Holding

The Supreme Court held that the wife had animus deserendi and desertion was proved, so the trial court’s decree of judicial separation stands.

Summary

Adhyatma Bhattar Alwar filed a petition for divorce under Section 13(1)(ib) of the Hindu Marriage Act, 1955, alleging that his wife, Sri Devi, had deserted him for more than two years after the birth of their child. The wife claimed she stayed with her parents because her father‑in‑law made indecent advances and she demanded a separate residence for the husband. The trial court found desertion proved and granted judicial separation under Section 10, not divorce. The Andhra Pradesh High Court set aside that decree, holding that the wife had no animus deserendi and dismissed the husband’s appeal. On appeal, the Supreme Court clarified the essential ingredients of desertion—factum of separation, animus deserendi, and their continuity for the statutory period— and held that the wife’s conduct demonstrated animus deserendi, satisfying the burden of proof. Consequently, the Supreme Court set aside the High Court’s judgment and restored the trial court’s decree of judicial separation. No costs were awarded.

Issues considered

The essential elements required to establish desertion under Section 13(1)(ib) of the Hindu Marriage Act, 1955.
The burden of proof for establishing desertion and animus deserendi.
Whether the wife’s allegation of indecent advances by her father‑in‑law constitutes a just cause that negates animus deserendi.
Whether a decree of judicial separation is appropriate when desertion is proved, as opposed to a decree of divorce.
Whether the High Court erred in finding the absence of animus deserendi on the part of the wife.

Legislation cited

Hindu Marriage Act, 1955s. 10, s. 13(1)(ib), s. 13A

Subjects

desertionanimus deserendiHindu Marriage Actjudicial separationburden of proofconstructive desertionmatrimonial law

Judgment

A ADHYATMA BHATIAR ALWAR
v.
ADHYATMA BHATIAR SRI DEVI

NOVEMBER 6, 2001

B [D.P. MOHAPATRA AND DORAISWAMY RAJU, JJ.]

Hindu Law:

Hindu Marriage Act, 1955: Section 13(l)(ib).
c
Desertion-Ingredients of-Held: (i) factum of sparation; (ii) animus
deserendi and (iii) these two essential ingredients should continue during the \
entire statutory period of two years.

Desertion-Deserted spouse-Essential conditions-Held; (i) absence
D
of consent and (ii) absence of conduct of the other spouse.

Desertion-Burden of proof-Held: Is on the petitioner for divorce of
proving the essential conditions in the two spouses and their continuance
throughout the statutory period of two years.
E
Words and Phrases :

"Desertion"-Meaning of-In the context of S.13(l)(ib) of the Hindu
Marriage Act, 1955.
F
Doctrines :

Doctrine of animus deserendi-Explained.

G The respondent-wife, after the birth of her child, continued to stay in
her parents' house and refused to return to the matrimonial house in spite
of repeated attempts by the appellant-husband. The respondent was insist-
ent that the appellant should live separately from his parents in a separate
house since her father-in-law used to make indecent advances towards her.
H The appellant-husband, therefore, filed a petition for a decree or divorce
130
ADHYATMA BHATIAR ALWAR v. ADHY ATMA BHATIAR SRIDEVI 131

under Sedion 13(l)(ib) of the Hindu Marriage Act, 1955 on the ground of A
desertion for a continuous period of more than two years. During the
pendency of the petition the appellant's father died. The trial court granted
a decree for judicial separation under Section 10 of the Act instead of a
decree for divorce. But the High Court set aside the judgment and decree
of the trial court. Hence this appeal.
B
Allowing the appeals, the Court

HELD : 1.1. 'Desertion' in the context of matrimonial law represent
a legal conception. The essential ingredients of this offence in order that it
may finish a ground for relief are : C

(a). The factum of separation;

(b) The intention to bring cohabitation permanendy to an end-
animus deserndi;
D
(c). The element of permanence, which is a prime condition, requires
that both these essential ingredients should continue during the entire
statutory period. [135-A-C]

1.2. For the offence of desertion, so far as the deserting spouse is
concerned, two essential conditions must be there, namely (1) the factum of E
separation, and (2) the intention to bring cohabitation permanently to an
end (animus deserendi). Similarly, two elements are essential so far as the
deserted spouse is concerned; (1) the absence of consent, and (2) absence of
conduct giving reasonable cause to the spouse leaving the matrimonial
home to form the necessary intention aforesaid. The petitioner for divorce F
bears the burden of proving those elements in the two spouses respectively
and their continuance throughout the statutory period of two years and
laid down in Section 13(1)(ib) of the Hindu Marriage Act, 1955. [135-E-F]

Jaisinghbhai Shah v. Prabhawati, [1956] SCR 838; l.achman Utamchand
Kirpalani v. Meena alias Mota, [1964] 4 SCR 331, Smt. Rohini Kumari v.
G
Narendra Singh, (1972] 1 SCC 1, Sanat Kumar Agarwal v. Nandini Agarwal,
[1990] 1 SCC 475 and Chetan Dass v. Kam/a Devi, [2001] 4 SCC 250,
referred to.

