Partly allowed

Leela Krishna Kumar v. Pilapalli Madam Gopalkrishna Krishnakumar

Bombay HC13 Jul 2005FCA/103/2002

Case brief

AI extract

What is this about?

The High Court set aside a Family Court decree of divorce granted on the ground of desertion. The Court held that the appellant's separation was not permanent (lacking animus deserendi) and that her subsequent unconditional offers to resume cohabitation and the husband's reluctance demonstrated that the statutory period of continuous desertion was not established.

What did the court decide?

Decree dated 31 August 2002 passed by the Family Court is set aside; Family Court Appeal No.103 of 2002 is partly allowed; Marriage Petition filed by the respondent-husband is dismissed; Order for mai

Leela Krishna Kumar Vs Pilapalli Madam Gopalkrishna… — Matrimonial and Divorce | Bombay HC (2005)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.103 OF 2002

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 Mrs. Leela Krishna Kumar ... Appellant.
 (Org.respondent)
 Versus
 Pilapalli Madam Gopalkrishna
 Krishnakumar ... Respondent.
 (Org.Petitioner)

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 Shri G.R. Hegde for appellant.
 Shri V.Ramkrishnan and Ms. Sunita Kalwar for
 respondt.

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CORAM: S.B.MHASE &
 S.R.SATHE,JJ.
DATE : 13th July 2005.

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ORAL JUDGEMENT (PER S.B.MHASE,J):

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 1. This Appeal is directed against the

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 judgement and decree passed by the Family Court
 No.2, Bandra on 31st August 2002 in Petition No.
 A-1291/1998. By the said judgment and decree the
 marriage solemnized between the Appellant and
 Respondent on 14th May 1992 was dissolved under
 section 13(1)(i-b) of the Hindu Marriage Act, 1955
 and the Respondent has been directed to give
 maintenance at the rate of Rs.2000/- per month to
 Appellant-wife for the minor child Vidyalakshmi
 from the date of the Order till she (Vidyalaxmi)
 gets married.

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 2. The Marriage Petition under Section

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 13 (1) (i-a) and 13(1)(i-b) of the Hindu Marriage
 Act 1955 was filed by the Respondent-husband as
 against the Appellant-wife. Two grounds were made
 out namely cruelty and desertion. Further there
 was prayer for granting access to the child.
 However, the said prayer is not granted by the
 trial court. The Family Court has refused to pass
 the decree on a ground of cruelty under section

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 13(1)(i-a) of the Hindu Marriage Act. It is

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 averred in the Petition that the marriage between
 Appellant-wife and the Respondent/husband was
 solemnized on 14.5.1992 at Mumbai according to
 Hindu Vedic rites and ceremonies. Prior to the
 marriage both were spinster and bachelor
 respectively. The Respondent is in service with
 Bank of Baroda while the Appellant-wife is in
 service with the Western Railway at Churchgate as a
 ‘Typist’. After the marriage they resided at 3/36
 Azad Nagar, Andheri (W),Bombay wherein, alongwith
 the Respondent his parents were staying. His
 parents are ‘Pensioners’ retired from the
 Government service. Thus, the Appellant,

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 Respondent and the parents of Respondent are the
 members of the said family who were residing in the
 matrimonial house. Out of the wedlock, on 2nd

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 March 1993 Appellant and Respondent have got female
 child Vidyalakshmi. It is also averred that the
 office timing of the husband is 9.15 a.m. to 4.30
 pm., while the office timing of Appellant-wife is
 10.00 am. to 6.30 pm. It is the case of the
 Respondent-husband that since both the Appellant
 and Respondent were employed and that their office
 timings were as stated above, Respondent’s mother
 used to get up early in the morning and after her
 morning ablution, she used to keep the breakfast
 and tiffin boxes ready for the Appellant and
 Respondent. Similarly, she used to keep the dinner
 ready in the evening, so that the Appellant would
 not be put to any inconvenience after her return
 from office. It is further averred that even on
 the holidays and weekends Respondent’s mother used
 to do all the household work leaving only some
 Sunday work to be done at home by the Appellant.
 Respondent-husband further averred in the Petition
 that right from the beginning of the marriage
 Appellant was adopting non-cooperative attitude
 towards him and his aged parents. However,
 respondent over looked her conduct hoping for
 better days, by consoling himself with the fact
 that the Appellant is a working girl and that she

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 would in the course of time identify herself with
 his family. But it was a hope in vain. It is
 further averred that the entire household expenses
 was made by the Respondent-husband and Respondent
 never demanded anything from Appellant-wife.
 According to Respondent-husband, Appellant is
 getting Rs.5000/- to 6000/- as salary per month,
 but Appellant has not contributed anything for the
 maintenance in the house and has not disclosed to
 the Respondent as to how the amounts are used. The
 grievance of Respondent is that on being asked
 about the salary slip,the Appellant flatly refused
 to oblige him. Thereafter Respondent did not
 bother about her salary slip with the fear of
 unpleasantness in the house. It is further the
 case of the respondent that his parents and in laws
 had great admiration, love and affection for their
 daughter in law . Respondent’s father voluntarily
 opened bank account in the name of Appellant and
 also with the local Post Office and used to deposit
 periodically moneys for the benefit of their
 daughter-in-law. It is the case of the

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 respondent-husband that in spite of love, affection
 and admiration shown by his parents , Appellant had
 never cared to respond them and on the contrary she

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 showed disrespectful behaviour towards them. He

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 alleged that the Appellant was always adamant,
 dominating, abusive, indulging in indecent and
 filthy language towards his parents which was very
 much unbecoming of any daughter-in-law. According
 to the Respondent this was also ignored by his
 parents with the hope that in the course of time
 she would realise her mistakes. However, that was
 also in vain. It is further averred that after a
 child was born , there was no change in the
 attitude of the appellant towards the parents of
 Respondent. It is averred that the bathing of the
 infant was looked after by the mother of the
 Respondent and she used to take great care in
 bathing the child, feeding her, and devoting all
 her time in caring and maintaining the child. It

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 is alleged that, however, Appellant never
 appreciated these sentiments of his mother and
 instead, the appellant continued with her non-
 cooperative, adamant and stubborn attitude towards
 him and his parents. On being pointed out the
 Respondent’s mother’s love and affection towards
 the child Vidyalakshmi, it is alleged that the
 Appellant flared up and retorted by stating that he
 might as well have married his mother or slept with

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 her instead of appellant. Then it is alleged that

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 the appellant was very much money minded and
 materialistic. To support this, the incident of
 August 1993 was quoted by the Respondent. The
 child was used to be fed with milk in a milk

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 bottle, Respondent’s mother was very much aware
 that it was necessary to keep the milk bottle
 spotless and hygienically clean to avoid any
 infection to the child, therefore, appellant was
 requested by the respondent to buy a milk cleaner
 which was available in a departmental store near
 Churchgate Railway Station where her office is
 situated. However, the Appellant completely
 ignored his request and returned home in the
 evening without purchasing the cleaning brush.When
 it was reminded to appellant, she retorted saying
 that neither the Respondent nor his mother had paid
 for the purchase of the milk bottle cleaner. It is
 alleged that though the Appellant had money with
 her, and the price of the bottle cleaner was about
 Rs.10 or 12, it was not spent.

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 3. It is further averred by the
 respondent-husband that in August 1994 the

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 Appellant manhandled his mother without any reason.

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 Since the Respondent’s parents had in their mind
 welfare of the Appellant and Respondent, they
 provided them flat of 800 sq.ft. at Kalyan and
 suggested that the child should be left with them
 to be looked after. The suggestion was agreed to
 by the Respondent and Appellant. Accordingly in
 August 1994 both of them shifted to a flat at
 Kalyan leaving the minor child Vidyalakshi with the
 parents of Respondent at Andheri. It is further
 averred that at the instance of the Appellant, in
 December 1994 Appellant and Respondent returned to
 Andheri house. It is further the case of the
 Respondent/husband that on 27th January 1995
 appellant left the home as usual in the guise of
 attending her office. On her return in the evening
 the Appellant started behaving in a very strange
 manner and refused to take any food even though it
 was kept ready. According to the Respondent,
 Appellant went on hunger strike. On being made
 queries it was learnt that the Appellant had not
 attended the office on that day. Because of this,
 it is averred that the Respondent got apprehension
 that the Appellant was making preparation to leave
 the matrimonial house. On 28th January 1995,
 Appellant, Respondent and the Respondent’s parents

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 were at home. Apprehending some trouble at the

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 hands of the Appellant and her parents, the
 Respondent-husband lodged complaint on 28th January
 1995 with C.I.D., Social Security Branch,Crawford
 Market, Mumbai. On 29th January 1995 at about 5.00
 p.m. Respondent-husband was surprised to find that
 the father and brother of the appellant had come to
 the matrimonial house. By that time, the appellant
 had kept all her articles and belongings duly
 packed. Soon after her father and brother came the
 appellant collected her belongings and took the
 minor child with herself and left the house with
 father and brother, without so much as having the
 courtesy of even informing the Respondent and/or
 his aged parents. It gave clearest indication to
 Respondent-husband that the appellant-wife had
 formed in her mind the necessary animus to desert
 the matrimonial home permanently and to bring the
 marital tie to the breaking point. This was
 further clear from the fact that the appellant had
 deliberately left behind the wedding saree and the
 dresses of the child which the respondent had
 given. It is averred by the Respondent that
 attempt on the part of the Respondent and his
 parents to persuade the appellant not to leave the

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 home failed because Appellant was adamant and her
 father and brother also did not dissuade her from
 leaving the house.

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 Respondent-husband that the father of Respondent

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 had taken a locker in Dena Bank, Versova Branch

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 and the ornaments of the appellant were lying in
 the said locker. On or about third week of March
 1995 father of Appellant sent letter to respondent
 demanding the ornaments of Appellant-wife.
 Therefore, Respondent’s father took out the said
 ornaments from the locker and retained them in the
 matrimonial home. On 26th March 1995 the appellant
 visited Respondent’s house alongwith her sister
 Mrs. Sheela K.Nair, when the Respondent’s father
 handed over the ornaments to the Appellant. After
 checking the ornaments appellant signed a receipt
 duly witnessed by her sister and one family friend
 of the respondent by name M.L.Anantharaman. This
 also, according to respondent, is a fact which
 shows animus to desert the matrimonial home
 permanently and severe the marital relations.
 Thus, the respondent has claimed divorce on the
 ground of cruelty and desertion.

