., their son and daughter were also living. The petitioner claimed that he had been, almost since his child-hood brought up by N.A. as his foster parents and was therefore greatly attached to them. An additional fact which has emerged from the evidence on record and which may therefore, be stated here only as a proper appraisal of the totality of the facts and circumstances, is that the petitioner lost his father some time in the year 1965. He has his sisters and brothers also. The widowed mother lives with one of the brothers who lives abroad.

4. After marriage in April 1986 the respondent wife started residing with the petitioner in the said flats. She lived with the petitioner till 1st May, 1986 when she left for Ulhasnagar to attend the marriage of yet another brother of hers. At the end of May she came back to Mulund and joined the petitioner. Again in the first week of June the same year she went to the parental home at Ulhasnagar returning to Mulund about a month thereafter in the second week of July, 1986. She continued to live with the petitioner thereafter till almost the middle of August. On 19th August, 1986 she went to the parental home at Ulhasnagar for the Rakshabandhan festival as also the betrothal of her cousin. Thereafter until the presentation of this petition under section 13(1)(ib) in April, 1989, there is no dispute that she had not returned to Mulund to resume cohabitation with the petitioner husband. In the meanwhile on 14th October, 1987 and then on 9th March, 1989 the petitioner had admittedly addressed two letters cum notices to the wife calling upon her to return to him and resume co-habitation. It is also not in dispute that each of these two notices was duly replied to by the respondent wife. What constitutes the gravamen of these two notices as also the petition and what constitutes the gravamen of the wifes replies as also her written statement to resist the petition under section 13(1)(ib) would therefore, be material for being stated in some detail.

5. The petitioners case is that on 19th August, 1986 the respondent wife went away to Ulhasnagar, in the first instance, without his consent as such. Secondly, that she had taken away with her all her gold ornaments as also the cash of Rs. 15,000/- and thirdly she also took away a document in the nature of an application for opening an account in a certain Bank on which she had earlier obtained a signature also of the petitioner husband. With these three possessions she had departed for the parental house. The petitioner alleged that he had contacted her and tried to convince and persuade her to return to live with him but was unsuccessful. According to him, the wife would not agree to return to him unless the petitioner husband purchased a flat in her name proper and that the petitioner husband then also agreed to live with her in that flat, away from the interconnected flat Nos. 10 and 11 in the Sadguru Sadan Society at Mulund. The petitioner also alleged that the wife had demanded a sum of Rs. 2 lacs from him to be deposited for opening an account in her name.

6. This attitude and conduct on the part of the wife constituted cruelty. It has come more by way of a shock to him when she had resided and co-habited barely for a period of two months or thereabout and inspite of the fact that she had been well looked after by him.

7. The petitioners notices dated 14th October, 1987 and 9th March, 1989 had both also failed to persuade the wife to return and therefore it was clear that the respondent wife had no intention of resuming co-habitation. According to the petitioner, she left the matrimonial home on the 19th August, 1986 with a clear intention never to return there. It was a case of animus deserandi on her part entitling the petitioner husband to a decree of divorce an dissolution of marriage. The present petition was accordingly filed.

