N.K. Das, J.
1. Appellant is the husband of the respondent. He filed the suit for dissolution of his marriage with the defendant and for custody of the child born out of their wedlock, under Section 27 of the Special Marriage Act.
2. The case of the plaintiff is that his marriage with the respondent took place on 21-2-69 according to the prevailing custom in their community. The consummation of marriage took place at Puri where the residence of the appellant is situated. On the 8th day of their marriage, the respondent and the appellant went to Chandannagar (father's place of the respondent) but the respondent did not return with the appellant on the plea that she would continue her studies. She remained there till July, 1969 but did not resume her studies. After a lot of persuasions the respondent returned and stayed with the appellant till 22-5-70 at Bhobaneswar. During her stay at Bhubaneswar the respondent conceiv-ed and on the third month of pregnancy she loft for Chandannagar where she gave birth to a daughter on 3-12-70. She did not, however, return to the appellant thereafter though the appellant wrote several letters to her. The appellant also went several times to Chandannagar to persuade the respondent to resume normal life, but he was not allowed any interview. After 22-5-70 the parties have never any cohabitation. The appellant suffered from asthma in 1972, but the respondent did not care to come and see him. In 1974, when the father of the appellant was seriously ill and wanted to see his granddaughter, the appellant wrote to the respondent to come with the daughter, but there was no response. In Jan., 1976 the respondent came with some of her friends and relations to Puri and stayed in the house of the appellant without the knowledge of appellant who was then at Bhubaneswar, and on the day the appellant reached Puri, the respondent left that place before his arrival. The daughter is reported to have been suffering from asthma and is not being looked after well. Accordingly, the appellant prays for dissolution of the marriage and to be in custody of the child. The respondent did not contest the suit and has not appeared in this Court.
3. The appellant has examined himself and has testified the allegations made by him. He has also proved one letter (Ext. 1) sent by the respondent to him. The learned District Judge has held that it is not a case of desertion without any cause and that the appellant has not proved that there was desertion without any cause for a period of at least three years before filing of the suit.
4. From the statements on oath made by the appellant as well as from the letter Ext. 1, it has been clearly established that after May, 1970, the respondent has all along been living at Chandannagar in West Bengal and in spite of several attempts by the appellant, no interview was granted to him, even though he went to Chandannagar several times. From Ext. 1 it also appears that the respondent has been insisting that the appellant should give up his job at Bhubaneswar and take up some job at Calcutta, in which case she may come and join him. The sudden appearance of the respondent at Puri for some days with her friends and relations without the knowledge of the appellant and her going away from Puri before arrival of the appellant there is sufficient indication about the intention of the respondent not to live with the appellant.
5. Section 27 of the Special Marriage Act provides that there can be divorce if the husband or the wife has deserted the other for a continuous period of not less than two years immediately preceding the presentation of the petition.
The question of desertion came up for consideration in the case of Bipinchandra Jaisinghbai Shah v. Prabhavati, AIR 1957 SC 176. It has been held therein (at p. 183):
"For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned; (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co- exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intension, express or implied, of bringing cohabitation permanently to a close."
This has also been reiterated in a subsequent decision of the Supreme Court in the case of Lachman Utamchand Kirpa-lani v. 'Meena, AIR 1964 SC 40. The Calcutta High Court in the case of Jyo-tish Chandra Guha v. Smt. Meera Guha, AIR 1970 Cal 266, has also followed the principles laid down by the Supreme Court in AIR 1957 SC 176.
Relying on the decisions reported in Kay v. Kay, (1904) P. 382 and G. v. G. (1930) p. 72, it has been held by a Single Bench in the case of Smt. Tirath Kaur v. Kirpal Singh, AIR 1964 Punj 28, that where the wife refuses to resign her job which compels her to live away from her husband and join him it cannot be said that she has not deserted him or has not withdrawn from his society without a reasonable cause.
6. In G. v. G., (1930) p. 72 (referred to above), it has been held that a husband is not to be taken as having deserted his wife without reasonable cause because his work in life compels him to live away from her. So also, relying on several decisions of the Calcutta High Court and a decision of the Madras High Court, it has been held in the case of Vuyyuru Pothuraju v. Vuyyuru Radha, AIR 1965 Andh Pra 407, that it is the bounden duty of the wife to live with her husband wherever he may choose to reside. Courts cannot deprive him of his right, except under special circumstances which absolve the wife from that duty. If by an agreement entered into between the parties prior to the marriage they have agreed to live separately, that does not affect the right of the husband.
7. A Division Bench of the Madhya Pradesh High Court in the case of Gaya Prasad v. Mst. Bhagwati, AIR 1966 Madh Pra 212, has also relied on the decision reported in AIR 1964 Punj 28 (referred to above). That was a case of wife accepting service without the consent of the husband at a different place from husband's home, the latter calling upon her to leave service and live with him at his place and wife refusing to obey but requesting him to come and stay with her. It was held that the wife had withdrawn without reasonable excuse from husband's society. A Single Bench of the Punjab and Haryana High Court in the case of Smt. Surrinder Kaur v. Gurdeep Singh, AIR 1973 Punj and Har 134, has also relied on the decisions reported in AIR 1964 Puni 28 and AIR 1966 Madh Pra 212. A Division Bench of the Andhra Pradesh High Court in the case of Fillalimarri Vora Prasada Sarma v. Pillamarri Seshalakshmi, AIR 1975 Andh Pra 239, was considering a case where the wife insisted upon her continuing in service at a distant place away from her husband and it was held that the conduct of the wife amounted to withdrawing from the society of the husband without just and sufficient cause.
8. Considering the facts and circumstances of the case and in view of the consistent view of different High Courts as well as the Supreme Court, as discussed above, the conduct of the respondent-amounts to withdrawl from the appellant without any reasonable cause and the respondent has not come to join the appellant in spite of several attempts by the latter. Her sudden appearance with friends and relations at Puri during the absence of the appellant and disappearance before arrival of the appellant at Puri cannot be construed to be an intention on her part to join the appellant. The requirements of Section 27 of the Special Marriage Act have been fulfilled and the findings of the learned District Judge are not sustainable. The appellant is entitled to decree for dissolution of marriage.
9. Admittedly, the child was born in 1970. She would be about eight years old by now. According to the provisions of Section 38 of the Special Marriage Act, the Court can make order for custody, maintenance and education of minor children at the time of passing of the decree. I am told by the learned counsel for the appellant that the appellant is now serving in the Utkal University at Vani Vihar and his present emolument amounts to Rs. 850/- and odd. In the circumstances, it is desirable that the appellant should make a regular payment for the maintenance and education of the daughter and the daughter should remain with her mother. Taking all the circumstances into consideration, I am of opinion that a payment of Rs. 100/- per month for the maintenance and education of the child will be sufficient for the time being. Law provides that subsequently, on application, this can be modified by the Court.
10. In the result, the appeal is allowed. The decision of the learned Court below is set aside. O. S. No. 3 of 1976-I in the file of the District Judge, Puri is decreed. The marriage of the appellant with respondent stands dissolved. The appellant is to pay Rs. 100/- per month for the maintenance and education of the child to the respondent and the child will remain with the respondent. This payment will he subject to modification according to law. As there is no appearance on behalf of the respondent, I make no order as to costs.