Prakash Narain, J.
(1) This is a wife's appeal against the judgment and decree of an Additional District Judge, Delhi, granting the husband's petition for divorce on the ground of desertion.
(2) The parties hereto were married at Agra on February 21, 1958. After marriage they lived at Delhi. They have been separated since January 11, 1974 according to the respondent-husband. According to the appellant she was initially turned out of the matrimonial home by the respondent on January 11, 1974 but she came back and lived with him in February, 1975. She was again turned out in March, 1975. On August 14/16, 1975 the respondent filed in application under Section 10 of the Hindu Marriage Act, hereinafter referred to as the Act, for grant of a decree for judicial separation. The grounds on which be claimed judicial separation, were cruelty, desertion by the wife and the wife suffering from a communicable disease. This petition was resisted. On May 27,1976 the Act was amended by the marriage laws (amendment) Act. In consequence the respondent moved on application to amend his petition under Section 10 of the Act one under Section 13 of the Act. By this amended petition the respondent claimed divorce on the same three grounds on which he had earlier claimed judicial separation. This petition was strongly resisted. The impugned judgment and decree was passed on September 1, 1977. By it the respondent's plea regarding cruelty and communicable disease were not accepted but he was granted a decree for divorce on the ground of desertion. Dissatisfied with the said decree the wife appeals to this court.
(3) At the trial the parties led hardly any oral evidence. The appellant and respondent only examined themselves, as T their respective witnesses. There is some documentary evidence on record to which I will advert hereafter. Surprisingly a large number of documents were placed on record by the appellant but she never proved them before me. Her case has been that there was no cogent proof of desertion by her and the petition of the respondent being premature was liable to be dismissed.
(4) Since the respondent has filed no cross appeal with regard to his please of cruelty and communicable disease being disallowed, the only point for consideration is whether desertion by the appellant without reasonable cause stands established on the record and whether the petition for divorce was presented before the expiry of two years from the alleged date of desertion.
(5) I will first take up the point of whether the petition filed by the husband was premature. According to the respoedent the appellant left for good on January 11I, 1974 and has stayed away without reasoonable excuse from the matrimonial home ever since. According to the appellant she was finally turned out by the respordent from the matrimonial home on March 8, 1975, after initially being turned out on January l1, 1974. It has been urged on behalf of the appellant that if she was turned out on March 8, 1975, then obviously the two years period had cot expired. If she was turned out on January 11, 1974 even then the amendment of the application to one under Section 13 of the Act would relate back to the date on which the application under Section 10 of the Act was presented, namely August 14/16, 1975, and so, was filed before the expiry of two years, the alleged separation having taken place on January 11, 1974.
(6) Now the application under Section 10 of the Act was converted to one under Section 13 of the Act by virtue of the amendment brought about in the Act by Section 39 of the Marriage Laws (Amendment) Act which was enacted in 1976. Obviously, the application for amendment could cot be moved prior to May, 1976. The amendment was allowed on September 6, 1976, The question is whether the amended application would be deemed to have been filed in August 1975. Normally, an amendment is with retrospective effect but there is no set rule about it. In the circumstances of the case the amendment cannot be held to relate back. First of all no petition as filed under Section 13 of the Act could be filed in August, 1975. Secondly, reading Section 39(2) of the Marriage laws (Amendment) Act it is obvious that the application under Section 13 of the Act must. be deemed to have beer, filed on the day when the respondent was allowed to amend his application under Section 10 of the Act to one under Section 13 of the. Act. Section 39(2) of the Marriage Laws (Amendment) Act postulates two things. First, that the court must give an opportunity to the petitioner to amend his or her application if he or she so wants. Secondly, to allow, if so moved, converting of an application under Section 10 to one under Section 13 of the Act. In a strict sense it is not an amendment of the original applicatioa. As is obvious it is converting the application from one under Section iO to one under Section of the Act. Furthermore, on September 6, 1976 the respondent had two options in view of the amendment of the Act. He could withdraw the earlier application under Section 10 of the Act with liberty to file an application under Section 13 of the Act or move the court for leave to convest the pending application to one under section 13 of the Act. The respondeat took the latter course. In that view of the matter his application under Section 13 of the Act must be deemed to have been filed on September 6, 1-76. This would certainty be after the expiry of two years from January 11, 1974. If, however, the date of separation is March, 1975 then the application under Section 13 of the Act filed on September 6, 1976 would be premature.
