Judgment 1. THIS appeal is at the instance of Sm. Anuka Gupta (Wea Chatterjee) against her husband, the respondent Karunakar Gupta, who obtained a decree for divorce in matrimonial Suit No. 3 of 1986 of the 17th court of the Additional District Judge at Alipore, 24-Parganas, on the ground of desertion and cruelty, under section 27, clauses (b) and (d) respectively of the Special Marriage Act, 1954. 2. THE petition was presented before the judge by the husband-petitioner now the respondent on 23. 9. 65, who was then the Vice-Principal of a Calcutta Girl's College having to his credit Indian and foreign academic degrees. The wife-appellant is an M. A. B. T. and was at the relevant time the Head Mistress in a Girls' School. The respondent-husband and the appellant-wife were married under the provision of the special Marriage Act, 1872 as amended by Act XXX of 1923 in October, 194. 4. The Special Marriage Act XLIII of 1954 came into force on and from 1st of January, 1955 replacing the earlier Special Marriage Act. The wife-appellant before marriage was a Brahmin white the husband-respondent was a Baidya, the husband's paternal residence is at rashbehari Avenue. After their marriage the couple did not reside at the paternal house of the husband lost the intercaste marriage might not be approved by the senior members of the husband's family. Sometime in 1945 the husband brought the wife to his ancestral dwelling house at 213, Rashbehari avenue. At the ancestral dwelling house the wife could not pull on well with the husband's sister and trouble and unhappiness went on. A male child was born out of their wedlock to the husband and wife in July, 1946 but still the husband and the wife continued to have strained feelings. Sometime in July, 1951 the wife came to a hostel for prosecuting her studies for the M. A. Examination. In 1952 the husband left for England for securing a Doctorate. At that time the wife resided with her brothers at Howrah. In 1955 the husband came back to Calcutta with a Doctorate from the. London school of Economics. In the same year the wife left for Santiniketan for studying B. T. After coming back from santiniketan the husband lived with the wife for a few months at a rented house in flat at the Improvement Trust buildings, Singhee Bagan. In 1955 the husband came back to Calcutta with a Doctorate from the. London school of Economics. In the same year the wife left for Santiniketan for studying B. T. After coming back from santiniketan the husband lived with the wife for a few months at a rented house in flat at the Improvement Trust buildings, Singhee Bagan. In August 1956 the husband and the wife again came to the husband's ancestral dwelling house at Rashbehari Avenue to reside there. They got in the ancestral dwelling house at Rashbehari Avenue 2 living rooms, bath rooms and kitchen etc. to reside. Since 1946 the husband had been receiving cruel treatment from the wife who abused and at times anssaulted him. In 1960 the wife refused to have any cohabitation with the husband and from August 1960 the wife refused to cook for the husband. The husband was, therefore, obliged to take his meal with his elder brother living on the first floor of his paternal dwelling house at Rashbehari Avenue. When the husband was suffering from typhoid in April, 1962 the wife did not nurse him wherefore the husband was taken to his brother's flat for proper nursing. On the- ground of wife's desertion for a period of three years immediately preceding the presentation of the petition for divorce and on the ground of wife's cruelty, the husband prayed for a divorce against the wife under section 27 clauses (b) and (d)respectively of the Special Marriage Act, 1954. The wife opposed the husband's petition for divorce by a written statement denying the material allegations made in the husband's petition. She, on the other hand, alleged that since the solemnisation of the marriage she had been receiving cruel and indifferent treatment from the relatives of the husband who acquiesced in the same. The husband also meted out cruel treatment to the wife. In the evening the husband used to visit the rooms of his brother and used to come back late at night. The wife came home tired after her work in the school and the husband returned late at night. Wife had to close the door of her bed room. On one occasion when the wife had to go to a Nursing Home for an operation, the husband did not visit her. The wife came home tired after her work in the school and the husband returned late at night. Wife had to close the door of her bed room. On one occasion when the wife had to go to a Nursing Home for an operation, the husband did not visit her. The wife alleged that the petition for divorce, or in the alternative, for judicial separation, should be dismissed as prayed for by the husband. The following issues were framed : 1. Has the petitioner got any cause of action for the suit ? 2. Is the suit barred by the principles of estoppel, waiver and acquiescence ? 3. Is the petitioner entitled to get a decree for divorce, or in the alternative, for judicial separation ? issues Nos. 1 and 2: These two issues were not pressed at the time of trial and those were found by the learned Judge in favour of the husband-petitioner now respondent in this appeal. Issue No. 3 : For the husband-petitioner now the respondent in this appeal he himself deposed as P. W. 6 while his elder brother P. W. 2 Kalyan kumar Gupta, his pupil P. W. 3 Parimal adaaryya and his son P. W. 4 Gautam gupta deposed. D. W. 1 Santi sarbadhikari, D. W. 2 Arun Kumar chattopadhyay brother of the wife, now the appellant, D. W. 3 the wife herself, deposed. One Sm. Kamala mukherjee, the petitioner witness No. 7 and one Dr. Sisir Kumar Mukherjee, petitioner witness No. 5 are the two other material witnesses examined by the petitioner-husband now the respondent in this appeal. Accepting the evidence of husband-petitioner P. W. 6 and his brother P. W. 2 and his pupil p. W. 3 and his son P. W. 4, the learned judge held:- "from the evidence of these witnesses I am satisfied that the petitioner was abused and assaulted by the respondent." Relying on the evidence of P. Ws. 3, 4 and 5, the teamed Judge held :- "from the evidence discussed above, I am satisfied that the respondent treated the petitioner with mental cruelty which was extremely injurious to his health and peace of mind. " The learned Judge found that the last act of cruelty complained of took place in 1961 as proved by P. Ws. 3, 4 and 5, the teamed Judge held :- "from the evidence discussed above, I am satisfied that the respondent treated the petitioner with mental cruelty which was extremely injurious to his health and peace of mind. " The learned Judge found that the last act of cruelty complained of took place in 1961 as proved by P. Ws. 1 and 3 and that as there was no evidence that from 1961 to 1965, upto the date of presentation of the petition for divorce, the parties had resumed cohabitation, the cruelty of the wife now the appellant was not condoned by the husband, now the respondent in this appeal. 3. ALTHOUGH during the period from 1980 to 1965 the husband and the wife had been living in the same house, the learned Judge discussing the evidence of the husband P. W. 6 and the son p. W. 4 and the letters, Exts. 1, 1 (a)and l (b), held that the admitted letters of the wife conclusively show that since May, 1931 there had been no cohabitation between the husband and the wife when the petition for divorce was filed on 23. 9. 65. Disbelieving the wife's contention that she was willing and agreeable to have cohabitation with the husband and her assertion that husband deserted her, the learned Judge also rejected the evidence of wife's witness No. 1 Santi sarbadhikari and witness No. 2 Arun kumar Chattopadhyay, the brother of the wife, as unimpressive. The learned judge found those witnesses interested, and concluded that from the evidence of those two witnesses it had not been proved that it was the husband who deserted the wife. The learned Judge accepted the evidence of the husband, his pupil Parimal, his son Gautam and his elder brother kalyan and considered the circumstances namely, the conduct and attitude of the wife and observed:- "I am satisfied that the respondent (wife) withdrew herself from the company of her husband with a view to bring cohabitation permanently to an end. She did so without any cause and without the consent of the husband. She did so without any cause and without the consent of the husband. Accordingly, I am satisfied from the evidence that both the legations of cruelty and desertion had been proved by the husband." Although the canse of action for cruelty arose in June, 1956 and desertion, in August, 1960, the petition was filed in September', 1955, the learned Judge did not consider the delay to be unnecessary and improper. The learned Judge held that the delay in the case was necessary in the interest of the son, who was minor in 1956 and in 1960. The learned Judge, on accepting the husband's two grounds, such as, desertion and cruelty, held that the husband was entitled to get a decree for divorce on both the grounds. The application was allowed on contest with costs and: a decree for divorce was accordingly passed. 4. SINCE the time of marriage the husband and the wife have been Indian citizens and Hindus. Mr. Mukherjee, the learned Counsel for the appellant wife, contended that upon the evidence of the witnesses examined on behalf of the respondent-husband, neither desertion in fact and in law had been established, and that the learned Judge should have disbelieved the evidence of the respondent-husband's elder brother, pupil and son as they v/ere highly interested witnesses and that the said witnesses being interested witnesses could hardly corroborate the evidence of the husband relating to the allegations of the wife's desertion of the husband. Mr. Mukherjee submitted that when the husband and the wife were living in the same house the mere absence of sexual relationship between them, even if that was true, could not in law, amount to desertion by the wife. Upon true construction of Exts. 1 (a) and 1 (b), the learned Judge, as Mr. Mukherjee submitted, should not have held that there was no cohabitation between the husband and the wife since May, 1962 i. e. three years immediately preceding the date of presentation of the petition for divorce. Mr. Mukherjee made an emphatic submission pointing out that when the husband and the wife slept in the same bed room it raised a strong presumption that there had been cohabitation even after May, 1962 right upto May, 1965. Mr. Mr. Mukherjee made an emphatic submission pointing out that when the husband and the wife slept in the same bed room it raised a strong presumption that there had been cohabitation even after May, 1962 right upto May, 1965. Mr. Mukherjee urged that on the evidence on record the learned judge should have held that if there was no cohabitation between the parties it was entirely due to the fault of the husband-respondent but not of the appellant-wife. For the offence of desertion there must be two elements present on the side of the deserting spouse, namely, the factum, i. e. the physical separation and the animus deserendi i. e. the intention to bring cohabitation permanently to an end, and also two elements present on the side of the deserted spouse, namely, absence of consent and absence of conduct reasonably causing the deserting spouse to form his intention to bring cohabitation to an end. Desertion commences when the factum of separation and the animus deserendi coincide in point of time. This may take place when the factum of separation and the animus deserendi arise simultaneously, as when a spouse withdraws from cohabitation with the intention of bringing it permanently to an end. The burden of proof of desertion on the petitioner is to show that desertion without cause subsisted throughout the statutory period as under section 27, clause (b) of the special Marriage Act for a, period of at least three years immediately preceding the presentation of the petition. So, from the pleadings and the evidence of this case, the husband-respondent is required to prove firstly, the two elements present on the side of the wife the alleged deserting spouse, namely, (a) physical separation; (b)the intention to bring cohabitation permanently to an end; secondly, on the side of the husband the other two elements, namely, absence of his consent and absence of his conduct reasonably causing the Wife to form her intention to bring cohabitation to an end. In paragraph 14 of his petition, the husband stated : "although the petitioner and the respondent are living in the same house, there is no marital or conjugal relation between the two for about last five years and the petitioner does not get his food or any service from the respondent. " The petition for divorce was presented on 23. 