S.S. Chadha, J.
(1) Shri 0m Parkash Mangal, the husband brought a petition for dissolution of the marriage against his wife Mrs. Urmil Mangal by grant of a decree of divorce under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the act) on the grounds of cruelty and desertion. The petition was dismissed by Shri S.C. Jain, learned additional District Judge, Delhi on 15th of December, 1977 against which the present appeal is directed.
(2) The marriage between the parties was celeberated on 2.10.1968. The petititioner and the respondent had been living as husband and wife at No. 719/42, Chowk Mahabir, Gandhi Nagar, Delhi 31, up to 19th of July 1974 during which period two female issues have born out of the wedlock of the parties. It is unnecessary for me to refer to the allegations relating to cruelty as that ground is not pressed in the present appeal. The case of the petitioner on the ground of desertion is that the respondent has been leaving the house of the petioner from time to time and at the last she left the house of the petitioner on 20.7.1974 when the petitioner was in his
(3) The oral evidence has been discussed by the trial court in paras 11 to 15 of the judgment under appeal and the reasons for discarding the testimony of petitioner's witnesses and accepting the sworn testimony of respondents' witnesses have been given from para 16 onwards.
(4) The learned counsel for the petitioner-appellant has taken me through the pleadings of the parties and the entire evidence on the record and has also questioned the inferences drawn by the trial court from that evidence. Dissolution of the marriage can only be granted if it is established on the record that the respondent has deserted the petitioner for a continuous period of notless than two years immediately proceeding the presentation of the petition. It is necessary for the petitioner to prove the factum of separation and also that the intention of the respondent was to bring cohabitation permanantly to an end. Desertion does not imply only a separate residence and separate living, but there must be animus deserendi. Oral evidence has been given as to what happened on 20th July 1974. Beli Ram father of the petitioner deposes that the respondent left at about 12 noon or 11.30 A.M. Along with the luggage and two daughters in a tempo when the petitioner was in his office. To the same effect is the statement of P-7 Mohan Lal. The petitioner also supports this version. Other witnesses of the petitioner depose that she was not seen at Gandhi Nagar after July 1974. Enough the petitioner was living there. Thus the evidence led by the petitioner is that he was living from 20th of July 1974 to 4th of October, 1974 at his house at Gandhi Nagar and only the respondent left.
(5) The evidence led by the respondent in the statement of RW-3, Smt. Surjit Kaur, RW-4 Devinder Kumar and Meba Ram is that the parties were living as husband and wife from 20th of July 1974 to 4th of October, 1974 in house No. WZ-15, Vishnu Garden, New Delhi. The oral evidence being divergent, the resort has necessarily to be had on the documentary evidence which has been placed on the record and the probabilities of the case.
(6) The first place of the documentary evidence is the certificate Ext. P-1 which shows that the names of Urmil (the respondent), Anju and Manju, two daughters of the parties, were delated from the ration card with effect from 15th of September 1974. The trial court rejected that certificate for the reason that the petitioners has not produced his ration card and has not cared to summon the original application on the basis of which the names of the respondent and her children were got struck from the ration card. This factual statement is not born from the record. An application dated February, 3 1977 for summoning of the witnesses shows that the petitioner had summoned the office with the application on the basis of which the names were delated from the ration card. Again in the subsequent application dated 8.7.1977 similar request is made for directing the official to bring the original application as well as to bring the registers in which rations are drawn and the ration card deposited for the period from 20th of July 1974 to 4th October, 1974. However, when the official appears in the witness box as PH-3, no question is put to that official about the original application or the original ration card and the petitioner felt content to prove the signature on the certificate Ext. P-1. In the cross-examination, counsel wanted the records on the basis of which the certificate Ext. P-1, was issued and the official stated thas he had not brought the record and he had also no personal knowledge about the matter. The certificate produced by Public Witness -3 is of no evidentiary value in the absence of original records which were not produced or offered to be produced. The evidence was thus rightly rejected by the trial court that it is not proved that the names of the 3 persons were deleted from the ration card. In the absence of the records on the basis of which the certificate is issued, it does not exclude the possibility that the fourth name, i.e. of the petitioner himself may have also been deleted from the ration card which is consistent with the version of the respondent that the parties along with their children shifted in July 1974 from Gandhi Nagar to Vishnu Gardens.
(7) The second piece of documentary evidence which has been relied upon by the trial court is about the admission of Anju Bala in nursery class of Vandana Montessory School, Vishnu Garden, RW-2 Som Nath brought the record showing the admission on 6-7-1974. The respondent made a statement on oath that 'we got admitted our eldest daughter in a school in Vishnu Garden 15 days prior to our shifting there.' No cross-examination is directed against this part of the statement, of the respondent and goes unchallenged. The finding, thereforee, has to be returned that the parties got their eldest daughter admitted in the school in Vishnu Garden in July 1974, probably they were then contemplating to shift their residence at Vishnu Garden. Then, there is the exercise book of the said child. It shows that on 26th of July 1974 there was a monthly test in which she secured 6 out of 10 marks. On that exercise book it is mentioned. 'Noted thanks. sd/- O.P. Mangal 30/7
(8) Again in the next monthly test which was held on 28th August, she secured 8/15 marks. This again is noted with thanks by the petitioner on 31-8-1974. The signatures and the writing made 30-7-1974 and 31-8-1974 are admitted by the petitioner when documents were admitted/denied. When the petitioner came in the witness box, he did not come forward with an Explanationn that these signature were made at a time when the petitioner went to the respondent for the purpose of reconciliation. Such a case is being made only at the argument stage. It is too much of a coincidence that the petitioner happened to be at Vishnu Garden for reconciliation when the result of monthly tests came. For me it is a documentary evidence of the fact of parties staying together at Vishnu Garden in July and August 1974.