8. Resisting this claim and the allegations, the respondent wife Smt. S. submitted that it was because the petitioner had a very approving look at her when he met her at her brothers marriage at Ulhasnagar that he had himself made an offer and proposed to marry her. The marriage had however come to be settled in the usual manner, through the parents. The petitioner husband had represented that the person who resided in flat Nos. 10 and 11 in the Sadguru Sadan Society at Mulund were his father and mother. It had never come to be disclosed to her until after her marriage that they were at best his foster parents. When the respondent came to live at Mulund after the marriage she had several shocks and surprises in store for her. She complained that on the very first night after the marriage, she found that the petitioner did not allow her to share the bed with him. Almost every day thereafter she realised that the petitioner was spending all his time on Mrs. N.A. sitting with her in her room or in the drawing room viewing T.V. programmes or video programmes. Whenever the two of them were together in their bed room the said Mrs. N.A. insisted upon the common door between the two rooms being kept open and on certain occasions she used to even barge in their room demanding to sleep in their bed and compelling them to take to the floor for sleeping. The petitioner husband, as she realised, was even scared and apprehensive of Mrs. N.A. to a considerable degree. It was as if he had completely surrendered himself to that woman. Whenever he used to return to sleep with the respondent wife in their bed room, he used to ask her to go scouting and ensure that Mrs. N.A. had gone to her bed room. The said Mrs. N.A. had, on one occasion raised such tantrums on the failure of the petitioner husband to go to her; so much so that she became hysteric and in a blind rage tore off her own clothing to shreds and then went to the terrace portion of the building to sleep there. All these facts and circumstances made the respondent wife very apprehensive. She was left wondering what precisely was the kind of relationship that existed between the petitioner husband and the said Mrs. N.A. It was not until sometime after the respondent conveyed all these facts and circumstances to her parents that it came to be known that the petitioner who had his mother, sisters and brothers living, was not all continuing that relationship with them and that he was having an attachment to Mrs. N.A. The respondent found Mrs. N.A.s influence over the petitioner husband entirely irremovable inspite of her cajoling him, encouraging him and even demanding of him that he make things clear to the so called foster mother and call upon her boldly to behave herself. She tried to persuade the petitioner husband to look for separate accommodation elsewhere for the two of them so as to get rid of the undesirable influence which Mrs. N.A. had been wielding over him. Eventually, the petitioner husband also agreed that some separate residential accommodation should be found out and in the meanwhile the respondent wife should go to the parental home at Ulhasnagar and stay there.

9. It was near about this time that the marriage of respondents other brother also was fixed and therefore she went there alongwith sisters and brothers a few days before that marriage which was scheduled to be performed in May, 1986. The petitioner had at that time promised the respondent that he would be attending the marriage and he would also take her back with him, after he returned from a trip to Ahmedabad for someone in connection with Mrs. N.A., the crux of the matter is that the petitioner husband himself thus persuaded his wife to stay at the parental home until residential accommodation was secured elsewhere. The petitioner however never really himself applied to the task and it thus became clear to her from the utterances of both the petitioner as also Smt. N.A. that the two of them had become almost inseparable, the petitioner himself declaring that Mrs. N.A., would find it impossible to remain in the house without him. It was accordingly on the day of Rakshabandhan on 19th March, 1986 that the petitioner and the respondent went to Ulhasnagar for celebrating the festival. The petitioner persuaded her to take as many of her belongings articles of clothing, ornaments and cash etc. with her, to shift to Ulhasnagar until accommodation elsewhere was found. at that time, the petitioner had also demanded of Mrs. N.A. to return some amount which he had entrusted to her, the said Mrs. N.A. flared into temper and called upon the petitioner also to quit the house. Some incident had also taken place at night before the night of 19th March, 1986 and it was the culmination of all these that a decision was taken that the respondent should go to the parental home at Ulhasnagar. Since then, however, the petitioner had not made any arrangements for the separate residence. She had quite often made enquiries from the petitioner by contacting him on telephone but he had been evasive. On the day of the engagement of her elder sisters daughter, the petitioner husband had also attended the function. At that time he had even taken the respondent as also her elder sister to show to them a bungalow at Asangaon (Central Railway) suggesting that that was to be the place where they would be shifting in near future. In actuality having once left the respondent at Ulhasnage, the petitioner had never bothered to go and meet her. As for the respondent herself, she very categorically submitted that irrespective of the fact that the petitioner husband himself never came to Ulhasnagar to visit her or to shift her from Ulhasnagar, she did not herself have the heart to go back to Mulund in view of the aforesaid facts and circumstances, particularly the queer, strange and even somewhat suspicious relations between the petitioner husband and Mrs. N.A. In the circumstances, the petitioners plea that the respondent had, with the requisite animus deserendi, deserted him for a period of over two years and that again without any consent and justification was entirely false.