9. 65. " The petition for divorce was presented on 23. 9. 65. In paragraph 15 of the petition for divorce the husband asserts :- "the respondent from her side bolts the door standing between her room and the room of the petitioner when she goes to sleep, so that the petitioner may not approaceh her for any sex relation. Your petitioner has never abused the respondent nor has ever used any harsh worda to her. " In paragraph 16 of the petition for divorce the husband asserts :- "although the petitioner and the respondent live in the same house, the petitioner has been deserted by his wife without reasonable cause and without ms consent and against his wish. " In paragraph 19 of the petition for divorce the husband asserts :- "that the cause of action for this suit arose on the last week of June, 1956 and thereafter on other dates when the acts of cruelty were committed by the respondent, as also on August, 1960 when the respondent deserted the petitioner. " So, according to the husband-petitioner, desertion commenced on and from August, 1960, that means, in august, 1960, the factum of separation and the animus deserendi coincided, or in other words, arose simultaneously. The wife in her written objection to the petition of divorce, filed by the husband, traversed paragraph 14 of the petition, in paragraph 16 of her written statement. In paragraph 14 of the divorce petition it has been stated inter alia by the husband as follows: - "although the petitioner and the respondent are living in the same house, there is no marital or conjugal relation between the two for about last five years. . . . " The wife, while traversing the allegation in paragraph 14 of the petition for divorce in paragraph 16 of her written statement, did not assert therein anything contrary to what her husband assorted in paragraph 14 of the divorce petition in the words : "although the petitioner and the respondent are living in the same house, there is no marital or conjugal relation between the two for about last five years. . . . . . . . . . " In paragraph 17 of her written statement, the wife traversed the husband's allegations in the divorce petition made in paragraph 15 thereof. . . . . . . . . . " In paragraph 17 of her written statement, the wife traversed the husband's allegations in the divorce petition made in paragraph 15 thereof. In paragraph 15 of his divorce petition the husband stated inter alia:- "the respondent from her side bolts the door standing between her room and the room of the petitioner when she goes to sleep, so that the petitioner may not approach her for any sex relation". The wife in paragraph 17 of her written statement asserts :- "the allegations made in paragraph 15 of the petition under reply. . . . . . or that the respondent bolts the door between their rooms at sleeping hours to prevent their relations or. . . . . . . . are all false and are hereby denied." In paragraph 15 of the divorce petition, the pointed allegation quoted above, is that the respondent from her side bolts the door standing between her room, and the room of the petitioner (husband)when she (wife) goes to sleep, so that, the petitioner (husband) may not approach her for any sex relation. But the wife in paragraph 17 of her written statement as quoted above, saying that the respondent-wife did not bolt the door between her and her husband's room at sleeping hours to prevent their relations, did not deny the specific and. pointed allegation of the husband in. paragraph 15 of the divorce petition. The wife's denial of husband's allegation in paragraph 17 of her written statement would not show that the wife did not bolt the door standing between her room and the husband's room when she went to sleep to prevent the petitioner approaching her for any sex relation. The allegation in paragraph 14 of the petition of divorce as made by the husband that although the husband and the wife were living in the same house, there had been no marital or conjugal relation between the two for about last five years had not been denied even by the wife anywhere in her written statement. In paragraph 16 of the written statement the husband asserted that although he and his wife lived in the same house he had been deserted by the wife without reasonable cause and without his consent and against his wish. In paragraph 16 of the written statement the husband asserted that although he and his wife lived in the same house he had been deserted by the wife without reasonable cause and without his consent and against his wish. In paragraph 18 of her written statement the wife stated:- "that the allegations made in paragraph 16 of the petition under reply that the petitioner has been deserted by the respondent without reasonable cause and against his wish or. . . . . . are all false and manufactured for the purpose of this cause and are hereby strongly denied." But the facts asserted in paragraphs 14 and 16 of the divorce petition that even though the husband and the wife lived in the same house there had been no marital or conjugal relations between the two for the last five years meaning from 1960 to 1965, the divorce petition having had been filed on 23. 9. 65, was not specifically denied in any of the paragraphs of the written statements. In paragraph 22 of her written statement the wife gave a resume of her married life. In that very paragraph of the written statement the wife nowhere stated that while living under the same roof or as matter of that in the same room during the period from August 1960 to September, 1965 there had been cohabitation between her and her husband even for a single day. The fact asserted in paragraph 14 of the divorce petition excerpts of which had been quoted earlier in this judgment, had not been denied even in her statement by the wife. So, the wife admitted that although she and her husband were living in the same house, there had been no marital or conjugal relations between the two for about five years meaning during the period from august, 1960 to September, 1965. The wife in her written statement did not assert that during the period as aforesaid she offered herself to the husband for cohabitation while the husband refused to accept her offer. She did not assert that during the period aforesaid there had been in fact on any occasion cohabitation between her and her husband. According to the husband's allegations in paragraphs 14, 15 and 16 of the divorce petition, desertion commenced simultaneously from August, 1960 and continued upto the time when the divorce petition was filed on 23. 9. 65. She did not assert that during the period aforesaid there had been in fact on any occasion cohabitation between her and her husband. According to the husband's allegations in paragraphs 14, 15 and 16 of the divorce petition, desertion commenced simultaneously from August, 1960 and continued upto the time when the divorce petition was filed on 23. 9. 65. In other words, the factum of separation and animus deserendi arose simultaneously on and from August, 1960 and continued upto 23. 9. 65 and is still continuing. The husband-petitioner, now the respondent, has the burden to show that the desertion without cause, subsisted for a period of at least three years immediately preceding the presentation of the petition of divorce as provided for by section 27, clause (b) of the Special Marriage act, 1954. The proof of desertion like other matrimonial offences rests on a preponderance of probability, the degree of probability depending on the subject matter. Section 27 of the Special marriage Act, 1954 occurs in Chapter VI of the Act. Section 34, subsection (1) of the Act says:- "in any proceeding under Chapter V or Chapter VI, whether defended or not, if the Court is satisfied that- (a) any of the grounds for granting relief exists then, and in such a case, but, not otherwise the Court shall decree such relief accordingly. The express on "satisfied" in section 34 of the Special Marriage act as to the existence of the grounds for divorce on the score of desertion as in clause (b) of section 27 of the Special marriage Act does not connote that the Court must reach certainty as to the existence of that ground of divorce. It is wrong to apply an analogy of criminal law and to say that the matrimonial offences must be proved with the same strictness as is required in a criminal case. A suit for divorce on the ground of desertion or cruelty or both is not a criminal proceeding and the analogies and precedents of criminal law have no authority in the Divorce Court which is a Civil Tribunal. As far as the standard of proof is concerned in a matrimonial offence say, adultery, desertion and cruelty, it may be proved by a preponderance of probability (Rayden on Divorce, Tenth edition, page 176. As far as the standard of proof is concerned in a matrimonial offence say, adultery, desertion and cruelty, it may be proved by a preponderance of probability (Rayden on Divorce, Tenth edition, page 176. So, an Indian Court of Divorce while dealing with the petition for divorce under clauses (b) and (d), desertion and cruelty respectively of section 27 of the Special Marriage act, must be satisfied on the pleadings and the evidence that the alleged matrimonial offence, which is a ground of divorce, has been proved by a preponderance of probability, inferable from the proved facts and curcumstances of the case. Section 32 of the Special marriage Act reads as follows:- "(1) Every petition under Chapter V or Chapter VI shall state, as distinctly as the nature of the case permits, the facts on which the claim to relief is found, and shall also state that there is no collusion between the petitioner and the other party to the marriage. (2) The statements contained in every such petition shall be verified by the petitioner or some other competent person in the manner required by law for the verification of the plaints, and may, at the hearing, be referred to as; evidence. It is noticeable that subsection (2) of section 32 of the Special marriage Act lays down that the verification of the statements made in a petition filed under Chapter VI of the act, i. e. a petition for divorce under section 27 of the Act constitutes the verified statements, evidence, and such verified statements, as evidence, may be referred to at the hearing of the divorce petition. The husband Karunakar gupta, the respondent in this appeal verified the statements in paragraphs 3 to 16, 18 to 20 of his divorce petition as being true to his knowledge. As already pointed out the specific verified statements in paragraphs 14, 15 and 16 of the divorce petition, excerpts from which have already been quoted, had not been countered by the wife by any specific statement made in her written statement which had also been verified by her. As already pointed out the specific verified statements in paragraphs 14, 15 and 16 of the divorce petition, excerpts from which have already been quoted, had not been countered by the wife by any specific statement made in her written statement which had also been verified by her. The wife did not assert in her written statement, that the allegation that although the petitioner and the respondent i. e. the husband and the wife were living in the same house, there was no marital or conjugal relations between the two for about last five years, made in paragraph 14 of the divorce petition by the husband, were denied and were false. The husband's specific and pointed statement in paragraph 15 of the divorce petition that the wife from her side bolted the door standing between her room and the room of her husband when she went to sleep so that the husband might not approach the wife for any sex relation had not been denied by the wife nor had been asserted by the wife as false. The husband's statement in paragraph. 