Hindu Marriage Act, 1955 (Act 25 of 1955), Sections 10(1)(a) and 23 – Judicial Separation – Ground of Desertion – Essential elements – Animus deserendi – Onus and standard of proof – Role of corroborative evidence – Extent of judicial discretion. The appellant-husband filed a petition under Section 10(1)(a) of the Hindu Marriage Act, 1955, seeking a decree for judicial separation on the ground that his wife (respondent) had deserted him. He alleged that due to his meagre salary, he instructed her to reside at his ancestral home, but she steadfastly refused to live there. The respondent-wife denied the allegation, asserting that she continuously resided at the ancestral house with his parents, obeyed their directions, and only occasionally visited her parental home with permission. The trial court (District Court) dismissed the husband's petition. The husband appealed to the High Court. Held, dismissing the appeal:

advocatemmmohan

KERALA HIGH COURT

AIR 1974 KERALA 43, 1973 KER LJ 762

BENCH: George Vadakkel, J.

DATE OF JUDGMENT: July 4, 1973

HEADNOTE

Hindu Marriage Act, 1955 (Act 25 of 1955), Sections 10(1)(a) and 23 – Judicial Separation – Ground of Desertion – Essential elements – Animus deserendi – Onus and standard of proof – Role of corroborative evidence – Extent of judicial discretion.

The appellant-husband filed a petition under Section 10(1)(a) of the Hindu Marriage Act, 1955, seeking a decree for judicial separation on the ground that his wife (respondent) had deserted him. He alleged that due to his meagre salary, he instructed her to reside at his ancestral home, but she steadfastly refused to live there. The respondent-wife denied the allegation, asserting that she continuously resided at the ancestral house with his parents, obeyed their directions, and only occasionally visited her parental home with permission. The trial court (District Court) dismissed the husband's petition. The husband appealed to the High Court.

Held, dismissing the appeal:

¶ 1. Standard and Burden of Proof in Matrimonial Offences:

In proceedings for judicial separation on the ground of desertion under Section 10(1)(a) of the Act, the burden rests heavily on the petitioner to establish the matrimonial offence beyond all reasonable doubt. Although corroboration is not a strict rule of law, as a rule of precaution, courts will generally not act upon the uncorroborated testimony of the petitioner.

(Bipinchandra Shah v. Prabhavathi, AIR 1957 SC 176; Rohinikumari v. Narendra Singh, AIR 1972 SC 459, relied on).

¶ 2. Absence of Animus Deserendi:

To establish desertion, the petitioner must prove that the respondent left or stayed away with the intention of terminating cohabitation permanently (animus deserendi). Where the evidence, including admissions and correspondence from the husband's own father, demonstrates that the wife remained respectful, affectionate, and willing to reside wherever directed, no intention to desert can be attributed to her.

¶ 3. Non-Existence of Inherent Judicial Discretion under Section 23:

A court cannot grant a decree for judicial separation merely on the equitable ground that the marriage has completely broken down. Section 10(1) must be read strictly with Section 23 of the Act. Courts possess no statutory discretion to dissolve or grant relief unless the specific statutory grounds listed in Section 10(1) and the statutory conditions under Section 23 are strictly proved ("then, and in such a case, but not otherwise, the court shall decree such relief").