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 5. The Appellant-wife has filed a

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 written statement before the Family Court . She
 has denied all the allegations made by the
 Respondent-husband. It is pointed out that Andheri
 flat which was a matrimonial house is hardly of 400
 sq.ft. with one room kitchen and after marriage of
 Appellant with Respondent, sister of Respondent
 also came to reside there till the Appellant went

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 to her parents house for delivery. There was
 absolutely no privacy in the life of appellant and
 respondent. The Appellant-wife has pointed out
 that the working hours of appellant were from 9.15
 a.m. to 5.45 pm and not from 10.00 am to 6.30 pm.
 She has denied that mother of Respondent was
 preparing the food and breakfast etc. She has
 clarified that the Appellant had to get up early in
 the morning and prepare breakfast for the family
 and tiffin for herself and her husband and used to

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 attend the needs of the child before going to
 office. She has clarified that she was washing
 clothes, cleaning utensils and floor before going
 to work and that Appellant was not allowed to wash
 clothes, utensils, etc. inside the bathroom. The
 washing was required to be done by the appellant in

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 the compound. As a result of which appellant used
 to be late in the office. Appellant claimed that
 the lunch and dinner was cooked together and
 Appellant had to do cleaning work in the kitchen
 after she came from office in the evening.
 Appellant averred that she cooperated to the best
 of her ability in the matrimonial house. On the
 contrary, the in-laws were never satisfied and used
 to find faults with the appellant for anything and
 everything and, interfere in all the matters. The
 appellant has averred that she had to take
 permission from the parents of the respondent for
 everything, even for personal matters like taking
 bath in the evening after coming from the office or
 making tea for herself. The Appellant has accepted
 that she is a working girl but she has stated that
 her salary was only Rs.1750/- and not Rs.5000/- to
 6000/- as alleged by the Respondent. The Appellant
 has averred that after marriage when she received
 the first salary on 31st May 1992, it was handed
 over to the respondent who in turn handed it over
 to his father. It was informed by the father of
 the respondent that a sum of Rs.1,000/- would be
 deducted from the salary every month as appellant’s
 contribution towards the household expenses and the

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 rest of the amount would be deposited in the joint
 account of Respondent and Appellant. Since then
 the Appellant had handed over her salary alongwith
 her salary slip to Respondent-husband and this
 practice continued till the Appellant was staying
 in the matrimonial house. The Appellant further
 averred that even her salary during the period of
 maternity leave had to be accounted to the
 respondent’s father by the appellant in the form of
 Fixed Deposit. Thus, the Appellant denied that the
 allegations that Appellant had not contributed
 anything for the maintenance of the household and
 did not disclose amount of salary. The

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 Appellant-wife denied that the Respondent’s parents
 had admiration , love and affection for the
 appellant. According to the appellant, father of
 Respondent used to treat her with contempt and took
 every opportunity to scold and shower her with most
 filthy language unbecoming of an elderly person.
 The Appellant has averred that in spite of such
 tortures she respected her in-laws and silently
 suffered keeping the welfare of her child in mind.

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 . So far as the incident of bathing
 her child is concerned, Appellant has averred that

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 she used to bathe the child from the time she
 (child) became three months old i.e., from the time
 appellant went to the matrimonial home after
 delivery. According to Appellant, respondent’s
 mother instructed the Appellant to bathe the baby,
 feed her and put her to sleep before appellant left
 for her office in the morning and she was expected
 to do all these things in addition to attending
 other household works such as washing of clothes ,
 preparing breakfast and tiffin etc. The appellant
 has averred that there was a marked difference in
 the attitude of the in laws towards appellant on
 her return to matrimonial home after her delivery.
 Probably because the in laws did not want to have a
 girl baby in the house as a first child and they
 used to taunt Appellant and parents of appellant.

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 . According to the Appellant, the

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 instances of harassment by the in-laws increased
 after appellant returned to the matrimonial home
 after delivery. The Appellant has denied the
 contention of Respondent that after delivery there
 was change in the attitude of Appellant and
 explained that there was no such change in the
 attitude of appellant. However, it was so felt by

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 Respondent, may be because the Appellant was unable
 to attend all the household work in the manner as
 Appellant was doing before, as she has to devote
 considerable time to attend to the child. The
 appellant denied the allegations that Appellant had
 told Respondent that respondent should have married
 to his mother or slept with her. Instead Appellant
 contended that it is utterly false. According to
 appellant, if the Appellant found it impossible to
 live in peace in matrimonial, it is because of the
 parents of the Respondent and their indulgence in

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 every silly matter which made life of
 Appellant-wife miserable in the matrimonial house.
 Respondents parents used to speak ill of the
 appellant and always used to say that the Appellant
 brought only ill luck to them and since Appellant
 was in their house they did not have any
 prosperity. The Appellant further averred that
 Respondent used to come two hours earlier from his
 duty than the Appellant and Respondent’s mother
 used to poison his mind with all sorts of false
 allegations in the result the respondent used to be
 ready to pick up quarrels with appellant and shower
 abuses, the moment Appellant enters the house. The
 Appellant has specifically stated that initially

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 during the bed time Respondent used to apologize to
 Appellant stating that Respondent was forced to
 misbehave with her at the instance of his parents.
 The Appellant claimed that, however, the respondent
 made it a habit of ill treating appellant on
 regular basis. The Appellant has stated that the
 parents of Respondent in their foul design to throw
 Appellant out, had been creating evidence by
 writing letters to the father of appellant making
 wild and baseless allegations against Appellant.
 However, parents of appellant never interfered with
 the appellant’s affairs.

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 . The Appellant-wife has claimed in
 written statement that Respondent and his parents
 were miserely and money minded people and they did
 not allow her to extend the maternity leave and
 told her not to delay to join the duty because
 according to them money was most important for the
 family. The appellant explained about the incident
 of purchase of bottle cleaner stating that the
 entire salary of appellant was taken by
 Respondent-husband, and therefore, appellant had no
 money to buy a bottle cleaner and when Appellant
 asked some money from Respondent-husband same was

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 refused. Thus, the Appellant claims that if money
 was not available how she could purchase the bottle
 cleaner.

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 . Coming to the incident of man

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 handling mother of respondent, the Appellant

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 contended that she never man handled the mother of
 Respondent. On the contrary she averred that, the
 mother as well as the father of Respondent on
 several occasions man-handled Appellant without any
 rhyme or reasons. In explaining the incidence of
 August 1994 which led the appellant and Respondent
 to shift to Kalyan, appellant has averred that it
 was a holiday being Saturday, at about 10.00 a.m.
 appellant went to have bath in the bathroom with

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 clothes. Appellant was washing her clothes in the
 bathroom when the appellant’s mother-in-law came
 shouting to the bath room and banged the door.
 When appellant opened the door to find out what the

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 matter was, her mother in law pulled her out of the
 bathroom and asked to go out in the compound to

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 wash the clothes as appellant was not allowed to

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 wash her clothes or utensils in the bath room. It

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 is further averred that at this juncture father in
 law also asked the appellant to go out and wash the

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 clothes in compound, as has been instructed.
 Though appellant pleaded them that she can not go
 out as she was fully wet, her mother in law pulled
 her out of bathroom and started beating and
 pressing appellant against the wall. Appellant
 fearing for her life shouted for help and when the
 neighbours started looking out, the in laws closed
 the door and became quite for some time. However,
 when the respondent returned from the office at
 2.30 pm his parents instigated him with all sorts
 of allegations against the appellant. The
 respondent then beat appellant severely alleging
 that appellant disobeyed his parents. The
 respondent refused to listen to the pleadings of
 appellant. Parents of respondent-husband also
 joined in beating. On hearing the cries of
 appellant, neighbours intervened and advised

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 respondent to stay separately elsewhere since they
 had one flat in Kalyan. The in-laws then agreed to
 the said suggestion and therefore, appellant and
 respondent shifted to Kalyan flat which was empty
 with no household articles. All the household
 articles such as furniture, utensils and other
 fittings were purchased by appellant with the
 monies borrowed by her. However, the in-laws were

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 bent upon harassing appellant and as such they did
 not live with the parents of the respondent.

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 6. The appellant has further averred
 that appellant and respondent stayed in Kalyan flat
 only from mid August 1994 to first week of December
 1994. Since it was informed by the parents of the
 respondent that in December 1994 they were going to
 native place and did not want their flat to be kept

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 locked in their absence, the respondent should
 shift to Andheri Flat. The appellant readily
 agreed to the same with the hope that she would be
 able to stay with her child at Andheri flat.
 However, her in-laws took the child alongwith them
 when they went to Kerala and did not allow the

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 child to be kept with appellant. The
 appellant-wife found a calculated move of the

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 respondent and his parents to separate her child
 from her. The appellant contended that while she
 was residing in Kalyan she was not allowed to take
 her child during the week end or meet her during
 the working days. Appellant was also told not to
 have any contact with her parents and that she
 should not inform about shifting of her residence
 to her parents. In the first week of January 1995

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 parents of respondent returned and asked appellant
 to go back to Kalyan. By that time appellant
 noticed that health of the child had deteriorated
 and that she was not being fed properly.
 Therefore, the appellant informed her in-laws that
 she would go back to Kalyan only if her child was
 sent with her or else she would stay where the
 child was. This was decided by the appellant
 keeping in view the interest and welfare of the
 child. However, this was not liked by the in-laws
 and they were infuriated and increased their cruel
 behaviour towards appellant.