16 of the divorce petition that, although he and his wife lived in the same house the wife deserted him without any reasonable cause and without his consent and against his wish, was denied by the wife as being false. But the wife nowhere stated in her written statement that during the period from August, 1960 to September, 1965, the wife invited the husband for cohabitation while in the same room or as matter of that sleeping on the same bed and that the husband refused such offer at any time. The husband (P. W. 6) in his examination-in-chief stated :- "since 1955 I have no sexual relationship with her. Since 1960 she sleeps alone in a room. I have asked for cohabitation but she is not agreeable to it. Since 1960 I am sleeping in- my study. In 1960 I purchased a double bedstead but she did never sleep with me on that bed. It is not a fact that she wanted another child from me but I did not agree to it. " In cross-examination he said : - "in 1950, December at Puja I had last cohabitation with her. In 1960 I last asked her cohabitation upto 1965 (?)We share (?) common bed and common room upto 1960". It is not a fact that she wanted another child from me but I did not agree to it. " In cross-examination he said : - "in 1950, December at Puja I had last cohabitation with her. In 1960 I last asked her cohabitation upto 1965 (?)We share (?) common bed and common room upto 1960". In examination-in-chief Anuka gupta the wife-appellant stated : - "i never refused cohabitation to my husband. I did not seriously write Exts. 1/a, 1/b. I sent replies to his letter in which he wanted divorce. " In cross examination the wife sa'd :- "for the last five years we are taking cur food separately. As he came late I closed the door of my bed room. My son slept with me. . . . . . In exts. 1|a, 1|b I wrote that I should think about the way in which the divorce should take place between us. I ;also wrote that I was not agreeable to accept any mediation of my husband's relatives. In Ext. 1 B, I wrote that the divorce should be divorced till my son grew older. It is not a fact that I want divorce. In Exts. 1a, 1b I did not express my willingness to divorce. I still hope that even now we can live peacsfully. " The husband in his examination-in-chief said that he asked for cohabitation but the wife was not agreeable to it. The wife said in her examination-in-chief that she never refused cohabitation to her husband. The husband said in examination-in-chief that since 1960 he had been sleeping in his study. In cross-examination the husband said that in 1950 December at puja he had last cohabitation with his wife and in 1960 he last asked for cohabitation. The husband said that up to 1960 he and his wife shared common bed and common room. The wife in cross-examination said that for the last five years she and her husband were taking food separately and that she used to close the door of her bed room as her husband used to come home late. With the wife the son used to sleep. The wife deposed on 3rd June, 1966. The husband wrote a letter from New Delhi to the wife on 20th May, 1962. With the wife the son used to sleep. The wife deposed on 3rd June, 1966. The husband wrote a letter from New Delhi to the wife on 20th May, 1962. In that letter the husband stated : "hence since the middle of 1960, I had to arrange for my own food and I arranged to have meals with Dada's family upstairs. Things continued like this since then." From May, 1961 to April, 1962 the husband, as the letter Ext. 1 shows, was in U. K. Coming back from U. K. in April, 1962, as letter Ext. 1 shows, the husband continued to take his food in the household of his elder brother, as wife refused to cook food for the husband. After disclosing his grievances; in the letter, Ext. 1 against the wife, the husband concluded the letter stating :- "I take from all the above narrated events that yon are also willing to get rid of the legal ties-which are the only ties which bind us to-day, except the child. If you are serious about the matter, we may dissolve the marriage by mutual consent," Ext. 1 (a) is the reply by wife to the husband's letter, Ext. 1. It is dated Ballygunge, 23. 5. 62, The relevant part of the letter reads as follows:- "the relation between us both has reached such a stage that it is necessary to end the marital relation of us two without delay. I am glad to note that you have realised or pretended to realise that. But sometime is necessary to ponder over whether the matter will be decided by court or will be settled at the mediation of respectable gentlemen, I want to inform, you clearly that I shall not accept any mediation by any of your relations or kinsmen or your so called friends. Please inform me when you are likely to come to Calcutta." Ext, 1 (b) is the letter dated Ballygunge, 28. 5. 52 written by the wife to the husband. The letter reads as follows : - "necessity has arisen to write this letter as I want to write some thing in the letter I wrote to you last week, perhaps in a hurry I wrote that I was glad to note that you had realised that our relation had reached such a stage that it was necessary to end our marital relation. As a matter of fact I wanted to convey this that I was glad to note that you had realised that our relation had reached a very unnatural stage. I reflected that as long as Khokan has not attained majority, any change in our social relationship would not be good either for him or for us or any body. The well-wishers also are of this view. When you will come to Calcutta a discussion regarding this matter may go on. Search is being made for a tutor for Khokan. " In letter Ext. 1 (a), the wife thanked the husband for appreciating that the relation between her and her husband had reached such a stage that it was necessary to have a divorce. By letter, Ext. 1 (a) the wife invited the husband to have a divorce of the wife. In Ext. 1 (b) she purported to give a palliature tone to her statement in ext. 1 (a) and stated:-"as a matter of fact I wanted to convey this that I was glad to note that you had realised that our relation had reached a very unnatural stage. I reflected that as long as Khokan has not attained majority, any change in our social relationship would not be good either for him or for us or any body." By ext. 1 (a) the wife invited the husband to have a divorce of her and by Exr. 1 (b) she wanted the husband to postpone the divorce till their son Gautam (P. W. 4) attained majority. The learned Judge in his judgment observed that there was no evidence that after 1961 the parties had cohabitation. It would appear from the evidence adduced by the husband and the wife as 'well as from the letters exts. 1, 1 (a) and 1 (b) and from the relevant verified statements of husband in the divorce petition that while living in the same house at least during the period from May, 1962 to september, 1965 i. e. for at least three years immediately preceding the date of presentation of the divorce petition there had been no cohabitation on any occasion between the husband and his wife who, though living in the same flat, used to sleep in the separate rooms in the ground floor of the husband's patelrnal house. Mr. Mr. Mukherjee, the learned Counsel for the wife-appellant, while discussing the evidence of the petitioner's witness no. 4 Gautam the son submitted that the son's evidence in cross-examination would show that the father ah first slept in the bed room but since 1965 he started sleeping in the drawing room and that the evidence of the son contradicted the father's evidence in examination-4n-chief when father (P. W. 6) said that since 1960, the wife was sleeping alone in a room, and that he was sleeping in his study. In his examination-in-chief the son goutam (P. W. 4) said:- "my father sleeps on ground floor in the drawing room since 1960". It would appear from Ext. 1 the letter written by the husband to the wife that the husband was away from India from May, 1961 to April, 1962. So, during the period from May, 1961 to April 1962 the father was not sleeping in the drawing room |of the house. Son's pointed statement in examination-in-chief is "my father sleeps on ground floor in the drawing room since 1960". In cross-examination he said:- "at first my father slept in the bed room but since 1965 he started sleeping in the drawing room". The wife (P. W. 3) in examination-in-chief never said that she and her husband slept on the same bed in the same room during the period from May, 1962 to September, 1965 in the ground floor flat of the paternal house of the husband at rashbehari Avenue. In examination-in-chief the wife said:- "sometimes I have to close the door of my room inside as till late at night he renlains upstairs." In cross-examination she said:- "as he came late I closed the door of my bed room. My son slept with me." It will not appear from the evidence of the wife that during the period from May, 1962, to September, 1965 while she and her husband were living in the same flat they had slept on any night during the said period on the same bed. As wife said that sen Goutam used to sleep with her on the bed, it is unthinkable that while a grown-up son would be sleeping on the bed with the mother every night the father would sleep on that bed with the mother, and that the father and the mother would then have conjugal relationship. Mr. As wife said that sen Goutam used to sleep with her on the bed, it is unthinkable that while a grown-up son would be sleeping on the bed with the mother every night the father would sleep on that bed with the mother, and that the father and the mother would then have conjugal relationship. Mr. Mukherjee could not point out from the evidence of the mother that during the period from May, 1962 to September, 1985 the father and the mother slept in the same room on the same bed in the ground floor flat of 213, Rashbehari avenue, The son's evidence, against the background of the father's and mother's evidence, upon which Mr. Mukherjee relied, suffers from utter confusion. The father positively asserted in his examination-in-chief that since 1960 while living with his wife in the ground floor flat of 213, rashbehari Avenue he and his wife had been living in two separate rooms of the flat, and that during the period from 1960 to Sept., 1965 there had been no cohabitation between him and his wife. It was not suggested in cross-exanimation by the wife to the husband that during the period from 1960 to September, 1965 the wife and the husband slept on the same bed in the same room in the ground floor of 213, Rashbehari Avenue. The husband's allegation in paragraph 14 of the divorce petition, excerpts from which we have quoted earlier in this judgment, had not been countered by the wife in her written statement. Mr. mukhrejee, the learned Counsel for the wife-appellant submitted that there was no corroboration of the factum and animus deserendi of desertion of the husband by the wife, and that in absence of corroboration of the husband's evidence reliance ought not to have been placed on husband's evidence by the learned Judge below. Corroboration, although not required as an absolute rule of law, is in practice insisted on, unless its absence cam be satisfactorily accounted for. Independent evidence as to the separation for three years is usually unnecessary in undefended cases : what is required, if it is available, is corroborative evidence as to the circumstances and terms of the parting (Rayden