The Judgment of the Court was as follows:
Edgley, J.:— In this case the learned District Judge of Darjeeling has submitted to this Court for confirmation under the provisions of sec. 17 of the Indian Divorce Act a decree for the dissolution of the marriage of Tara Singh, the Petitioner. This matter came before this Court on the 5th March, 1945, but the case was remanded to the learned District Judge for further consideration with reference to certain letters, and after the Respondent had been allowed to put in an answer to the petition and to cross-examine the witnesses who had already given evidence.
2. The parties were married according to Christian rites on the 15th of January, 1932. It is in evidence that thereafter they lived in Calcutta, in various places in England, in West Africa, and then in Raipur and in Bikaneer. In 1939, the Respondent lost his appointment in Bikaneer and then the parties went to Darjeeling, early in that year. The Petitioner states that they lived together in Darjeeling for about a week in May, 1939, arid thereafter her husband deserted her. According to her case, she was deserted within the meaning of the Indian Divorce Act from the 17th dt May, 1939, until the 18th of May, 1941. In 1944 the Petitioner obtained evidence to the effect that the Respondent had committed adultery in Ranchi. It is admitted that both the parties to this case are domiciled in British India. The case for the Respondent is to the effect that he had neither committed adultery nor deserted his wife and, further, that he had invited the Petitioner to resume conjugal relationship with him and that she had refused.
3. At the outset, Mr. Barwell contended that the Respondent was not entitled to be heard in this case as he is in contempt by reason of the fact that he has not complied with an order for payment of alimony, which was passed by the learned District Judge of Darjeeling on the 20th of April, 1945. In support of this contention he relies on the case of Leavis v. Learns(1). In that case the husband, who was the Respondent to a petition for restitution of conjugal rights, failed to comply with certain orders for costs and alimony and thereafter he applied to the Court under the provisions of Divorce Rule No. 176 to stay the suit on the ground that he was willing to return to co-habitation. It was held that it was a matter of discretion for the Court to consider upon all the circumstances whether the summons of the Respondent should be heard and, after considering the facts of that particular case, Mr. Justice Hill dismissed the summons. Speaking for myself, I would hesitate to apply the principles laid down in that case to the one with which we are now dealing, in which the Respondent is not himself applying to the Court for any form of relief but is merely seeking to oppose his wife's petition for divorce. Moreover, he has not been called upon to show cause why he should not be committed for contempt. If that had been done, he might conceivably have a good defence in such proceedings. Further, the materials before us are not sufficient to show that he is actually in contempt and, if we have a discretion in a matter of this sort, I do not think that this is a suitable case in which such discretion should be exercised against the Respondent.
4. The next point which has to be considered is with reference to the question whether the learned District Judge had jurisdiction to deal with this petition for dissolution of marriage. In this connection, Mr. Basu on behalf of the Respondent places considerable reliance on the terms of sec. 3. (3) of the Indian Divorce Act which reads as follows:
“District Court” means, in the case of any petition under this Act, the Court of the District Judge within the local limits of whose ordinary jurisdiction, or of whose jurisdiction under this Act, the husband and wife reside or last resided together.”
5. He contends that the words “resided” or “last resided together” imply that the residence contemplated by the Act must be of a permanent or semi-permanent character and would not apply to a case such as this in which it appears that the parties to the suit last lived together in the house of the Petitioner's father at Darjeeling for a few days only. In support of his argument he relies on the case of Jogendra Nath Banerjee v. Elizabeth Banerjee(2) in which Sir Lawrence Jenkins stated with reference to the word “resided”:
“Taking the word in its ordinary acceptation, it conveys, I think, the idea, if not of permanence, at any rate of some degree of continuance.”
6. The learned Judge pointed out, however, with reference to certain cases which had been cited before him, that he doubted whether any more definite rule is to be deduced from the decisions than that each case must be decided by reference to its own circumstances, and he also went on to say that
“the degree of continuance is not capable of precise definition tot I take it that to serve as a foundation for this important branch of the Court's jurisdiction * * * * * the residence to which the Act points must be something more than occupation during the occasional and casual visits within the local limits of the Court, more especially where there is a residence outside those limits marked with a considerable measure of continuance.”
