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2009 DIGILAW 137 (CAL)

Ashoke Acharya v. Tapashi Acharya

2009-02-23

BHASKAR BHATTACHARYA, TAPAN KUMAR DUTT

body2009
Judgment : BHASKAR BHATTACHARYA, J. (1) This first appeal is at the instance of a husband in a suit for divorce on the grounds of desertion and cruelty and is directed against the judgment and decree dated August 4, 2004 passed by the learned Additional District Judge, Fast Track Court, First Court, Serampore, in Matrimonial Suit No.26 of 2000 thereby dismissing the suit with the finding that the husband had failed to prove the grounds of cruelty and desertion as alleged in the plaint. (2) The appellant/husband filed an application for divorce being Matrimonial Suit No.26 of 2000 in the Court of the leaned District Judge, Chinsurah, against the respondent/wife which was subsequently transferred to the Fast Track Court, First Court, Serampore, and the case made out by the husband in the application for divorce may be summarised thus: a) The parties were married according to Hindu rites and customs on 16th January, 1981 on the basis of negotiation of the parents of the parties. At the time of marriage, the husband was an Assistant Engineer (Electrical) in the Mechanical Division under Department of Irrigation and Waterways, Government of West Bengal and was posted at Khatra in the district of Bankura. The respondent was then a student of B.Ed. and B.Lib.(Sc) of Calcutta University. After the marriage ceremony, the respondent went with the husband to this paternal house at Konnagar and after the Baubhat ceremony, she went back to her parents house at B.K. Pal Avenue, Calcutta and continued her stay till completion of her studies and publication of result of B.Ed. and B.Lib (Sc.). b) During the said period, the respondent used to visit the husbands house at Konnagar once in a month when the husband used to come to his parents house at Konnagar from Bankura and the moment the husband left for Bankura, his place of posting, the respondent went back to her parents house. c) This system and practice continued up to the month of March, 1983 when the respondent went to Bankura for living with the husband and lived there for 14/15 months. During the said period, the respondent used to visit her parents at Calcutta in the every weekend from Bankura. c) This system and practice continued up to the month of March, 1983 when the respondent went to Bankura for living with the husband and lived there for 14/15 months. During the said period, the respondent used to visit her parents at Calcutta in the every weekend from Bankura. d) While living together at Bankura, the respondent conceived and immediately thereafter, on the advice of her parents, she went to Calcutta for prenuptial treatment by her parents and the request of the husband to stay at his Konnagar house under the care, control and custody of his mother and sisters was refused by the wife causing serious mental stress and strain on the husband. e) However, to avoid unnecessary bitterness and for welfare of the wife and the baby, the husband had to accept her stay at her parents house at Calcutta and the husband used to contact personally or through his relations. However, the behaviour and attitude of the respondent and particularly, her father, was very authoritative, erratic and uncultured. Her father used to dominate the husband and his other relations and even his parents. Due to such unrefined behaviour, the husband did not keep any contact with the respondent and the respondent as well as her parents and other members stopped all contacts with the husband since her living at her parents house during pregnancy. f) Subsequently, the husband came to know that a female baby was born in the wedlock on 1st September, 1984 but neither the respondent nor her parents or other relations officially intimated the husband or his parents or other relations the news of the birth of the baby. g) Since returning from Bankura, the respondent did neither visit the Konnagar house or Bankura house nor did she keep any information about the husband or his relations and from such conduct, it appeared to the husband that the respondent was not interested to maintain the marriage-tie although the husband from time to time contacted the respondent and her relations. h) The husband, in the meantime, came to know that the respondent secured a government job in the UGC scale with the Directorate of Education, Government of West Bengal and became competent to look after and maintain both herself and her minor daughter without depending on anybody. h) The husband, in the meantime, came to know that the respondent secured a government job in the UGC scale with the Directorate of Education, Government of West Bengal and became competent to look after and maintain both herself and her minor daughter without depending on anybody. i) In the year 1988-89, the mother of the husband developed cancer and was then suffering therefrom when the husband contacted with the father of the respondent with a request to send the respondent along with her daughter to her in-laws house at Konnagar so that the mother of the husband could see and met with her granddaughter prior to her death but the respondent and her parents did not adhere to such request. Ultimately, the mother of the husband died in the month of December, 1989 but the respondent even being intimated did not bother to attend the last rites of the mother of the husband. Even before her death, the father of the husband wrote a personal and appealing letter to the father of the respondent so