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 . Answering the incident of 29th
 January 1995 appellant has stated that on 27th
 January 1995, she was on leave and had been to the
 parents house to see her father who had returned
 from native place and she returned in the evening.
 Appellant did not eat anything after return as she
 had taken meals at her parent’s house and this was
 known to respondent. The appellant has denied that
 her behaviour was strange that evening after
 returning from the office. The appellant contended
 that on the contrary respondent and his parents
 abused and physically assaulted appellant for

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 meeting her parents. The appellant further averred
 that she had not made any preparation on her part
 to leave the matrimonial house. However, she
 noticed some hushed talk among the respondent and
 his parents and could smell something strange being
 planned by them as mother-in-law started packing
 her clothes in a suitcase. The appellant also
 noticed that one Anantharaman, a friend of her
 father-in-law who advises her in-laws in all family
 matters kept often coming in and going out of the
 house after giving some instructions secretly to
 her in-laws. The appellant has further averred
 that the police complaint was lodged by respondent
 was surprise to her and she learnt for the first
 time from this petitioner. This act of filing of
 complaint shows that there was guilty mind working
 behind this. At about 4.00 p.m. all clothes and
 belongins of appellant, except ornaments and sarees
 and dresses of the child given by the respondent,
 were packed by the respondent. On being enquired
 by the appellant, it was told to her that she
 should leave the house at the moment and her
 parents would be coming to take her. The appellant
 further averred that at 5.00 p.m . her father and
 brother came to matrimonial home and informed her

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 that they had come pursuant to the frequent
 telephonic calls received from her father-in-law
 for the last two days. They have come to find out
 what the matter was. Appellant has contended that
 respondents father did not allow the father and
 brother of appellant/wife to come inside their home
 and immediately kept the suit case outside the flat
 and asked appellant to get out of the house
 alongwith the child. The in-laws also abused the
 father and brother of the appellant. On being
 asked by the appellant to the respondent, the
 respondent told the appellant to follow the
 instructions of his parents and to go to her
 parent’s house. Thus, the appellant claims that
 she was thrown out of the matrimonial home on 29th
 January 1995 by the respondent and his parents.
 The appellant denied that she has deserted the
 matrimonial house permanently or otherwise.

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 . The appellant has further averred

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 that in the month of April 1995 there was marriage
 of appellant’s brother and appellant did not have
 any ornaments to wear on that occasion. Therefore,
 ornaments were demanded by appellant’s father on
 telephone. However, respondent’s father asked

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 appellant’s father to send a request letter by
 post. Accordingly request letter was sent. In
 turn, respondent’s father informed that the
 appellant should come on 26th March 1995 at 4.00
 p.m. to the matrimonial home to collect the
 ornaments. The appellant stated that accordingly
 the ornaments were collected, however appellant was
 firstly asked to sign a receipt and verify the
 ornaments. The appellant stated that by taking all
 the ornaments, she had no intention to desert the
 house and the allegations made by the respondent
 and his parents are not true.

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 . The appellant has further averred

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 that inspite of the fact appellant was driven out
 of the house, appellant had been to the office of
 respondent alongwtih the child to see and talk to
 respondent. On all such occasions respondent
 refused to talk to appellant-wife or even look at
 the child or speak kindly to child. On the
 contrary he used to ask appellant to write to him
 and appellant had sent several letters and many
 photographs of the child. The respondent replied
 to such letters, but always made it a point to put
 the entire blame on appellant. At the time of

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 admission of the child in the school appellant
 requested respondent to accompany appellant to
 St.Xavier’s School. However, since the respondent
 did not accompany appellant , the child could not
 get admission in a good school like St.Xaviers and
 ultimately the child was required to be admitted in
 another school on paying donation of Rs.8000/-
 since it was an un-aided school.

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 . The appellant has stated that in
 the month of September 1995, appellant’s brother-
 in-laws Mr.M.K.K.Nair went to respondent’s house
 with a view to find out the solution to the
 dispute. However, he was also abused by the
 parents of the respondent in presence of
 Mr.Anantharaman. The said Anantharaman asked the
 brother-in-law of appellant as to how much the
 appellant and her parents could bent before them.
 When enquired what he meant by ‘bent’,
 Mr.Anantharaman told him to come after two weeks so
 as to know about their decision. After two weeks
 brother-in-law visited the respondent’s house. At
 that time he was told by said Mr. Anantharaman
 that the matter would be decided in the Court. The
 appellant has pointed out that an attempt to settle

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 the matter was in vain because of such attitude of
 the respondent.

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 7. On the basis of these pleadings of
 the parties, Family Court has considered the case
 of the respondent on a ground as to whether the
 decree for dissolution of marriage can be passed
 under section 13(1)(ia) and/or 13(1)(ib) of the
 Hindu Marriage Act, 1955. After considering the
 pleadings and evidence of the parties, as stated
 earlier, the Family Court has refused to pass a
 decree on a ground of cruelty under section
 13(1)(ia) of the Hindu Marriage Act. However, the
 Family Court has passed a decree on the ground of
 desertion as provided under section 13(1)(ib) of
 the Hindu Marriage Act, 1955. The said decree is
 under challenge.

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 8. The appeal is filed by the wife who
 is original respondent. There is no cross appeal
 and/or objection on behalf of the respondent -
 husband. Since the prayer to grant decree of
 divorce on a ground of cruelty as provided under
 section 13(1)(ia) of the Hindu Marriage Act, 1955
 is refused by the Family Court, this court is

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 called upon to consider the validity and legality
 of the decree as has been passed by the Family
 Court under section 13(1)(ib) of the said Act.

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 9. In order to prove his case, the

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 respondent- husband has examined himself. He has
 not examined any other witness so as to corroborate
 his testimony. The appellant wife has examined

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 herself and her father. Apart from the oral
 evidence of the parties, the correspondence
 exchanged between the parties has been produced
 from both the sides.

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 10. It is revealed from the evidence,

¶106

 pleadings and the correspondence that most of the
 instances as pleaded by the parties have been
 accepted by the parties, but each party has
 explained the said instances with certain
 modifications and with a different angle of
 appreciation of the said incident as per their own
 perceptions. The probative value of those
 instances etc., will be considered in the later
 part of the judgment.

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 11. Since the decree has been passed on

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 a ground of desertion under section 13(1) (ib) of
 the said Act, we are concentrating our judgment on
 the point of desertion as provided under the said
 clause. Therefore, before we consider the facts
 and the material on record in the present case, we
 propose to consider the law on the subject. The
 relevant provision of the Act, viz., section
 13(1)(i-b) of the said Act is as follows:

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 "13. Divorce. (1) Any marriage
 solemnised, whether before or after
 the commencement of this Act, may,
 on a petition presented by either
 the husband or the wife, be
 dissolved by a decree of divorce on
 the ground that the other party-

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 (i) being irrelevant not
 reproduced,

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 (i-a) being irrelevant not
 reproduced.

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 (i-b) has deserted the petitioner
 for a continuous period of not less
 than two years immediately
 preceding the presentation of the
 petition; ...."

¶114

 12. The term "desertion" has been

¶115

 defined and explained in Explanation to the said
 Section 13 in these terms:

¶116

 :27:

¶117

 "....... the expression
 "desertion" means the desertion of
 the petitioner by the other party
 to the marriage without reasonable
 cause and without the consent or
 against the wish of such party, and
 includes the wilful neglect of the
 petitioner by the other party to
 the marriage, and its grammatical
 variations and cognate expressions
 shall be construed accordingly."

¶118

 13. The question as to what precisely

¶119

 constitutes the desertion came up for consideration
 before the Apex Court in an appeal from the Bombay
 where the Court had to consider the provisions of
 section 13(1) of the Bombay Hindu Divorce Act, 1947
 whose language is in para materia with that of
 section 13(1)(i-b) of the Hindu Marriage Act, 1955.

¶120

 In the judgment of Bipinchandra Jaisinghbai Shah
v/s. Prabhvati reported in AIR 1957 SC 176 there
 is an elaborate consideration of the several
 English decisions in which the ingredients of the
 desertion were considered. The Apex Court has
 approved the summary of the law on the subject in
 Halsbury’s Laws of England (3rd Edition) Volume 12.
 The said approved portion is as follows:

¶121

 "In its essence the desertion means

¶122

 :28:

¶123

 the intentional permanent forsaking
 and abandonment of one spouse by the
 other without that other’s consent and
 without reasonable cause. It is a
 total repudiation of the obligations
 of marriage. In view of the large
 variety of circumstances and of modes
 of life involved, the Court has
 discouraged attempts at defining
 desertion, there being no general
 principle applicable to all cases.

¶124

 Desertion is not the withdrawal from a
 place but from a state of things, for
 what the law seeks to enforce is the
 recognition and discharge of the
 common obligations of the married
 state; the state of things may
 usually be termed, for short, ‘the
 home’. There can be desertion without
 previous cohabitation by the parties,
 or without the marriage having been
 consummated.

¶125

 The person who actually withdraws from
 co-habitation is not necessarily the
 deserting party. The fact that a
 husband makes an allowance to a wife
 whom he has abandoned is no answer to
 a charge of desertion.

¶126

 The offence of desertion is a course
 of conduct which exists independently
 of its duration, but as a ground for
 divorce it must exist for a period of
 at least three years immediately
 preceding the presentation of the
 petition or where the offence appears
 as a cross-charge, of the answer.
 Desertion as a ground of divorce
 differs from the statutory grounds of
 adultery and cruelty in that the
 offence founding the cause of action
 of desertion is not complete, but is
 inchoate, until the suit is
 constituted. Desertion is a
 continuing offence."

¶127

 :29:

¶128

 14. The position is further explained by

¶129

 the Apex Court in the following words:

¶130

 "If a spouse abandons the other spouse
 in a state of temporary passion, for
 example, anger or disgust, without
 intending permanently to cease
 cohabitation, 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, (1)
 the factum of 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 bears the
 burden of proving those elements in
 the two spouses respectively.....
 ...................... Desertion is a
 matter of inference to be drawn from
 the facts and circumstances of each
 case. The inference may be drawn from
 certain facts which may not in another
 case be capable of leading to the same
 inference; that is to say, the facts
 have to be viewed as to the purpose
 which is revealed by those acts or by
 conduct and expression of intention,
 both anterior and subsequent to the
 actual acts of separation. If, in
 fact, there has been a separation, the
 essential question always is whether
 that act could be attributable to
 animus deserendi. The offence of
 desertion commences when the fact of
 separation and the animus deserendi

¶131

 :30:

¶132

 co-exists. But, it is not necessary
 that they should commence at the same
 time. The de-facto separation may
 have commenced without the necessary
 animus or it may be that the
 separation and the animus deserendi
 co-incides in point of time; for
 example, when the separating spouse
 abandons the martial home with the
 intention expressed or implied, of
 bringing cohabitation permanently to a
 close. The law in England has
 prescribed a three years period and
 the Bombay Act has prescribed a period
 of four years as a continuous period
 during which the aforesaid two
 elements must subsist. Hence, if a
 deserting spouse takes advantages of
 the locus poenitentiae thus provided
 by law and decides to come back to the
 deserted spouse by a bonafide offer of
 resuming the matrimonial home with all
 the implications of the marital life,
 before the statutory period is out or
 even after the lapse of that period,
 unless the proceedings for divorce
 have been commenced, desertion comes
 to an end and if the deserted spouse
 unreasonably refuses to offer, the
 latter may be in desertion and not the
 former. Hence, it is not necessary
 that during all the period that there
 has been desertion, the deserted
 spouse must affirm the marriage and be
 ready and willing to resume married
 life on such conditions which may be
 reasonable. It is also well settled
 that in proceedings for divorce the
 plaintiff must prove the offence of
 desertion like any other matrimonial
 matters, 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 satisfaction of
 the Court."