10. The parties joined issue accordingly. Upon trial and considering not very voluminous evidence, which consisted of the petitioners testimony and the two notices dated 14th October, 1987 and 9th March, 1989 issued by him to the respondent wife and her replies thereto - as also the testimony of the respondent wife Smt. S., her brother S.G. and her elder sisters husband C.R., an Advocate, the trial Court was satisfied that desertion as a matter of fact has been satisfactorily established by the petitioner husband and accordingly a decree for divorce was passed.

11. On appeal by the respondent wife, the learned Additional District Judge, Thane set it out as the only question before him as to whether the appellant wife was proved to have deserted her husband for a period of more than two years without any justifiable reason. Upon his own assessment of the evidence and pointing out where according to him the learned Judge of the trial Court had fallen into an error, the learned Additional District Judge concluded that the facts and circumstances as had come to be established on record were that the wife had been taken through circumstances which were not tolerable but which she was compelled to live with. The learned Judge observed that it had become impossible for her to live in peace in that house since it was but natural that a newly married woman expects some privacy and unless there was such a privacy for a newly married couple they would not be able to properly enjoy the marital lease. The learned Judge also observed that it was for too much time during a day and also till, late in the night the petitioner husband was found remaining present in the portion in which Smt. N.A. lived, neglecting his own wife. That certainly would be a case of mental torture for a newly married wife. The learned Additional District Judge also found that quite contrary to the allegation that the wife left the matrimonial home of her own, to go to the parental home at Ulhasnagar, it was in fact the appellant petitioner husband who had sent her to the parental home on the assurance that she would stay there so long as separate residential accommodation was not secured for the two of them; that the petitioner had however promised that such accommodation would be soon secured but that day had never dawned and, therefore, she had continued to live in the parental home. On these as the proven facts, the Appellate Court held that the learned Judge of the trial Court was not right when the latter came to the conclusion that there was a suggestion implicit or even a clear imputation of an illicit intimacy between the petitioner and Mrs. N.A. and that this was an error. Even so the learned Additional District Judge held that the evidence made it quite transparent that under the very peculiar circumstances the petitioner husband was under the influence of Mrs. N.A., even as a foster mother, that she had intervened too much in the marital life of the appellant and the respondent. This interference would not be allowed to be perpetuated and separation from Mrs. N.A.s family was necessary as also unavoidable. Such separate living was the only solution; the husband realized it and it was on that promise and in the expectation of having a peaceful and happy married life in future that the respondent had insisted upon separate residential accommodation. That insistence on the part of the wife, the learned Additional District Judge held, would not therefore be considered as being unreasonable by any measure. It could not be difficult for the petitioner husband, since he had become a builder of some considerable standing also to secure residential accommodation for the two of them. That he had not done so also spelt out his own disinclination to co-habit with the wife.

12. Therefore, applying himself to the really unenviable task of ensuring that an unbridgeable rift did not take place between the man and wife and to ensure that they resumed co-habitation, the learned Additional District Judge appears to have put in his own endeavour also. He observed at the end of para 7 of his exhaustive judgment that he had called the parties and their Counsel in his chamber and made ever effort at reconciliation. At that time the wife had shown her willingness to live with the husband provided he took some house for residence away from that of Mrs. N.A. The husband had however refused to take his wife and to secure a separate residential accommodation for the two of them. The husband had declared to the learned Judge that without him, Mr. and Mrs. N.A. would simply not be able to live at all and that it was not at all possible for him to abandon them. In as much as this clearly indicated the petitioners giving precedence to his relationship with Mr. and Mrs. N.A. over the wifes, it was very clear that the petitioners grievance about any desertion by the wife itself became untenable. In that view of the matter, the Court below allowed the appeal, quashed the judgment and decree passed by the trial Court and dismissed the petition with costs.

