Deoki Nandan, J.
1. This is a first appeal by the wife against the decree of divorce that was passed against her on 16th July, 1970 by the court of the Additional District Judge Jhansi, on the ground that she had deserted the petitioner, her husband for more than five years when the petition was filed in the year 1970.
2. The petitioner husband, who is the respondent in the appeal, did not appear at the hearing in spite of due service of the notice of the appeal on him. The parties were married at Gwalior on 3rd Dec. 1965. The appellant was aged about 32 years and the petitioner was aged about 37 years at the time of their marriage. The appellant's father was dead and her mother was in poor circumstances. The appellant was accordingly living under the protection of her step-sister's husband Pulin Behari who was impleaded as a co-respondent in the divorce petition on the ground that he had illicit connection with the appellant since before the marriage; his wife, the appellant's step-sister, having died some 7 years before. It is said that the appellant came away from Jhansi where the petitioner was posted at that time with Pulin Behari, on 15th Dec. 1965 and was living with him ever since and had not returned back. It was the petitioner's case that the appellant was pregnant even at the time of marriage. The appellant and her co-respondent Pulin Behari both filed written statements. Pulin Behari died during the pendency of the suit in the trial court itself. It is not necessary in this case to reproduce the pleadings of the parties in any great detail. The following were the issues on which the parties went to trial, namely:--
1. Whether the defendant is living in adultery with defendant No. 2 as alleged by the plaintiff. If so, its effect?
2. Whether the plaintiff has abandoned the defendant as alleged in para 51 of the W. S.? If so, its effect?
3. To what relief, if any is the plaintiff entitled?
4. Whether the suit is barred by limitation as pleaded in para 11 of the additional W. S. of the respondent?
5. Whether the respondent No. 1 had deserted the petitioner. If so, its effect?
3. On issue No. 1 the trial court held that the petitioner had not been able to prove that his wife, the appellant, was living in adultery with Pulin Behari, On issue No. 4, the finding was that 'the suit is barred by time only regarding the relief of divorce on the ground of adultery.' Issues Nos. 2 and 5 were taken up together for consideration and on these two issues the trial court found that the relations between the parties became severely strained after about 15 days of the marriage and that the petitioner has filed various documents to show that soon after the marriage his wife showed her unwillingness to live with him. According to the trial court the correspondence exchanged between the parties in Dec. 1965 itself showed that within one month of the marriage relations between the parties became very strained and Smt. Maya (appellant) refused to live with her husband, under the influence of her Jija, (Pulin Behari) who was possessive of her and also wanted the petitioner to behave according to his directions. The trial court also found that the appellant obeyed Pulin Behari and did not obey her husband. It also believed the petitioner's statement that when he went to Gwalior to fetch the appellant in Dec. 1965, he was beaten by the sons of Pulin Behari. According to the trial court although the appellant had temporarily tried to live with the petitioner on two occasions but there is nothing to show that she had any real or permanent intention to live with him. Further, according to the trial court on one occasion when she came at Agra to live with him a police report was lodged against her by the petitioner for house trespass, and that these facts and circumstances show that she and Pulin Behari merely wanted to create false evidence that she is prepared to live with the petitioner, but in fact she never wanted to live with him. Paper No. 152-AI dated 6th Oct. 1966 is referred to in the judgment of the trial court. This is a letter written by the petitioner in which it is said that Dada and Billoo met him at Raja ki Mandi on 5th Oct. 1966 and that 'we have come to an understanding' that she will be leaving Gwalior on 16-10-66 for Calcutta 'and that' he stayed for one day at Gwalior on 5-10-66 and finally that our differences are over now.' According to the trial court the petitioner stated that his signatures were forcibly obtained on this letter and he had lodged a police report jn that respect and further that even if it be believed that he had written it voluntarily in the form of a compromise it was never given effect to. Paper No. 129-A1 dated 8th Jan. 1967 was another effort at compromise. The letter is dated 8-1-1967 and is written by the petitioner to the appellant. It reads as follows:--
'Mr. Poolin Chakrawarty came with Maya at Raja Ki Mandi on 5-10-1966 and requested me to take back Maya. I came to Gwalior on certain dates (specifically not remembered now) (between 5-10-1966 to 28-10-66) (for 6 days) and lived with them. During this time I had cohabit with her and fully satisfied with her.'
Sd/- S. Chatterji.'
This paper is Ext. A-6 and was admitted by the petitioner's counsel according to his endorsement dated 8th May. 1972 thereon. The trial court has observed with regard to this letter that it may be due to the efforts of the family members that the appellant might have 'reluctantly gone to live with' the petitioner for 20 days 'but then she again came back to the house of Sri Pulin Behari.' According to the trial court the petitioner said that this letter was also written under force and that there is no reason to disbelieve his statement particularly when the conduct of the appellant shows that she had no real and permanent intention to live at the petitioner's house. The ultimate finding arrived at by the trial court is that the petitioner waited for five long years and did not file the suit for divorce on the ground of desertion in the hope that the appellant may mend her ways, but due to pressure of Sri Pulin Bihari. she did not come to live with him and that these facts and circumstances clearly shows that it was not the petitioner who had abandoned her but it was the appellant who deserted the petitioner for 5 long years or at least for 3 years after 1967. To this finding the trial court has added the observation that the petitioner was about 46 years of age and the appellant was 41 years of age at that time and that she had stated under cross-examination that she also did not want to live with the petitioner as 10 or 11 years have elapsed after separation and because the petitioner had defamed her character. The petitioner had pleaded that his life would be in danger if he were to live with the respondent. There are no children of the marriage. Criminal cases were also lodged between the parties. Both the parties hated each other as was clear from the letters exchanged between them. According to the trial court it would be just under the circumstances to grant a decree for divorce on the ground of desertion on the part of the wife.