2.1. The cumulative effects of the circumstances and the conduct of H
132 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A the respondent are that she had given expression of animus deserendi. Thus,
the two ingredients of the matrimonial offence of desertion i.e. separation
in fact and animus deserendi have been established by the appellant.
[141·B·C]

2.2. The failure on the part of the wife to substantiate a serious
B allegation of infamous conduct of indecent advances said to have been
made to her by the father in-law, taken together with the absence and
omission from her side to demonstrate her readiness and willingness to
discharge her continuing obligation to return to the matrimonial home,
establish sufficiently the animus deserendi necessary to prove legal deser·
c tion as required under Section 13(1)(ib) of the Act. The conduct of the wife
seems to be more indicative of firm determination not to return to the
martial home and discharge the obligations attendant thereto.
[141-G-H; 142-A]

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 6534-6536 c,f
D
1995.

From the Judgment and Order dated 23.4.94 of the Andhra Pradesh High
Court in R.C.M.A. No. 4053 of 1994.

M.N. Rao, Ms. Tameem Hashmi, Ajith C.R., N.M. Popli for Vrinda Dhar
E for the Appellant.

K.K. Tyagi, Iftikhar Ahmed for K.R. Nagaraja for the Respondent.

The Judgment of the Court was delivered by

F D.P.MOHAPATRA, J. These appeals, filed by the husband of the re-
spondent are directed against the judgment of the Division Bench of the High
Court of Andhra Pradesh in AAO Nos.365 and 718/91, in which the High Court
allowed the appeal filed by the wife and dismissed the appeal filed by the
husband and set aside the judgment passed by the Subordinate Judge, Narsapur.

G The appellant Adhyatma Bhattar Alwar, and the respondent Adhyatma
Bhattar Sri Devi were married on 22nd August, 1978 in Nalamvari Choultry
at Rajahmundry. The couple stayed together in village Palacole where the
parents of the husband reside. A female child was born to them on 12th
December, 1979, whereafter they separated. The wife and daughter lived with
H her parents at Rajahmundry, while the husband continued to stay with his
ADHYATMA BHATIAR ALWAR v. ADHYAThlA BHATIAR SRI DEVI [MOHAPATRA,J.] 133

parents at Palacole. The husband filed a petition for dissolving the marriage A
under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as
'the Act') praying for a decree of divorce on the ground stated in sub-clause
(ib) of Sub-section I. In the petition it was alleged, inter alia, that the father

- of the respondent-wife had taken her to Rajahmundry for delivery and also
stating that her mother was not well. After birth of the child, since the respond- B
ent did not return to Palacole, the appellant, his father and other relations made
attempts to persuade the respondent's father to send his daughter to Palacole.
The attempts did not bear fruit as the respondent was insistent that the appellant
should live separately from his parents in a separate house. Since the condition
was not acceptable to the appellant, she refused to join him at Palacole. On
23rd May, 1981 the appellant went to Rajahmundry to bring the respondent but c
she was not sent and the appellant was informed that the respondent would be
sent only after he got a job. It is relevant to state here that at the time of
marriage, the appellant had graduated in Commerce (B.Com.); subsequently he
completed M.A. in Hindi, but he was without a job. Since all attempts to
persuade the respondent to come and live with him failed, the appellant filed D
the petition on 21st February, 1984 for divorce on the ground of desertion by
the wife for a period of more than two years.

Contesting the application for divorce, the respondent repudiated the
allegations made by the appellant that she had voluntarily left her matrimonial
home for staying with her parents. While admitting that she had gone to her E
parental home for birth of the child whereafter she had returned to her father-
in-law's house where she faced a very embarrassing situation as her father-in-
law made indecent advances towards her and her complaints to her husband
about such incidents went unheeded. She also averred that her husband
appeared to be a silent spectator to such incidents and did not even raise any F
protest against his father's behavior towards his daughter-in-law. In the circum-
stances, the respondent pleaded that she had every justification to insist on her
husband having a separate residence. It was further alleged by her that in the
month of August, 1980 her father-in-law had made repeated attempts at mo-
lesting her and when she vehemently protested against such behaviour she got
G
a severe beating from him. She also complained that her husband was ill-
treating and assaulting her, believing the false stories and backbitings of his
mother. She contended that it was she who was deserted by her husband and
not vice versa.