13. Aggrieved by this judgment of the Additional District Judge, the original petitioner husband has come up in appeal.

14. At the time when this appeal came up for admission here the grounds stated at Serial No. (a) to (j) in the Memorandum of Appeal were accepted and admission ordered to formulate these as the grounds for consideration of the appeal for eventual relief if any to the appellant. A scrutiny of these grounds will indicate that the really important ones are those at Serial No. (d) which reads that the learned Additional District Judge had committed a grave error in law in not considering that the wife was found to have left the matrimonial home without any excuse and inspite of the fact that the husband owned exclusively for himself a flat in the said Sadguru Sadan Housing Society at Mulund. The second ground on which the appeal has been admitted for hearing is the perverse approach on the part of the trial Court in not accepting the fact that the wife had in fact suggested and imputed an illicit intimacy between her husband and the foster mother Mrs. N.A. and this, only on the sly and without making any direct allegation of the husbands adulterous relationship with her. Another ground taken is that the several admissions made by the wife during her evidence had been totally ignored to arrive at the wrong conclusion that there was no desertion on her part. It is in light of these grounds that the arguments have been advanced by learned Counsel Shri Jahagirdar for the appellant.

15. The consideration of what needs and ought to be accepted out of the entire undisputed matrix of facts would require to be, only appropriately, recapitulated according to me. The appellant and the respondent were married in April, 1986. It was an arranged marriage irrespective of the fact that both of them had been in service in the Income Tax Department until the appellant husband boldly struck out into business as a builder in the year 1977. It is also not in dispute that as before the marriage, after it also the wife has continued her job in the Income Tax Department till this day.

16. There is also no dispute that the appellant husband owns Flat No. 11 in the Sadguru Sadan Co-operative Housing Society and the adjoining Flat No. 10 is occupied by Mr. and Mrs. N.A. who, as claimed by the appellant husband, are his parents. Whether the fact that they were only foster parents and not the natural parents was known to the respondent wife prior to the settlement of the marriage or even for some time until thereafter is a material question of fact to which proper application does not appear to have been made. The respondent wife replied to the husbands notice dated 9th March, 1989 in particular and her written statement as also her deposition before the Court very clearly establish her unawareness and ignorance about this fact. In as much as the printed marriage invitation card issued on behalf of the petitioner and his foster parents has also been placed on record at Exhibit 27 and because it mentions Smt. and Shri N.A. as the persons hosting the reception in honour of the marriage of the petitioners whom they describe as their God-son (foster son), I inquired whether there was any evidence to show that this printed marriage invitation card had been or could be proved as a matter of knowledge on the part of the respondent wife. There as none. A suggestion was also made to the respondent wifes brother S.G. during his cross-examination. He has also denied that he has ever seen this invitation card. It is also not in dispute as now ascertained during the arguments that the respondent wife had not been told specifically by the petitioner, nor she had come to know in any other manner also, that the N.A. were only the foster parents of the petitioner. The petitioner makes no assertion himself that he had informed the respondent wife that the persons to whom he referred as his parents living at Mulund were actually his foster parents. Her written statement in this behalf needs to be noted. The petitioners proposal to marry the respondent Smt. S., which he broached with her brother S.G. constituted the initiation of talks in this behalf. The proposal was approved and a day was fixed for the respondents parents and relatives to go and meet the parents of the petitioner husband. When they went to Mulund Mr. N.A. was introduced as the father and not as the foster father. The respondents brother S.G. had been told that he or his parents should not however divulge the fact of the settlement of the marriage before N.A., that the visit should appear as formal as possible and the proposal of marriage should be, as just formally initiated. There is no rejoinder to this. The matter must therefore stand to be concluded that the respondent wife had never come to be apprised of the position that N.A. and his wife were not the real and natural but only foster parents. These facts have to be mentioned for appreciating that it is the relations vis-a-vis the respondent wife and the alleged foster mother Smt. N.A. called Mrs. N. that must eventually be concluded as being at the bottom of the circumstances, under which this marital relationship could be said to have been soured unfortunately.

