Avadh Behari Rohatgi, J.
(1) This is husband's appeal against the divorce decree to the Additional District Judge dated 4th March, 1978.
(2) The appellant Har Bhagwan Dass Wadhwa was married to the respondent Ishwar Devi Majbour on 1st August, 1971 at Bahadurgarh. On 2nd August. 1971, the parties cams to Delhi. The wife lived in her husband's house at Kalkaji where he was residing with his brothers, sisters and widowed mother. On 29th September, 1971, there was Namkaran ceremony of the wife's brother's son at Bahadurgarh, She went there to attend the ceremony. The husband was also invited. He did not go. On 1st October, 1971 .the wife returned to the husband and started living with him. On 9th November, 1971, she left the husband for his father's house at Bahadurgarh. Her case is that she was illtreated and beaten in the month of September and thereforee she had to leave the husband's house.
(3) The wife remained away from the husband till 26th January, 1972. On 26th January, 1972, she came back to the husband's house at the intervention of the maternal uncle of the husband, one Jeevan Dass (R W 10) who assured her that she will not be mistreated by the husband and in future she will have no cause to complain. On this assurance the wife resumed married life in the hope that she will be able to rebuild the broken home. Her case is that again she was maltreated. There were quarrels on 6th and 7th March 1972. On 8th March 1972 she was not given even the breakfast and thereforee she left the house for the office from where she went straight to her father's house and never went back to the husband's house.
(4) Both husband and wife are working hands. He is 35 years of age. She is 29. The wife is a clerk in the Sales Tax Department. The husband is working as a clerk in the Ministry of defense. This is common ground that in August 1976 the husband went to the Commissioner of Sales-Tax where the wife is employed and requested him to use his good offices for bringing about reconciliation between the parties. It is also not disputed that the commissioner called the parties and tried to persuade them to live together, but his efforts were not crowned with success. The wife did not join the husband. On 29th November, 1976, she brought a petition for divorce on two grounds-desertion and cruelty. The Judge heard the evidence of the parties. He believed the case of the wife. He disbelieved the husband's witnesses. In the result he granted the wife a decree of divorce both on the ground of desertion and cruelty.
(5) After the wife had brought her petition, the husband made a petition for restitution of conjugal rights. His petition was dismissed by the Judge. Now the husband appeals to this court against the decree of divorce. He has not appealed from the decree refusing restitution of conjugal rights.
(6) I will first up the wife's case of cruelty. She pleaded four instances of crulety. Firstly, she said that she was beaten by the husband in the third week of September, 1971. On 22nd September, 1971 she was slapped by him at night between 8 and 8.30 p.m. This was done in the presence of the mother-in-law and husband's two brothers, Naresh and Ashok. The mother-in-law did not intervene though the husband's brothers protested. The wife wept and cried. The husband gaged her mouth so that her cries are not heard by neighbours. This is the first tncident.
(7) The second incident narrated by the wife is about 6th March 1972 and 7th March, 1972. On these two days she alleged that the husband quarrelled with her and abused her. On 8th March. 1972, she was not given breakfast. Fed- up with these cruelties she left the husband's house, she went to the parents house and since then the parties have remained apart.
(8) The third incident of cruelty of which the wife complains is that on 15th of February 1972 the husband's mother gave her milk to drink-. She grew suspicious and thought that it contained poison and thereforee she refused to take it.
(9) The fourth incident narrated by her relates to 21st August, 1976, when she says that the husband came to office and used force against her and assaulted her at 5.15 p.m. in the presence of her fellow clerks while she was leaving office.
(10) As regards the first two incidents there is evidence, direct and positive, in support of the wife's case. The third and fourth incidents, I think, she has failed to establish. On the first incident of September, 1971 as well as the second incident of 6th March 1972, and 7th March 1972 the wife in her written statement made a specific reference. She gave evidence of these acts of cruelty. Shs stated that the husband asked her to bring more dowry because he was disappointed with what she had brought at the time of the marriage. The wife told her husband that she was unable to bring more dowry as her father was not working for the last 16 years or so. This according to the wife, led to estrangement and ill-treatment.
(11) The wife was cross-examined. Not a single question was put. to her regarding these two incidents of beating and quarrels. Her testimony remains unshaken. The husbsnd's counsel submitted that the complaints of the wife were so vague and imprecise that no question could possibly bs put in the cross-examination. I do not agree. The wife specifically referred to the beating she got in the month of September, what is more important is that she deposed that she was beaten in the presence ofthe husband's brothers and his mother Now if the husband never beatthe wife as is his case, his mother should have been the best person to depose in this regard. The husband's mother is an educated lady. She has retired as a teacher. It is not disputed thatthe relevant time she was living with the husband. If the wife's case was falsethe best evidence was of the mother and that sought to have been given. For reasons bsst known to the husband the mother was not produced. In the wife's cross-examination nothing was brought out to discredit her testimony. I would thereforee hold that the incident of September 1971 as deposed to by the wife is .true.
(12) Counsel for the husband then argued that since the wife resumed cohabitation when she joined the husband on 25th January, 1972, there was condensation of cruelty. It is true that the wife came back but there is no evidence of condensation. There is not evidence that the parties resumed co-habitation. The wife came back to the husband on the assurance of Jeevan Dass. She was assured of good treatment. It seems she was willing to try again and see if they can live together. Things did not improve. The wife was again turned out of the house. In these circumstances I cannot hold that there was condensation.
(13) The wife has not been able to establish that the milk she was asked to take contained poison. There is no satisfactory evidence on this point. Nor is there any independent proof regardingthe incident of 21st October, 1976 because she did not make any complaint of assault to the Commissioner of Sales- Tax in writing and if she did that complaint has not bsen produced in court.
(14) I would thereforee, confine myself to the first two incidents, namely, of September, 1971 and 6th, 7th and 8th March 1972. The wife gave evidence of cruelty. The husband denied this. In his cross-examination the husband said :
'DURINGher stay with us (there was) nothing happened and there was no complaint against her behavior.'
This shows that the husband had nothing against the wife. But the wife complained of cruelty. The cruelty perpetrated on her she was proved in her statement.
(15) Counsel for the husband real at length the evidence of the witnesses producted by the husband who went to wif's father and asked him to send her daughter to the husband's house. I am not impressed by their testimony for two reasons- Firstly, they are not independent witnesses. Secondly, the wife was not asked in cross-examination about their visit to their father's house. If these persons had gone to the wife's father then specific question ought to have b sen put to the wife in cross-examination. This was not done. thereforee, there testimony can not be accepted.
(16) I have held that the husband was guilty of cruelty. The parties' relations were narred by violence. The wife was compelled to leave the house on 8th March, 1972. This would be constructive desertion. The husband created a state of affairs whereby it became impossible for the wife to live under the husband's roof. Where, there is domestic violence and the wife is compelled to leave the husband's house the wife can justly complain of desertion as she has done in this case.
(17) Counsel for the husband placed reliance upon certain letters, R6 to R 11, which were written by Nand Lal (R W 3) to the husband's brother. He also sought to refer to certain letters written by the wife's sister to the husband. In my opinion, these letters are inadmissible and ought to be rejected. The reason is that these letters are not of the parties written by one to another.
(18) I see no reasons for not accepting the finding of the judge on both the points-cruelty and desertion. For these reasons I would dismiss the appeal but leave the parties to bear their own costs.