4. Having heard learned counsel far the appellant I am satisfied that notwithstanding the fact that the marriage between the parties was a complete failure and can be said to have irretrievably broken down, the finding that the appellant was guilty of desertion cannot be sustained in law on the facts and in the circumstances of the case and the decree of divorce that was passed by the trial court dissolving the marriage between the parties on that ground was illegal and must be set aside. It is unfortunate that the husband did not appear in this court, for if he had done so a satisfactory solution of this unhappy tangle between the parties might have been found in accordance with law.
5. The question which arises for consideration in this case is whether the appellant could be said to have deserted the petitioner. According to the Explanation under Sub-section (1) of Section 13 of the Hindu Marriage Act, 1955 '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 includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.' The primary ingredient of desertion, therefore, is that the other party must have deserted the petitioner without his consent or against his wish. The main charge of the petitioner against the appellant was that she bad illicit relations with Pulin Bhehari and that she was even pregnant by him at the time of marriage. These charges have been found to be not proved but the petitioner did plead them in the petition far divorce in all seriousness, and if the petitioner had not made these charges controller (sic) against the appellant with the knowledge that they were false, it is inconceivable that the petitioner could have ever wanted the appellant to live with him or to cohabit with her. Such conduct is against the common course of human nature. I am not prepared to assume that the petitioner was so depraved that even after knowing that the appellant was having illicit connection with Pulin Behari, he still wanted to cohabit and live with her. On the other hand if the charge of living in adultery which was leveled by the petitioner against the appellant was false, and the petitioner had want only levelled that charge against the appellant knowing it to be false, no court of conscience would grant a decree of divorce to the petitioner on the ground that the appellant had deserted him for in that case the very fact that the petitioner had levelled the false charge of] adultery against the appellant or suspected her character, would afford a reasonable excuse to the appellant to refuse to live with the petitioner, or to cohabit with him unless he made amends by apologising or by otherwise placating the appellant. Indeed the grounds of adultery and desertion do not so well with each other. I may also observe that if the petitioner were to say even after coming to know of the adultery of his wife that he was willing to live and cohabit with her and that she had deserted him without his consent or against his wish, that would amount to condonation of the wife's adultery. In short if the petitioner pleads adultery as a around for divorce he cannot say that the wife's living away from him is without his consent or against his wish, for a man who believes that his wife is living in adultery does not. according to the common course of human nature want or desire to live or cohabit with such a woman, unless he is so different morally as to think nothing of the adultery of his wife. But in that event he would not complain of adultery and since he wants to live and cohabit with the wife he would rather file a petition for restitution of conjugal rights than to apply for divorce on the ground of desertion.
6. In the view that I take it has notbeen necessary for me to wade throughthe voluminous documentary evidence,mostly of letters, which has been filedin this case. Indeed the petitioner is saidto be a fiction writer. It may be thatmost of what he wrote in bis letters wasfiction. Nor has it been necessary forme to re-appraise the evidence in spiteof the fact that I have not been able toagree with the finding of the trial courtwith regard to desertion on which it hasbased the decree under appeal. I wouldlike to refer to one para of the statement on oath of the petitioner ShivChandra Chatterji, who appeared asP. W. 1. He stated that on 5th Dec. 1965Bahu Bhat ceremony was to be celebrated at his place. Sohagrat ceremony is celebrated after Bahu Bhat, Pulin Behari arrived at his place during the noon of 5th Dec. 1965 and during the sohagrst he slept in the same room where the petitioner and the appellant were supposed to celebrate Sohagrat and did not leave that room. Pulin Behari told the petitioner not to touch the appellant because she was having bleeding and was ill, and that he the petitioner did not have any sexual intercourse with her until 17th December, 1965. which was the date on which she left his place because Pulin Behari had told him not to have intercourse with the appellant on account of her, bleeding. Cross-examined on this point the petitioner stated that he did not mention the fact that Pulin Behari stayed in the same room with the petitioner and the appellant on their Sohagrat (5-12-1965), that he came to know of the illicit connection between Pilin Behari and the appellant immediately after the marriage and that he never had any sexual intercourse with the appellant after 5th December. 1965. He then came to know that the bleeding was caused by abortion of the child which the appellant was carrying and was not the normal bleeding of the monthly course.
7. If these facts stated by the petitioner on oath were true, he could not be heard to say that the appellant was staying away from him without his consent or against his wish, for the normal reaction of a person in the petitioner's place would have been to get rid of such a wife as soon as he could rather than wish to live or cohabit with her, The fact that the petitioner did not want to live with or cohabit with the appellant is more than apparent from his conduct and from the petition for divorce that has been brought by him. It may be that the petitioner did not ask the appellant to go away on the date when she left his place with Pulin Behari and may be that the petitioner was willing to have her back so long as he was not sure of the correctness of the suspicion, which he said he had that the bleeding which the appellant was having on 5th Dec. 1965 was caused by abortion of Pulin Behari's child which she was carrying at the time of the marriage, but no sooner the petitioner came to believe that to be the reason for the conduct of the appellant, he must have himself made up his mind to put cohabitation permanently to an end, and the petition for divorce which he filed in the year 1970 was the result of that resolve on his part Thus it can be said that it was the animus deserendi of the petitioner, which was the cause of the petition. Thus, on disproof of the petitioner's charge of adultery against the appellant there was nothing left in the petition to support his prayer for a decree of divorce against the appellant on the ground that she had deserted him.
8. In the result the appeal succeeds and is allowed. The decree under appeal is set aside and the respondent-husband's petition for divorce against the appellant is dismissed. I make no order as to costs as the petitioner-respondent-husband was not represented at the hearing of the appeal in this Court.