17. It is settled law that in regard to the deserting spouse the factum of separation and the intention to bring co-habitation permanently to an end on his or her part have to be established and in so far as the deserted spouse is concerne, the absence of consent on the part of the deserted spouse for any such separation or desertion as also the absence of any conduct on his part which would give cause to the other spouse to leave the matrimonial home are required to be established. In the present case, the factum of desertion and the animus deserandi are both totally absent as contended by the respondent wife. The petitioner husband sought to establish this by stating that when the wife admittedly left the matrimonial home on 19th August, 1986 she had done so without the consent of the petitioner husband. Going away without the consent or knowledge of the husband would indeed be the commencement of a series of facts and circumstances in favour of the petitioner claiming a decree for divorce. Learned Counsel Shri Jahagirdar endeavoured to show, contrary to the respondent wifes plea, that she had left the matrimonial home without any consent on his part. The evidence on record that of the wife herself, her brother S.G. and her elder sisters husband one Shri Raisinghani, Advocate of Ulhasnagar shows that 19th August, 1986 was a Rakshabandhan day. The respondents brother S.G. has also stated that on that day he had made an enquiry from the petitioner husband on telephone whether he had the other brothers of the respondent S. should visit Mulund for the Rakshabandhan function or whether she would be herself visiting them at their residence at Ulhasnagar. It is also his evidence that it was indicated that S. would herself be going to Ulhasnagar for that purpose. There was yet another reason for going to Ulhasnagar. The betrothal ceremony of the daughter of S.s elder sister was to take place. This was to the knowledge of the petitioner. It is, therefore, the evidence that both these functions were attended by the petitioner husband on that day. In short, the petitioner husband had accompanied the wife when she went to Ulhasnagar and therefore there was no question of absence of consent on his part to the respondent S.s going away to Ulhasnagar. The petitioner husband made some attempt to show that in fact she had gone alone because on that day he was required to go to Ahmedabad accompanying the said foster mother Smt. N.A. for some work and that he thereafter visited Ulhasnagar no doubt but only for the purpose of taking back the wife to Mulund. Even from this, what would still be gatherable is that there was and could not have been any want of consent on the husbands part to the respondent S. going to Ulhasnagar. He has, moreover, admitted that on previous occasions she had taken his permission to go to Ulhasnagar.

18. It is at this stage that the other side of the case namely that of the respondent wifes would require to be considered right from its start. Her case as made out from her own deposition, supported to a certain extent by her brother and brother-in-law, is that she was totally unaware that Shri and Smt. N.A. were merely the foster parents of the petitioner husband. At no point of time before her marriage had she been apprised that whenever the petitioner husband spoke of his parents he had only meant to say foster parents. It was only after the respondent wife shifted to live with him in the flat at Mulund that she came to realise and which also required certain enquiries to be made discretely enough by her parents and brothers - that N.A. and Mrs. N.A. carry the surname Ambawani; that they were not Makhijas as is the surname of the petitioner husband. No suggestion was even made to the respondent wife that there was any such name plate on the front door of either flat No. 10 or 11 showing the name of the occupants as N.A.

19. The respondent wifes case is that at the very beginning of her residence in the matrimonial home, she felt bossed over completely by Smt. N.A. as if she was the full-fledged mother-in-law, when she declared to her that R. would be entirely hers at night and that during days he would be entirely within her power to control him. Only consistent with this declaration was the behaviour of Mrs. N.A. also as the respondent realised and experienced, as day succeeded day. An ever peculiar kind of possessiveness, exclusion of the respondents domain on her husband as the wife came to be experienced by her and more so what she realised was also the almost object submission on the part of the husband to this controlled exercise over him by Mrs. N.A. The intrusion in their private life on the part of the said N.A. went to the length of her demanding the common door between flat Nos. 10 and 11 being kept open even during night. Mrs. N.A. having thereby access to their bed room. The respondent wife recalled an occasion or two when Mrs. N.A. had actually barged into their bed room demanding to sleep in their bed and compelling the couple to sleep on the floor for the remaining three hours of the night. She also realised that whenever it was possible to close the door, he used to call upon the respondent wife to make it sure that Mrs. N.A. had gone to sleep before that. This degree of influence, unholy as it appeared to the respondent wife and unethical at the same time, was something for which an explanation was hard to come by. But the fact and circumstances remained that the petitioner husband was not only under the influence, behaving submissively towards the said Mrs. N.A. but that in this process the matrimonial or conjugal affinity between the spouses stood hurt to a degree painful. That was what constituted a hitch in the relations between the parties. As I have observed earlier the affinity for the foster parents took precedence over the duty to discharge the conjugal obligation towards the respondent wife. Whether or not this, as a matter of fact, would therefore constitute a grievance genuine on the part of the respondent wife remained to be seen and determined by the courts below-as a question of fact. That it did result in so depriving the respondent wife of the legitimate expectation of the company of the husband has been found and held by the learned Additional District Judge.