on Divorce, Tenth Edition, page 203. In the present case we have three letters exts. 1 written by husband to the wife, ext. 1 (a) written by wife to the husband, so also, Ext. ! In the present case we have three letters exts. 1 written by husband to the wife, ext. 1 (a) written by wife to the husband, so also, Ext. ! (b. The dates of those letters are between 20th May, 1962 to 28th May, 1962. The letters, exts. 1 (a) and 1 (b) written by wife to the husband were put to the wife for explanation. The wife's evidence in cross-examination regarding those letters is as follows : "in Exts. 1a, 1b I wrote that I should think about the way in which the divorce should take place between us. I also wrote that I was not agreeable to accept any mediation of my husband's relatives. In Ext. 1b, I wrote that the divorce should be divorced till my son grew elder. It is not a fact that I want divorce. In Exts. 1a, 1b I did not express my willings to divorce. "The letters corroborate in material particulars of the husband's evidence. In the circumstances of a case like this,, when the question is whether there had been cohabitation between the husband and the wife during the relevant period corroborative evidence of such a fact cannot be expected from a source other than a source emanating either from the husband or from the wife. The letters that passed between the husband and the wife before the institution of the divorce proceeding can certainly be used as corroborative of the evidence adduced either by the husband or by the wife, depending on the circumstances, appearing in the contents of those letters. In (1) Forte v. Forte (1966) 110 solicitors' Journal, page 52 the husband's evidence as to circumstances of the parting was held corroborated by the letters written to the wife and found in her possession (Rayden on Divorce, tenth Edition, page 204. Fedlowing this principle we hold that the letters that passed between the husband and the wife, in this case corroborated the husband's evidence as to the circumstances under which the wile withdrew the society of the husband during the relevant period while they had been living in the same house but sleeping separately from each other in two separate rooms. Mr. Mr. Mukherjee's submission that when the husband and the wife lived in the same flat presumption would arise that there had been cohabitation during the relevant period could not impress us in the state of proved circumstances of the case as appearing in the evidence discussed by us. The evidence of the son, in our view, suffers from utter confusion. The evidence of the wife herself supports the evidence of the husband. In regard to the wife's withdrawal of her sexual relationship from the husband without the husband's consent and against his wishes, the husband's conduct as appearing from the proved circumstances of the case would not poinb out that it could induce in the wife a belief that the husband was withdrawing from his conjugal relationship with the wife. On the other hand, the proved circumstances of the case lead us to infer that the wife herself without the consent of the husband and against his wishes and without any probable cause withdrew herself from the conjugal relationship with her husband. So, in our view, animus deserendi on the part of the wife-appellant charged with the offence of desertion has been proved. Next question is regarding the factum of separation. The husband's evidence, as we have already pointed out, is that since 1960 he has; been taking his meals with his brother (P. W. 2) who resides in a flat on the first floor of 213, Rashbehari avenue. The brother (P. W. 2) in his examination-in-chief said : "since 1960 karuna has been taking his meals with us as Anuka refused to cook for him "the wife (O. P. W. 3) in her cross-examination said : "for the last five years we are taking our food separately so, from 1960 till 1965 September the husband and the wife though living in the same flat but in different rooms had been taking their meals separately, the wife cooking her meal for herself in the flat occupied by her, and her husband, while the husband was taking meal cooked in his brother's household in the first floor of the house at 213, rashbehari Avenue. From the evidence we have discussed the following facts are established: (1) during the period at least from May, 1962 to September, 1965 the wife without the consent of the husband and against his wishes and without any reasonable cause withdrew from her conjugal relationship with the husband; (2) during the period from 1960 to September, 1965 although the husband and the wife had been living in the ground floor flat of 213, Rashbehari Avenue, the wife used to cook food for herself and took it while, the husband used to take food cooked in the household of his elder brother living in the first floor of the said house. During that period the husband did not take food cooked by the wife in the flat occupied by the husband and the wife, and the wife and the son took food she had cooked for herself. She did not offer food cooked by her to the husband. Upon these proved facts the questions now arise whether in law the factum i.e. physical separation and the animus deserendi the intention to bring cohabitation permanently to an end arose simultaneously and continued to exist at least during elder the period from 1962 May to 1965 September. In (2) Hopes v. Hopes, reported in 1948-2, All England Reports page 920 it has been held by the Court of appeal in England:- "while de facto separation, which with animus deser-endi is an essential element of desertion, can exist even while the parties are under the same roof, there can be no such separation until husband and wife cease to share one household and set up two households." In (2) Hopes case, the husband and the wife were, at all material times, living under the same roof until a date within one month before the husband filed a petition for divorce on the grounds of his wife's desertion. He claimed that desertion began more than three years before the presentation of the petition by reason of the wife withdrawing to a separate bedroom, no marital intercourse taking place, the frequent occurrence of quarrels between them, and his wife doing no mending or washing of his clothes and no separate cooking for him. He claimed that desertion began more than three years before the presentation of the petition by reason of the wife withdrawing to a separate bedroom, no marital intercourse taking place, the frequent occurrence of quarrels between them, and his wife doing no mending or washing of his clothes and no separate cooking for him. On the other hand, he always had his meals, which were cooked by the wife, in the common dining room with the other members of the family, and, when not in his bedroom, he shared the rest of the house with his wife and daughters. On the facts in Hopes case, their lordships of the Court of Appeal in England held that there had been no de facto separation, and there was, therefore, no desertion of the husband by the wife. In Hopes case, there was no marital intercourse between the husband and the wife for the statutory period since the wife and the husband were sleeping in separate bed room. But, there was only one household in that case. The food was cooked by the wife and was served in the common dining room with the other members of the family and the husband used to take the food so cooked by the wife. In the present case, during the statutory period, or as matter of that during the period at least from May, 1962 to September, 1965 the v/ife cooked her food in the flat and took it with her son, and that during that period the husband took his food cooked in the household of his elder brother situated in the first floor of the house. During that period, the wife never offered the food cooked by her to the husband and the husband was to have his meals with ms elder brother cooked at the first floor of the house in the household of the elder brother. In the ground floor flat occupied by the husband and the wife there is one bed room, one drawing room and a bath. Since 1960 the husband did not use the bed room which was being used exclusively by the wife. The husband used the drawing room as his bed room. There is no evidence if the drawing room of the flat was used both by the husband and the wife during that period so also the bath room. Since 1960 the husband did not use the bed room which was being used exclusively by the wife. The husband used the drawing room as his bed room. There is no evidence if the drawing room of the flat was used both by the husband and the wife during that period so also the bath room. Since 1960 the wife and the husband slept in two different rooms, drawing room used as husband's bed room and in the wife's household husb and did not take food. He took his food in the household of his elder brother. In Hopes' case what was found was that though the husband and the wife had been living in two separate bed rooms having no marital relation during the statutory period there was only one household because it is the wife who cooked the food and served it not only to the husband but also to all other members of the family and the husband used to take food cooked by the wife. In the present case, as we have discussed the evidence, we find that the wife had set up a household exclusively for herself forcing the husband to set up another household. The wife cooked food for herself and offered it to the son but not to the husband. The husband was thus forced, under the circumstances appearing in the evidence, to have his meals cooked in the household of his elder brother. Lord Justice Denning at page 924 of the report (2) Hopes v. Hopes (ibid) poses a problem and supplies its solution : his Lordship observed :- "the matrimonial offences of cruelty and adultery can, of course, be committed by the guilty party (and be not condoned by the innocent party)while they are living under the same roof, but, can the matrimonial offence of desertion be committed ? One of the essential elements of desertion is the fact of separation. Can that exist while the parties are living under the same roof ? My answer is "yes" His lordship then continues:-"the husband who shuts himself up in one or two rooms of his house and ceases to have anything to do with his wife is living separately and apart from her as effectively as if they were separated by the outer door of a flat. My answer is "yes" His lordship then continues:-"the husband who shuts himself up in one or two rooms of his house and ceases to have anything to do with his wife is living separately and apart from her as effectively as if they were separated by the outer door of a flat. They may meet on the stairs or in the passageway, but so they might if they each had separate flats in one building. If that separation is brought about by his fault, why is that not desertion ? He has forsaken and abandoned his wife as effectively as if he had gone into lodgings. The converse is equally true. If the wife ceases to have anything to do with, or for, the husband, and he is left to look after himself in his own rooms, why is not that desertion ? She has forsaken and abandoned him as effectively as if she had gone to live with her relatives". The realistic view upon which a clear line between desertion, a ground for divorce, and gross neglect or chronic discord is to be drawn appears at page 925, in the judgment of lord Justice Denning (2) (1948-2 All england Reports) His Lordship observes :- "it is most important to draw a clear line between desertion, which is a ground for divorce, and gross neglect or chronic discord, which is not. That line is drawn at the point where the parties are living separately and apart. In cases where they are living under the same roof, that point is reached when they cease to be one household and become two households, or, in other words, when they are no longer residing with one another or cohabiting with one another". The case now before us in this appeal fits in with the