Smt. Kanta Rani vs Shri Darshan Lal

Gokal Chand Mital, J.—Darshan Lal and Kanta Rani got married on 16th April, 1971. Out of the wedlock, a daughter was born on 7th March, 1972 and a son in the year 1975. While the husband is a teacher, the wife is a clerk in Excise Department. The present divorce petition was filed on 25th October, 1979 on the plea of desertion for a continuous period of more than two years and on account of her conduct to escape marital duties, which amounted to cruelty Undisputedly, the parties lived together till before 3rd June, 1977. While according to the husband, the wife left his house on 3rd June, 1977 and started living at the house of her sister in the same town (Kurukshetra) alongwith children, whereas according to wife, she was forced and compelled to leave the house on 23rd December, 1978 and she started living in a house purchased by her. The compelling reasons were stated to be that the wile generally remained sick and, therefore, she was helpless to become a maidservant and that since the filing of the previous petition for restitution of conjugal rights by the husband, his parents started nagging her and she was mentally and physically tortured by the husband and his parents.

On the contest of the parties, following issues were framed :--

Whether the respondent has deserted the petitioner as alleged in para 7(i) of the petition ? If so, to what effect ? OPP.

Whether the respondent has treated the petitioner with cruelty as alleged in para 7(11) of the petition? If so, to what effect? OPP.

Whether the petition for divorce on the ground of desertion as alleged in P.O. No. 1 of the written statement is not maintainable ? OPR.

What is the effect of the withdrawal of the previous petition u/s 9 of the Hindu Marriage Act ? OPR.

Relief.

After evidence was led, the learned Additional District Judge by judgment and decree dated 13th October, 1980 granted divorce to the husband on both the grounds. This is wife''s appeal.

In order to appreciate the rival contentions of the parties, some salient facts of the case deserve to be noticed. According to the husband, the wife left the matrimonial home on 3rd June, 1977 of her own without any reasonable cause and started living in the house of her sister in the same town at Kurukshetra. The husband tried to bring her back but she refused to live with him. The husband filed a petition for restitution of conjugal rights on 15th April, 1978. In the written statement to that petition, the reply of the wife was that she was still living with her husband under the same roof and since she was weak in health and had given birth to two children and since she did not want to have more children, therefore, she used to sleep in the house of her sister to escape sexual intercourse, otherwise apart from office hours, she used to live in the house of the husband. In those proceedings she filed an amended written statement wherein she added that while she had been living with the husband, after the filing of the petition for restitution of conjugal rights, the parents of the husband started nagging her and they and her husband started torturing her mentally and physically due to which she had to leave their house on 23rd December, 1978. When she appeared as a witness, she stated that she was not prepared to live with the husband. Accordingly, the husband withdrew his petition for restitution of conjugal rights on 19th October, 1379 and filed the present petition on 24th October, 1979 for divorce.

Since the parties were married long time back and lived together for about six years during which period two children were born, I made great efforts if there could be reconciliation. While the husband was throughout prepared to accept the wife back, the wife was not willing to go with him at all. At one time, she did suggest that the husband is welcome to live in the house where she is living, which was not acceptable to the husband because his aged parents are living with him, mother being blind, and father being a patient of Asthma. After I had finally decided to uphold the decree of divorce granted by the Court below, the counsel for the wife was told of the view and to convey to the wife if she has any other suggestion to make towards the compromise or reconciliation. But even then the wife was adamant and stated that at no cost she was prepared to live in the house of her husband.

Keeping in view the adamant attitude of the wife and the fact that she is living in another house in the same town coupled with other material on the record, it clearly goes to show that the wife is guilty of desertion and she has no reasonable excuse to live away from her matrimonial home. When the husband filed a petition for restitution of conjugal rights, she never blamed the parents of her husband for any mal-treatment, nagging etc. but stated that she was still living with the husband although used to sleep in the house of her sister to avoid sexual intercourse. It was only in the amended written statement in those proceedings that a plea was raised that since after the filing of the petition for restitution of conjugal rights, the parents of the husband started nagging her and caused mental and physical cruelty, which plea is repeated in the written statement to the divorce petition as well. It would be unbelievable that if she was living with the husband (even during the day time as suggested by her) the husband would file a petition for restitution of conjugal rights and she would keep on opposing that petition by filling written statement and amended written statement. Otherwise, she would have made a statement on the very first day and would have gone with the husband from the Court itself. It clearly goes to show that the stand of the husband was correct that the wife left on 3rd June. 1977 without a reasonable cause and the story set up by the wife that she was made to leave on 23-12-1978, appears to be highly improbable. In the written statement, her stand is that before 23-12-1978, she used to sleep at night in the house of her sister; whereas during the day time she was in the house of her husband and from 23 12 1978, she started living in her own house separately. While appearing as a witness in this case, she stated that she is living in the house of her brother and that is what she also stated before me during reconciliation proceedings. All this clearly shows that she is shifting stands and the reason for doing so is not patent from the record although there is some suggestion that probably she is involved with her sister''s husband. However, the fact remains that she is living away from her husband had is not prepared to either live in his house or to co-habit with him. Therefore, the court below was perfectly justified in concluding that the wife had deserted the husband for over two years since 3-6 1977 and is also guilty of cruelty for not joining the bed with her husband. Both the findings recorded by the Court below are upheld on the facts of this case.

For the reasons recorded above, this appeal is dismissed but without any orders as to costs.