Bhagat Ram vs Smt. Santosh Kumari

J.V. Gupta, J.—This appeal filed on behalf of husband Bhagat Ram arose out of a petition u/s 13 of the Hindu Marriage Act for dissolution of Marriage by a decree of divorce on the ground of desertion. The petition u/s 13 of the Hindu Marriage Act (hereinafter referred to as ''the Act'') has been dismissed by the learned Additional District Judge as he came to the conclusion that the husband failed to prove the desertion as alleged by him.

The marriage between the parties took place on 18th May, 1974. Out of this wedlock a son was born on 14th March, 1975 at Ajnala in the house of the wife''s father. The petition for divorce was filed on 4th April, 1979 on the allegations that the respondent-wife deserted the appellant for more than two years and left him in July, 1976 and thereafter she did not come back to him inspite of his efforts to bring her back. She was stated to be a lady of aggressive nature and that she used to abuse and deal with filthy language with her husband and his parents and that she even did not make herself available to the husband for co-habitation for a long period which affected him physically and mentally as well and as such committed cruelty upon him. These allegations were denied by the wife-respondent in her written statement. She pleaded that the husband had turned her out of his house in November, 1978 and till then she has been living at his house and performing all the marital duties and that neither she deserted nor committed cruelty upon him. On the pleadings of the parties the following issues were framed:-

Whether the respondent deserted the petitioner for continuous period of more than two years before filing of the petition and treated her with cruelty and as such the petitioner is entitled to the decree by divorce?

Relief.

The learned Additional District Judge discussed the whole evidence on the record, particularly the statements of the parties, and came to the following conclusions:-

(i) That the version of the husband-petitioner that she left him in July, 1976 was not correct because from the evidence it is quite clear that the minor son who was born in 1973 had remained at the house of the petitioner-husband till June, 1978. The story of the husband that the child was left by the mother at their house and therefore, he remained with them for about two years, while thereafter he had been rent to his mother as he had become weak due to illness, was not correct.

(ii) That she had shown her readiness to live with the husband as his wife without any condition but on the other hand the husband-petitioner stated that he is not ready to keep her and his father also stated the same which obviously shows that the fault lies with them.

The learned counsel for the husband-appellant vehemently contended that the evidence of the wife-respondent could not be believed, as she never pleaded these facts in her written statement. According to the learned counsel the desertion on the part of the wife is amply proved on the record.

I have gone through the evidence with the help of the learned counsel for the parties and I am of the view that the appreciation of the same by the learned Additional District Judge is to be affirmed in appeal.

It appears from the evidence brought on the record that the wife remained with her husband uptill June, 1978 and it was at that time when she had to leave his house because of maltreatment on the part of the parents of the husband. In the statement of the father of the husband, named Lakhmi Chand who appeared as P.W. 5, it has been categorically stated that "the petitioner is not ready to keep the respondent now as his wife. I am also not ready in that regard as she used to misbehave with us" From this evidence it appears that the fault lies with the parents of the husband. As a matter of fact, the wife has stated that there was not much trouble with the husband but because of the ill-treatment of the parents of the husband, she was forced to leave the house of her husband. This appears to be correct in the circumstances of the case. Her living with her husband upto June, 1978 is a pointer in that direction. In (sic) matters it is true that the marriage is not a tie between two individuals alone, rather it is a tie of two families. At the same time it has to be remembered that after the marriage, it is the duty of the parents to see that both the husband and the wife live happily. For that purpose if the parents are to part company with their son, it will be in the larger interests of the society to do the same. After the marriage it is not the function of the parents that whether they are ready to keep her in the house or not. It is for the husband to see that both of them can (sic) a happy married life.

Apart from that there is no evidence of desertion as defined in section 13 of the Act which reads thus:-

Explanation in this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and in bides the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.

Moreover the respondent wife is willing to perform all the marital duties and live as a wife with the husband, whereas the conduct of the husband in denying the same proves that there is no desertion at all on the part of the wife-respondent.

u/s 13 of the Act marriage can be dissolved by a decree of divorce if either party had deserted the petitioner for a continuous period of not less than two years immediately after the presentation of the petition. In the present case it has been found as a fact that she remained with her husband up till June, 1978. Desertion, if any, had taken place after that period, whereas the application for divorce was made on 4th April, 1979 i.e. about a year thereafter. On this ground as well the petition for divorce is liable to be dismissed.

For the reasons recorded above, this appeal fails and is dismissed with no order as to costs.