that the mother of the husband might die in peace after seeing the granddaughter but good sense did not prevail upon the respondent or her parents or the relations. Due to such behaviour and conduct, the husband suffered serious mental agony and anguish which amounted to mental cruelty. j) Immediately after the death of the mother, the father of the husband had fallen ill and because of mental and physical sufferance, the father died sometime in May, 1993 when in spite of communication to the respondent, she failed and neglected to attend to her father-in-law during his illness or for performing his last rites. Such act also caused serious mental anguish and agony in the mind of the husband. k) Since the death of the mother in the year 1989 and even prior to that since the time of pregnancy of the respondent, there was no connection between the husband and wife as they were living separately. Such act also caused serious mental anguish and agony in the mind of the husband. k) Since the death of the mother in the year 1989 and even prior to that since the time of pregnancy of the respondent, there was no connection between the husband and wife as they were living separately. l) The husband wanted to bring back the respondent along with her daughter and for that purpose, he went to B.K. Pal Avenue and stayed a night to convince the respondent to come and reside at his house at Konnagar but the respondent was bent upon not budge an inch from her stance that she was not meant for living outside Calcutta and did not feel for the husband. m) From the aforesaid conduct, behaviour and attitude of the respondent, it seemed to the husband that she had willingly and voluntarily withdrawn herself from her matrimonial home and as such, they were living separately for more than 15 years. Hence the suit for divorce on the ground of desertion and mental cruelty. (3) The suit was contested by the wife by filing written statement thereby denying the material allegations made in the application for divorce and the defence of the wife may be summed up thus: 1) Immediately after the Boubhat ceremony held on 18th January, 1981, the husband left for his office at Khatra on the next day in spite of repeated request from his father to stay a few days more by extending his leave. The respondent used to stay in her in-laws house after completion of B.Ed., B. Lib.(Sc) course. At that time, her position in the in-laws house was just like a captive. The respondent was not allowed to go outside and was made to work from the morning till night. The husband used to send letters to his parents but under direction of the parents, no letter was sent to the respondent direct. 2) The in-laws of the respondent created various mental and physical tortures towards the respondent and she was not provided with proper foods. The family members of the respondent were not allowed to spend more than 15 minutes to talk with the respondent when they visited at the in-laws house of the respondent. The father-in-law of the respondent asked the respondent to get some money from the father of the respondent for construction work on the first floor. The family members of the respondent were not allowed to spend more than 15 minutes to talk with the respondent when they visited at the in-laws house of the respondent. The father-in-law of the respondent asked the respondent to get some money from the father of the respondent for construction work on the first floor. The respondent objected in this regard, as a result of which, a coconut was made to fall on the head of the respondents father at the instance of the second brother of the husband who was later sent to jail custody for his misconduct at Khatra. 3) Scenting danger, the father of the respondent requested the father-in-law of the respondent to send her to Khatra, the place of posting of the husband, but the father-in-law turned down such proposal. The respondent fell ill very frequently and one day, the respondent heard her mother-in-law saying that she would utilize the ornaments of the respondent as dowry for her first daughters marriage after the death of the respondent. The respondent suspected foul play of poisoning her by her stepmother-in-law and this was also the view of the maidservant working in the in-laws house. 4) On the next morning, the respondent alone left Konnagar and came to her fathers place leaving behind everything and her father, on hearing from the local people did not send the respondent back for fear of her life but the husband of the respondent did not pay a farthing to the respondent while she was in her fathers house. On contacting the officers at Khatra of the Irrigation and Waterways Department, the father of the respondent, her mother and aunt took her to Khatra. The husband seeing the respondent was irritated and asked the respondent to leave the place at once. The husband used to give only five rupees when he went to Konnagar for his fathers place for a fortnight. 5) After the marriage, the respondent learnt that the mother, brothers and sisters of the husband were really the stepmother, stepbrothers and stepsisters respectively of the husband. The two stepsisters went to Khatra who stayed there for a month and did great mischief to the respondent by making wild propaganda against her. The irritated people at Khatra unanimously gave the verdict that these sisters should leave Khatra at once. Ultimately, the respondent conceived and left Khatra for her fathers place in Calcutta. The two stepsisters went to Khatra who stayed there for a month and did great mischief to the respondent by making wild propaganda against her. The irritated people at Khatra unanimously gave the verdict that these sisters should leave Khatra at once. Ultimately, the respondent conceived and left Khatra for her fathers place in Calcutta. 