¶133

 :31:

¶134

 15. These observations of the Apex Court as
 reflected in AIR-1957 SC 176 (Bipinchandra Shah
 v/s. Prabhavati) were considered by the Apex Court
 in a latter judgment reported in AIR 1964 SC 40 in
the matter of Lachman Utamchand Kirpalani v/s.
Meena @ Mota, where the Constitutional Bench of the
 Apex Court while considering the decree for
 judicial divorce based on desertion has approved
 the ratio laid down in AIR-1957 SC 176. The
 approval is reflected from paragraph 19 of the said
 judgment, which is to the following effect:

¶135

 "The other matter is this. Once
 desertion, as defined earlier, is
 established, there is no obligation
 on the deserted husband (taking the
 case where he is the deserted
 spouse) the appeal to the deserting
 spouse to change her mind, and the
 circumstance that the deserted
 husband makes no efforts to take
 steps to effect a reconciliation
 with the wife does not debar him
 from obtaining the relief of
 judicial separation, for once
 desertion is proved the deserting
 spouse, so long as she evinces no
 sincere intention to effect a
 reconciliation and return to the
 matrimonial home, is presumed to
 continue in desertion. Of course,
 the matter would wear a different
 complexion and different
 considerations would arise where
 before the end of statutory period
 of two years or even thereafter
 before the filing of the petition
 for the judicial separation, the
 conduct of the deserted spouse was

¶136

 :32:

¶137

 such as to make the deserting spouse
 desist from making any attempt at
 reconciliation. If he or she so
 acts as to make it plain to the
 deserting spouse that any offer on
 the part of the later to resume
 cohabitation would be rejected, then
 the deserting spouse could obviously
 not be blamed for not bringing the
 desertion to an end. Or again, if
 before the end of the period of two
 years or filing of the petition his
 or her conduct is such as to provide
 a just cause for a deserted spouse
 for not resuming cohabitation, the
 petition cannot succeed. For the
 petitioner would have to establish
 that the desertion was without just
 cause during the entire period
 referred to in section 10(1)(a) of
 the Act before he can succeed."

¶138

 16. The law laid down in the above referred to

¶139

 two judgments has been further followed by the

¶140

 Division Bench of this Court in Mukesh Bhagwands

¶141

Ganatra v/s. Priti Mukesh Ganatra reported in
2003(3) Mh.L.J. 408.

¶142

 17. Thus, having noted the law laid down by

¶143

 the Apex Court on the point of desertion, which one
 has to consider whenever a decree for divorce or
 judicial separation is being claimed, we now
 proceed to examine the evidence led on behalf of
 the parties to find out whether the desertion has
 been proved in this case. And, if so, whether

¶144

 :33:

¶145

 there was a bonafide offer by the wife to return to
 her matrimonial home with a view to discharge
 marital duties. And, if so, whether there was an
 unreasonable refusal on the part of the husband to
 take her back.

¶146

 18. Admittedly, the appellant wife is not
 residing with the respondent- husband from 29th
 January 1995. The petition has been filed on
 2.5.1998. Thus, it is revealed that from the

¶147

 date of separation, i.e., from 29.1.1995, period of
 more than 2 years was completed prior to the
 presentation of the petition. In respect of the
 fact of physical separation, however, there is a
 controversial story between the parties.

¶148

 19. As per the respondent -husband on 29th
 January 1995, the appellant - wife as usual left
 the house in the morning to join her office and
 returned back in the evening and started to behave
 in a strange manner. According to the respondent
 husband, the appellant - wife refused to take any
 food even though it was kept ready. It was a case
 of hunger strike. According to the respondent-
 husband, it is further revealed that the appellant

¶149

 :34:

¶150

 - wife had not attended the office on that day.
 Therefore, the respondent has averred that the
 appellant - wife was making preparation to leave
 the matrimonial home. On 28th January 1995 it was
 Sunday and the respondent - husband and his parents
 were at home. The appellant was also at home. The
 respondent and his father apprehending some trouble
 from the appellant and/or her parents, in
 anticipation, recorded a complaint on 29th January
 1995 with the CID Social Security Branch, Crowford
 Market and endorsed a copy thereof to Oshiwara
 Police Station.

¶151

 20. According to the respondent - husband on
 29th January 1995 at about 5.00 p.m., the father
 and brother of the appellant-wife came to the
 matrimonial home. By that time, the appellant had
 kept her articles duly packed. Soon after the
 father and brother of the appellant came into the
 matrimonial home, the appellant collected her
 belongings and took the minor child with herself
 and left the home with her father and brother
 without informing the respondent - husband or his
 aged parents. Thus, according to the respondent -
 husband, it was the clearest indication that the

¶152

 :35:

¶153

 appellant had formed in her mind animus to desert
 the matrimonial home permanently, and, thus to
 bring the marital tie to the breaking point. This
 animus is further evidenced, according to the
 respondent - husband, by the fact that the
 appellant - wife had deliberately left behind the
 wedding sarees and dresses of the child which were
 given by the respondent - husband. The respondent
 has further averred and stated that the attempts
 were made by him and his parents to persuade the
 appellant - wife for not to leave the house, but

¶154

 they failed in the said attempts. According to the
 respondent - husband her animus to desert him
 permanently is further evidenced from the fact that
 in the month of March 1995, the appellant’s father
 sent a letter to the respondent demanding the
 ornaments of the appellant and in view of the such
 demand the respondent’s father took out the
 ornaments from the locker. On 26th March 1995 the
 appellant visited the respondent’s house along with
 her sister Mrs. Shila Nair and collected the
 ornaments after duly checking and signing a receipt
 thereof in the presence of family friend of the
 respondent, namely one Mr. M. L. Ananthraman.
 Since then, according to the respondent - husband,

¶155

 :36:

¶156

 the appellant has not turned up to the matrimonial
 home and thus there is desertion by the appellant -
 wife for a continuous period of not less than two
 years immediately preceding the presentation of the
 petition.

¶157

 21. No doubt, as stated earlier the appellant
 - wife has also accepted that she is staying
 separately from the respondent - husband from 29th
 January 1995. According to the appellant on 27th
 January 1995 she was on leave and on that day she
 had been to her parent’s house to see her father
 who had returned from the native place. In the
 evening the appellant returned back to her
 matrimonial home. Since she had food at her
 father’s house, she did not eat anything after
 returning to the matrimonial home. These facts
 were known to the respondent - husband. The
 appellant has further denied that she was making
 any preparation on her part to leave the
 matrimonial home. According to the appellant, the
 appellant noticed some hushed talks among the
 respondent - husband and his parents. The
 appellant could smell something being planned by
 the respondent - husband and her in-laws, as the

¶158

 :37:

¶159

 mother-in-law of the appellant started packing the
 clothes of the appellant in a suitcase. It was
 further noticed by the appellant that the family
 friend Mr. Ananthraman who was advising the family
 in all matters, repeatedly kept coming in and going
 out of the house after giving some instructions
 secretly to the respondent and his parents.
 According to the appellant - wife, by about 4.00
 p.m. her in-laws packed her clothes and other
 belongings except ornaments and the sarees and
 other dress materials given to the appellant by the
 respondent. On being enquired by the appellant,
 the in-laws informed the appellant that she should
 leave the house at the moment and that her parents
 would be coming to take her to their home.
 According to the appellant, she saw all these
 things silently.

¶160

 . According to the appellant- wife, at about
 5.00 p.m. her father came to the matrimonial home
 and informed that he had come pursuant to the
 frequent telephonic calls received from the
 father-in-law of the appellant in the last two
 days. According to the appellant, the respondent’s
 father did not allow the appellant’s father to come

¶161

 :38:

¶162

 inside the home and immediately kept the packed
 suitcase outside the flat and asked the appellant
 to get out of the house along with the child.
 According to the appellant, the in-laws also
 started abusing the father and brother of the
 appellant in the presence of the appellant. The
 appellant asked the respondent - husband what he
 had to say about it. Whereupon, the respondent -
 husband also asked appellant to follow his parents
 instructions and to go to the her parents house.
 Thus, the respondent and his parents thrown the
 appellant out of the matrimonial home on 29th
 January 1995. The appellant was not allowed to
 take the dress of the child and was only allowed to
 carry what the in-laws had packed earlier in the
 suitcase. Thus, the case made out by the appellant
 -wife is that she had not deserted the matrimonial
 home permanently or otherwise.

¶163

 22. So far as the incidence of taking

¶164

 ornaments is concerned, it is the case of the
 appellant-wife that when she was asked to go out of
 the house, her ornaments were with the respondent -
 husband. In the month of April 1995 there was
 marriage of the appellant’s brother and therefore,

¶165

 :39:

¶166

 the appellant wanted to have those ornaments to
 wear on that occasion. Therefore, the appellant’s
 father telephoned to the respondent’s father
 requesting to release some of the ornaments to wear
 on the said occasion. However, the respondent’s
 father informed that the appellant’s father should
 write a letter to that effect and thereafter the
 ornaments would be given. Therefore, the
 appellant’s father had written a letter to the
 respondent’s father on 18th March 1995. Whereupon
 the respondent’s father informed to collect the
 ornaments on 26th March 1995. Accordingly, the
 ornaments were collected on 26th march 1995.
 According to the appellant, the receipt was
 required to be passed, since it was being asked by
 the father of the respondent. Thus, the appellant

¶167

 - wife has made out a case that ornaments were
 taken since there was marriage of her brother and
 it was not with any animus to separate permanently
 from the respondent - husband.

