' This is a petition under section 32(g) of the Parsi Marriage and Divorce Act, 1936, whereby the petitioner has sought divorce from the respondent husband on the ground of constructive desertion. The brief facts leading to the filing of the above petition are that the petitioner was married to the respondent on 8-4-1963 at Bombay according to Parsi Zoroastran rites. After the marriage the petitioner came over to Karachi and started putting up with her husband, the respondent, who had a job in Messrs Mackinnon and Mackenzi at Karachi office. It is the case of the petitioner that after the birth of the two children, namely, Huffez Patel, daughter born on 25-11-1964 and a son Fershast Patel who was born on 27-8-1966 the petitioner had to take a job for making the additional household expense which was objected to by the respondent. It has also been averred by the petitioner in the petition as well as in .her deposition before me that the respondent had made wild allegations about the character of the petitioner and her relations. It is also averred that the petitioner and the respondent ceased to have marital relationship since June, 1979. It has been further averred that the respondent visited the petitioner's office on 2-11-1982 and threatened to cause injury by knife, whereafter the petitioner left the house of the respondent and started putting up with Mrs. Minwalla at 246-Staff Lines, Karachi. The petitioner examined herself as observed hereinabove and also P.W.2 Dr. Maqbool Mashadi. The petitioner has reiterated the averments contained in the petition.
P.W.2 has also corro borated some part of the petitioner's testimony, particularly, on the point of the respondent's objection to the petitioner taking of the job and that the petitioner had informed the witness that the parties had ceased to have marital relationship since June, 1979.
2. It may be observed that the respondent was ex parte and had not filed any written statement to the petition. However, he is repre sented before me today by Mr. N.R. Dubash, Advocate who did not wish to cross-examine the petitioner and her witness. The evidence of the petitioner, therefore, remains unrebutted.
3. Mr. Kaikabad learned counsel for the petitioner in support of the petition has urged that in order to constitute the desertion in terms of clause (g) of section 32 of the Parsi Marriage and Divorce Act, 1936 (hereinafter referred to as the Act), it is not necessary that the husband should physically throw out the wife from his house but if he creates situation/circumstances which makes for the wife to live peacefully impossible and she leave the house because of the above compulsion, it will be constructive desertion on the part of husband. In furtherance of the above submission he has referred to the case of Khorshed Aspi Jamula v. Aspi Dossabhoy Jamula PLD 1960 (W.P.) Kar. 178 in which a learned Single Judge of the erstwhile High Court of West Pakistan, Karachi Bench while construing the above provision of the Act upon relying on the English case namely Charter v. Charter 84 L T 272 held that there was constructive desertion in the aforesaid case on the part of the husband, the respondent. The learned Judge also relied upon the commentary on Tolstoy on divorce fourth edition at page 38 in addition the above English case and approved the view that there are several cases in which it has been held that the desertion by the a husband does not necessarily mean that he has actually turned his wife out of his house but it is sufficient to show that the conduct of the husband was such which compelled the wife to leave the husband's house. I was assisted by the following seven delegates in the above matter.
(1) Mr. Rusi N. Bankwala.
(2) Mrs. Havovi Savak Dadabhoy
(3) Mr. Dali Dadabhoy Mama
(4) Mr. Dinshaw Peshotan Wania
(5) Mr. Naval D. Dastur
(6) Mr. Faredun Cowasji Dadachanji
(7) Mr. Farokh H. Wania
4. Mr. Rusi N. Bankwala the spokesman on behalf of the delegates after having mutual consultation after hearing the evidence of the petitioner and her witness and the submissions made by the learned counsel for the petitioner stated that the delegates were of the unanimous view that a case of constructive desertion has been made out warranting granting of the petitioner's petition on the above ground.
5. It may be observed that clause (g) of section 32 of the Act provides a ground for divorce if the desertion is at least for three years. In the present case the petitioner left the husband's house for compelling reasons in November, 1982 and, therefore, three years period has not yet expired from the above date. However, it was submitted by Mr. Kaikabad learned counsel for the petitioner that desertion takes place when the husband ceased to have marital relationship with the wife on his own volition.
6. After having dictated the judgment upto this stage at the request of the learned counsel for the petitioner, I had adjourned the case to 19-8-1984 in order to enable the learned counsel for the parties to cite the case-law on the legal proposition urged by the learned counsel for the petitioner and noticed hereinabove in para.
5. On 19-8-1984 at the request of the learned counsel for the petitioner, recalled the petitioner for re-examination on the point what she intended to convey by stating in her deposition that since June, 1979 they had no relationship of that husband and wife. She has explained this by stating that since June, 1979 the parties had no marital relationship at the behest of the respondent. The petitioner was putting up in a room with the children, whereas the husband was living separately in a separate room. She has further stated that the respondent used to arrange for his own meals, whereas she used to cook for herself and her children. She has also stated that whenever she tried to have reconciliation with the respondent and whenever she went to the respondent's room he asked her to get out.
' Mr. Kaikabad learned counsel for the petitioner has cited the following further cases:
(i) Kaikhushroo Tantra v. Meherbai Tantra AIR 1946 Bom. 211, in which the husband deserted his wife but subsequent to the desertion started visiting his wife not as husband but as a boarder. A Division Bench of the Bombay High Court held that the desertion which had commenced had not come to an end as the husband had not revived the matrimonial relations.
(ii) Smith (R.M.) v. Smith (A.E.) 1940 Law Rep. Prob. Div. In the above case the husband had withdrawn from cohabitation with his wife and ceased to have anything to do with her except to deposit small sums of money from time to time from where she could pick them up. The husband and wife were living in different portions of the same house. It was held by the Probate Division in a petition for divorce filed by the wife that in fact the husband had deserted her for upward of three years immediately preceding the petition. The petition was allowed.
(iii) Khoshed Muncherji Kapadia v. Muncherji Sorabji Kapadia, 39 B L R 1141, in which the facts were that the husband when the plaintiff conceived. Thereafter the defendant never cohabited with the plaintiff. The parties lived together in Bombay from December, 1927 till June, 1928, when the defendant left the house and deserted the plaintiff and her children. The plaintiff thereupon sued in 1937 for dissolution of marriage alleging that the defendant had deserted her without reasonable cause and without her consent and against her will. A learned Single Judge of the Bombay High Court while allowing the petition under section 32(g) with section 2(3) of the Parsi Marriage and Divorce Act, 1936 observed that it is difficult to define the word desertion as to cover all possible facts and circumstances but in its essence it is the abandonment of one spouse by the other with the intention of breaking off matrimonial relations between them and thereby bringing the cohabitation to an end. It was further observed that there can be desertion of the wife by the husband even though it is the wife who may have left the matrimonial home vice versa there may be a desertion of the husband by the wife if the husband has gone away from his home.
(iv) Pulford v. Pulford 1923 Law Rep. Prob. Div. 18 in which the appeal filed by the appellant against the decree of dissolution on the ground of desertion was dismissed. It was observed that desertion means abandonment and implies an active withdrawal from a cohabitation that existed but this is not exhaustive definition of desertion.
(v) Wilkes v. Wilkes 1943 Law Rep. Div.
41. In the above case the facts were that for more than a year preceding to the husband's actual departure from his wife which had taken place in June, 1938, two years before the filing of the divorce petition, the parties were living under the same roof but during the whole of that time they had no common life. The husband after saying to his wife in March, 1937 "this is the end" never slept with her again and refused to share her sitting room or to have meals with her. Upon a petition filed by the wife it was held by a learned Single Judge of the Probate Division that the common home had been put to an end to by the husband more than a year before he left the house and that the wife's case for desertion was proved.
(vi) Wanbon v. Wanbon (1946) 2 All E L R 366, in which the facts were that the respondent wife left the matrimonial home only six months prior to the presentation of petition for divorce by the husband on the ground of desertion but 10 years previously she had withdrawn from the husband's bed room and refused to have any marital intercourse with him. During this period the parties continued to live not only under the same roof but in the same household. Wife never addressed the husband except to find fault with him and refused to cook his meals, make his bed, mend his clothes, or perform any wifely duty whatsoever.
It was held by a learned Judge of the Probate Division that the wife had deserted the husband in the legal sense for three years and upwards before the presentation of the petition and that the petitioner was entitled to a decree.
(vii) Bartram v Bartram, 1950 Law Rep. Prob. Div.
1. In the above case the facts were that the wife had deserted the husband in 1943 but in 1947 and 1948 on account of lack of accommodation she returned and lived under the same roof not as husband but as a lodger. The question before the Court of Appeal of England was, whether the period of desertion continued or had come to w an end on the return of the wife. It as held that a resumption of cohabitation after dissolution by one spouse, must mean resuming a state where a matrimonial home is again set up and that it involves a bilateral intention on the part of both spouses so to set up that home. It was also held that since the evidence shows that the wife did not want to live with the husband as a husband and wife but she discovered that she was a woman who should have never been married and she had complete abhorrence of all questions of sex and regarded them as purely animal. She returned to the house in 1947 merely as a lodger. On the basis of the above finding of facts, it was held that the desertion continued and had not come to an end.
(viii) Walker v. Walker (1952) 2 All E L R 138, in which the facts were that the husband and wife were married in 1918. From 1945 until the husband presented the petition for divorce in 1951 on the ground of his wife's desertion the parties lived in the same house but the wife lived in a separate bed-room which she kept locked. She performed no household duties for the husband who had to do his own washing, mending and ironing. The Court of Appeal allowed the appeal of the husband against the judgment of a Probate Judge and held that the parties were not living together in one household and the wife had deserted her husband.
Reference may also be made to the following cases:
(i) Shilston v. Shilston 174 L T R 105. In the above case the facts were that the parties were married in 1921. In 1928 they were living together in a five-roomed bungalow. In October of that year the parties quarrelled and subsequently the wife refused to sleep with her husband. She moved into a separate bed-room and denied him his marital rights. For a number of years husband allowed wife rather more than 2 pounds a week but early in the war the husband took the housekeeping from her but allowed her 28 s. He kept his own rations in his own room and the only meal which he had in his bungalow was his breakfast. He was out working all day at night he simply came home and slept in his room. They lived in this manner for more than three years. Husband lodged a petition for divorce on the ground of his wife's desertion. It was held by the Probate Division that during the material time there was a complete abandonment by the wife of all her duties as a wife apart from the denial of sexual intercourse. It was further held that desertion was not from a place, but from a state of things and that it was possible for there to be desertion with two people living under the same roof in a small house.
(ii) Weatherley v. Weatherley 1947 Law Rep. A C 628, in which the House of Lords held that the mere refusal of sexual intercourse by one of the spouses cannot constitute desertion within the Matrimonial Cases Act, 1937, S.2.
(iii) Naylor v. Naylor (1961) 2 W R 751. In the above case the facts were that the parties were married in 1945. They had two children. In March, 1960 divorce proceedings between them were dismissed and immediately after the conclusion of the hearing the wife by casting off her wedding ring indicated to the husband her intention of no longer being a wife to him. Thereafter although the parties continued to live in the matrimonial home, they led entirely separate lives, they occupied separate bed-rooms, they had no sexual intercourse and the wife performed no wifely duties. Upon a petition filed by the husband for divorce on the ground of desertion it was held that the wife was guilty of desertion and the husband's petition was allowed, which was maintained in appeal.
8. From the above-cited and discussed cases, it is evident that the essence of the desertion is the break-up of matrimonial home caused by the withdrawal of one spouse and conduct falling short of this does not amount to desertion. It may also be observed that existence of matrimonial home is not essential for there to be desertion and that desertion is not the withdrawal, from a place but from state of things It may also be observed that it is not only actual abandonment of the matrimonial home by a spouse which will constitute desertion., There may be desertion A on the part of a spouse though living in the same house, provided the defaulting spouse withdraws himself or herself from all marital obligations and lives in a separate room though in the same house. Similarly, it is not necessary that the person who leaves the matrimonial home in all the cases would be guilty of desertion. If a spouse by the conduct of the other spouse is compelled to leave the matrimonial home, there will be constructive desertion on the part of the spouse who has not left the matrimonial home.
9. From the petitioner's above further statement which remained unchallenged as no cross- examination was directed by the learned counsel for the respondent, though he was present, it is evident that for all intents and purposes the respondent withdrew himself from marital obligations since June, 1979 and, therefore, for the purpose of computing the period of desertion the TERMINUS a quo is June, 1979 and not November, 1982. I am inclined to agree with the view expressed by the delegates that the petitioner has made out a case for a decree of divorce on the ground of constructive desertion on the part of the respondent. I would, therefore, allow the petition and grant the decree as prayed for.
10. Before parting with the above discussion, I may mention that I enquired from the learned counsel for the parties about the custody of the two children who would be major in near future.
The counsel for the parties have submitted that the two children would continue to live with the respondent and that the petitioner shall have the right to meet them. The parties have not sought any order in respect of the custody of the children and, therefore, it is not necessary to pass any order in this regard.