20. A mere denial on the part of the petitioner husband that there was any such extra ordinary intimacy between himself and the foster mother, that he adored or worshipped her so much as to dance to her tunes ignoring the wife at the same time almost completely, is a denial for its own sake as must be found. The apparent weakness in this denial would appear to stand demonstrated when the learned Additional District Judge observes that during the course of hearing of the appeal he had also made his own endeavour to prevent the marriage from breaking, he had endeavoured to see how best there could be brought about a reconciliation and how the estranged couple would be re-united as is the avowed object of the legislation. The learned Judge has therefore observed :

"I called both the parties and their Counsels in my chamber and attempts were made for reconciliation. The appellant showed her willingness to live with the husband provided he takes a house away from the house of Mrs. N.A., but the respondent refused to take his wife to his house and to take a hose from different place. He insisted that without him, Mr. and Mrs. N.A. cannot live and therefore, he could not abandon them."

That therefore, clearly established the petitioner husbands preference for the foster parents and mother in particular providing support only to what the respondent wife testified in that behalf.

21. Reverting to the purpose of the respondent wifes staying at the parental home upon her visit to that place on 19th August, 1986, it is her evidence that she made every endeavour, cajoled, entreated and even demanded finally of the husband that the latter must rid himself of the influence exerted over him by the foster-mother, if the marital tie was to survive and flavour. The husband as she states, eventually realised that the only way the marriage could be saved and the marital tie nurtured to health would be to secure a residence for themselves at some place other than the Mulund residence comprising of flat. Nos. 10 and 11. It is indeed a matter of some significant revelation that in his deposition the petitioner husband has admitted that though one of the two flats No. 10 is occupied and lived in by N.A., it actually belongs to him. So that both the flats are absolutely of the ownership of the petitioner husband and as argued by learned Counsel for the respondent one would be left wondering as to how and why and under what extra-ordinary and exceptional circumstances the N.A. continue to be accommodated in that flat also. Whatever that be, the respondent herself stated that eventually the husband agreed that he would seek some place for their residence elsewhere and that in the meanwhile she would better stay with her parents. The occasion for going to the parents presented itself when the festive day of Rakshabandhan dawned and the betrothal of her sisters daughter was also to take place on that day. It was, therefore, as she candidly stated, that she and the petitioner husband both went to Ulhasnagar not only to attend the two functions but even eventually for her stay thereafter at Ulhasnagar. It was therefore that the husband himself helped her in packing her suit cases with all her articles of clothing or wearing apparels, the jewellery and ornaments and she was even given a cash of Rs. 10,000/- for her use during the stay at Ulhasnagar. With that amount of Rs. 10,000/- she also opened an account in the Bank there.