6) The husband never paid for her medical treatment and the father of the respondent had to bear all the expenses for the delivery of the child. It was denied that the respondent used to go to B.K. Pal Avenue from Khatra every Saturday. 7) After departure from Khatra, the husband with his brother Srijan Acharya distributed one obnoxious leaflet stating filthy matters against the father of the respondent and the respondent with the help of a rickshaw puller and the people caught him red handed and shaved his head and on a complaint by the local Executive Engineer to the Inspector of Police, he was sent to police custody. From the aforesaid fact, it is clear that the respondent was tortured by the in-laws since the very beginning of the marriage and lastly, was deserted by her husband. The suit was, thus, liable to be dismissed. (4) At the time of hearing, the husband alone gave evidence in support of his case made out in the application for divorce while the wife also alone gave evidence opposing the prayer of the husband. As indicated earlier, the learned Trial Judge by the judgment and decree impugned herein was pleased to dismiss the suit with the finding that the husband had failed to prove the grounds of desertion and cruelty. Being dissatisfied, the husband has come up with the present first appeal. (5) After hearing the learned counsel for the parties and after going through the materials on record, we find that the following facts are available from the materials on record: The appellant, at the time of marriage, was an Assistant Engineer (Electrical) of the Government of West Bengal, Water and Irrigation Department, and posted at Khatra in the district of Bankura. He had a one-storied paternal house situated in Konnagar in the suburbs of Calcutta. His paternal family consisted of his father, mother, two unmarried sisters and two unmarried brothers. The respondent, however, has alleged that the mother, brothers and sisters were really the stepmother, stepbrothers and stepsisters respectively. He had a one-storied paternal house situated in Konnagar in the suburbs of Calcutta. His paternal family consisted of his father, mother, two unmarried sisters and two unmarried brothers. The respondent, however, has alleged that the mother, brothers and sisters were really the stepmother, stepbrothers and stepsisters respectively. Such fact has been denied by the husband. The respondents family consisted of her parents, one brother and herself. Her father was comparatively rich and had two houses, one in B.K. Pal Avenue, Calcutta and the other in Salt Lake. At the time of the marriage, the wife was a student of B.Ed. and B.Lib (Sc) of the Calcutta University. After the marriage, so long the wife did not appear at the B.Ed. and B.Lib (Sc) examinations, she was staying in her fathers house at B.K. Pal Avenue and used to come to Konnagar house only when the husband used to come to Konnagar from Khatra in the weekend in every fortnight. After the examinations were over, she went to Konnagar house to stay in the in-laws family. However, according to the husband, she used to come only when he would come to Konnagar from Khatra and on other occasions, she used to go back to her fathers house which has, of course, been denied by the wife. (6) According to the wife, while she was staying in Konnagar house she remained there like a captive and her in-laws used to torture her physically and mentally. Her father was not permitted to speak to her for more than 15 minutes when he used to come to visit her. She overheard her mother-in-law telling somebody that after the death of the respondent, with her ornaments, the marriage of the elder sister-in-law will be given. She, therefore, became apprehensive of her security and went back to her fathers house. Her father-inlaw having turned down the proposal of her father to send her to Khatra, her parents and aunt took her direct to Khatra when her husband was very much annoyed. She, however, stayed there with her husband for 14/15 months when she conceived. Before giving birth of the only daughter, she again came back to the house of her father at B.K. Pal Avenue and thereafter, she never went to live with her husband either in Konnagar or at the places of posting of her husband. She, however, stayed there with her husband for 14/15 months when she conceived. Before giving birth of the only daughter, she again came back to the house of her father at B.K. Pal Avenue and thereafter, she never went to live with her husband either in Konnagar or at the places of posting of her husband. It further appears from record that the mother of the appellant died in the year 1989 of cancer and the father of the appellant died in the year 1993 and at the time of hearing of the suit, the husband alone used to stay in Konnagar and by that time, both the parents died, the two sisters were married and other two brothers were also residing elsewhere. It further appears that the only daughter of the parties was born on 2nd September, 1984 and three months thereafter, in the month of December, 1984, the respondent got a permanent job in the UGC scale with the Directorate of Education, Government of West Bengal and is posted in Kolkata all along. (7) The suit was filed in the year 2000, long sixteen years after the physical separation of the parties on the grounds of desertion and cruelty. (8) First