S.S. Chadha, J.
(1) This appeal is directed against the judgment and decree dated 21st May, 1970 passed by the Court of Shri O.P. Singhla, Additional District Judge, Delhi dismissing the application for judicial separation under section 10 of the Hindu Marriage Act, 1955. By an order of the Court, the petition has been allowed to be amended as a petition for divorce under Section 13 as a result of Section 39 of the Marriage Laws (Amendment) Act, 1976 which came into force on 27th May, 1976. The appeal will now consider whether the appellant is entitled to the dissolution of marriage by a decree of divorce under Section 13 of the Hindu Marriage Act 1955 (as amended) (hereinafter referred to as the Act).
(2) The marriage between the parties was solemnized on 28th July, 1963 at Delhi. A son was born out of the lawful wedlock on 28th July, 1964. The cause of action in the petition is that the respondent has withdrawn without any reasonable cause or excuse from the society of the appellant with effect from February, 1966. The allegations made in the petition are that the respondent qualified as a Telephone Operator and is in the employment with Amritsar Transport Company, Naya Bazar Delhi, that she is very well provided there, that during the time she stayed with the appellant she was more fond of moving about, she often left the appellant without any intimation, that while leaving the appellant she had taken all the jewellery ornaments, clothings and even the articles like shaving set etc, belonging to the appellant, that all attempts to reconcile have failed and she being economically self-sufficient does not bother to return to the appellant's house and that the relations of the respondent such as her father whenever approached threatend the appellant of his life. Thus the respondent has deserted the appellant for a continious period of more than two years immediately preceding the presentation of the petition.
(3) In the written statement the plea is that the appellant gave her severe beating on 14th February, 1966 and was turned out only with four clothes. The facts precedent to it are in these terms:-
'THEtrue state of affairs is that immediately after the marriage, the respondent found that the petitioner is a man of very loose character. He would come after 12 in the night in the company of a girl or one or two male friends in a drunken state and would begin to drink heavily at home. He would require the respondent to sit with the strangers and drink, but she always refused, in consequence whereof, she was given beating and abused filthly in the presence of strangers and was thus always humiliated which the respondent endured without disclosing the same to anybody. As the respondent proved an obstacle in the petitioner's illegal enjoyment, as referred to above, she was turned out by him out of his house at night many times with only clothes on her body and every time she had to seek shelter with her parents. On the intervention of respectable persons and the entreaties of her parents, the petitioner would agree to take her in his house with a promise to give up his vicious habits, but in vain. The parents of the respondent ultimately, due to the intervention of respectable persons kept the petitioner and the respondent in their own house for a few months beginning from December, 1963 to August, 1964 and thereafter, the petitioner, after giving a solemn undertaking that he will not maltreat respondent took her to his house No 651/21 in Gandhi Nagar on 30.8.1964 but remained torchering her as usual. The petitioner after keeping the respondent for six days again turned her out of his house on 5.9. 1964 and the respondent came to her parent's house weeping. However, the parents of the respondent again agreed to send the respondent to the petitioner's house and the petitioner on 15.9.64 took her to house but again turned her out on 20.9.64. The respondent remained at her parent's house from the said date up to 22.12.64, on which day, the petitioner again agreed to keep the respondent like a good husband and the respondent again went to the petitioner's house in Shanti Nagar, but, as usual, was again turned out on 31.3.65 due to the respondent proving an obstacle to the vicious life of the petitioner. The petitioner again on 18.7.65 agreed to keep the respondent in his house No. 827/2A/10, Dhararo Pura, Gandhi Ngr., Delhi, where she lived with the petitioner up to 14.2.66 'on which day at about 12 in the night, the petitioner gave her severe beating due to her refusal to sit and drink in the company of strangers and turned her out only with four clothes when there was severe cold and the respondent was only with four clothes on her person..,'
(4) On the pleadings of the parties, the trial Court framed the following issues:
1. Whether the respondent has deserted the petitioner for a continuous period of 2 years immediately preceding the presentation of the petition?
