Muni Lal Verma, J.
1. The circumstances giving rise to this appeal may be briefly stated as under:--
2. Tara Chand appellant was married to Shrimati Narain Devi respondent on February 28, 1960 at Bassi Pathana, and thereafter they had been living' as husband and wife at different places, and had last resided as such, in the month of September, 1968, at Nangal Township. No issue was, however, bom from their wedlock. On September 26, 1968, Kishan Chand--the father of the respondent, accompanied by his nephew--Nandu Ram, Chhinku Ram and Jumma Ram, visited the house of the appellant at Nangal and asked him to send the respondent with them to enable her to participate in the marriage of Nandu Ram, which was to be performed a few days later. He declined and told them that he would be sending her in the first week of the following month after receiving his salary. The said representation did not find favour with them, and on the night intervening between September 26 and 27, 1968, the respondent left his (the appellant's) house without his consent in the company of her father, and the aforesaid three persons. She had then carried away clothes and ornaments of the value of Rs. 8,000 with her. Thereafter, she did not return to his house. Therefore, on April 16, 1973, the appellant, with the said allegations, made a petition for judicial separation under Section 10 of the Hindu Marriage Act, 1955 (hereinafter called the Act), on the ground of desertion by the respondent for more than two years, The other ground of cruelty raised by him for obtaining judicial separation was based on the averment that the respondent had been insulting, abusing and had also been giving beatings to him. The said petition w,as resisted by the respondent. She admitted the factum of marriage, but controverted the other material allegations. Hence, the petition was tried on the following issues:
(1) Whether the respondent deserted the petitioner for the last more than two years? O. P.
(2) Whether the respondent treated the petitioner with such cruelty as to raise reasonable apprehension in his mind that it will be injurious for him to live with her? O. P.
The learned Senior Subordinate Judge who heard the petition, answered issues Nos. 1 and 2 in the negative and dismissed it with costs. Dissatisfied with the said result, Tara Chand came to this Court in appeal.
3. Mr. C. D. Dewan, the learned counsel for the appellant, challenged the judgment and decree recorded by the trial Court on law as well as on facts. He contended that the trial Court did not appreciate the evidence present on record rightly and its approach to law on the subject was incorrect. In my opinion, his contentions are not well founded. That the parties were married in the month of February 1960 and the respondent was taken by her father from the house of the appellant at Nangal in the month of September 1968 to enable her to participate in the marriage of her cousin--Nandu, and since then she had been living at the house of her parents are admitted facts. The deposition made by the appellant from the witness-box on August 17, 1974 is most damaging to his cause and discloses the following facts which are also deducible from the evidence- and circumstances of the. case:
(a) that there had been lack of cordiality between the parties from the very beginning of the marriage;
(b) that the appellant began to doubt the fidelity and character of the respondent after about six months of the marriage;
(c) that he did not love her;
(d) that in or about the year 1962, the respondent's father had taken her from the house of the appellant at Ambala;
(e) that sometime in the year 1963, the appellant, on making an application under Section 100, Code of Criminal Procedure, obtained search warrant against her, and it is said in the written statement that when the appellant had gone to the house of the parents of the respondent for executing the said search warrant her grandmother was lying dead and she was taken into custody and was produced before the Magistrate First Class, Bassi;
(f) that the respondent had made an application under Section 488, Code of Criminal Procedure (old), and succeeded in obtaining an order directing the appellant to pay Rs. 30 per month as maintenance to her;
(g) that the appellant filed a petition, most probably as a counter-blast as represented in the written statement, for restitution of conjugal rights under Section 9 of the Act, and it was compromised;
(h) that as a result of the said compromise the respondent returned to the house of the appellant in the year 1965, and thereafter they had lived together at Ambala, Gurgaon and Nangal, but their relations did not improve;
(i) that in the month of August 1968, the respondent had poisoned the meals of the appellant;
(j) that the appellant did not make any effort to bring back the respondent from the house of her parents, or to secure her society after she had left his house at Nangal in the month of September 1968.
4. 'Desertion' as contemplated by Clause (a) of Section 10 of the Act, means intentional permanent abandonment of one spouse by the other without the other's consent and without reasonable cause. So far as deserting spouse is concerned, there must be two essential conditions; (i) factum of separation, and (ii) intention to bring marital life permanently to an end (animus deserendi). Similarly, two elements are essential so far as deserted spouse is concerned; firstly, absence of consent, and, secondly, absence of conduct giving reasonable cause to the deserting spouse to form necessary intention aforesaid. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. I am guided in the aforesaid matters by Bipinchandra Jaisinghbhai Shah v. Prabhavati, AIR 1957 SC 176, and Lachman Utam-chand Kirpalani v. Meena, AIR 1964 SC 40, relied on by the learned counsel for the appellant. There may, however, be a case where a spouse is forced by the conduct of the other to live separately or to stay away. In such a case, desertion would not be attributed to the spouse who lives separately or stays away, for the simple reason that the said situation has been brought about by the act of the spouse who had misconducted himself or herself. So, if it is a natural consequence of the misconduct and misbehaviour of one spouse that the other spouse will have to stay away, the offending spouse must be presumed to have intended that such an eventuality will take place. Cases in which the parting of the spouses has arisen in such circumstances, are called constructive desertions end the apouse responsible for creating the situation in which the other spouse is forced to stay away, is guilty of constructive desertion. The words 'wilful neglect' in Explanation to Sub-section (1) of Section 10 of the Act, are designed to cover such constructive desertion, and mean that the guilty spouse has been acting knowingly or has been consciously failing in a reprehensible manner in the discharge of his or her marital obligations.