¶168

 23. Thus, from this material it is admitted
 that on 29th January 1995 the parties have
 separated. On that day, the father and brother of
 the appellant had been to the matrimonial home of

¶169

 :40:

¶170

 the appellant. It is further admitted position
 that on 27th January 1995, after the return from
 the office, the appellant had not taken food and
 that since 29th January 1995 the appellant is
 residing with her parents. It is further an
 admitted that on 29.1.1995 the appellant left the
 matrimonial home accompanying her father and
 brother. It is further admitted that on that day
 the wedding sarees of the appellant and dress
 material of the child-Vidyalakshmi which were given
 by the respondent - husband remained at the house
 of the respondent - husband. It is equally
 admitted that on 26.3.1995 the ornaments of the
 appellant were taken by the appellant from the
 respondent - husband.

¶171

 24. As against this, the disputed facts are as
 to whether on 27.1.1995 the appellant had not taken
 food because she went on hunger strike and as to
 whether on 29.1.1995 respondent - husband lodged
 the complaint with CID Social Security Branch
 apprehending the trouble from the appellant and her
 parents; as to whether the appellant herself had
 packed her clothes in the bags and/or it is the
 mother-in law of the appellant who had packed the

¶172

 :41:

¶173

 clothes of the appellant in the bags; as to
 whether the father and brother of the appellant
 came to the matrimonial home on 29.1.1995 as per
 the plan with the appellant and/or as per the
 telephonic calls given by the parents of the
 respondent. It is further disputed as to whether
 the ornaments were taken with an intention to
 permanently separate or were taken on the occasion
 of the marriage of the brother of the appellant.

¶174

 25. The answer to these questions shall have
 to be traced to find out as to whether on 29.1.1995
 the appellant and respondent separated physically,
 whether there was animus deserendi developed with
 the appellant on that day. If it is found that the
 appellant has gone on hunger strike since 27.1.1995
 and has ultimately left the house without the
 consent of the respondent-husband along with her
 father and brother leaving behind her wedding
 sarees and dresses of the child which were bought
 by the respondent and afterwards had collected the
 ornaments as stated above, then it can be safely
 inferred that it is the appellant who has left the
 house and there is desertion by her.

¶175

 :42:

¶176

 . However, if it is found that she was not
 on a hunger strike and that she had not taken food
 on 27.1.1995 because she had food at her parents
 house and that the fact of not taking the food has
 been wrongly apprehended by the respondent -
 husband and his parents so as to call her parents
 to take her back to their house and for that
 purpose the mother-in-law of the appellant had
 packed her clothes and asked the appellant to go
 along with her father and brother, then it will
 have to be inferred that the appellant has not
 deserted the respondent.

¶177

 . We make it clear that this issue simply
 cannot be answered only on the basis of instance or
 instances which had taken place between 27.1.1995
 and 29.1.1995. But in order to come to a
 conclusion whether on that day there was animus
 deserendi developed with the appellant, the facts
 antecedent to the date of the separation and the
 facts subsequent to their date of separation will
 have to be assessed and analysed, as their conduct
 and behaviour is product and consequence of animus
 slowly developed from the earlier instances in
 their life, from the day of marriage till the date

¶178

 :43:

¶179

 of separation and on the basis of preponderance of
 probabilities the disputed questions will have to
 be answered.

¶180

 26. The appellant and respondent married on
 14th May 1992 and they have separated on 29th
 January 1995. Thus, hardly they have consummated
 the marriage for two and half years. Out of these
 two and half years it appears that upto 6.12.1992
 the appellant was with the respondent - husband.
 On that day, the appellant left for her parents
 home for delivery. She delivered the female child,
 named as Vidyalakshmi on 2.3.1993. After delivery
 she had returned to the matrimonial home in the
 month of July 1993. From the letter dated 21st
 December 1993 it can be seen that the disputes
 started of the appellant with her in-laws and that
 on 26th September 1993 the parents of the appellant
 had visited the house of the respondent. Further
 it is revealed that at that time the appellant-
 wife was at her parents house and the respondent
 husband was called to see her on October 2, 1993.
 However, it appears that on October 1, 1993 and
 October 23, 1993 there was dispute between the
 appellant and the respondent which will be dealt

¶181

 :44:

¶182

 with later on.

¶183

 27. It appears that later on the appellant
 came to the matrimonial home. From the letter
 dated January 1995 written by the respondent -
 husband it is revealed that between the period of
 26.1.1994 to 16.4.1994, the appellant was with her
 parents and further from the period of 21.8.1994
 the appellant and respondent have stayed in a
 separate flat belonging to them at Kalyan. While,
 the parent of the respondent and daughter
 Vidhyalaxmi stayed at matrimonial home, i.e., 3/36
 Azadnanagr, Andheri (west). Between the period
 24.9.1994 to 29.10.1994, it appears that couple had
 visited their native place and thereafter returned
 to stay at Kalyan. It appears that from 4.12.1994
 to 5.1.1995 the parents of the respondent - husband
 along with child Vidyalaxmi had been to the native
 place and they returned to Mumbai on 5.1.1995 and
 thereafter within a short period, i.e., on
 29.1.1995 the appellant and respondent separated.

¶184

 28. The facts will show that the period in
 which the appellant and the respondent and the
 parents of the respondent were together and the

¶185

 :45:

¶186

 conduct of the parties in this period has to be
 considered. It is made clear that there may be
 missing links of the period when the appellant may
 be with her parents but the exact dates cannot be
 traced from the evidence and pleadings of the
 parties. However, the above dates will also point
 out that the appellant and the respondent had a
 very short span to stay together and in this short
 span they have separated.

¶187

 29. Admittedly, the appellant and respondent
 are employed respectively with the Western Railway
 at Churchgate and Bank of Baroda, Gavdevi Branch,
 Mumbai. It is also admitted that the father of the
 respondent - Gopalkrishanan and mother of the
 respondent - Palakhimma both are retired persons of
 the Central Government and they are pensioners.
 The respondent is the only son, viz., he is not
 having brother, though he is having a sister.
 Therefore, he is and has to be a beloved son of his
 parents and all the aspirations and hopes of the
 parents of the respondent are vested in the
 respondent. Therefore, morally, socially and
 legally he is under obligation to look after and to
 follow and obey his parents. It further appears

¶188

 :46:

¶189

 that the parents of the respondent are orthodox
 Hindu and they desired that their daughter-in-law,
 namely, the appellant should be an ideal Hindu
 daughter-in-law, obeying and worshiping the
 respondent and parents of the respondent and even
 following every suggestion of in-laws. These
 aspirations of the father of the respondent are
 reflected in a letter dated December 21, 1993.
 While making reference to the quarrels in between
 the appellant and respondent he has observed in the
 said letter as :

¶190

 "You should remember that he is not coming
 to your place for quarrelling and getting
 insulted. The son-in-law is a man. He is
 your daughter’s husband."

¶191

 . In the said letter he has also complained
 about the behaviour of the appellant stating that-
 "After the marriage we started buying spiritual
 publications for Leela (appellant), but Leela never
 used to touch them. She says that she is not
 having any blind belief "God is equal to everybody.
 We get the results for what we do." On the basis of
 these things I request you-Leela is wife today, a

¶192

 :47:

¶193

 mother. GOD HAS GIVEN HER A GIRL CHILD, LIFE IS
 VERY HEAVY. Advise Leela to live with her husband
 with peace and happiness."

¶194

 30. It seems that working hours of the
 respondent - husband are 9.15 a.m. to 4.50 p.m.
 while from 10.00 a.m. to 6.30 p.m. the appellant

¶195

 - wife was on duty. The appellant was earning
 getting salary as per her statement in the sum of
 Rs.7,000/-. The respondent is getting salary
 nearabout the same. As a result of their duties,
 as stated above, the appellant and respondent were
 away from each other and the parents of the
 respondent were at home since they happened to be
 pensioners.

¶196

 31. The picture has been tried to be made out
 by the respondent - husband that his mother used to
 get up early in the morning and after her morning
 ablutions, she used to keep the breakfast and
 tiffin boxes ready for the appellant and the
 respondent. Similarly, she used to keep the dinner
 ready in the evening so that the respondent would
 not be put to any inconvenience after her return to

¶197

 :48:

¶198

 the home and even on holidays and week-ends, his

¶199

 mother used to do like wise, leaving only some
 sundry work to be done at home by the appellant.
 And, that the appellant was adopting a
 non-co-operative attitude towards his aged parents.
 In the examination-in-chief, the respondent has
 stated like this. However, this part of story is
 found to be incorrect and false one, because, the
 expectations of the parents of the respondent are
 reflected in the letter dated 21.12.1993. It is
 mentioned in the said letter that:

¶200

 "Early morning at 4.30 a.m. we both will
 get up and by 7.00 O’clock we finish the
 whole kitchen work, after that Unni’s
 mother takes bath and goes for prayer.
Leela (appellant) has to prepare tiffin
and breakfast for herself and Unni. She
must give bath to Laxmi, feed her, put her
to sleep and look after her own work. By
 9.15, 9.30 she goes to office. When we
 ask why you are not putting the child to
 sleep before going to office nowadays, she
 said that there is no guarantee that I can
 put the child to sleep before going to

¶201

 :49:

¶202

 office.

¶203

 Then Unni’s mother said you should stop
 frying rice and boiling eggs in the
 morning. You change these things to the
 evening. If fried rice is a bit less on
 one day think that it is enough for that
 day and take a bigger vessel the next day.
 You should iron your clothes on the
 previous day. If you adjust like that you
 can keep up economy and you can devote
 more time to Lakshmi first and then
 secondly to Unni. This is not acceptable
 to Leela."

¶204

 32. From this discussion in letter, it is
 clear that the expectations of the parents of the
 respondent were that Leela (appellant) should
 prepare food for herself and her husband. She
 should give bath to the child and see that the
 child is put to sleep. She shall also look after
 other household things. These expectations show
 that the story made out by the respondent -
 husband, as stated above, was made out for the
 purpose of petition only. On the contrary, it was

¶205

 :50:

¶206

 the appellant - wife who was doing and was expected
 to do every household work. Accordingly, the
 appellant has stated in written statement and
 deposed to that effect.

¶207

 33. The case made out by the appellant - wife
 is that it is the appellant- wife who was doing
 every household work, viz., cooking, cleaning,
 ironing clothes etc. before going to the office
 and after returning from the office. This seems to
 be the true story, since the appellant being the
 only daughter-in-law it was expectation of the
 mother-in-law that every household work should be
 done by the appellant. We, therefore, accept the
 case made out by the appellant wife that it is the
 appellant - wife who was doing all the household
 works.