observations just quoted above that fell from Lord Justice Denning. The wife-appellant and the husband-respondent in the present case have been residing in the same flat but in two households during the statutory period. Therefore, in our view, separation, and animus deserendi making the wife deserting spouse, and the husband the deserted spouse have been to our satisfaction established by the proved facts and circumstances of the case. Mr. The wife-appellant and the husband-respondent in the present case have been residing in the same flat but in two households during the statutory period. Therefore, in our view, separation, and animus deserendi making the wife deserting spouse, and the husband the deserted spouse have been to our satisfaction established by the proved facts and circumstances of the case. Mr. Mukherjee, the learned Counsel for the appellant wife, submitted before us that upon the evidence of the husband and his brother, his pupil and his son the learned Judge of the Court below should not have found the wife-appellant guilty of cruelty to her husband-respondent. Mr. Mukherjee contended that the husband's conduct, on the other hand, was cruel to the wife. Mr. Mukherjee submitted that upon the pleadings and the evidence the learned Judge in the Court below should have held that neither in fact nor in law the husband now the respondent in this appeal could establish cruelty of the wife towards him. In the petition of divorce it is alleged amongst other things (vide paragraph 3) that coming to the paternal house at 213, Rashbehari Avenue with the husband, the wife could not fit herself in the husband's family and soon developed bitterness with every one, specially with the sisters of the husband. A child was born in July, 1946. In paragraph 4 of the petition the husband alleged that after the birth of Goutam (P. W. 4) the wife carried on with an aggressive complex or cold war especially against the sisters of the husband and also other members of the family. Husband did not approve of the wife's conduct. She also grew aggressive and violent with the husband. In paragraph 4 of the divorce petition it is further alleged that during the period from July, 1946 to 1951, the wife's attitude towards the husband had been aggressive and turbulent. The wife would kick, bite, insult and abuse the husband on flimsy ground and on flimsy domestic matters. From July, 1951 as the petition of divorce (paragraph 5)shows, the wife while prosecuting with her study in the M. A. Class stayed at the Post-Graduate Hostel. In 1952 the husband went to England. He was in England up to 1954. So, from July, 1951 to the end of 1954 (vide paragraphs 5 and 6 of the divorce petition)the husband and the wife did not live together. In 1952 the husband went to England. He was in England up to 1954. So, from July, 1951 to the end of 1954 (vide paragraphs 5 and 6 of the divorce petition)the husband and the wife did not live together. In 1955 the husband came back from England with a Doctorate degree and joined his old College. His relations with the wife did not even then improve (vide paragraph 6 of the petition of divorce. In 1955 the wife went to Santiniketan for reading b. T., Course. After the wife completed studying her B. T. Course and appeared in B. T. examination she came to stay in June-July, 1956 with the husband at singhee Bagan flat, in Calcutta. During wife's stay with the husband at singhee Bagan whenever the husband wanted to talk about the family matters with the wife, he met with rebuff, abuse, assaults, kicks and beating with shoes on several occasions by the wife. In 1956 the wife and the husband left singhee Bagan and came to the ancestral house which by that time had been partitioned amicably. The wife (vide paragraph 4 of the petition of divorce) always demanded partition of the ancestral house at Rashbehari avenue. In August, 1956 (vide paragraph 9 of the divorce petition) on partition, the husband got a two roomed fiat in the ground floor of 213, Rashbehari Avenue. In the first floor of the house husband's elder brother (P. W. 2) was residing. The wife while living with the husband in the flat at 231, rashbehari Avenue did not allow the son, Gcutam to meet with the members of the family of the husband's elder brother. From August, 1956 to July, 1960 (vide paragraphs 9 and 10 of the petition of divorce) the husband was being assaulted and insulted by the respondent over petty domestic matters. As a result of the humiliating treatment in the presence of the son the husband seldom approached the wife even for a talk. As the servant could not be easily availed of, the wife refused to cook for the husband and asked him that he might bring the food from a hotel (vide paragraph 10 of the divorce petition. From August, 1960 the wife ceased to cook for the husband. As the servant could not be easily availed of, the wife refused to cook for the husband and asked him that he might bring the food from a hotel (vide paragraph 10 of the divorce petition. From August, 1960 the wife ceased to cook for the husband. Since the end of August, 1960 the husband had been compelled to take food with his elder brother living on the first floor of the house. On one occasion in January, 1961 the wife used filthy language pointing to the husband. The husband protested and the wife had bitten the husband's arm causing an wound. In May 1961, the husband left for England and came back in March, 1962 (vide paragraph 11 of the divorce petition. On 12th April, 1962 while the husband was in Calcutta he was attacked with typhoid, During illness, wife did not care to nurse and even to keep any information about the husband. The husband had to be nursed in the flat of the elder brother. On 30th April, when after recovering from typhoid, the husband came downstairs to talk with his son Goutam about his studies, the wife in a fit of anger shouted why the husband's legal relation with her was not terminated. In paragraph 15 of the divorce petition the husband alleges that he apprehends recurrence of violence from the wife upon him at any unguarded moment, and danger to his life when his son is not at home. The wife on several occasions threatened the husband saying that she would kill him. The wife also stated on several occasions that she would be happy if the husband died. The husband never abused the wife nor used any harsh words to her. Whenever the husband approached the wife sympathetically for talks, the wife would assault and abuse him (vide paragraph 15 of the divorce petition. The paragraphs of the divorce petition referred to above have been duly verified by the husband. In paragraph 6 of her written statement the wife alleges that she was not cordially accepted by the members of the family of the husband at 213, Rashbehari Avenue who treated her with contempt. The sisters and the elder sister-in-law of the husband showed the respondent regular feelings of contempt and aversion. The whole house was very much against the wife. So, the wife wanted to live separately with her husband. The sisters and the elder sister-in-law of the husband showed the respondent regular feelings of contempt and aversion. The whole house was very much against the wife. So, the wife wanted to live separately with her husband. Wife denied (vide paragraph 7 of her written statement) that she ever abused and assaulted the husband or kicked, or bit or insulted him. She denied that she developed aversion for her husband. All the material allegations in the divorce petition relating to cruelty were denied by the wife in her written statements in several paragraphs. On the question of cruelty, for the petitioner deposed Dr. S. K. Mukherjee, witness No. 5, K. K. Gupta, witness No. 2, Dr. S. Das Gupta, witness No. 7, goutam Gupta, witness No. 4, Parimal Acharyya, witness No. 3 and the husband himself (P. W. 6. The learned Judge in the Court below relying upon the evidence of P. Ws. 6, 2, 3 and 4 held that the wife abused and assaulted the husband, and that the wife treated the husband with mental cruelty which extremely endangered husband's health and peace of mind. The learned Judge further found that there was no condo nation of wife's cruelty by the husband. It will appear from paragraph 3 of the divorce petition that the understanding between the husband and the wife was cordial till early 1945 when the husband and the wife first came to stay in the husband's paternal house at 213, Rashbehari Avenue. According to husband the wife became very much averse to the sisters of the husband and according to the wife, the sisters and the elder brother's wife became very much averse to the wife. From early 1945, the sky of the husband and the wife began to be clouded. From early 1945 to May, 1962 as several paragraphs of the petition of divorce would show the wife's attitude and conduct towards the husband had been, according to the husband cruel, causing mental agony and deterioration of health of the husband. The wife in her written statement denied the allegations. In paragraph 4 of the divorce petition the husband catalogued the instances of wife's ill treatment to him after the birth of the son. This covers a period from July, 1946 to 1951. The wife in her written statement denied the allegations. In paragraph 4 of the divorce petition the husband catalogued the instances of wife's ill treatment to him after the birth of the son. This covers a period from July, 1946 to 1951. From July, 1951 to 1955 before the wife left for santiniketan the husband did not allege in the divorce petition any incident of wife's cruelty to him. In June-July, 1956 (vide paragraph 8 of the petition of divorce) while at Singhee Bagan, wife assaulted, abused and ill-treated the husband even to the extent of beating the husband with shoes on several occasions. During the period from August, 1956 to the end of May, 1961 (vide paragraphs 9, 10 and 11 of the divorce petition) the husband and the wife stayed in the ground floor flat at 213, Rashbehari Avenue, when the husband was often assaulted, abused and ill-treated by the wife From May, 1961 to 19th April, 1962 the husband and the wife lived apart and there was no occasion for the wife treating the husband cruelly. From 18th April to 20th May, 1962 wife's treatment to the husband had been cruel (vide paragraphs 12 and 13. From the divorce petition two major incidents of cruelty would appear, one in June-July, 1956 at Singhee Bagan (vide paragraph 8 of the divorce petition) and the other in January, 1961 (vide paragraph 11. Paragraph 10 of the divorce petition also speaks of a major incident in August, 1960. The wife's stoppage of supply of food to the husband in August, 1960 compelled the husband to get his meals from the household of his elder brother. Paragraph 12 of the divorce petition speaks of the incident of wife's complete callousness to husband during husband's illness. From 18th to 30th of April, 1962 while husband lay with typhoid, wife did not nurse the husband, nor keep any information as to whether the husband was ill or not. So, we get four major incidents of cruelty, June-July, 1956, August, 1960, January, 1961, April, 1962. The Singhee Bagan incident was denied by the wife in paragraph 10 of her written statement. The allegation in paragraph 10 of the divorce petition relating to the wife's stoppage of supply of food to the husband since the end of 1962 was also denied by the wife in paragraph 12 of her written statement. The Singhee Bagan incident was denied by the wife in paragraph 10 of her written statement. The allegation in paragraph 10 of the divorce petition relating to the wife's stoppage of supply of food to the husband since the end of 1962 was also denied by the wife in paragraph 12 of her written statement. But in her evidence the wife had to confess that from 1960 the husband was taking food separately. The wife's evidence corroborates the husband's allegations that the wife ceased to supply food to the husband since 1960 compelling the husband to have his meals from his elder brother's household. Parimal, husband's