Both parties led oral and documentary evidence before the Trial Court. H
134 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A The learned Subordinate Judge in the Judgment dated 8th December, 1989 held
that the appellant had satisfactorily proved that the respondent was guilty of
having deserted him for a continuous period of more than two years preceding
the filing of the petition for divorce and that he was entitled to a decree for
~.

judicial separation under Section JO of the Act instead of a decree for disso-
lution of marriage under Section 13( I )(ib) of the Act. Accordingly, the petition
B
was allowed by granting a decree for judicial separation instead of a decree for
divorce.

Both the parties challenged the judgment of the trial Court by filing
..
appeals. The husband filed the appeal - AAO No.365/91, while the appeal filed
c by the wife was registered as AAO 718/91. As noted above, the High Court,
in the judgment rendered on 14th July, 1993, set aside the judgment and decree
of the trial Court, allowed the appeal filed by the wife and dismissed the appeal
filed by the husband. The High Court held t:iat the wife did not have at any
time the necessary animus to put an end to the matrimonial relationship and
never intended to desert her husband. Hence, these appeals by the hus1Jand.
D
Se.;tion 13(1)(ib) of the Act reads as follows:

"Divorce.- (I) Any marriage solemnized, whether before or after the
commencement of this Act, may, on a petition presented by either the
E husband or the wife, be dissolved by a decree of divorce on the ground
that the other party -

xxx xxx xxx

(ib) has deserted the petitioner for a continuous period of not less than
F two years immediately preceding the presentation of the petition; or

xxx xxx xxx

Explanation - In this sub-section the expression 'desertion' means the
desertion of the petitioner by the other party to the marriage without
G reasonable cause and without the consent or against the wish of such
party and includes the willful neglect of the petitioner by the other
pilrly jo tlie marriage, and its grammalical variations and cognate.
expressions shall be construed accordingly.

xxx xxx xxx"
H
ADHYATMA BHATIAR ALWAR v. ADHYATMA BHAlTAR SRI DEVI [MOHAPATRA, J.] 135

'Desertion' in the context of matrimonial law represents a legal concep- A
tion. It is difficult to give a comprehensive definition of the term. The essential
ingredients of this offence in order that it may furnish a ground for relief
are:

I. The factum of separation;
B
2. The intention to bring cohabitation permanently to an end animus
deserendi;

3. The element of permanence which is a prime condition requires
that both these essential ingredients should continue during the
entire statutory period;
c
The clause lays down the rule that desertion 10 amount to a matrimonial offence
must be for a continuous period of not less than two years immediately pre-
ceding the presentation of the petition. This clause has to be read with the
Explanation. The Explanation has widened the definition of desertion to D
include 'willful neglect' of the petitioning spouse by the respondent. It states
that to amount to a matrimonial offence desertion must be without reasonable
cause and without the consent or against the wish of the petitioner. From the
Explanation it is abundantly clear that the legislature intended to give to the
expression a wide import which includes willful neglect of the petitioner by the
E
other party to the marriage. Therefore, for the offence of desertion, so far as
the deserting spouse is concerned, two essential conditions must be there,
namely, (I) the factum of separation, and (2) the intention to bring cohabitation
permanently to an end (animus deserendi). Similarly, two elements are essen-
tial so far as the deserted spouse is concerned: (I) the absence of consent, and
(2) absence of conduct giving reasonable cause to the spouse leaving the F
matrimonial home to form the necessary intention aforesaid. The petition for
divorce bears the burden of proving those elements in the two spouses respec-
tively and their continuance throughout the statutory period.

This Court in the case of Bipin Chander Jaisinghbhai Shah v. Prabhawati,
G
[1956] SCR 838, observed :

" ........ Thus the quality of permanence is one of the essential elements
which differentiates desertion from willful separation. If a spouse
abandons the other spouse in a staie of temporary passion, for example,
anger or disgust, without intending permanently to cease cohabitation, H
136 SUPREME COURT REPORTS (2001] SUPP. 5 S.C.R.

