P L D 1960 (W (PLP)

1. Mr. Pestonjee Jamshedji Sopariwalla.

2. Dr. E. D. Shroff.

3. Mr. Behram Shapurjee Captain.

4. Mr. Feroz Jahangir Metha.

5. Mrs. Manekbai K. Cowasjee.

6. Mrs. Kitty B. Khambatta.

7. Mrs. Merin Jul‑ian Dinshaw. On the pleadings of the parties the following issue was framed : Whether defendant has deserted the petitioner, his wife, for more than three years ? The parties in support of their allegations examined them selves as witnesses in the case and threw the blame of desertion on each other. During the trial of the petition two points of law were raised. Firstly, what is meant by desertion within the meaning of section 32 (g) of Act III of 1936, and secondly, what is the value of a report published in a newspaper. As regards the first point, in section 2 of Act III of 1936, "desertion" is defined in clause (3) as under "(3) To desert, together with its grammatical variations and cognate expressions, means to desert the other party to a marriage without reasonable cause and without the consent, or against the will, of such party." This definition is self explanatory and needs no further comment. But Mr. Dorab Patel, the learned counsel, for the petitioner, was perfectly justified in pointing out that the definition will also include cases of constructive desertion. The learned counsel invited my attention to the commentary on Tolstoy on Divorce at page 38 (fourth edition) on this aspect of the case. There are several cases in which it has been held that desertion by a husband does not necessarily mean that he has actually turned his wife out of his house and it is sufficient to constitute desertion if his conduct is such as to compel the wife to leave the house. But as observed in Charter v. Charter (84 L T 272) the decision of such question largely depends on the intention of the parties to break matrimonial alliance. In that case the husband after the quarrel said to his wife "Go where you like ; do what you like" but later on asked her to return. On these facts the Court of Appeal held that there was no constructive desertion. It is therefore, for the delegates to decide whether any such circum stances exist in the present case. In law no hard and fast rule can be laid down and the finding of desertion will depend on the facts of each case. The respondent in this case has produced Exh. 5/A., a copy of the Evening Times issue dated 13th November, 1950. The learned counsel for the petitioner urged that the report of the alleged incident in the said newspaper would not prove that its contents are correct. In my opinion the legal position on this aspect of the case is quite clear. In Bawa Sarup Singh v. The Crown (A I R 1925 Lah. 299) a Division Bench of the Lahore High Court at page 303 observed " . . . it should be obvious that even if the newspaper s referred to are admissible in evidence without formal proof, the paper itself is not proof of its contents. 1 t would ‑merely amount to an anonymous statement that the petitioners have been elected members of the S. G. P. C. This type of hearsay evidence is obviously inadmissible in a Court of law, and it should not have been necessary to point out that such evidence is legally inadmissible." I entirely agree with this statement of law. But in this case in addition to the newspaper report the respondent has also narrat ed the facts of the alleged incident and it will be for the delegates to decide whether the facts given by him can be relied upon or not. The question in dispute between the parties is purely a ques tion of fact and the delegates after considering the evidence produced by the parties are expected to give their finding on it. But I directed them to bear in mind that they have to give their finding about the alleged desertion on 9‑10‑1954. After the conclusion of the arguments by the learned counsel of the parties, the delegates were called upon to retire for con sideration and give their opinion on the point at issue. At first they recorded a finding that none of the parties is to be blamed for their dispute and recommended that the petitioner be granted a decree for divorce. The opinion of the delegates was silent on the question whether the petitioner was responsible for the desertion or the respondent was responsible for it within the meaning of section 32 (g) of Act III of 1936. 1 explained to the delegates that after considering the evidence in the case they must give a clear finding on the said question. Thereupon the delegates again retired and informed the Court through their spokesman Dr. E. D. Shroff, that six out of the seven delegates are of the opinion that the petitioner is entitled to a decree for dissolution of marriage on the ground of desertion. One of the delegates namely Mr. B. S. Captain was however of the opinion that no such case has been made out. In view of this majority of the delegates are of the opinion that the respondent is responsible for the desertion of his wife within the meaning of section 32 (g) of the Parsi Marriage and Divorce Act of 1936, Under the existing law I am bound to accept the opinion of the, majority of the delegates. Accordingly I accept their finding and grant the petitioner a decree for divorce under section 32 (g) of, the Parsi Marriage and Divorce Act III of 1936. For the reasons given above, the petition is allowed but the parties are left to bear their own costs. K. M. A.