pupil, witness No. 3 went to the Singhee bagan flat of the husband in June 1956. He heard the husband saying in a muffled voice, "what are you doing ? be not assault me. Will you kill me ?" the witness heard sound of assault. The evidence of this witness in chief could not be shaken in cross-examination. We have no reason to disbelieve parimal Acharyya, who is not only an ex-student of the husband but also an advocate. Singhee Bagan incident has been proved to our satisfaction by parimal who corroborated the husband on the incident at Singhee Bagan flat. In paragraph 11 of the divorce petition husband alleges an incident of January, 1961-wife biting husband causing an wound. The wife totally denied the incident in paragraph 13 of her written statement. Husband gave detailed evidence on the incident. Kalyankar gupta, the elder brother of the husband, witness No. 2 for the husband said in chief-examination:- "in 1961 I heard Karuna crying there in a loud voice. I got down and found that there was scuffling. I saw blood on the hand of Karuna. On seeing this she left. I called Karuna and told him that he should take some steps. I applied medicine on the injured portion where I found definite marks of bleeding. Since 1960 Karuna has been taking his meals with us as Anuka refused to cook for him. In 1962 Karuna was attacked with typhoid. He was taaken upstairs to our room. For three weeks he suffered. During this period Anuka did not go to see him for nursing". Since 1960 Karuna has been taking his meals with us as Anuka refused to cook for him. In 1962 Karuna was attacked with typhoid. He was taaken upstairs to our room. For three weeks he suffered. During this period Anuka did not go to see him for nursing". Elder brother of the husband proved three major incidents of cruelty, wife's stoppage of supply of food to the husband; wife's biting the husband causing an wound; wife's callousness and complete lack of sympathy during husband's serious illness. The evidence in chief of P. W. 2 relating to the husband's taking of food from the witness's household since August, 1960 is corroborated by the evidence of the wife herself. In cross-examination P. W. 2 said:- "in 1961 I saw the scuffle. That was in the morning at about 9/10 A.M. in January. It was a holiday. Nobody else has seen this. . . . . . No medical help was taken when I saw marks of bite". It was suggested to the witness that he was giving false evidence. Mr. Mukherjee, the learned Counsel for the wife-appellant submitted that the witness, the brother of the husband, was an interested one and his evidence should hardly be accepted without corroboration. The law of corroboration demands that the evidence of a witness whose evidence cannot be accepted without corroboration should, be corroborated in some material particular by independent evidence. Corroboration of the petitioner's evidence as regards cruelty is probably not required as am absolute rule of law; but the Court in practice requires it, unless the absence of corroborating witnesses can be satisfactorily accounted for. Evidence of a witness to the effect that he or she saw the injuries, marks of bruises within a day or two of such injuries having been inflicted is admissible, though any statement made to the witness in the absence of the party implicated is not. Any fact will be corroboration which renders it more probable that the witness's testimony is true on any material point (Rayden on Divorce, Tenth Edition, page 167. Independent evidence means evidence coming from a source which is not likely to be tutored or tainted. Any fact will be corroboration which renders it more probable that the witness's testimony is true on any material point (Rayden on Divorce, Tenth Edition, page 167. Independent evidence means evidence coming from a source which is not likely to be tutored or tainted. Because a witness is a relation of a party to a proceeding before the Court of law, it cannot be presumed that relationship between the party and the witness makes the witness not an independent witness and his evidence not coming from an independent source. P. W. 2, the elder brother of petitioner, as his evidence in examination in chief shows saw the scuffle between the husband and the wife, blood on the hand of Karuna, the husband. On seeing the elder brother, the wife left the place. The witness saw the injured portion where he found definite marks of biting. In cross-examination he reiterated what has been quoted earlier in this judgment. He was definite in his statement in cross-examination when he said that he saw the marks of bite. He denied the suggestion in cross-examination that he was deposing falsely. In examination-in-chief the husband (P. W. 6) said: "in January, 1961 she was striking me. I hold her hand and I was bitten. Blood came out. I shouted at, my elder brother came and gave medicines. . . . . . At rashbehari Avenue house I have been assaulted almost once in every week. This is going on since 1947. This has become worst since 1956". In cross-examination the husband said : "to my knowledge my elder brother has witnessed assault and abuse on me that was in 1961, January. On several other days also he heard abuses. " It was suggested to the husband in cross-examination that he filed the suit at the instigation of his elder brother and his wife. The husband denied the suggestion. To the brother it was suggested in cross-examination which he denied that he and his wife were the cause of this suit. It was not even suggested to the brother of the husband that regarding the incident of January, 1961 discussed above, the brother was tutored by the husband. In the letter ext. 1 dated 20th May, 1962 written by the husband to the wife the incident of january 1961 (biting incident and the resultant wound to the husband)was not mentioned. It was not even suggested to the brother of the husband that regarding the incident of January, 1961 discussed above, the brother was tutored by the husband. In the letter ext. 1 dated 20th May, 1962 written by the husband to the wife the incident of january 1961 (biting incident and the resultant wound to the husband)was not mentioned. In our view, the incident of January, 1961 mentioned above was sufficiently corroborated by the husband's brother's evidence who, in our estimate, does not appear to be a tutored source. The husband was attacked with enteric fever in April, 1962. He was then staying in the drawing room in the ground, floor of the paternal house at 213, Rashbehari Avenue while the wife was staying in the bed room of that very flat. In his letter, Ext. 1, the husband specifically mentioned the wife's complete indifference and callousness and lack of sympathy during the period husband was suffering from enteric fever. The relevant portion of the letter runs as follows : - "on the 18th April I was down with enteric fever and I had to change my bed upstairs in Dada's portion as I needed constant nursing and care which I could not get from you. You may remember that when immediately after my arrival, I tried to talk to you about financial arrangements for Khokan's education and other expenses, you stopped the discussion by saying that you would be relieved only if I died in the immediate future and you were not interested in discussing anything with me about Khokan's education. On my recovery from illness I came downstairs on 3cth April, 1962 to talk with Khokan about his studies. You flew into rage and cursed me and also made obscene references to my sister-in-law who live upstairs and did nurse me during my illness. You then shouted out to me why did I not end the legal connection with you. All this happened before the presence of Khokan this letter Ext. 1 dated 20th may, 1962 was replied on 23. 5. 62 (vide ext. 1 (a. The specific statements of the husband in the letter Ext. 1, relating to wife's utter callousness, unsympathetic attitude and coldness during the husband's illness, made in the letter Ext. 1 replied to by the wife, by the letter Ext. 1 (a), had neither denied nor explained in Ext. 5. 62 (vide ext. 1 (a. The specific statements of the husband in the letter Ext. 1, relating to wife's utter callousness, unsympathetic attitude and coldness during the husband's illness, made in the letter Ext. 1 replied to by the wife, by the letter Ext. 1 (a), had neither denied nor explained in Ext. 1 (a. The husband in his evidence (P. W. 6) said in examination-in-chief:- "in April, 1962 I suffered from typhoid. On medical advice and as I have none to nurse me I was taken upstairs during my illness. She did not look after me rather she wanted my death. When I came home I did not meet my wife. She was them in her school. She did not look after me. For many years she did not even give a glass of water to me." It is noticeable that while the husband was being cross-examined the wife did not suggest to him that she did not show any callousness or unsympathetic attitude towards the husband during his illness and that the husband's conduct prevented the wife from nursing the husband. In examination-in-chief the wife said (P. W. 3):- "I do not know when he suffered from typhoid. Sometimes I have to close the door of my room inside as till late at night he remains upstairs." In cross-examination the wife said:- "I did not know that my husband suffered from typhoid. In this Court I hear from the petitioner that he suffered from typhoid. I have no reasons to disbelieve this. During this period I did not make any enquiry about my husband. I did not put any question to my son. I want this Court to believe that although my husband lay illl with typhoid and although I lived in the same house I did not know anything about his illness. It is not true to say that I have no attraction to my husband." P. W. 5 Dr. Mukherjee said that he treated the husband in 1962 for typhoid. He went to the house at Rashbehari Avenue. The doctor examined the husband in the ground floor room. He found none rto nurse the husband. So, the doctor advised removal of the husband to his brother's room for nursing. Subsequently when the doctor went to see the husband he found that husband had been taken upstairs in his brothers room. He went to the house at Rashbehari Avenue. The doctor examined the husband in the ground floor room. He found none rto nurse the husband. So, the doctor advised removal of the husband to his brother's room for nursing. Subsequently when the doctor went to see the husband he found that husband had been taken upstairs in his brothers room. The doctor did not see the wife. In cross-examination to Dr. Mukherjee it was suggested that he being a friend of the husband's brother, came to depose falsely. That suggestion was denied by Dr. Mukherjee. He was a professor of medicine, Calcutta Medical college and he is a highly qualified and respectable doctor. So, we cannot disbelieve him. It is clear from the evidence and the circumstances we have reviewed that during the husband's major illness the wife who was residing in a room next to the husband's room kept no information as to husband's serious illness and did not take care to even visit the husband during such illness when he was being nursed by the members of his elder brother's family on the first floor of the house at 213, Rashbehari Avenue in April, 1962. Son Goutam (P. W. 4)said in chief examination that in 1962 his father was attacked with typhoid and later on he was taken upstairs as he needed constant nursing. The boy said that the mother regularly attended school even during father's illness and never went to see his father during his illness and did not nurse him during his illness even when the father was in the ground floor room. The boy even said that the mother did not ask the boy to go to see the father. Still the boy used to visit the father once every day. In cross-examination the boy said:- "I told my mother that my father suffered from typhoid. None else knows this. I did not ask my mother to nurse him. On enquiry I learnt that on medical advice my father had been taken upstairs. " P. W. 2 the