¶208

 34. The matrimonial home is 3/36, Azadnagar.
 According to the respondent - husband, it consists
 of two bedrooms, hall, kitchen having total area
 admeasuring 400 sq. feets and has enough privacy.
 The wife has averred that though the total area of
 the flat is 400 sq. feet it is originally
 1-bed-room, hall, kitchen self-contained flat. The

¶209

 :51:

¶210

 appellant has denied that there are two bedrooms,
 one hall and kitchen and enough privacy. We find
 that the respondent - husband has accepted in his
 evidence in cross-examination that the balcony is
 converted into room and that he is treating it as a
 bedroom. This shows that on the small point also
 the respondent is not ready to accept the fact that
 in the said house there is no enough privacy. In
 fact the said flat had only one bed room and other
 so called bed room is a balcony. It is further
 revealed that, as stated by the appellant - wife
 that after their marriage, immediately the sister
 of the respondent had come to reside along with
 them and there was no privacy. It is revealed that
 Sindhu stayed for a period of four months at her
 parent’s house after the delivery. It is further
 revealed that Sindhu, sister of the respondent used
 to come on Friday and go back on Sunday. Thus, in
 initial days when the appellant and respondent were
 newly married, it is expected that at least on
 Saturday and Sunday there should be sufficient
 privacy to the couple. However, on those days
 there used to be parents and sister of the
 respondent in the house wherein the accommodation
 is one bedroom, hall, kitchen flat. This,

¶211

 :52:

¶212

 naturally resulted into disturbances into privacy
 and the mental starvation of the newly married
 couple. That naturally had created tensions in the
 family. In fact, it is admitted position that
 family was possessed of a 500 sq. feet flat at
 Kalyan having two bedrooms, hall, kitchen. The
 said flat was lying vacant. In view of the
 insufficient accommodation and disturbances to the
 privacy, it would have been appropriate to shift
 the family and/or to allow the respondent to make a
 matrimonial home at Kalyan in initial days.
 However, for the reasons best known to them it was
 not done, which naturally resulted into mental and
 physical tensions between the parties disturbing
 their matrimonial peace and happiness.

¶213

 35. Further, it appears that the respondent
 has tried to make a show that the appellant was not
 giving any salary in the home and she did not
 disclose her salary slip. On the contrary, it is
 the respondent’s father, who has opened a bank
 account and postal accounts in the name of the
 appellant and grand-daughter - Vidyalaxmi.
 Answering to this, the appellant has stated that
 the practice in the respondent’s house was that

¶214

 :53:

¶215

 every household purchase and management was looked

¶216

 after by the father of the respondent and that
 after the marriage the appellant used to hand over
 the salary and salary slip to the respondent and
 the respondent in turn used to hand over the said
 amount to his father. The father of the respondent
 told that out of this amount, Rs. 1,000/- would be
 taken for household expenses and rest of the amount
 would be invested in the bank in the name of the
 appellant and respondent, in a joint account.
 Accordingly, the arrangement was implemented by the
 father of the respondent. She has further stated
 that the money was so valuable to the family that
 even the amount of maternity leave benefits was
 also obtained from the appellant and was invested

¶217

 in the banks and posts. According to the
 appellant, she was only allowed to kept Rs.100/-
 for her pocket and travelling expenses.

¶218

 36. In the light of these facts, on
 preponderance of probabilities we find that what
 the appellant wife has stated must be true. For
 the reason, no wife in early days, when she has
 just married will refuse to disclose the salary to
 the husband and refuse to part with the amount. On

¶219

 :54:

¶220

 the contrary, in the early days, she wants to be
 absorbed in the new family and win the confidence
 of the family and she shall be making every effort
 to hand over the salary to the husband. It is
 possible that after the relations are strained, she
 may refuse to do that. But in early days it is
 unbelievable that the wife will refuse to part with
 the salary and disclose the pay-slip. It is
 further revealed from the evidence as reflected in
 the cross examination of the respondent that they
 have opened a bank account in the Corporation Bank
 and his father is pensioner and getting pension of
 Rs. 5000/- to 6000/- per month. He has stated
 that he did not know the exact year till when my
 father deposited the amount in the account. He
 further showed ignorance in respect of the account
 being continued. However, he has admitted that
 Rs.10,000/- were kept in the fixed deposit in the
 name of his daughter in Canara Bank and that he has
 not handed over the Fixed Deposit receipts thereof
 and other F.D. Receipts to the appellant. This
 along with the unshattered statement of the
 appellant - wife make it crystal clear that every
 month, the appellant wife used to give the salary
 to the respondent and respondent in turn used to

¶221

 :55:

¶222

 give the said salary to his father, who after using
 some of it for household expenses used to deposit
 rest of the salary in the Joint name and/or in the
 name of the respondent as per his will and wish.
 This is analysed only to demonstrate that on this
 issue also the dispute has been raised in the
 petition and respondent has tried to impress upon
 the court that the appellant refused to part with
 her salary amount and in order to contribute in the
 household expenses since beginning. However, such
 is not the inference. On the contrary, the
 material on record shows that the wife has handed
 over the total salary to the respondent- husband,
 as stated above, which was invested by his father
 in the banks. This further shows that they were
 miserly persons and the did not allow the appellant
 to use her own salary as per her own wish and she
 was allowed to keep only Rs.100/- with her for her
 monthly expenses.

¶223

 . This has a bearing further on a fact while
 making grievance against the appellant-wife that
 she is a miserly woman and was equally careless in
 respect of the child. The incident has been
 pointed by the respondent - husband that in the

¶224

 :56:

¶225

 month of July 1993 the respondent had asked the
 appellant to purchase milk bottle cleaner so as to
 clean the milk bottle which was being used for
 feeding Vidyalaksmi. According to the respondent -
 husband, even though the price of the said brush
 was less than Rs.50/- the appellant did not
 purchase it. While explaining the said incident,
 the appellant - wife has stated that she had no
 money and when she asked money from the respondent,
 respondent refused to give money. Therefore, she
 could not purchase the said bottle cleaner. Story
 made out by the appellant, in our opinion, is true.
 It is clear from the statements reflected in the
 letter dated 21st December 1993, written by the
 father of the respondent to the father of the
 appellant. In the said letter it is stated that-
 "Nothing is serious for Leela. Everything is easy.
 In the beginning of October 93 she was asked to
 purchase a brush to clean Lakshmi’s feeding bottle
 from Asiatic at Churchgate (because it was not
 available here), Unni did not give her cash so she
did not buy the brush. On 27th November 1995 myself
and my wife went to Churchgate and brought the

¶226

brush. When we say the above truth you can
 estimate her love to her daughter. The cost of the

¶227

 :57:

¶228

 brush is Rs.15/-. See how adamant she is. If she
 is so adamant in the case of her own child. You
 can imagine what will be her behaviour towards
 others."

¶229

 37. Thus, it is well established that the
 amount for purchase of the brush was not given by
 the respondent or his parents. In this backdrop
 that the appellant demanded the amount. No mother
 will avoid to purchase the bottle cleaner if she is
 possessed of sufficient money.

¶230

 38. We therefore find substance in the

¶231

 contention of the appellant that since the money
 was not given by the respondent and she did not
 have that much money, since she was given only
 Rs.100/- for pocket expenses, as such the appellant
 could not purchase the bottle cleaner. In our
 view, this does not contribute to any act of
 adamancy and/or miserness on the part of the
 appellant.

¶232

 39. The respondent has made a case that in the
 month of August 1994, the appellant had manhandled
 his mother without any rhyme or reason. The

¶233

 :58:

¶234

 appellant - wife has explained the said incident
 stating that she has not manhandled her
 mother-in-law. According to the appellant, it was
 Saturday. At about 10.00 a.m., she went to have a
 bath in the bathroom with the clothes. The
 appellant was washing the clothes in the bathroom
 when the mother-in-law came there shouting and
 banged the doors. When the appellant opened the
 doors to find out what the matter was, the
 mother-in-law pulled the appellant and asked to go
 to the compound to wash the clothes, since the
 appellant was not allowed to wash the clothes or
 utensils in the bathroom. At this juncture, the
 father-in-law also joined and asked to go out and
 wash the clothes in the compound as had been
 instructed. The appellant pleaded that she is
 fully wet. However, the mother-in-law pulled the
 appellant out of the bathroom and started beating
 and pressing the appellant against the wall.
 Therefore, the appellant shouted for help. When
 the neighbours started looking out, the in-laws
 become quiet. At about 2.30 p.m. the respondent
 returned from office, at that time his parents
 instigated him with all sorts of allegations
 against the appellant. As a result of which again

¶235

 :59:

¶236

 there was quarrel wherein the neighbours
 intervened, when the decision was taken to shift
 the appellant and respondent to Kalyan flat. This
 incident has taken place in the month of August
 1994.

¶237

 40. Thus, it can be seen that on August 20,
 1994 some incident has taken place. According to
 the appellant - wife she had not man-handled her
 mother-in-law, but it was the mother-in-law who had
 man-handled the appellant. So far as the
 respondent is concerned, it is the case of the
 respondent that the appellant had manhandled his
 mother. However, it is to be noted that at the
 time of actual incident the respondent was not at

¶238

 home and he had no personal knowledge of the

¶239

 incident. In the examination-in-chief the

¶240

 respondent has stated that the incident had taken
 place in July and August 1994. He came from the
 office. At that time he noticed that the appellant
 was washing clothes and he came to know that there
 was some talk between the appellant and his mother,
 my mother had requested the appellant not to wash
 the clothes in the bathroom and instead to go
 outside, near the compound, the appellant got

¶241

 :60:

¶242

 violent and assaulted his mother. Due to this
 incident he left and shifted his residence at
 Kalyan with the appellant.

¶243

 41. As against this, the appellant has stated
 that she had not assaulted her mother-in-law in the
 last week of August on account of washing of the
 clothes. This incident was reported by the
 mother-in-law to her husband when he returned from
 the office.

¶244

 42. In a letter dated January 1995 (28.1.1995)
 written by the respondent - husband to his
 father-in-law, it is stated that on 20.12.1994
 Leela (appellant) caught hold of his mother and
 pressed her against the bathroom door thereby
 hurting her. This incident compelled him to live
 separately and see the behaviour could be improved
 on the part of Leela.