A it will not amount to desertion. For the offence of desertion, so far as
the deserting spouse is concerned, two essential conditions must be
there, namely; (I) the factum of separation, and (2) the intention to
bring cohabitation permanently to an end (animusdeserendi). Similarly
two elements are essential so far as the deserted spouse is concerned:
( 1) the absence of consent, and (2) absence of conduct giving reasonable
B
cause to the spouse leaving the matrimonial home to form the necessary
intention aforesaid. The petitioner for divorce bears the burden of
proving those elements in the two spouses respectively. Here a difference
between the English law and the law as enacted by the Bombay
Legislature may be pointed out. Whereas under the English law those
c essential conditions must continue throughout the course of the three
years immediately preceding the institution of the suit for divorce,
under the Act, the period is four years without specifying that it should
immediately precede the commencement of proceedings for divorce.
Whefher the omission of the last clause has any practical result need
D not detain us, as it does not call for decision in the present case.
Desertion is a matter of inference to be drawn from the facts and
circumstances of each case. The inference 1nay be drawnfroni certain
facts which may not in anolher case be capable of leading to the same
inference; that is to say, the.facts have to be viewed as to 1he purpose
which is revealed by those acts or. by conduct and expression of
E
intention, both anterior afl{i subsequent to the actual acts ofseparation.
:a
If. in facl, there has been separation, the essential question always
is whether that act could be attributable to an aninzus deserendi. The
offence of desertion commences when the fact of separation and the
animus deserendi co-exist. But it is not necessary that they should
F conzmence at the sanze time. The de facto separation may have
commenced without the; necessary animus or it n1ay be that the
separation and the anin1its deserendi coincide in point of tin1e; for
example, when the separating spouse abandons the niarital home with
the intention, express or irnplied, of bringing cohabitation pennanently
G to a close. The law in England has prescribed a three years period and
the Bombay Act prescribed a period of four years as a continuous
period during which the two elements must subsist. Hence, if a
deserting spouse takes advanlage oflhe locus poenitenliae thus provided

H
by law and decides to come back to the deserted spouse by a bona.fide
offer of resuming the matrimonial home with all the implications of
...
ADHYATMA BHATIARALWAR v. ADHYATMA BHATIAR SRI DEVI [MOHAPATRA, J.] 137

marital life, before the statutory period is out or even qfter the lapse A
of that period, unless proceedings for divorce have been commenced,
desertion comes to an end and (f the deserted spouse unreasonably
refuses to ~/fer, the latter may be in desertion and not the former.
Hence it is necessary that during all the period that there has been a
desertion, the deserted spouse must '![firm the marriage and be ready B
and willing to resume married life on such conditions as may be
reasonable. It is also well settled that in proceedings for divorce the
plaintiff must prove the offence of desertion, like and other matrimonial
offence, beyond all reasonable doubt. Hence, though corroboration is
not required as an absolute rule of law the courts insist upon
corroborative evidence, unless its absence is accounted for to the
c
satisfaction of the court .......

xxx xxx xxx

But it is not necessary that at the time the wife left her husband's home D
she should have at the same time the animus deserendi. Let us
therefore examine the question whether the defendant in this case,
even if she had no such intention at the time she left Bombay, subse-
quently decided to put an end to the matrimonial tie. This is in
consonance with the latest pronouncement of the Judicial Committee E
of the Privy Council in the case of 1955 A.C.402 at p.417 (F) in an
appeal from the decision of the High Court of Australia, to the follow-
ing effect :-

"Both in England and in Australia, to establish desertion two
things must be proved : first, certain outward and visible conduct - the
F
'factum' of desertion; secondly, the 'animus deserendi' - the intention
underlying this conduct to bring the matrimonial union to an end.

In ordinary desertion the factum is simple; it is the act of the
absconding party in leaving the matrimonial home. The contest in G
such a case will be almost entirely as to the 'animus'. Was the intention
of the party leaving the home to break it up for good, or something
short of, or different from that?"

