BIPIN CHANDER JAISINGHBHAI VS PRABHAWATI BY: DHITI ALOK DOKANIA
BIPIN CHANDER JAISINGHBHAI VS
PRABHAWATI
AUTHORED BY: DHITI ALOK DOKANIA
COLLEGE: SYMBIOSIS LAW SCHOOL PUNE
COURSE: BBA LL.B. (H)
BATCH: 2021-2026
Introduction:
Background:
The Bombay Hindu Divorce Act, 1947
under its Section 3[1]
provides grounds for divorce. Desertion has been defined under Section 2(b)
of this act as “desert means to desert without reasonable cause and without the
consent or against the will of the spouse.” The case of Bipin Chander Jaisinghbhai vs
Prabhawati[2] is a landmark case defining and laying the essentials
for desertion.
Facts:
1) The two parties got married on 20th
April 1942 and had a son. The couple started residing together in Bombay where
after 1946 a family friend Mahendra started living with them after his
retirement.
2)
On 8th January 1947 the husband left for
England and during this the husband alleged the wife to have become intimate
with Mahendra because on his return she made a separate bed for him and he also
received a letter by his father written by his wife to Mahendra which was
assumed to be romantic.
3)
On 24th May the wife told her husband
she was going to her father’s house in Jalgaon and when her husband offered to
send a car and pay for expenses she refused and left in the afternoon leaving nothing
behind.
4)
On 15th July 1947 the husband sent a
notice mentioning that he was no longer taking the responsibility of her and
she was no longer under his care since she had left without his consent and she
must give him back their son.
5)
Further on 15th November 1947 a letter
was sent by the husbands father to the wife’s father mentioning that the wife
needed the consent of the husband to come back to the house.
6)
Three interviews took place leading to no solution
and on 4th July 1951 the husband filed for divorce under Section
3(1)(d)[3]
of the Bombay Hindu Divorce Act on the grounds of desertion.
Issue:
·
Whether the defendant had deserted the appellate
for a period of four years before filing the suit?
·
Does the husband become the deserter after he sends
wife when he sends notice stating withdrawal of care?
Sections & Rules
Applied
Section 3(1)(d) Bombay Hindu Divorce
Act, 1947
The relevant
provision that prima facie related to the case is Section 3(1)(d) of the
Bombay Hindu Divorce Act, 1947 which essentially provides desertion as a ground
on which the sue the husband for divorce. Sub clause (d) further elaborates the
time period under which must apply for desertion. The Sub clause states that
the defendant must desert the wife for a period of 4 years continuously minimum
to invoke divorce under this provision.
Section 2(b) Bombay
Hindu Divorce Act, 1947
Desertion is defined
– to desert a spouse without reasonable cause and consent of the spouse and
contrary to the will of the spouse [4]
Judgement and observation of the
court:
Trial court:
·
In
this case the trial court dissolved the marriage and granted divorce on the
grounds of desertion by defendant (wife).
·
The
court said that the letter was a proof of relations between Mahendra and defendant
leaving the house was due to the her relations and guilt and hence she had no
intention to return and had deserted her husband.
·
Her
husband sending her a notice was just a heat of the moment reaction due to loss
of temper caused by the unfaithful behavior of the wife and therefore content
of letter are open to interpretations
Lower Appeal court:
·
The
lower appeal court reversed the judgement of the trial court and stated that
there was no desertion on the part of the wife.
·
The
court stated that the letter of the wife to Mahendra was just proof of platonic
love and not betrayal. The wife had left the house but mere leaving is not desertion.
·
Further
facts proved the the wife would have returned but the husband through his
letter and his father would not have accepted the same. And therefore the roles
of the deserting spouse and the deserted spouse are interchanged.
·
Proof
of adultery was presented but under the act adultery is not valid ground for
divorce and therefore the lower appellate court overturned the order.
Supreme Court:
·
The
appeal was dismissed
·
The
defendant was not held liable under desertion of spouse under the act.
Analysis
Desertion evolved from the case of Pulford
v. Pulford and is defined as “Desertion is not the withdrawal from a place, but from a state of
things”[5]. Further it evolved in
the case of Perry v. Perry. [6]
It has been seen in the Charter
v. Charter [7]that
in case of desertion the expression and intention of the party shall also be
considered. It states that unless one party communicates event temporary
parting can be considered desertion. In this case the facts have shown that the
wife has not completely deserted the husband. She was willing to return but her
husband sent a notice not allowing her from doing the same.
As said in the case of Wilkinson
v. Wilkinson [8] the
court states that the party who actually brings cohabitation to an end is the
one who final conduct leads to end in this cohabitation. In this case the
husband sends the notice to the wife who was willing to come back as proven due
to her actions of non-reply as said by court. In this case husband sending the
notice was last act leading to end in cohabitation.
Desertion is not valid if it can be
seen that the deserting party has taken efforts towards the resumption of
marriage by acts or by words and in case any act is done to renew the
cohabitation then dissolution on grounds of desertion cannot be claimed. This
was observed in the case of Pratt v. Pratt[9].
In this case it has been proven that the wife was willing to return. She even
during the period of four years went to Patna to live with her husband’s mother
and this can be seen as a sign of resumption.
In Bowron v. Bowrn [10]it
is stated that the one who necessarily leave the matrimonial house is not the
deserter but the one who brings the cohabitation to end is. In this case the
person who last brings the cohabitation to end is the husband as he through his
father’s sends the defendants father a message conveying to ask the plaintiff
for permission before coming back and also the notice can be seen as a sign of
ending cohabitation. The wife’s had come home for a function and wished to
return but the notice refrained her from doing so. In this case husband is
responsible for deserting the wife and cannot claim to dissolve marriage on
grounds of desertion.
Conclusion:
Desertion is not mere leaving of the
house but leaving with the intention of ending the marriage and cohabitation.
In this case the Supreme court. In this case the relationship between Mahendra
and Prabhawati have been proven but since adultery is not considered a ground
for dissolution the marriage is valid.
In this case the decision given by
the trial court was based mainly on the adulterous relationship and how
Prabhawati was not a faithful wife and not on desertion. The trial court did not
take the notice sent by the husband as a valid proof of end of cohabitation as
they considered it a heat of the moment decision. Therefore, the decision of
the trial court was not based on the principles of desertion but on the wife’s
actions which although incorrect cannot be a ground for divorce.
In this case although the wife left
the house, but the husband acts according lead to dissolution as the wife
showed willingness to return but husband although disagreed to the same.
Although both at fault but desertion was not a valid ground. The case had some
miscommunication as the wifes action of leaving can be considered desertion and
the husbands action can be considered a heat of the moment decision. But the
action of the appellants father was seen as a final decision to end the
cohabitation and therefore the husband was the last to end the cohabitation.
Therefore case was correctly dismissed.
References
Case Laws:
·
Bipin
Chander Jaisinghbhai vs Prabhawati, AIR 1957 SC 176
·
Pulford
v. Pulford, [1932] p.18
·
Perry v. Perry, Civ. 3945
·
Charter
v. Charter 84 L. T. 272
·
Wilkinson
v. Wilkinson 58 J. P. 415
·
Pratt
v. Pratt [1939], A. C. 417
Statutes:
Bombay Hindu Divorce Act, 1947, § 3,
No. 88, Acts of Parliament, 1947 (India)
Articles: