A.M. Bhattacharjee, J. - (1.)The matrimonial proceeding for divorce and, in the alternative, for judicial separation, which has given rise to this appeal, was initiated by the husband -appellant against the wife -respondent on the ground that the latter has deserted the former. The trial Judge framed three issues, the first relating to jurisdiction of the Court, the second relating to the alleged desertion and the third relating to the entitlement of the petitioner to the relief prayed, and having decided all the issues in the negative, dismissed the petition. The husband has come up in appeal, but the wife, though she contested the petition in the court below and with success, has not appeared before us in spite of being served. We have no doubt that the learned Judge was absolutely right in holding that the alleged desertion of the husband by the wife has not at all been proved. All that we get from the evidence on record is that a rather affluent father of the respondent -wife, who was a national of and residing in the then East Pakistan, now Bangladesh, selected this appellant -husband, whose financial condition was rather strained, as his son -in -law and while giving his daughter in marriage in East Pakistan in 1963 according to Hindu rites, agreed to provide the appellant with the expenses and other help that would be necessary for the prosecution of his studies in Berhampore in West Bengal. While the case of the respondent -wife is that her father did all that he could do in the matter, the case of the appellant -husband is that his father -in -law did not do so and as as a result his stay in Berhampore and prosecution of his studies in the M.I.T. College there were very much uncomfortable and unsatisfactory, so much so, that he failed to pass the examination.
(2.)As held by the trial Judge, the evidence on record shows that the appellant, when he filed this petition, was without any regular sources of income and used to earn his living by cooking and private tuition and, having no place of his own to stay, used to live gratis at one Kamalini Sanyal's place since 1968. and before that used to stay in the office room of the Berhampore Motor Institute. The trial Judge has also found during all these years, the husband did not at all care to enquire about the wife and her whereabouts. It appears that in the wake of the liberation war of Bangladesh, the father of the wife along with the daughter and other members of the family came to Berhampore; but they found the petitioner to be without any employment and without a place of his own as his residence. If under those circumstances, the father or even the wife, did not like that she would vagabondize with the husband and the father decided to take the daughter back to his home in Bangladesh so that she can have the bare necessities of life which the husband was not in a position to provide and the daughter also followed the father, she might have failed to maintain the very high standard of a Sati -Savitri of the days of yore which might have been expected in the hoary past, but can never be said to have deserted the husband within the meaning of the matrimonial laws.
(3.)It would be trite to say that one spouse does not desert the other merely by going or staying away and the mere factum of separation does not constitute desertion of one by the other. As has been pointed out by us rather recently in Kamal v/s. Kalyani (AIR 1988 Calcutta 111), on very high authorities, both judicial and textual, no amount of physical or factual separation would constitute desertion , unless the requisite animus deserendi, i.e., intention to bring co -habitation permanently 10 an end also co -exists. Even if in a given case the factum of separation or withdrawal is likely to give rise to the impression that the same done with animus deserendi, the spouse claiming to be deserted and asking for relief on that ground must also show absence of any act or omission on his or her part giving the other spouse any reasonable cause for such withdrawal. Whether one refers to Halsbury (Laws of England 3rd Edition - Vol. 12; pages 453 -454 or to Rauden (On Divorce - 13th Edition - Vol 1, pages 239, 144 -245) or to the decisions of our Supreme Court in Bipin Chandra (AIR 1957 SC 176) or in Rohini Kumari (AIR 1972 SC 459), the law on the point would appear to be to that effect with indisputable clarity. We are afraid that the husband in this case, who was not in a position to maintain his wife and to provide her with a place of residence, can not be said to have given no reasonable cause to the wife to stay with her father for her maintenance and support and, therefore, the charge of desertion levelled against her must fail on this ground also.