(Emphasis supplied) H
138 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A In the case of Lachman Utamchand Kirpalani v. Meena alias Mota,
[1964] 4 SCR 331, a Constitution Bench of this Court, considering the case of
judicial separation on the ground nf desertion without just cause held on facts
that the respondent (wife) left the appellant's matrimonial home on February
26, 1954 with the intention of permanently, breaking it up, and that such
desertion continued during the requisite period of two years and that the
B
appellant's letter of !st April 1955, did not constitute an interruption of the
respondent's desertion by its being a just cause for her to remain away from
the matrimonial borne; and that, in consequence, the appellant was entitled to
a decree for judicial separation under Section IO(l)(a) of the Hindu Marriage
Act, 1955. It was observed that "An offer to return to the matrimonial borne
c after sometime, though desertion bad started, if genuine and sincere and rep-
resented bis .or her true feelings and intention, would bring to an end the
desertion because thereafter the animus deserendi would be lacking, though the
factum of separation might continue; but on the other band, if the offer was not
sincere and there was in reality no intention to return, the mere fact that letters
D were written expressing such an intention would not interrupt the desertion
from continuing". In this connection, reference was also made to the decision
in the case of Bipin Chander Jaisinghbhai Shah v. Prabhawati (supra).

This Court in the case of Smt. Rohini Kumari v. Narendra Singh, [1972]
SCC I, while considering the case of judicial separation on the ground
E of desertion under Section IO(l)(a) of the Act read with the Explanation,
held:

" ........ The two elements present on the side of the deserted spouse
should be absence of consent and absence of conduct reasonably
causing the deserting spouse to form bis or her intention to bring
F cohabitation to an end. The requirement that the deserting ;pouse
must .intend ro bring cohab_itation ro an end must be understood to be
subject to the qual(fication that if without just cause or excuse a man
persists in doing things which he knows his wife probably will not
tolerate and which no ordinary woman would tolerate and then she
G leaves, he has deserted her whatever his desire or intention may have
been. The doctrine o.f "constructive desertion" is discussed at page
229. It is stated that desertion is not IO be tested by merely ascer-
taining which party left the matrimonial home first. If one spouse is
forced by the conduct of the other to leave home it may be that Ihe
spouse responsible for the driving our is guilty of desertion. There is
H
ADHYATMABHATIARALWAR v. ADHYATMA BHATIAR SRI DEVI {MOHAPATRA,J.] 139

no substantial difference between the case of a man who intends to A
cease cohabitation and leaves the wife and the case of a man who
with the same intention compels his wife by his conduct to leave him.

In Lachman Utamchand Kirpalani v. Meena alias Mota, this Court
had occasion to consider the true meaning and ambit of Section
lO(l)(a) of the Act read with the Explanation. Reference was made B
in the majority judgment to the earlier decision in Bipin Chander
Jaisinghbhai Shah v. Prabhawati, in which all the English decisions
as also the statement contained in authoritative text books were
considered. After referring to the two essential conditions, namely,
the factum of physical separation and the animus deserendi which C
meant the intention to bring the cohabitation permanent' ' to an end
as also the two elements so far as the deserted spouse was concerned
i.e. (1) the absence of consent and (2) absence of conduct giving
reasonable cause to the spouse leaving the matrimonial home to form
the intention aforesaid, it was observed while examining how deser-
tion might come to an end : D

"In the first place, there must be conduct on the part qf the deserted
spouse which affords just and reasonable cause for the deserting
spouse not to seek reconciliation and which absolves her .from her
continuing oblil{ation to return to the nzatrimotfial home. In this o;-ze E
has to have regard to the conduct qf the deserted spouse. But there
is one other matter which is also of equal importance, that is, that
the conduct of the deserted spouse should have had such an impact
on the mind of the deserting spouse that in fact it causes her to
continue to live apart and thus continue the desertion. But where,
however, on the facts it is clear that the conduct of the deserted F
spouse has had no such ~!feet on the mind of the deserting spouse
there is no rule of law that desertion terminates by reason of the
conduct qf the deserted spouse."

(Emphasis supplied)
G
This Court in the case of Sana! Kumar Agarwal v. Nandini Agarwal,
[1990] l SCC 475, considering a case under Section 13(l)(ib) of the Act, held
that it is well settled that the question of desertion is a matter of inference
to be drawn from the facts and circumstances of each case and those facts
have to be viewed as to the purpose which is revealed by those facts or by H
140 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A conduct and expression of intention, both anterior and subsequent to the actual
act of separation.

