1. This appeal is directed against the judgment of the Additional District Judge, Bhatinda, dated 31st Jan., 1978.
2. The facts giving rise to this appeal are as under:--
The appellant filed a petition under S. 13 of the Hindu Marriage Act (hereinafter called the Act) for dissolution of his marriage by a decree of divorce. The marriage between the parties took place 6 years before the filing of the petition. For some time, the parties lived together as husband and wife. Two children were born out of the wedlock, but both of them died. The respondent-wife deserted the petitioner without any reasonable excuse and against his will. It is alleged that the respondent had given birth to a male child 5 months before she deserted and she left 2 months old infant child with its father. The petitioner, along with his brother Hakam Singh and Sher Singh, went to the village of respondent's parents and requested her to return, to which she did not agree and also she did not agree to keep the infant child. As a result, the child died.
3. The respondent was served before the trial Court, but she did not appear. Hence, ex parte proceedings were taken out.
4. The appellant produced two witnesses: Bikrarn Singh (P.W. 1) and he himself entered the witness box as P.W. 2. He supported his version as given In the application. His statement was corroborated by Bikram Singh. However, the learned District Judge dismissed his petition, on the ground that the allegations made therein do not amount to cruelty. Dissatisfied by the judgment of the learned District Judge, the petitioner-husband has come to this Court.
5. The respondent-wife has not appeared in spite of service.
6. I have heard the learned counsel for the petitioner-appellant and gone through the record of the case with hie help.
7. The appellant, as stated earner. has reiterated the allegations made in his petition. His statement is corroborated by his witness Bikram Singh (P.W. 1). The respondent had not appeared in spite of service either before the trial Court, nor has she put in appearance in this Court.
8. The learned Additional District Judge, to my mind, has erred in holding that such a conduct of the respondent-wife does not amount to cruelty to the petitioner-husband. It has come in evidence that the respondent-wife left at the appellant's house a two months old child; that the appellant went to her parents' village and requested her to accompany, but she refused to do so, as also to keep the child. As a result of this, the child died. Death of such an infant child does amount to agony to the father. Nothing is more tragic than the death of a child before the parents. Although the mother is more concerned with an infant child than the father. Generally mothers are more devotional and affectionate towards the infant children and can sacrifice anything for the sake of their children. In the instant case, the attitude of the mother seems to be devoid of all human feeling. Even if it may be assumed that for some reasons, she did not have cordial relations with the appellant, she could have taken a two months old infant child with her. But she chose to leave the infant behind with the appellant. Not only she refused to accompany her husband for living with him as his wife, but she also refused to keep the child. Nothing can be more cruel than this attitude of the wife. The child died when he was only two months old. It does amount to nothing short of cruelty. I have no reason to disbelieve the statement of the appellant-husband and Bikram Singh (P W 1) who knew the parties and who had accompanied the appellant to respondent's parents' house for bringing her back. Cruelty has been added as a ground for divorce only in the amended Act (The Marriage Laws (Amendment) Act, 1976). Cruelty was not a ground for divorce under the old Act, but was a ground for judicial separation. Now the marriage law has been liberalised after the aforesaid amendment. Earlier the grounds for divorce were inter alia. adultery, conversion of religion, unsoundness of mind, venereal disease in a communicable form, renunciation of the world, not being heard of as alive for a period of seven years, non-resumption of cohabitation as between the parties to the marriage for a period of two years or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; no restitution of conjugal rights as between the parties to the marriage for a period of two years or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties. A wife could also present a petition for dissolution of her marriage by the husband and the husband being guilty of rape, sodomy or bestiality. But after the amendment, the law has been liberalised. The intention of the Legislature seems to be that where the parties cannot live together, it is of no use to keep them together if any of the parties to the marriage wants to seek divorce and for that purpose some new grounds have been added. Now the parties can have even a consent decree for divorce which was not available before the aforesaid amendment.
9. For the foregoing reasons, I hold that the respondent's conduct in the present case amounts to cruelty to the appellant. Accordingly, the finding of the trial Court is reversed.
10. Consequently, the appeal is allowed and the judgment of the learned Additional District Judge is set aside and the appellant is granted a decree of divorce an the ground of cruelty. There would he no order as to costs.
11. Appeal allowed.