elder brother of the husband said in chief-examination:-"in 1952 karuna was attacked with typhoid. He was taken upstairs to our room. For 3 weeks he suffered. During this period Anuka did not go to see him to nurse him". In cross-examination this witness said:- "in April, May, 1962 he was attacked with typhoid. " P. W. 2 the elder brother of the husband said in chief-examination:-"in 1952 karuna was attacked with typhoid. He was taken upstairs to our room. For 3 weeks he suffered. During this period Anuka did not go to see him to nurse him". In cross-examination this witness said:- "in April, May, 1962 he was attacked with typhoid. The doctor at first examined him on the ground floor. It was 10 or 11 A. M. He was ill that time under the treatment of Doctor Sisir Mukherjee. He is a witness in that case. He prescribed medicines. I did not purchase the medicines myself. My other family members purchased them. During illness Karuna lived on the first floor. Even now he sleeps on the ground floor. . . . . . Nobody informed Anuka about the illness of Karuna. Since 1958 she is not on speaking terms with us. It is not a fact that Dr. Mukherjee did not examine Karuna in the ground floor." We find no reason to disbelieve either the son or the elder brother of the husband. We have no reason to disbelieve Dr. Mukherjee. The evidence of all those witnesses and the circumstances appearing in the letter exts. 1 and 1 (a) already discussed lead us to conclude that during the husband's fatal illness in April-May, 1962, the wife showed utter callousness to the husband and kept no information as to how and by whom the husband was being treated and nursed during such fatal illness. The evidence of the witnesses and the circumstances reviewed above clearly corroborate what the husband said about a wife's callousness and ill treatment during the husband's illness in April-May, 1962. From the evidence of husband and his elder brother as well as of the son it would appear that on innumerable occasions during the period from July, 1945 to April-May, 1962, barring the period of husband's absence from India already mentioned, the wife in season and out of season assaulted, abused and ill-treated the husband, so much so, that the husband had to write to the wife in May, 1962 (vide Ext. 1) cataloging the wife's conduct, treatment, behaviour, attitude and action towards the husband. The letter, Ext. 1) cataloging the wife's conduct, treatment, behaviour, attitude and action towards the husband. The letter, Ext. 1, would show how the husband expressed himself to his wife in the concluding portion of the letter in these terms:- "under all these circumstances, my sufferings have become unbearable to me and I am convinced that the future of our son is not secured in your hands. I want that our relationship be dissolved and the matter of Khokan's guardianship be vested on me. I take from all the above narrated events that you are also willing to get rid of the legal ties which are the only ties which bind us to-day, except the child. If you are serious about the matter, we may dissolve the marriage by mutual consent. The question of guardianship of Khokan has to be mutually agreed upon or decided by the court. Present unilateral control by you on Khokan's education is not acceptable to me, but we may try to have a compromise solution or leave the matter to the discretion of the Court. " the wife's reply (vide Ext. 1 (a) has been already quoted verbatim. The wife amongst other things stated in ext, 1 (a. "the relation between us both has reached such a stage that it is necessary to end the marital relation of us two without delay". The wife by letter Ext. 1 (b) dated 28. 5. 62 two days after she had written the letter, Ext. 1 (a) added something as a postscript to letter Ext. 1 (a. That letter reads as follows:- "necessity has arisen to write this letter as I want to write something in the letter I wrote to you last week. Perhaps in a hurry I wrote that I was glad to note that you had realised that our relation had reached such a stage that it was necessary to end our marital relation. As a matter of fact i wanted to convey this that I was glad to note that you had realised that our relation had reached a very unnatural stage. I reflected that as long as khokan has not attained majority, any change in our social relationship would not be good either for him or for us or anybody. The well-wishers also are of this view. When you will come to calcutta a discussion regarding this matter may go on. I reflected that as long as khokan has not attained majority, any change in our social relationship would not be good either for him or for us or anybody. The well-wishers also are of this view. When you will come to calcutta a discussion regarding this matter may go on. Search is being made for a tutor for Khokan." In letter ext. 1 (b) the wife stated that she wanted to convey this that she was glad to note that the husband had realised that the relation between her and the husband had reached a very unnatural stage. The wife explained those two letters Exts. 1 (a) and 1 (b) in her evidence. In examination-in-chief she said:- "I did not write seriously Exts. 1|a, 1/b. I sent replies to his letter in which he wanted divorce. There has never been any incident for which there should be a divorce." In cross-examination the wife said:- "in Exts. 1a, 1b I wrote that I should think about the way in which the divorce should take place between us. I also wrote that I was not agreeable to accept any mediation of my husband's relatives. In Ext. 1|b, I wrote that the divorce should be divorced, till my son grew older. It is not a fact that I want divorce. In Exts. 1a, IB I did not express my willingness to divorce, I still hope that even now we can live peacefully." The husband's narraton of the wife's behaviour, conduct, attitude and action towards the husband in letter, Ext. 1, had not been at all denied or otherwise explained in Ext. 1 (a. On the witness-box the wife said in cross-examination that she could still hope to live peacefully with the husband. On 1.6.66 (vide Order No. 22, paper book, page 4, Part I) the learned judge made an attempt for reconciliation between the husband and the wife calling them in his chamber; but the judge's attempt failed. Now the question whether the wife is guilty of cruelty to the husband since solemnisation of the marriage as section 27, clause (d) of the Special Marriage Act, 1954 provides. According to the wife the husband's conduct, behaviour, attitude and action have always been cruel since the solemnisation of the marriage but not of her. Husband's letter (Ext. Now the question whether the wife is guilty of cruelty to the husband since solemnisation of the marriage as section 27, clause (d) of the Special Marriage Act, 1954 provides. According to the wife the husband's conduct, behaviour, attitude and action have always been cruel since the solemnisation of the marriage but not of her. Husband's letter (Ext. 1) which catalogued various incidents pointing to numerous instances of physical violence and mental cruelty meted out by the wife to the husband had not, in letters (Exts. 1 (a) and 1 (b), been denied, item by item by the wife. This is a circumstance which points to the corroboration of the husband's complaints of cruelty both physical anolmental against the wife. The wife in her examination-in-chief said : - "while he went to England he madre no arrangement for me. He did not pay any money to mo. My son all along remained with me. . . . . . When I became ill my husband made an arrangement for my treatment. Doctor satrujit Das Gupta never treated me. I was operated and stayed in a nursing home. Then my husband did not take any care of me. " According to wife the husband's making no arrangement for meeting the family expenses during his sojourn to England and husband's failure to arrange for treatment arid operation of the wife as testified to in her examination-in-chief are the two instances of husband's cruel treatment to the wife. While the husband was in England the wife wrote a letter dated 26. 3. 53 to the husband (vide Ext. 1 (c). The language of the letter is not only rude but also filthy and obnoxious. The relevant lines are quoted here:- "but only considering the welfare of the child, I even now am keeping connection with you and perhaps shall keep it in future also. But you must know this that the punishment that is due to the liar and brlougher (?) is reserved for you, some day or other you must get that in some manner or another. One cannot become great oneself by putting down others "the husband once assured the wife that while in England he would make arrangement for wife's" study in England for getting a diploma in Montessary training. One cannot become great oneself by putting down others "the husband once assured the wife that while in England he would make arrangement for wife's" study in England for getting a diploma in Montessary training. The wife imagined that by playing trickery the husband was not making arrangement for wife's coming to England for getting a diploma in Montessary training. Even while the husband and the wife were residing: at Singhee Bagan flat the wife could not live there peacefully with the husband. In cross-examination the wife said :- "my husband arranged the flat. Life was not very happy at that house as he spent most of his time at the Rashbehari Avenue house. I was also dissatisfied and angry with him. I never abused him. I told him that he was not fair to me. It is not a fact that at that house I frequently assaulted and abused him. At my husband's request I left the flat. A portion of the house was allotted to me. It did not depend on my choice. I wanted to remain upstairs. Even in this house life was not happy. There were frequent exchange of words. . . . In this house I did not assault or abuse or bit him. There was no occasion for which he was apprehensive of his life". From the wife's evidence only two instances of husband's alleged cruel treatment to the wife are to be found. The husband in examination-in-chief said :- "I have not neglected her. In october 1962 she became ill. I sent for a doctor Satrujit Das Gupta. In 1954 she was operated. I did not go to see her in a nursing home lest she might get excited. I paid for her educational expenses while she read M. A. While she was at Santiniketan, I paid her expenses partially. At that time our son was with her whom she took despite my wishes." Son P. W. 4 in cross-examination said:- "in 1964 my mother was operated and she had to stay in a nursing home. At that time my father did not go to the nursing home. My father did not go there as he apprehends that on seeing him my mother might get excited. I went to see her." The reason for husband's not going to see the wife in the nursing home is not far to seek. At that time my father did not go to the nursing home. My father did not go there as he apprehends that on seeing him my mother might get excited. I went to see her." The reason for husband's not going to see the wife in the nursing home is not far to seek. The wife never said in her deposition that the husband ever abused and assaulted her. The wife did not say anywhere in her deposition that her husband had ever treated the wife either with contempt or with callousness. When the wife went to Santi Niketan she was deputed by her employer and she got usual monthly wages from her employer. She went there on deputation for securing a B. T. Degree. The husband paid the wife some expenses while she was at Santiniketan. Both the husband and the wife used to earn separately decent income. It is clear from the evidence of the wife that she could not pull on well with the members of the husband's elder brother's family and with the sisters of the husband. The wife as her evidence shows, wanted to set up a matrimonial home away from the paternal residence of the husband where the members of the husband's elder brother's family also lived. The husband could hardly accept the wife's proposal. It may be for