In a recent case in Chelan Dass v. Kam/a Devi, (2001] 4 SCC 250, this
Court considered the question whether the offer made by the husband in this
Court to keep his wife, was held to be not sincere and did not deserve to be
B seriously considered. In that connection, this Court held :

"During the course of the arguments, learned counsel for the appel-
lant, so as to show the ·allegations made against the appellant about
having illegitimate relationship with Sosamma Thomas(sic.), submit-
ted that the appellant is still prepared to keep the respondent Karnla
c Devi with him. According to him, the appellant never refused to live
with her. In reply, learned counsel for the respondent submitted that
the respondent was also prepared to live with the appellant provided
that he discontinued his relationship with Sosarnma Thomas. The
hollowness of the submission that the appellant was still prepared to
D keep the respondent with him is quite apparent. It is on record that
it was on the some (sic. Sarne) undertaking that the respondent was
taken to Ganganagar by the appellant to live with him but there she
was subjected to humiliating treatment meted out to her by the
appellant himself having his food only in the room of Sosarnma
Thomas and staying there during the night leaving his wife and sister
E
alone on the ground floor. With this kind of attitude, the offer as
made on behalf of the appellant is too shallow to deserve any serious
thought. At the same time, the condition on which the respondent
is prepared to live with him seems to be quite justified, that is to say,
she is still prepared to live with him provided he behaves and snaps
F his relationship wich the other woman. It is apparent that it is the own
conduct of the appellant which led the respondent to live separate
from the appellant. None else, but the appellant alone, is to be blamed
for such an unhappy and unfortunate situation. The findings of facts,
as recorded by the two courts below, do not deserve to be disturbed
G in any manner nor have they been seriously assailed before us."

Coming to the case at hand, it is revealed from the evidence on record,
as discussed in the judgments of the Trial Court and the High Court that the
respondent had gone to her parents' house for birth of the child, which
apparently cannot be construed as an expression of her desire to forsake her
H husband permanently; but after the birth of her child when attempts were
ADHYATulA BHATfAR ALWAR v. ADHYATMA BHATfAR SRI DEVI [MOHAPATRA. J.] 141

made by the appellant, his parents and relations, she laid down a condition A
that the appellant should live in a separate house from his parents taking the
plea that her father-in-law had attempted to molest her, which explanation she
signally failed to establish. In the meantime, father of the appellant expired
some time in 1988, putting an end to the so-called reason of misbehaviour of
her father-in-law. There is nothing on record that thereafter she expressed her
B
desire to join her husband at the matrimonial home. It is relevant to state here
that the appellant is the only son of his parents and as expected, he was not
willing to establish a separate residence leaving his parents to live alone in
their old age. The cumulative effect of the circumstances and the conduct of
the respondent is that she had given expression of animus deserendi. Thus,
the two ingredients of the matrimonial offence of desertion i.e. separation in C
fact and animus deserendi have been established by the appellant. The
learned trial Judge, having regard to the facts and circumstances of the case,
was right in recording the finding that the husband had successfully estab-
lished the case of desertion by the wife and exercising the discretion vested
under Section 13A of the Act, the learned trial Judge had granted the decree D
of judicial separation instead of divorce. The High Court recorded the finding
that in the absence of any evidence, direct or circumstantial, in support of her
plea of alleged indecent behavior by her father-in-law, the Court was not
prepared to accept the allegations made by her against her father-in-law; the
Court without discussing any evidence, had observed that "as the cause itself
has disappeared or ceased to exist the wife had agreed to join the husband, E
and even before the death of the husband's father she was ready and lived with
the husband indeed" and arrived at the conclusion that the wife cannot be held
to have the necessary intention to put an end to the matrimonial obligation
and, therefore, could not be found guilty of deserting the husband. The High
Court has not discussed whether the alleged offer by the wife to live with her F
husband after the death of her father-in-law was indeed a sincere move or
merely a hollow expression bereft of any sincerity. The High Court has also
not discussed if she indeed had the desire to come and live with her husband
what prevented her to request her parents to take necessary steps in the matter.
In the absence of any such evidence the finding recorded by the High Court
that the wife was not guilty of deserting her husband cannot be sustained.
G
The failure on the part of the wife to substantiate a serious allegation of
infamous conduct of indecent advances said to have been made to her by the
father-in-law, taken together with the absence and omission from her side
to demonstrate her readiness and willingness to discharge her continuing
obligation to return to the matrimonial home, establish sufficiently the animus H
142 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A deserendi, necessary to prove legal desertion as required under section 13( I)
(ib). The conduct of the wife seems to be more indicative of a firm determi-
nation not to return to the marital home and discharge the obligations attendant
thereto. Therefore, the judgment of the High Court is unsustainable and has
to be set aside.

B Accordingly, these appeals are allowed, the judgment of the High Court
is set aside and the judgment of the trial Court is restored. There will,
however, be no order as to costs.

v.s.s. Appeals allowed.