of all, we propose to consider whether desertion for a continuous period of two years before the presentation for petition of divorce has been established in this case. It appears from the aforesaid materials on record that after the birth of the child, the wife never went to Konnagar to stay with her husband in the joint family nor did she go to the different places of posting of the husband till the institution of the suit in the year 2000. Living together, in those places of posting of the husband, was not possible for the simple reason that the wife got a permanent job in the Government of West Bengal and was all along posted in Calcutta and as such, without leaving her job, it was not possible for her to stay in different places of posting with the husband and the wife has also not claimed that she ever stayed with the husband in any of his places of posting. The husband has alleged that from few months prior to the birth of the child in the year 1984, he has been living separately and after the birth of the child, once he went to the wifes house at B.K. Pal Avenue to convince her to stay at the house in Konnagar. The wife, on the other hand, tried to convince the Court that even after the birth of the child, the husband had relation with the wife as would appear from their photograph taken together along the child who was at that time merely aged one year. Apart from the said photograph, no other document could be produced by the wife showing that they had lived together after the birth of the child; on the other hand, it is the definite case of the husband that his father-in-law was very much proud for his wealth and used to misbehave with him, as a result, he did not like to go to the house of his father-in-law and consequently, had no relation with the wife. He, however, admitted that during the illness of his mother, once he requested the wife to bring the only child to the house at Konnagar so that his mother in her deathbed could once see the granddaughter. It is admitted by the wife that she did not oblige her husband. She has also admitted that even at the time of death of her father-in-law or after his death, she never visited the house at Konnagar. (9) At the time of hearing of the suit, when both the parents of the husband were dead, the sisters were married, the two other brothers were residing elsewhere and the husband alone used to stay in that house, the wife refused to stay in the house at Konnagar. She stated that she was ready and willing to stay at any place apart from Konnagar provided such place should be suitable for her job. Such offer necessarily implies that she had no intention of living with her husband who had a transferable job in the Government of West Bengal and on other hand, she refused to stay in Konnagar. She stated that she was ready and willing to stay at any place apart from Konnagar provided such place should be suitable for her job. Such offer necessarily implies that she had no intention of living with her husband who had a transferable job in the Government of West Bengal and on other hand, she refused to stay in Konnagar. (10) From the aforesaid materials, we find that after getting a permanent job in the Government of West Bengal in Kolkata, she preferred her job and paternal house to her husband and did not feel the necessity of keeping any relation with her husband. The learned Trial Judge, as it appears from the order impugned, discarded the case of desertion on the ground that the husband had not filed any application for restitution of conjugal life. We are unable to approve such reason. In order to prove desertion by the wife in a suit for divorce on that ground, it is not necessary for the husband to establish that he, in the past, filed a suit for restitution of conjugal life. In this case, it has come from evidence that she was in service in Calcutta and, therefore, it was not possible for her to leave the service and go to her husbands place in different places in West Bengal and even she was not willing to stay in Konnagar which is near to Kolkata and from where she could also maintain her job. Similarly, the learned Trial Judge erroneously rejected the case of desertion on the ground that the husband in cross-examination, stated that he was not willing to stay with his wife whereas the wife expressed her desire to stay with the husband at a place other than Konnagar provided the place is suitable for her service. The learned Trial Judge totally overlooked the position of law that once desertion for more than two years has been proved and a ground for divorce has accrued in his favour, he had a right to assert that at that stage, he was not ready to live any further with the wife. For such statement, no adverse inference can be drawn against the husband. (11) We, therefore, find that, in this case, desertion for more than two years has been well established. It is not a case where immediately after expiry of two years, the husband filed the suit. For such statement, no adverse inference can be drawn against the husband. (11) We, therefore, find that, in this case, desertion for more than two years has been well established. It is not a case where immediately after expiry of two years, the husband filed the suit. He waited for long 16 years after actual commencement of desertion in the year 1984. No evidence has been produced by the wife showing that there was physical relation between them within two years preceding the filing of the suit. We find substance in the contention of the husband, that after the birth of the child, once he went to the house of the wife and stayed for a night to convince her to go the house at Konnagar and we are convinced that at that time, the Exht.