22. It is, therefore to be appreciated or atleast tried to be understood as to what other circumstances, if any, have been suggested by the petitioner husband for the departure of the wife from the matrimonial home. There is no other circumstances whatsoever except what has been deposed to as the state of facts, which is as alleged an unreasonable or unacceptable ground for her departure from the Mulund residence to stay at Ulhasnagar. The reaction on the part of the husband, if he was a dutiful husband caring and doting on the wife as he says, and if there had been no other reason for the wifes continuing to stay at Ulhasnagar after her visit to that place on 19th August, 1986, it is rightly argued by Shri Bhagnari for the respondent wife that the husband would have endeavoured to contact her, if not immediately, atleast within a very short time when he found her not returning to Mulund. From the date of her departure for Ulhasnagar on 19th August, 1986, it was only on 14 October, 1987 that the husband wrote the first ever letter to the wife saying that he was surprised that she had left the house and had not inspite of several telephone calls and personal visits, cared to return to him. Neither the fact of any further telephone calls nor visits were found established by evidence as the lower courts observed. The position could not be improved upon here also inspite of the strenuous efforts on the part of the appellants learned Counsel. It is a matter of observation to be made that it is only subsequent to this letter that the husband would appear to have invented certain wanes as the causes for the wifes going away. For in this letter dated 14th October, 1987 (annexure 1) he makes no mention nor levels any accusations that the wife had taken away her jewellery, ornaments and cash but uses this as a tool to accuse her of desertion, in the next letter, which again was after a long time of about 17-18 months i.e. the letter dated 9th March, 1989. He has stated therein that his wife had demanded from him a flat for herself and also a sum of Rs. 2 lacs to her for opening an account in some Bank. None of these were stated in the notice dated 14th October, 1987 and the petitioner-husband is at a loss to explain why all this has now come to constitute as the props for his allegation of desertion by the wife why it could not be mentioned earlier in that letter cum notice dated 14th October, 1987. The absence of any reason being provided for the wifes departure from the matrimonial home would therefore only strengthen her own explanation that residing in the Mulund flats, with the overawing presence of the foster mother-in-law, became, after considerable patience, perseverance and tolerance, unendurable any further. Learned Counsel Shri Jahagirdar relied upon a decision of the Delhi High Court in Jyoti Sarup Manocha v. Smt. Lalita Manocha, : AIR1985Delhi491 . That in my view in fact goes a long way in support of the respondent wife. In that case also the husband filed a petition for divorce on the ground of desertion and it appears that the reason for wifes going away was the beating given to her by the husband, at the instance of the husbands mother and the latters interference in the matrimonial life of the parties. It was found that the wife had a problem with the mother-in-law. She had formed an impression that at the behest of the mother-in-law the husband was ill treating her. The wife was not a very highly educated person but educated enough to have her own personality and to do an independent job. The High Court observed that any other woman in her place would have taken a different view of the matter but it all depends upon the past experience, the temperament and ideas of privacy for the newly wedded wife. In that case also the High Court observed that there was no evidence which was sufficient to show that the wife had been deliberately avoiding the company of the husband without any just cause. The peculiar kind of influence welder over the petitioner by the foster mother-in-law, the interference in their conjugal life as alleged by her, were therefore matters which for a person who has been working in the Income Tax department over almost a decade or even two could not therefore be to tolerated beyond a particular limit and that therefore appears to have caused the decision to stay away at Ulhasnagar, not necessarily an intention to stay away forever from the husband. This is so for one more and important reason, that the wife has also stated without being dislodged that this strategy had been decided upon by an agreement and a mutuality of purpose between herself and her husband and was not a matter of her unilateral decision as such.

23. Irrespective of this fact that she had been staying at Ulhasnagar separately from the husband, that state of affairs could not come within the four corners of what would constitute desertion, abandonment of the marital company of the husband without his consent. It could least so constitute a desertion when it was a matter of arrangement between the parties as held by the courts below. Consistently with this, it has been the stand of the respondent wife throughout firstly in her reply to the notice dated 14th October, 1987 then again in her reply dated 25th March, 1989 to the notice dated 9th March, 1989 in her written statement in answer to the petition for divorce and lastly in her deposition that she is ever ready and willing to join the husband into matrimonial company subject only to the condition that the two of them stay away from the N.A. in particular Mrs. N.A. and thus, get rid of her presence and influence over him. That as the demand on the part of the wife can by no stretch be stamped as unreasonable. She stated that she was ready to co-habit provided the husband obtained an accommodation and, therefore, no use can be made of the decision in Jyoti Sarups case (supra) where it is only that the insistence on the part of the wife that a separate residence be taken for the husband and herself is a proper answer to the petition for divorce.