(9) The petitioner has also led evidence of Public Witness -1, clerk. Income-tax Department to show that no change of residential address was communicated to the office when he alleged shifting to Vishnu Garden is imputed to the petitioner. From this the petitioner wants the court to draw on inference that he did not changed his residence on July 10, 1974. The non-communication of the change of the residential address by itself does not support the version of the petitioner. It may b3 that the change of address was not communicated due to laches. Evidence has been led that a government servant is required to give the change of address to his office, but no evidence has been led as to when it has to be given whether immediately or yearly. The petitioner has also produced on record his have record inthe statement of Public Witness 1. He deposed that the petitioner was on leave from 25th of June 1974 to 6th of July 1974 and again from 2-9-1974 to 21-9-1974. Obviously this record related to the Earned leave and not to the causal leave. The attendance register was not produced nor summoned by the petitioner. This leave record produced thereforee, does not establish whether the petitioner was on leave on 20th of July 1974 or not. The leave certificate was later on filed on the record but not proved. No opportunity was given to the respondent to cross-examine the person who gave the certificate. The best evidence was the attendance register which was neither summoned nor produced inspire of cross-examination of Public Witness -1 in that regard. In the leave application for 2-9-1974 to 21-9-1974, the address given is of Rourkela/Orissa. This cannot be interpretted to establish that the petitioner left for Rourkela from Gandhi Nagar not from Vishnu Garden. The trial court, thereforee, rightly did not place any reliance on the testimony of Public Witness 1.
(10) The petition for divorce contains a schedule containing the particulars of jewellery, garments, furniture, house-hold goods etc. which are stated to be in the possession of the respondent and taken away from their residence of the petitioner on 20-7-1974. In the written statement, there is admission that these articles, except the valuables and jewellary were removed by the parties on 20-7-1974. The evidence of the parties is that these articles were removed on 20-7-1974 in a tempo. The petitioner's version is that they were removed when he was in the office whereas the respondent's version is that they were jointly removed by the parties at the time of shifting their residence. Public Witness -7 says that he was present when the respondent left in a tempo with luggage. Public Witness -8 father of the petitioner also was present when she left with luggage and children in a tempo. It is highly improbable that the father of the petitioner would have allow the removable of these articles from his house unless it was with the consent of the petitioner. The reasonable inference that can be drawn is that the removal of these goods on 20-7-1974 was with the intention of shifting the common residence of the parties to Vishnu Garden where the parties had taken a house on rent.
(11) It is pleaded in the written statement that the petitioner suggested that they take some residence near the residence of the married sister of the petitioner who was agreeable to look after the daughters during the interval that the parties were away for their duties and thus the house at Vishnu Gardens was taken on rent.
(12) I have no reasons to disbelieve the testimony of the RW-3 Smt. Surjit Kaur when she deposed that the sister of the petitioner came to her for negotiating the tenancy of the house in Vishnu Garden. The petitioner has not produced his sister to rebut this testimony of Smt. Surjit Kaur. The testimony of Smt. Surjit Kaur cannot be discarded as is argued by the learned counsel for the petitioner that she is not paying any income-tax, even though her income is assessable to income-tax. She admits that she is not paying income-tax but there is no admission that her net income is taxable.
(13) Apart from it the statement of the petitioner himself is that the cause of quarrel between the parties was that whenever his mother used to be ill the respondent did not cook the meals. The father of the petitioner in examination in chief says that there used to be quarrel between the parties and he has no complaint against her. The cause of the quarrel i.e. the refusal of the respondent to cook, is not pleaded in the divorce petition.
(14) The learned counsel took great pains to read the allegations in the written statement to base an argument that no amount of evidence can be looked into in support of pleas which was never put forward in the defense. He relied upon Siddik Mahomed Shah v. Mr. Saran and others and Vancuard Fire and General Insurance Co. Ltd. v. Seriall Devi and others. . I am not referring in detail to these arguments as it is the petitioner who has come to the court seeking a decree for divorce on the ground of desertion of the wife and he has to succeed on the case pleaded in the petition. The variations in the plea and evidence in the defense which are not material to the factum of desertion or the animus deserendi do not matter. The trial court rightly came to the conclusion that the parties together shifted their residence on 20-7-1974 to WZ-15, Vishnu Garden, New Delhi and it is the petitioner who left the wife on 4-10-1974. I, thereforee, affirm the finding of the lower court that the factum of separation for more than two years immediately before presentation of the petition and animus-deserendi contituting the offence of desertion nave not been proved by the petitioner.
(15) The appeal is dissmissed but I do not like to burden the petitioner with the costs of the appeal.