AIR 1957 SUPREME COURT 176 ::1957 SCC 48 ::1957 SCR 838 ::1957 SCJ 144 ::1959 Bom LR 322

Supreme Court Of India

19th October 1956

Hon'ble Judge(s): B. Jagannadhadas, T. L. Venkatarama Ayyar, B. P. Sinha , JJJ

(A) Bombay Hindu Divorce Act (22 of 1947) , S.3(d)— Desertion- Essential of- Inference from facts and circumstances- Burden of proof Divorce. Evidence Act (1 of 1872) , S.101, S.102, S.103, S.104— 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. 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 an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that the....