-A, the photograph of the parties with the child when she was barely one year was taken. We are quite conscious that in order to constitute desertion not only physical separation but also intention of the wife not to come back to the husband forever must be established. In this case, we have already pointed out that it was her intention to continue with the service and, thus, she never tried to restore the relationship at the cost of her job. It is not even her case that she ever had written any letter to her husband. On the other hand, we find that it is her case that on her fathers allegation, the second brother of the husband was arrested in Khatra for distribution of leaflet concerning moral character of her father and herself. Such allegation, however, has been denied by the husband. Once such allegation has been denied, it was the duty of the wife to produce positive evidence showing that really on the allegation of her father the second brother-in-law was arrested and was found guilty. If on somebodys complaint, a person is arrested but in the long run, the prosecution fails to prove such fact, it should be presumed that without sufficient material such allegation was made. Nobody has come forward to prove such fact. If anybody was arrested on the complaint of a person, the complainant must be in possession of documentary evidence showing involvement of the detainee in the offence and the outcome of the prosecution. Nobody has come forward to prove such fact. If anybody was arrested on the complaint of a person, the complainant must be in possession of documentary evidence showing involvement of the detainee in the offence and the outcome of the prosecution. The wife has also made allegation that the second brother-in-law had thrown a coconut on the head of her father but such fact has been denied by the husband and no corroborative evidence has come to substantiate such allegation. Her father could be examined to prove such fact. If in spite of such evidence of her father, the said brother was not examined, we could draw adverse inference against the husband. When a wife decides to make baseless allegation against her brother-in-law and even tries to send him to jail by making joint allegation against him and her husband, her intention to severe the relationship for all time to come is well established. (12) From the aforesaid materials, we, thus, find that she had no intention of keeping her relation with her husband and the members of his family, as a result, those false complaints were lodged. (13) We now propose to deal with the decisions cited by Mr. Dutt, the learned advocate appearing on behalf of the respondent, on the question of desertion. Mr. Dutt relied upon the following decisions: 1. Savitri Pandey vs. Prem Chandra Pandey reported in AIR 2002 SC 591 ; 2. Anjali Ghosh vs. Subodh Kumar Ghosh reported in 2005(4) ICC 156; 3. Smt. Kakali Das (Ghosh) vs. Dr. Asish Kumar Das reported in 2004(2) ICC 350; 4. Sabita Chowdhury vs. Dulali Mondal Chowdhury and Ors. reported in 2007(2) ICC 262; 5. Dilip Kumar Chatterjee vs. Rita Chatterjee reported in 2004(1) ICC 344; 6. Mr. Madhav Bhalachandra Mangalorkar vs. Mrs. Malti Mangalorkar 2007(1) ICC 403. (14) In the case of Savitri Pandey (supra), the Supreme Court held that desertion for the purpose of seeking divorce under the Hindu Marriage Act means the intentional permanent forsaking and abandonment of one spouse by the other without that others consent and without reasonable cause. In other words, the Supreme Court, proceeded, it is a total repudiation of the obligations of marriage. In other words, the Supreme Court, proceeded, it is a total repudiation of the obligations of marriage. According to the Supreme Court, desertion is not the withdrawal from a place but from a state of things and, therefore, it means withdrawing from the matrimonial obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties. (15) In the case before us, we find that after the birth of the daughter in the year 1984, the parties never lived together except for one instance after the birth of the child when the husband went to his father-in-laws house to convince the wife to go back and at that point of time, the photograph of the parties with the child aged about one year (Exht.-A) was taken but thereafter, there was no physical relation between the parties and the wife had not even the intention of resuming the relation. It is not a case where with both the parties consent the wife joined services. The wife got the service after she came back from the husband for giving birth to the child and it is not even her case that the husband asked her to accept or continue with the job. Therefore, the principle laid down in the case of Savitri Pandey (supra) rather supports the case of the husband. (16) In the case of Anjali Ghosh (supra), it was merely held that irretrievable breakdown of a marriage is no ground for divorce. We do not for a moment dispute the aforesaid principle of law but in this case desertion for more than 16 years having been well established, the said decision cannot have any application to the fact of the present case. We do not intend to pass the decree merely on the ground that the marriage has broken down irretrievably but we propose to grant divorce on the ground of proved desertion for more than two years preceding the presentation of the application for divorce. (17) In the case of Smt. Kakali Das (Ghosh) (supra), it was held that it was the duty of