(7) In my opinion, there is no cognet evidersce on record that the appellant again came to live with the respondent in February, .W5 and was turned out finally on March 8, 1975. Except her own statement there is nothing else to support her plea and even her own statement on this aspect cannot be relied upon. She had sta.ted that in January, l974 she was at the house of her father when she received a notice from the respondent photostat copy of which was marked 'C'. This notice was never proved. After the receipt of the said notice she alleged that she was left at the house of the respondent by her father. In March, 1973 she admitted that she was at the house of her father. Although she took up the plea regarding being turned out a second time on March 8, 1975 in her written statement she did not depose anything about it in her testimony in court. She only stated that on being left at her husband's house she was given severe beating and even had to he admitted to hospital for three days. She also deposed that she liv(r).d whh the respondent when be had an accident for four days. She filed some documents pertaining to her alleged hospitalisation but never proved them. It is interesting to note that while earlier she said that she had been left at the respondent's house by her father she later on said that the brother-in-law of the respondent had brought her from her father's house. In cross-exaniination she admitted that the brothe-in-law who is supposed to have brought her from her father's house to the respondent's house was alive in Delhi. She did not produce this brother-in-law or her father in the witness box. Surprisingly enough she gives no dates in her testimony as to when she again allegedly lived with the respondent after January, 1974. She admitted that she had filed a petition for maintenanmce against the respondent at Agra and bad warrants of attachment of bids salary issued. In the absence of cogent reason it cannot be accepted that she lived with the respondent as alleged, till March 8, 1975. The separation on January Ii, 1974 is admitted by her and, thereforee, I have to proceed on the basis that separation did take place on that date. Whether it amounts to desertion is a question that has to be answered.
(8) There is no doubt from the testimony of the appellant that the relations between the appellant and the respondent were, to say the least, unhappy. According to the appellant the cause of dissenssion between the two was respondent's demand for money and dowry. The respondent on the other hand pleaded that in fact it was the father and the brother of the appellant who had taken money from him and were not returnnig the same. He proved pronotes. Exhibits P. 2 and P. 3, on the record The appellant denied that these pronotes bore the signatures of her father or brother but she did not produce them to support her contention. 1 he respondent has produced a writing, Exhibit P. 4, on the record. The writing is admitted by the appellant to bs in her hand and signed by her. The phraseology of this writing tends to suggest that it was not written on dictate. Learned counsel for the appellant has urged before me that it was obtained by force, and, thereforee, has no value. This writing shows that the appellant left the respondent's house of her own free will and completely severed all connections with the matirmonial home. Had the appellaat said anything about this writing being obtained by force perhaps there would have been some force in the contention raised by the learned counsel. Unfortunately, she bad said nothing. What she says in her testimony in court about this writing is, 'The writing Exhibit P. 4 was got written by the petitioner from me ' She no where says that she was forced to write out or that she wrote it against her wishes. Indeed, in cross-examination she admitted that she did not send a notice to the respondent nor lodge any report with the police when be got the writing. Exhibit P. 4, from her. Asked why she did not do so, she said that she did not want to go to the courts. She no doubt denied that she left the respondent's house on January 11, 1974 without his consent or permission and even asserted that the respondent himself left her at the railway station but there is nothing to substantiate her pleas in view of the categorical assertion in Exhibit P. 4. The appellant could have led evidence on this aspect but has chosen not to led. thereforee, in the face of the writing Exhibit P. 4 it must be held that she has failed to prove reasonable excuse to stay away from the matrimonial home.
(9) The respondent had appeared as his own witness as Public Witness . 1. He denied the suggestion that the writing Exhibit P. 4 was obtained by him from the appellant by force or after giving her a beating. This statement was recorded on July 29, 1977. The appellant appeared in the witness box on August Is, 1977. Know- wing the respondent's case with regard to Exhibit P. 4 it was for her to have at least asserted in her statement that the writing Exhibit P. 4 was obtained by force or after administration of beating. She did not do so. Apart from putting Exhibit P. 4 to the respondent it is surprising no question was asked from him about his plea of desertion. In the cross-examination a general question was asked from him suggesting that he had turned her out which he denied. Suggestions were made that be used to ill-treat her which also was denied. If the respondent was continuously ill-treating the respondent there would have been sufficient evidence in this behalf. No such evidence has been produced.
(10) The fuctum of separation in January, 1974 thus stands established. Whether the appellant had reasonable, excuse to stay away from the matrimonial home since then is an aspect on which she had to lead evidence. She has chosen not to do so. thereforee, it must be held that she failed to prove or establish reasonable excuse for staying away from the matrimonial home. The trial Court has come to this conclusion and in my opinion rightly.
(11) I, thereforee, see no reason to interfere with the judgment and decree of the trial Court. The appeal is dismissed. In the circumstances of the case there will be no order as to costs.