¶245

 43. Thus, on preponderance of probabilities,
 it is unlikely that the appellant being the
 daughter-in-law would man-handle her mother-in-law.
 It appears from the pleadings and evidence of the
 parties that there were consistent instructions on

¶246

 :61:

¶247

 the part of the mother-in-law that after the usual
 bath, the clothes should be washed outside, in
 compound and not in the bathroom. We find that all
 such objections are unknown. In fact, the bathroom
 is a place where the clothes are washed. If while
 taking bath the appellant was washing the clothes
 and at that time the mother-in-law banged on the
 door and after opening the doors, if she pulled the
 appellant out of the bathroom in the wet condition,
 some resistance is possible. However, such
 resistance on the part of the appellant cannot be
 attributed to show that the appellant wanted to
 man-handle her mother-in-law. It appears that the
 respondent and his parents were expecting that even
 in that wet condition they should be allowed to
 hold catch of the hands of the appellant like
 holding hands of any child and allow herself to be
 pulled out of the bathroom. It is the aggressive
 act of the mother-in-law which had led to unhappy
 incidence. However, by no stretch of imagination
 it can be said that the appellant had manhandled
 her mother-in-law.

¶248

 44. It is further surprising to note that when
 the decision was taken to stay separately at Kalyan

¶249

 :62:

¶250

 house, then in that circumstances the parents of
 the appellant should have allowed the appellant and
 respondent to go to reside at Kalyan flat along
 with their daughter - Vidyalaxmi. However, in the
 present case, the daughter was not allowed to be
 taken with the appellant and respondent. It is to
 be noted that in the month of August 1994, child
 Vidyalaxmi was hardly of one year and it was a
 breast fed child. In such circumstances, the child
 should not have been separated from the mother.
 However, the fact will remain that the respondent
 and appellant went to reside at Kalyan flat and
 their daughter was not allowed to be taken with
 them.

¶251

 45. It is further revealed from the material

¶252

 on record that even on Saturday, Sunday and
 Holidays the respondent had not taken the appellant
 to see their daughter Vidyalaxmi. Thereafter
 within a short span, it was found that the parents
 of the respondent were going to native place. The
 appellant, therefore, in order to see her child had
 returned to the matrimonial home at Andheri.
 However, the mother-in-law had taken the child to
 the native place. Thus, evidence shows that from

¶253

 :63:

¶254

 24th August 1994 onwards even though the appellant
 and respondent were allowed to stay separately,
 their breast fed child was taken by the
 mother-in-law. The appellant being a mother of
 Vidyalaxmi could not tolerate such conduct.
 Therefore, she was insisting for child. Such
 insistence was not approved by the respondent.
 From the letter dated 21st January 1995 it is
 revealed that there was dispute between the
 appellant and the respondent on the count of their
 daughter - Vidyalaxmi. It is stated in the said
 letter that-

¶255

 "I advised her that I have no objection to
 bring the child to Kalyan provided Leela
 takes care of the child completely. I
 advised her that she can resign her job or
 at least take necessary leave for this
 purpose till our child grows up to a
 manageable age."

¶256

 . The respondent has insisted that the child
 is not kept in creche, thereby leaving the child at
 the mercy of some third person for nearly 12 hours
 when they are away at the work. He has further

¶257

 :64:

¶258

 written that this problem had aggravated severely
 when his parents came back on 5.1.1995 with
 grand-daughter Vidyalaxmi. During the period when
 his parents were away from 4.12.1995 to 5.1.1995,
 the appellant threatened the respondent by saying
 that she would drag the mother of the respondent to
 the court. She also threatened by saying that she
 would take legal action, if she is not allowed to
 take the child with her to Kalyan or to her
 parent’s house.

¶259

 46. Thus, this letter shows that after the
 appellant and respondent had started to stay
 separately, the appellant had asked for the custody
 and care of her child - Vidyalaxmi, which was not
 allowed by the respondent and his parents.
 Therefore, there was dispute amongst them. Not
 only that in order to have company of the child, in
 stead of staying at Kalyan, the appellant decided
 to return to matrimonial home at Andheri. However,
 she was not allowed to stay in the said house by
 the mother-in-law and she was asked to stay at
 Kalyan house.

¶260

 . If we take into consideration the dates of

¶261

 :65:

¶262

 this dispute, it took place on 5.1.1995 and the
 segregation of the appellant from her child -
 Vidyalaxmi was on 21.8.1994. For about 4 to 5
 months child was segregated and separated from the
 mother. We ask a question to ourselves which
 mother will tolerate a breast fed child to be kept
 away from her. It was naturally correct on her
 part to fight with the husband for the child should
 be brought back to her or some arrangement is made
 for the child.

¶263

 47. Under these circumstances, the respondent
 has expressed her desire to take the child and
 decided to reside with her in-laws, as reflected
 from the letter of the respondent addressed to his
 father-in-law, dated 28.1.1995. Under these
 circumstances, the incidence of 29.1.1995 had taken
 place. Thus, it can be seen from the various
 circumstances and instances which are quoted and
 considered by us, that several incidences have been
 manipulated in its own way by the respondent. As
 against that, we have noticed that the incident is
 otherwise. Therefore, on the preponderance of
 probabilities, we find that the case made out by
 the appellant is a genuine one. We find that near

¶264

 :66:

¶265

 about 29th January 1995, the situation was created
 wherein the appellant was thirsty for her child and
 for that child she was ready to go to any extent,
 even to separate herself from the respondent -
 husband. However, that does not mean that there
 was an intention to permanently segregate and/or
 separate the marital ties. That separation, which
 if at all had resulted, on 29.1.1995 was a result
 of the compelling circumstances created by the
 respondent and his parents in which the appellant
 was placed. Therefore, we conclude that at the
 time of separation there was no animus deserendi
 developed with the appellant and the respondent has
 failed to prove that the appellant has deserted the
 respondent.

¶266

 48. We have come to the conclusion that there
 is no desertion. But assuming for a moment that
 there was a desertion, the provisions of Section
 13(1)(ib) of the Hindu Marriage Act, 1955 require
 that such a desertion shall be for a continuous
 period of not less than two years immediately
 preceding the presentation of the petition.
 Therefore, the animus deserendi to separate
 permanently shall continue for a period of not less

¶267

 :67:

¶268

 than two years preceding the presentation of the
 petition. That means, if within that period if the
 deserting spouse changes the mind and decides to
 return back and resume the conjugal relations, the
 requirement of the section is not fulfilled and
 decree for divorce cannot be passed.

¶269

 49. As already analysed, the last occasion on
 which the appellant and respondent met is on 26th
 March 1995, when the ornaments were given by the
 respondent-husband to the appellant. Thereafter,
 it appears that for a prolonged period there were
 no relations between the appellant and the
 respondent, except a fact that on or about August
 1995, the birth certificate of Vidyalakshmi was
 demanded by the appellant by letter and it was
 accordingly sent by the respondent.

¶270

 50. Thereafter, we come across a

¶271

 correspondence dated 8.3.1996. It is a letter by
 the appellant-wife to the respondent-husband. It
 appears from the said letter that on 6.3.1996, the
 appellant had been to the office of the respondent
 along with child- Vidyalakshmi and at that time the
 respondent instructed to write a letter and

¶272

 :68:

¶273

 therefore the said letter was written. In this

¶274

 letter appellant - wife writes :

¶275

 "Dear Unnichetan,

¶276

 . As per your instructions at the
 time when I and Laxmi visited you in your
 office on 06/03/1996, I am writing this
 letter.

¶277

 . First of all let me apologize to
 you for any words uttrered by me which has
 hurt your feelings. I came to your office
 on that day on my own, to see you and show
 our daughter, her father I did not come
 there to demand anything from you or to
 harass you.

¶278

 . Our daughter Laxmi is quite clever
 and can understand every thing now.
 Whenever she sees any child with its father
 she immediately asks "where is my father"
 when I used to show her your photos. She
 used to immediately ask me "why he is not
 coming to see me". Then I used to feel
 guilty of snatching her from her father and
 my conecience used to ...... me. That is
 why I though "Let what may happen, I will
 take her to you and show you". After
 returning home, she told everybody whomever
 she met, that I saw my Achan ((met Acha
 Kandu, Acha ICREE thann)) she was very
 happy.

¶279

 . One year before, my feelings were
 more important for me than anything else.
 At that time I thought I can answer her when
 she grows up but now our child’s future is
 most important for me than myself. I am
 prepared to sacrifice anything and
 everything for her. Neither a father nor a
 mother can by themselves bring up a child
 properly. She requires the love and
 affection of both, our separation will

¶280

 :69:

¶281

 hamper, her personality we have to live
 together for the sake of her upbringing. I
 do not want any of your properites, assets
 or money. I want only our love and
 AFFECTION to our innocent child. So I
 request you to find out a solution for that.

¶282

 . Once again requesting you to pardon
 me.

¶283

 Yours loving wife,

¶284

 Leela.

¶285

 51. By this letter, it is clear that the

¶286

 appellant - wife has apologised and showed her
 willingness to sacrifice anything and everything
 for the sake of child and requested to come
 together even she has asked for solution. It is
 pertinent to note that in a letter dated 29.1.1995
 written by the respondent- husband to the father of
 the appellant it is stated at the end that:

¶287

 "Should Leela change her mind
 anytime in future, she is quite
 welcome and she can come any time
 she feels."

¶288

 .. Thus showing willingness to accept the
 appellant - wife. However, when the appellant has

¶289

 :70:

¶290

 written a letter dated 1.3.1996, referred to above,
 it appears that the respondent has changed his mind
 and by letter dated 13.3.1996 he has expressed a
 surprise about the conduct of the appellant. He
 has expressed surprise how all of sudden the
 appellant has developed a feeling of guilt and has
 shown readiness to sacrifice anything and
 everything for the sake of child. Speaking about
 solution to the problem, he has stated in the said
 letter in the following language :

¶291

 "I am convinced from the past
 experience, that you have chosen
 to write the above letter at the
 behest of someone also for laying
 foundation for future. It is said
 if a tigress becomes vegetarian,
 it can only be out of two
 compelling reasons; (a) that she
 has become too weak and old to
 digest now- vegetarian food,
 and/or (b) that she has lost all
 her tooth. I am not certain which
 will be applicable in your case,
 as your usual roaring continued
 even when you visited me on
 6.3.1996. I am afraid, if I have
 to believe your letter in its
 entirety, you will have to do
 something much more, an up-hill
 task to convince me otherwise."