economic reasons and for his attachment to his eloler brother, sisters and the members of the family of his elder brother. Such attachment of the husband to the members of his elder brother's family and to his own sisters is very natural. But the wife would not allow the husband and the son to have any connection with the members of the husband's elder brother's family and with the sisters of the husband. The wife's attitude towards and notion about the members of the husband's elder brother's family and the husband's sisters may be ascribed to certain invincible psychological causes. The wife, an ma and the Head Mistress of a Girls' school was earning a decent income and developed such individuality as would not admit of her acceptance of the age-old concept and traditions of the Hindu joint family system. The wife, an ma and the Head Mistress of a Girls' school was earning a decent income and developed such individuality as would not admit of her acceptance of the age-old concept and traditions of the Hindu joint family system. At her persistence the husband had to ask his elder brother to partition the ancestral house at 213, Rash Behari Avenue wherefore a suite of rooms in the ground floor had to be allotted amicably to the husband and the wife. The wife wanted the first floor flat where the elder brother of the husband had been staying. She did not like to have she ground floor flat. She deplored for such allotment which was against her choice. The wife did not allow the son to associate with the members of the family of the elder brother of the husband and with other relatives of the husband. The son in his evidence gave out that the mother was a terror to him and that whenever the father approached the mother for any talk the mother abused, ill-treated and used filthy language to the father. The son when he deposed was aged 20 years and was a graduate. We could not persuade ourselves to believe that the husband's conduct, attitude, behaviour and action to the wife had ever been cruel. Mental cruelty is an indefinable concept in a matrimonial cause. In (8)Jamieson v. Jamieson, 1952-1-A11 England Law Reports, page 875 (House of lords), Lord Normand, Lord Mernimen, lord Reid and Lord Tucker had to consider whether the averments of the parties were relevant to infer such cruelty as would justify the granting of a decree of separation a mensa at there, and, therefore, of a decree of divorce a vinculo. In that case, the action was based on what is conveniently called mental cruelty, and physical violence was not averred. There were averments of conduct by the respondent causing injury to his wife's health and persisted in after he was aware of its injurious effects. There was also an averment that a continuance of life with the respondent would be seriously injurious to the appellant's health. The husband was the respondent and the wife was the appellant. We are satisfied upon the evidence we have already discussed that at least on two occasions-shoe beating incident and biting incident-the wife inflicted physical cruelty to the husband. There was also an averment that a continuance of life with the respondent would be seriously injurious to the appellant's health. The husband was the respondent and the wife was the appellant. We are satisfied upon the evidence we have already discussed that at least on two occasions-shoe beating incident and biting incident-the wife inflicted physical cruelty to the husband. As regards mental cruelty, lord Tucker in (3) Jamieson v. Jamieson (ibid at page 887) observed as follows :- "my Lords, judges have always carefully refrained from attempting a comprehensive definition of cruelty for the purposes of matrimonial suits and experience has shown the wisdom of this course. It is, in my view, equally undesirable-if not impossible-by judicial pronouncement to create certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances amounting to cruelty in cases where no physical violence is averred. Every such act must be judged in relation to its surrounding circumstances, and the physical or mental condition or susceptibilities of the innocent spouse, the intention of the offending spouse, and the offender's knowledge of the actual or probable effect of the conduct on the other's health (to borrow from the language of Lord Keith) are all matters which may be decisive in determining on which side of the line a particular act or course of conduct lies. For this reason I agree with Lord keith that it is, generally speaking, not possible to compartment acts for the purposes of relevance as being gross so as to constitute cruelty, or less gross so as not to constitute cruelty, though there may be extreme cases where the acts in themselves are so trivial as to justify dismissal of an action for lack of relevance without proof. It is with regard to the sufficiency of the facts and matters relied on as amounting in the aggregate to cruelty that I think consistorial causes are so different from any other types of action, though I agree with counsel for the respondent that it would be wrong to say that no such suit could ever fail for lack of relevance. In the present instance I think that the averments of knowledge, intention, and persistence removed this case from the area of doubt in which it might otherwise have lain in the absence of such averments." The relevant observations of the Law Lord in excerpts quoted above apply in the present case for reasons we are detailing hereunder. Before the suit the husband brought to the knowledge of the wife instances of physical and mental cruelty in the letter (Ext. 1) and the intention with which the wife meted out such cruel treatments to the husband. In letter (Ext. 1), the husband catalogued instances of the wife's persistence in inflicting the mental cruelty to the husband. The wife in reply in the letters (Exts. 1 (a) and 1 (b) did not refute any of such instances as catalogued in Ext. 1 pointing to the wife's persistence in inflicting cruel treatment on more than many occasions to the husband. We have considered the surrounding circumstances, and the physical or mental condition or susceptibilities of the husband who according to us is the innocent spouse. The intention of the offending spouse, the wife, was to compel the husband to sever all his connections with the elder brother and the members of his family, and his sisters and to achieve such an end the wife persisted in inflicting cruel treatments in season and out of season to the husband both physical and mental. The wife is a highly educated lady who took lessons in phychology from an expert. V/e shall presume that she had the knowledge of the actual or probable effect of her conduct on the health of her husband. The cumulative effects of the wife's behavliour, conduct, attitude and actions towards the husband during the period from July, 1945 to August, 1962, as we have already reviewed, eloquently speak of her persistence in inflicting camel treatments to the husband both physical and mental. In a cruelty case, the question whether the conduct of a man to the woman or vice versa is cruelty must be considered as a whole (4) Lander v. Lander, 1949-1-All E. R. page 76. In a cruelty case, the question whether the conduct of a man to the woman or vice versa is cruelty must be considered as a whole (4) Lander v. Lander, 1949-1-All E. R. page 76. In (5) King v. King, 1952-2-A11 England Law Reports, page 534, 1953 appeal Case, page 124, it has been held that the conduct of the offending spouse reviewed as a whole must be judged as to what the impact of such conduct complained of was on the personality of the complaining party. We accept the principles of law as enunciated in those two decisions in the present appeal. We have reviewed the entire evidence and have taken into consideration the cumulative effect of the entire evidence. We find that the wife guilty of cruel treatments, both physical and mental, meted out to the husband during the period already observed, and her persistence in such treatments, even in spite of husband's bringing to the knowledge of the wife, the effect of such cruel treatments meted by the wife, on the husband's health. We have anxiously considered the evidence to find if incompatibility of character or temparament and unhappiness of marital relationship, not caused by cruelty, had provoked the husband to complain against the wife's treatment to him as cruelty in law justifying the husband in getting a decree for divorce of the wife. We have anxiously reviewed the evidence as a whole to find if we could place the appellant's case within the rule of (6)Buchler v. Buckler 1947-1-A11 England law Reports, page 322, where it has been laid down that incompatibility of character or temparament and unhappiness of marital relationship not caused by cruelty, are not themselves ground of divorce, nor by themselves do they entitle the spouse affected to leave the matrimonial home. We could not, upon anxious consideration of the evidence as a whole, place this case within the rule of (6) Buckler v. Buckler (ibid. We have found that the husband-respondent in this appeal upon the preponderance of evidence established two grounds of divorce of the wife : desertion and persistent cruelty since solemnisation of the marriage, Cruel conduct of the wife justified the husband in bringing cohabitation to an end, compelling the husband to set up a household of his own while the husband and the wife were living in different rooms of the same flat at 213, rashbehari Avenue. We are satisfied that since May, 1962 till the date of filing of the divorce application there was no resumption of cohabitation between the husband and the wife. We are satisfied upon the cumulative effect of the evidence that the physical and mental cruel treatments of the wife justified the husband in bringing cohabitation to an end and in setting up a household of his own while living in the same flat but in different rooms with the wife. In law such desertion coupled with persistent cruelty amounts to constructive desertion and constructive desertion where the conduct amounts to cruelty, cannot in law be condoned. Mr. Mukherjee, the learned Counsel for the appellant, placed before us a decision of My Lord Mr. Justice P. B. Mukharji in (7) Adelaide Mande Tobias v. William Albert Tobias, reported in 71 CW. N, page 605. It was a case of divorce on the ground of adultery coupled with desertion without reasonable cause for two years or upwards. It was not a case of constructive desertion coupled with persistent cruelty. A very important point of law was, however, decided by His Lordship Mr. Justice P. B. Mukharji, as to the effect of delayed presentation of the petition of divorce on the charge of desertion, his Lordship amongst other things on facts held that the delay was explained and by a very good reason as stated in the judgment by My Lord. His lordship observed at page 615:- "I shall only express the view that there again the courts will be well-advised not to take any dogmatic view that no delay condones desertion for it is just possible in an appropriate case the court might consider that passivity of long delay is proof that it was not desertion in law, but living separately by consent, express or tacit" it is not a case here that the spouse were living separately by consent, express or tacit. The husband sufficiently explained the delay in presenting the petition of divorce before the court of the trial Judge. The learned trial Judge for cogent reasons accepted the delay and condoned it. We have considered the matter and find no reason to disagree with the views of the learned Judge. In the result, the appeal fails and is dismissed but without costs. The learned trial Judge for cogent reasons accepted the delay and condoned it. We have considered the matter and find no reason to disagree with the views of the learned Judge. In the result, the appeal fails and is dismissed but without costs. As the appeal has been disposed of, no order is necessary on the application filed on 8th September, 1966.