5. The rule enunciated in Section 23 of the Act which contains overriding provision, is based on the principle that wrongdoer should not be permitted to take advantage of his or her own wrong, while seeking relief under the Act from the Court. For that matter, it is necessary to take into consideration the conduct of the. petitioner who approaches the Court for any relief under the Act If he or she by his or her own misdeeds forces the other spouse to leave him or her and to stay away, the petitioner cannot be allowed to take advantage of his or her own wrong and ask the Court to perpetuate it. Therefore, the claim of a husband for judicial separation on the ground of desertion when he himself has been guilty of constructive desertion which compelled his wife to stay away from him, has to be disregarded on the principle enacted by Section 23 of the Act.
6. When the facts enumerated in para 3 above and the circumstances of the case, are viewed from the proper angle having regard to the connotation of desertion, as indicated in para 4 above, and the principle contained in Section 23 of the Act, referred to in the preceding paragraph, there can be no escape from the conclusion that the appellant had been guilty of constructive desertion.
According to him, there had been no genial sincerity or affection between the parties from the beginning of the merri-age, and he began to suspect her fidelity and character about six months after the marriage. He had obtained a search warrant under Section 100, Code of Criminal Procedure, against the respondent in the year 1963 and went to her parents' house at an inopportune moment. He had made a petition under Section 9 of the Act when the respondent had approached the criminal court for seeking maintenance allowance. Since there had been compromise between the parties in the year 1965 and they had lived together as husband and wife at Ambala, Gurgaon end Nan-gal, it can be said that there had been condonation of the defaults committed by the parties earlier to 1965. The appellant, however, maintained that he did not love the respondent. He suspected her of administering poison to him in the meals in the month of August, 1968. He had never gone to the house of the parents of the respondent to fetch her after September, 1968. He did not write any letter to her to return to his house and he did not send any letter to her father to send her back to him. He did not send any maintenance allowance to her. He did not 'file any application for restitution of conjugal rights against her during the period extending to four and a half years, i.e. from September 26, 1968 to April 16, 1973, when he made the petition for judicial separation. The aforesaid conduct of the appellant, in any opinion, constitutes constructive desertion. The marriage performed by a Hindu couple is a holy union and the same cannot be broken by the consent of the parties or by collusiveness. The promises made by a Hindu couple before the nuptial fire cannot be easily disregarded by them. Therefore, the appellant who is himself responsible for creating the situation which forced the respondent to stay away, is not, in my opinion, entitled to plead desertion as a ground for claiming decree for judicial separation. In addition to the facts that the appellant had no love for the respondent, and doubted her fidelity and character, and suspected her of administering poison to him in meals, he had last cohabitation with her in the month of June, 1968. All these factors coupled with the conduct of the appellant, referred to above, point out unmistakably that he afforded a cause, and reasonable too, to the respondent to stay away from him; and the said matters further give rise to a reasonable and legitimate inference that he was consenting to the living of the respondent at her parents' house. In that view of the matter and in view of the Explanation to Sub-section (1) of Section 10 of the Act. I am in agreement with the trial Court in finding that the appellant failed to substantiate the plea raised by him that the respondent had been guilty of desertion.
7. There is the solitary statement of the appellant that the respondent had administered poison in meals to him, that she had been abusing him and giving him beating with danda. The respondent had repudiated the said charges. The appellant claimed that he was treated by Hakim Relu Ram when he had been administered poison by the respondent. The said Relu Ram was not produced for reasons best known to the appellant. The presumption, therefore, is that Hakim Relu Ram, if produced, would have no* given evidence favourable to the appellant. Hira Lal (P.W. 4) affords no assistance to the appellant. He did not say that any meals, much less poisoned, had been served by the respondent to the appellant in his presence. He did not state that the appellant had made any complaint to him that poison had been administered to him by the respondent The trial Court, who had the advantage of seeing the parties, had bserved in the judgment that the appllant was more strong in physique than the respondent On the said state of things, it is difficult to believe that the respondent could dare to beat the appellant with danda. No evidence, much less reliable, in confirmation of the statement of the appellant that the respondent had been hurling abuses or had been beating him, has been brought on record. Therefore, the trial Court was right in observing that the evidence present on record does not bear the plea of cruelty by the respondent towards the appellant, raised by him.
8. It, thus, follows from the discussion above that the findings recorded by the trial Court on issues Nos. 1 and 2 are correct, and do not suffer from any infirmity. So, the same are affirmed. In that view of the matter, the judgment and decree of the trial Court are impeccable and this appeal is bereft of any merit.
Consequently, I, maintaining the judgment and decree of the trial Court, dismisee this appeal with costs.