¶292

 . He has further observed that:

¶293

 "I am fully convinced that your
 letter dated 8.3.1996 is nothing
 but an eyewash to fool someone

¶294

 :71:

¶295

 also to fall in your pray."

¶296

 . And, ultimately in the said letter he
 requested the appellant to surrender the child
 Vidyalakshmi after completing all legal
 formalities.

¶297

 52. Thus, from this letter it is found that
 the respondent has shown willingness to accept the
 child - Vidyalakshmi but has not shown willingness
 to accept the appellant - wife.

¶298

 53. The appellant had replied to the said
 letter by letter dated 26.3.1996, which reads as
 under:

¶299

 Dear Unnichetan,

¶300

 . Helplessness - Yes as your have
 correctly pointed out that I have become
 like a tigress who have turned vegetarian.
 Since I have lost the will power or the
 teeth. Day by day I am realising this
 truth. The future is dark and cloudy, and
 I do not see any silver lining. The only
 place where I will get eternal protection
 is at the Lords feet of Sree Guruvayurappan
 and I submit everything to him.

¶301

 . I am doing a lot of instrospection
 now a days. The million dollar question is
 why our child suffers ? Because she could
not select her parents. Similarly, why my
 husband suffer because I happened to be
 your wife. Your mindset finds it difficult
 to accept me with all the plus minus

¶302

 :72:

¶303

 points, i.e., in totality why I suffer ?
 BEcause, my mindset find it difficult to
 accept you with all the plusd and minus
 points, i.e., in totality.

¶304

 My father is not my choice.
 My mother is not my choice.
 My daughter is not my choice.

¶305

 . My husband and in-laws also not my
 choice. The way in which I think also
 perhaps not my choice. All an HIS choice
 similar is the case with you. Is it not ?
 Whom to blame then no one can be blamed.

¶306

 . Sri. Guruvayoorappan has given us
 some inputs. Neither we can increase it
 nor decrease it. By praying
 unconditionally what we can get is the
 ability to optimise the inputs given to us.

¶307

 . (Two months back I have felt all
 these. The agony which I am undergoing
 now, makes me closer to HIM, and I feel
 that he has started turning me). How to
 optimise ? Once I stop thinking who is
 right and who is wrong what could have been
 done and should have been done - all these
 can be a subject of matter of doubt.
 (never ending).

¶308

 . In the process I am losing
 conjugal bliss, you are losing matrimonial
 happiness, our child is losing the undue
 affection. My parents and your go through
 uneasy time.

¶309

 Who has gained ? - None.

¶310

 Who will gain ? - None.

¶311

 . The only judge who can settle
 things is HE - Lord Guruvayoorappan.

¶312

 :73:

¶313

 . You must be wondering from when
 all of a sudden this (Purendo) bhakti
 downer on me. I will tell you, bouts of
 emotional turmoil which is experienced lack
 of intimacy between the father and mother
 is going to affect our baby’s personality
 development. Now she is very much missing
 her father. Suppose she grows up as you
 have suggested with you she will miss her
 mother. The effect will be the same.

¶314

 . You know I am emotional,
 sentimental and a ‘Kepi’. You are
 intelligent, analytical, rational and
 technical (even after each para of your
 lette to your wife). Neither my parents
 nor me, Neither your parents nor you can
 find an everlasting solution. Only HE can
 find out. Please pray for us. I will pray
 for you.

¶315

 . Can we change our attitute and
 aptitudes. Yes I believe if we both wish.
 If one hand gets paralyse, what should be
 done. Two alternatives - either cut it
 since it is of no use OR massage it call it
 with the other hand. I mean that I have
 became such a hand for you - tigress
 without teeth.

¶316

 . With lots of love.

¶317

 Yours everlovingly,

¶318

 Leela.

¶319

 N.B.: You must understand my earlier
 letter asking for solution. The solution
 was not for our child because she is never
 a problem to find a solution. She is the
 beatiful gift of our relationship. The
 solution I asked was for a happy and
 peaceful married life.

¶320

 54. The said letter is replied to by the

¶321

 :74:

¶322

 respondent by letter dated 2nd April 1996 in the
 following words:

¶323

 "Dear Leela,

¶324

 I have received your letter dated 25.2.1996
 by Registered AD.

¶325

 I am very glad to note that you have started
 making introspection on your own, although
 it is very belated, please continue and I
 wish you all success.

¶326

 The foot-note of your above letter is rather
 amusing and I am also equally not able to
 offer anys solution to the problem created
 by you yourself repeatedly (Please refer to
 my letters, dated 28.1.1995, 29.1.1995,
 26.3.1995 and 16.10.1995 addressed to your
 father with copies to you and also my
 father’s letters dated 21.12.1993 and
 5.4.1995 addressed to your father). You
 have, in my opinion, not only closed the
 doors from all sides, bolted and locked, but
 also have thrown away the keys beyond
 retraction. Therefore, only your Lord
 Guruvayurappan can find the keys and offer
 you a solution. Pray for it for a long
 time.

¶327

 Your loving husband,

¶328

 (P.G.Krishnakumar.)

¶329

 55. The letter dated 15.5.1996 is not on
 record, which is written by the appellant to the
 respondent. However, reply to the said letter is
 given by the letter dated 26.5.1996 which is to the
 following effect:

¶330

 :75:

¶331

 "Dear Leela,

¶332

 Reference your letter dated 15.5.96.
 "I also miss you, but cannot help it"
 i.e., fate. Have to bear it.
 With love to Lakshmi.

¶333

 Yours,

¶334

 Krishnakumar."

¶335

 56. From this letter it appears that even the
 respondent is ready to accept the wife, but he is
 helpless. There is a letter dated 28.5.1996, again
 written by the appellant- wife, which is as
 follows:

¶336

 Dear Unnichetan,

¶337

 . Hope this letter reaches you in the
 pinckest of health. Youmay not want to see
 me and speak to me also, but till my death I
 will want my husband and our child her
 father. I know it is very late to have
 realised my mistakes.

¶338

 . Whosever mistakes it may be, but,
 the ultimate sufferers ae we three (you, me
 and our child). It will be a great lie on
 my part, if I say I don’t suffer any pangs
 of separation. To err is human but to
 forgive is very much DIVINE. Once again I
 request you to forgive me for any mistakes
 that I have done.

¶339

 :76:

¶340

 . I have enrolled Lakshmi to the
 nursery. Her school starts from the 13th
 June. Please pray for her. She needs your
 blessings very much. I pray to God not to
 punish her. Everything said and done our
 child has to heal the burnt. At present she
 is very much excited to go to school. Hope
 the same interest is there in the future
 also.

¶341

 . Only one thing I will have always
 to tell you "WE MISS YOU".

¶342

 . With lots of love.

¶343

 Yours lovingly,

¶344

 Leela.

¶345

 57. We have reproduced the letters written by
 the parties practically as they were written by the
 parties. From the letters it is crystal clear that
 the appellant- wife has apologised for the errors
 and wrongs done by her to the respondent. She has
 expressed her willingness to resume the matrimonial
 and conjugal relations with all vices and troubles
 to be suffered by her at the house of the
 respondent. She has showed such willingness to
 provide a father and mother to their child -
 Vidyalakshmi. Her readiness and willingness to
 return to the matrimonial home is absolutely
 unconditional. On the contrary, the correspondence
 shows that it is the respondent who is not willing

¶346

 :77:

¶347

 to accept the appellant.

¶348

 58. We find that the desire of the respondent
 to accept the appellant, which is reflected in the
 letter dated 29.1.1995 is not genuine one, but that
 was a show made by him. When the appellant had
 shown real inclination to return to the matrimonial
 home, it was the respondent who has not allowed her
 and has twisted her every such letter by doubting
 the conduct of the wife. After going through these
 letters we find that there was bonafide offer on
 the part of the wife to return back and resume the
 conjugal relations. Therefore, even if we assume
 that on 29.1.2005 there was animus deserendi with
 the appellant, it was not continuous for a period
 of two years preceding to the presentation of the
 petition. On the contrary, there was animus
 reverendi. Therefore, the continuous desertion for
 a period of two years has not been established.

¶349

 59. It requires to be mentioned that while the
 matter was being argued, the learned counsel for
 the appellant submitted that even today the
 appellant- wife is ready to come to the respondent
 with folded hands. In the open Court also the

¶350

 :78:

¶351

 appellant - wife showed her willingness to resume
 the marital relations. Therefore, we requested the
 learned counsel appearing on behalf of the
 respondent to call for the parents of the
 respondent and respondent. Accordingly, they were
 called and we tried to settle the matter by holding
 the meeting of the parties in Chamber. However, in
 the said meeting the respondent refused to discuss
 the matter with the appellant. The parents did not
 participate in settling the matter. Ultimately,
 the matter could not be settled. However, the fact
 remains that even in those efforts the appellant
 has shown her willingness to join and resume the
 marital relations without any conditions.

¶352

 60. All this material persuades us to hold
 that was neither the animus deserendi is proved by
 the respondent so as to hold that the appellant has
 deserted the respondent- husband nor the respondent
 has proved that there was desertion continuously
 for a period of two years next before the
 presentation of the petition. The requirements as
 provided under section 13(1)(ib) of the Hindu
 Marriage Act, 1955 are not satisfied. Therefore,
 the decree passed by the trial court granting

¶353

 :79:

¶354

 divorce is required to be set aside. We
 accordingly, set aside the said decree. In the

¶355

 result, we pass the following order.

¶356

-O R D E R-

¶357

 (1) Family Court Appeal No.103 of 2002 is

¶358

 partly allowed.

¶359

 (2) Decree dated 31st August 2002 passed
 by the Family Court in Marriage Petition

¶360

 No. A-1291 of 1998 is hereby set aside.

¶361

 (3) Order for the maintenance of the child
 is maintained. Marriage Petition filed by
 the respondent-husband is hereby

¶362

 dismissed.

¶363

(S.R.SATHE) (S.B.MHASE)

Leela Krishna Kumar v. Pilapalli Madam Gopalkrishna Krishnakumar

Case brief

What is this about?

What did the court decide?

Leela Krishna Kumar v. Pilapalli Madam Gopalkrishna Krishnakumar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

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