7. In that particular case, the Petitioner actually had a place which he could describe as his home at Chandemagore, which was outside the jurisdiction of this Court, and in view of the special circumstances which were discussed in the judgment, it was held that the Petitioner had not such a residence in Calcutta as the Act required.
8. In a later case, decided by this Court, Bright v. Bright(3), Mr. Justice Fletcher held that a petition for dissolution of marriage could be entertained by the Court having jurisdiction over the place where the parties last resided together although the period in question might have been a very short one. The learned Judge said:
“I have come to the conclusion, not without some hesitation, that in this particular case the parties did last reside together in Calcutta. This, I think, is one of those eases where the husband and wife never had a permanent residence. The Petitioner was engaged as an Engineer an the Railway and his habitation seems to have changed very frequently. It is difficult to say which of the many places at which he dwelt before he separated from his wife in 1901, was his ‘residence’ or ‘last residence’ except on the basis that this is one of the cases where the actual abode for the time being is the only residence.”
9. This decision was followed by the Bombay High Court in the case of Murphy v. Murphy(4).
10. In the case with which we are now dealing, it would be extremely difficult to hold that the parties ever had any permanent residence during their married life. I have already referred in this respect to the evidence of the Petitioner herself from which it appears, that they changed their residence many times between 1933 and 1939. It appears that before going to Darjeeling, the Respondent held an appointment as Minister in Bikaneer for a few months only. The question of jurisdiction was considered by the learned Judge in connection with Issue No. 2, and in my opinion, he has come to the requisite findings with regard to this matter and has set cut the relevant facts to show that the Court had jurisdiction in the case. In this respect we are in agreement with the learned Judge and are of the opinion that the parties last resided together at Darjeeling in May, 1939, and that this residence was sufficient to give the Darjeeling Court jurisdiction in the matter.
11. The next point for consideration is whether or not the Respondent deserted his wife for two years or upwards without reasonable excuse within the meaning of sec. 10 of the Indian Divorce Act. Desertion has been defined in sec. 3(P) of the Act as “an abandonment against the wish of the person charging it.” This matter was considered by this Court in the case of Fowle v. Fowle(5) and in that case it was pointed out (at page 276) that
“Abandonment is not defined, but the effect of the clause is doubtless to introduce into the Indian Statute the view adopted toy the Courts in England in construing the English, Act. Now the expression against the wish is capable of two meanings. It may be construed either as contrary to an actively expressed wish of the person charging and notwithstanding the resistance or opposition of such person, or it may mean simply an act done when the wish of the person affected by it is the other way.”
12. Mr. Basu on behalf of the Respondent contends that it should not be held in this case that the Respondent abandoned the Petitioner against her wish and without reasonable excuse. In support of this contention he has referred us to certain letters written by the Petitioner to the Respondent between May, 1939 and May, 1941. There are three of these letters on which he relies, viz., Exhibit C (1), dated the 13th December, 1939, Exhibit B, dated the 10th of May, 1940, and Exhibit C, dated the 31st of August, 1940. In the first of these letters the Petitioner says:
“I believe Mother has or is asking you to spend Christmas here. I have no wish to see you so will endeavour to go away whilst you are in the bosom of your family. I am anxious to get my freedom from you and give you quite whole-heartedly the custody of all three children, as soon as you can make satisfactory arrangements.”
13. In the next letter she says:
“I dot not wish to see you again. You say you will send money if and when you can spare it from your own selfish needs. You must certainly never come to this place again — not until you have paid back all the money you took from (a) my parents (b) myself (c) my children. We all loathe and detest you and daily I hear how much we are suffering financially entirely due to your dreadful debt to us.”
14. In the letter of the 31st August mentioned above the Petitioner asks her husband to make arrangements to take their son away immediately on account of the fact that he was behaving badly.