the every husband after marriage to look after of his wife as a matter of the greatest and perhaps, a first priority and such duty is reciprocally cast on the wife also and she is bound to look upon her husband as her first priority. In the case before us, we find that to the wife her job was more important than keeping the matrimonial-tie and, thus, she did not feel the necessity of giving company to her husband for long 16 years and even at the time of hearing, she was not willing to attend her office from Konnagar though at that time her parents-in-law died, two sisters-in-law were married and other two brothers-in-law were also residing elsewhere. The said decision, therefore, goes against the wife. (18) The case of Dilip Kumar Chatterjee (supra) is one where after the birth of female child, the wife was left in the house of her sister by the husband and the husband also did not make any provision for maintaining his wife and child and when she tried to come back she was driven away. In such circumstances, the Court held that the husband was guilty of cruelty and desertion was not proved. In the case before us, no such allegation has been made; on the other hand, it is the wife who was not willing to come to the husbands place although except her uncorroborated testimony that one day she overheard that the mother-in-law told somebody that after killing her, with her ornaments the marriage of the elder sister-in-law will be given as dowry, there is no other evidence to prove that any cruelty was inflicted against her, and she left the matrimonial house merely on apprehension. She even could not name the person to whom her mother-in-law made such statement. In our view, such apprehension was a baseless one. We, thus, find that the said decision does not help the respondent in anyway. (19) In the case of Madhav Bhalachandra Mangalorkar (supra), a Division Bench of the Karnataka High Court held that in the fact of the said case that the intention to permanently bring an end of cohabitation was not proved as the wife was always been ready and willing to join her husband. (19) In the case of Madhav Bhalachandra Mangalorkar (supra), a Division Bench of the Karnataka High Court held that in the fact of the said case that the intention to permanently bring an end of cohabitation was not proved as the wife was always been ready and willing to join her husband. In the case before us, it was never the intention of the wife to live with her husband as we have already pointed out that she wanted to stay in a place suitable for her job but excluding the house at Konnagar which was not possible because the husband was an Engineer in the State service and had a transferable job and in fact, after three years from the date of marriage they are living separately. Therefore, the said decision cannot have any application to the fact of the present case. (20) In the case of Sabita Chowdhury (supra), a Division Bench of this Court reiterated the well-settled principle that in order to grant a decree for divorce on the ground of desertion the factum of separation and animus deserendi must coexists. In the case before us, we have already found that both the aforesaid conditions have been fulfilled and, thus, the said decision cannot benefit Mr. Dutts client in anyway. (21) On consideration of the entire materials on record, we find that the husband has established from the materials on record that he has been living separately for more than 16 years before the institution of the proceedings and the wife had no intention of resuming the cohabitation and, thus, it is a fit case where decree of divorce should be granted at least on the ground of desertion. The husband has since retired from his service and throughout his life, except for the first three years after the marriage, he has spent his life without getting the company of his wife for no fault on his part. In such a situation, the wife has no right to resist the proceedings for divorce on the ground of desertion. The husband is entitled to be freed from such a selfish wife for good. The learned Trial Judge, as it appears from the judgement impugned, did not at all take into consideration the aforesaid aspects of the matter and erroneously arrived at the conclusion that the husband had failed to prove desertion by totally misreading the evidence on record. The husband is entitled to be freed from such a selfish wife for good. The learned Trial Judge, as it appears from the judgement impugned, did not at all take into consideration the aforesaid aspects of the matter and erroneously arrived at the conclusion that the husband had failed to prove desertion by totally misreading the evidence on record. (22) On the question of cruelty, the refusal on the part of the wife to take the child to her grandmother at the deathbed is no doubt a cruel act but such cruelty was really inflicted against the mother-in-law and in our view, such cruel act towards the mother-in-law, although is also very painful to the husband and is difficult for the husband to forgive and forget, yet, is not sufficient to grant a decree for divorce. Similarly, the refusal on the part of the wife to attend the last rites of the parents-in-law although does not disclose good taste of the wife, such fact alone is not enough for severing the marital-tie. (23) We, thus, set aside the judgment and decree passed by the learned Trial Judge and grant a decree for divorce on the ground of desertion. The appeal is, thus, allowed to the extent indicated above. In the facts and circumstances, there will be, however, no order as to costs.