24. The totality of the circumstances as considered above actually indicates a peculiar balancing act which the husband must perform and decide which of the two choices facts should be allowed heavily and go into implementation. In M. Poonambalam v. Saraswathi, : AIR1957Mad693 , which was cited during the arguments before the lower courts also, it was observed that the law was well settled in India as in England and America that the wife was entitled to insist that she should not be exposed to the unpleasantness of the relatives of her husband and that suitable provisions should be made for her to live with her husband in privacy. The husband no doubt has got the right to choose the domicile for the wife. No doubt it was necessary that she should then follow him also when that domicile was one which could not be legitimately repugnant to her and injurious to her health. but in all these matters, it was pointed out, the casting vote was neither with the husband nor with the wife. It was a matter which had got to be decided amicably between the two and the Court observed that in such a case "the husband may have to choose between his mother or his wife." That is a position to which the petitioner husband here would also appear to have subjected himself and also to the point of taking a decision further that the final choice and ultimate preference on his part was for the foster mother and that the marital life with the respondent wife had only a second place in his life. If that therefore was manifested as the final decision of the petitioner husband, demonstrated by what he stated before the learned Additional District Judge during the efforts at the reconciliation, then, it could not be gainsaid that it was the wife who had left without his consent or that she had lived in the parental home over that long period of two years or so without his consent or that her stay in Ulhasnagar was demonstrably accompanied by an animus deserandi and not animus revertendi. There is no indication provided by the evidence on record though so alleged in the plaint, that the respondent wife was bent upon breaking the matrimonial home and tie. There was not the slightest indication of such a desire to break away from the husband. The petitioner husband is a builder, apart from the two flats in Mulund, he also owns a bungalow at Asangaon. The respondent stated that she was prepared to live with him there also. On the other hand, the petitioner husband has not then shown any reason why he could not shift to that bungalow, that his fascination, nay his infatuation towards the foster mother-in-law could not be contained by him to honour his commitment to live with the respondent, his wife by marriage. It could not be therefore alleged by him as he has further done, that he was however compelled or driven to seek a divorce. He could only be found as seeking the same for his own reasons and not on account of the wife as such. It was not even suggested to the wife that she had ever asked for a divorce. In that view of the facts and circumstances as are to be found established, upon the learned Counsel for parties, taking me through the entire evidence of the parties, it is difficult to hold that there has been in fact a separation of the spouses brought about at the instance of the respondent wife or that the fact that they have been living separately since 1986 is accompanied by her intention to bring co-habitation permanently to an end. The petitioner husband also failed to establish that in the respondents going away to Ulhasnagar on 19th August, 1986 and living with parents thereafter at that place, there was no consent on his part for such separate living. Nor does he succeed in proving that there was absence of any such conduct on his part which would give cause to the respondent spouse to leave the matrimonial home. That he prefers the foster mother to the wife is now patent enough. The petitioner husbands conduct in not even bothering about his wife for a period of 16 months after her departure for Ulhasnagar on 19th August, 1986, the longer still period of silence and inaction on his part after receiving her reply dated 27th October, 1987 and his perfunctorily addressing a notice on 9th March, 1989 thereafter, all show that his own conduct has only been supportive of the influence which he permitted to be exercised over himself by the foster mother. The respondent wife still established, even though the initial burden itself has not come to be discharged by the petitioner husband, that there was all the same and in the circumstances good and sufficient cause for her to stay away from the matrimonial home. In fact in her written statement she has therefore stated that while she denied the allegations of her clandestine removal of articles of clothing, jewellery and cash by her on 19th August, 1986, she even so admitted that apart from the absence of any visits to her from the husband, irrespective of his failure to taking steps to shift to some other residence she did not like to go back to Mulund in view of the facts and circumstances explained by her, particularly in view of the relations between the husband and the foster mother-in-law and the dominating character of Mrs. N. A. both towards her and her husband. That according to me is explaining the matters very candidly before the Court with a sense of transparent honesty.

25. In the circumstances, the petitioner was rightly found disentitled from claiming the relief of a decree for divorce under section 13(1)(ib) of the Hindu Marriage Act. The appeal is, therefore, one without any merit. It is accordingly dismissed with costs.

26. Certified copy expedited.