15. These letters must be read in the light of the other evidence on the record from which there can be no doubt that the married life of the parties had been extremely unhappy before the Respondent left his wife and children in Darjeeling, in 1939. The Respondent appears to have been quite incapable of keeping an appointment for any length of time. He was, therefore, unable to make proper provision for his wife and children and he seems to have made very little attempt to do so. After the 17th of May, 1939, until the time when the petition for dissolution of marriage was filed he appears to have written only on two occasions to his wife and he made no arrangements until March, 1944, for paying the school expenses of his children. During the whole of this time the Petitioner was maintained by her parents in Darjeeling. She wrote repeatedly to the Respondent but received no answer to her letters. She has also stated in her evidence that at all material times between May, 1939 and May, 1941, she would have been prepared to return to her husband if he had made any reasonable and concrete proposal to that effect with reference to arrangements for their future residence. In these circumstances I do not think that the above-mentioned letters can be taken to indicate that the Petitioner had wilfully separated herself from her husband or that she had consented to his leaving her and her children in Darjeeling with no support except what was provided for them by the kindness of her parents. Even if it could be held that the Respondent's willingness to go to Darjeeling in 1939 could be regarded as a friendly overture on his part or a wish that his wife should rejoin him, the question would nevertheless have to be considered whether or not the wife's refusal to see him was justified. [Vide Thomas v. Thomas(6)]. It is in evidence that before leaving the Petitioner and her children in Darjeeling in 1939, the Respondent had taken money from her and from her parents and it seems to me only reasonable that the Petitioner should have been reluctant to see her husband until this money had been repaid or he was in a position to offer her a home. There is in fact nothing to show that the Respondent ever asked for an interview for the purpose of discussing the position, and this being the case, the principle laid down in the case of Pratt v. Pratt(7), would have no application.
16. Mr. Basu has referred us to a number of letters which were written by the Petitioner to her husband in 1942, many of which are written in very abusive terms and express extreme dislike, if not hatred, of the Respondent. In some of these letters she asks the Respondent to provide her with evidence which would enable her to obtain a divorce. With regard to these particular letters it may be noted that they were all written after the Respondent had abandoned his wife for a period of more than two years. It is true that several of them contain offensive language which should never have been used, and further, there is no doubt that the request made by the Petitioner to her husband to provide her with grounds for divorce were, to say the least, most improper. As things stand, there is nothing to show that these letters had any influence at all on the conduct of the Respondent. In fact he categorically refused to assist his wife in the matter of obtaining a divorce and has strenuously contested her petition. If, however, letters of this nature, had been forthcoming in an uncontested divorce suit, they would have been accepted almost certainly as clear evidence of collusion. The only excuse for letters of this kind, which the Petitioner appears to have had is that in 1942, she must have been in a very neurotic condition which had probably been brought about to a very large extent by the cruel and inconsiderate treatment to which she had been subjected by the Respondent and that, at the beginning of 1942 she was ill and had to undergo a serious operation. We are not prepared to hold that these letters, intemperate as they are, can be taken to indicate that during the material period from May, 1939 to May, 1941, the Petitioner was in any way a consenting party to her desertion by her husband. Having regard to the evidence as we find it, we think that it has been fully established that the Petitioner was deserted without reasonable cause for a period of two years within the meaning of sec. 10 of the Indian Divorce Act.
17. The only other point which requires consideration is whether or not it has been proved that the Respondent committed adultery in this case. The evidence with regard to this, matter has been fully discussed in the judgment of the learned District Judge and we ourselves have carefully examined the testimony of the material witnesses on this point. The most important evidence with regard to the question of adultery was given by Bejoy Chatterjee and A.R Goswami.
18. There are a few discrepancies in their evidence to which the learned Judge has drawn attention in his judgment but these seem due mainly to the fact that there was an interval of about a year between the time when they gave their evidence-in-chief and the time when they were cross-examined. These witnesses appear to have proved satisfactorily that the Respondent committed adultery at Santinibash Hotel, Ranchi, on various occasions in 1943–1944. The Respondent attempted to rebut the evidence by examining a man named Behari, who had formerly been employed as a bearer at the Hotel, and his personal clerk, Theophil Minz. The learned Judge was not prepared to believe either of these witnesses, and in view of the circumstances of the case we are not prepared to hold that he should have attached any weight to their testimony. We think that the findings of the learned Judge with regard to the question of adultery are correct, and should be accepted.
19. Having regard to the above-mentioned considerations we confirm the decree of the learned District Judge dissolving the Petitioner's marriage with the Respondent.
20. The Petitioner will be entitled to her costs in this Court including the costs of the previous hearing when the matter came up for consideration on the 5th of March, 1945. We assess five gold mohurs for the previous hearing and fifteen gold mohurs for this hearing after remand.
Akram, J.:— I agree.
Chakravartti, J.:— I agree.
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