(5) The finding of the trial court that the respondent's case appears to be preferable to that of the appellant is not justified from the material on the record. I was taken through the evidence. The weight of the evidence tilts the balance in favor of the appellant. The conduct of the respondent in making allegations against the appellant reflected the mental attitude of the respondent to bring cohabitation permanently to an end and this has been completely lost sight of by the learned Additional District Judge in appreciating the oral evidence placed by the parties on the record of the case. The factum of separation by the parlies since February, 1966 is admitted. The allegations made in the written statement of the respondent reflected repugnance and bat- red by the respondent of the appellant. The charges leveled against the appellant if not established, would have given an indication of the mind of the respondent whether she had the intention to bring co-habitation permanently to an end. For the offence of desertion as regards the deserting spouse, two necessary elements to be established are: firstly, factum of the separation and secondly, the anumus deserendi. The factum of separation being admitted by the parties, the learned Additional District Judges had to find out whether there was an intention to bring cohabitation permanently to an end. The anumus deserendi may coexist with the separation on 14-2-1966 or it may coexist some point of time later and may be proved. Desertion is a matter of inference to be drawn from the facts and circumstances of the case.
(6) The oral evidence produced by the appellant in the statement of Shri Raghubir Singh, A..W. 1 is that the appellant and respondent resided in the house of the witness as a tenant for about 11 months and there used to be disputes between the parties. He says that in the year 1965 the respondent left the house of the appellant some time in the month of September or October for her father's house and thereafter the witness reconciled the parties and asked the appellant to take a house in Kailash Nagar and the witness used to visit them there and that in the beginning of 1966 the witness was told that the respondent had left the house for her father's house. It is the common case that the parties were living in the house of Shri Raghubir Singh and, thereforee, the testimony of this witness can be relied upon to draw an inference that the parties from the year 1964 were having disputes interse. No suggestion is put to Shri Raghubir Singh about the blameworthy conduct of the appellant as alleged in the written statement. A.W. 2 Shri Sham Lal had known the appellant since the year 1966 when he took the house of the witness on rent. He certifies that the appellant was not seen drinking and that he is a good person and was living with his mother in the house for about a year. P, 3 Shri Darshan Lal lived in the neighborhood in Tri Nagar where the parties resided for some time. He deposes that about six years ago (statement recorded on 1-9-72) the appellant, his elder brother, his brother's wife and his mother and the witness went to the house of father of the respondent so that some reconciliation be brought about between the appellant and the respondent as she had left the appellant's house three or four months before. This effort for reconciliation resulted in the respondent coming back to the house of the appellant and the witness further states that within there or four months thereafter, the respondent left the house of the appellant again for the house of her parents. The fact that efforts were made for reconciliation during that time is admitted by R.W. 13, the mother of the respondent as well as the respondent herself. If pursuades me to draw a reasonable inference that the appellant had made attempts to effect a reconciliation and to take back the respondent earlier to February, 1966 when the respondent left the house of the appellant. The cause of desertion by the respondent is not given by these three witnesses butthe factum of separation and the earlier disputes and reconciliation is clearly established. A.W. 4 Suresh Chand, the brother of the appellant as well as the appellant himself says that the respondent deserted the appellant without any reasonable cause or justification. Their testimony may be parlison and may have to be accepted after a close scrutiny but cannot be rejected on the ground that they are interested. This affirmative evidence hid to be rebutted by the respondent based on the plea in the written statement.
(7)the only independentm evidence tendered by the respondent is in the statement of R.W. 4 Shri Pitamber Lal. Mr. R.L. Tandon, the learned counsel for the appellant minutely criticises this statement. Firstly, in the written statement filed by the respondent no case is made out that the parties lived together in the month of August, 1954 in the house of Shri Pitamber Lal who says so. The child of the parties which resided with them is stated by this witness is to be of a year or so old at the time when they came to occupy the house. It is the case of the parties that the child was born on 28th July, 1964 and so in August, 1954 he would be hardly a month old. There is this glaring contradiction in the testimony of Shri Pitamber Lal. The reason stated for beating by the appellant is that the appellant cams drunk and the respondent tried to dissuade him from drinking whereupon the appellant beat her. In the cross-examination, the witness admits that the appellant never drank in his presence and that he never saw the appellant drunk but his wife told the witness that the appellant used to came drunk. Such testimony of the witness cannot be treated as legal evidence. This witness was cited by the appellant but no produced as alleged to be won over by the respondent who was suggested this action of he On these facts no reliance could be placed on the testimony of Shri Pitamber Lal. The finding of the trial court in para 20 is, not supported by evidence on the record. Then, we are left only with the testimony, of respondent and her mother. The respondent and her mother deposed about the incident of February, 1966. It is stated by them that respondent was unwell on 12th February, 1966 when the appellant with his friends took liquor his house, the respondent's mother came there with gifts and saw the respondent bleeding from the nose and learnt of the beating by the appellant, that the respondent's mother advised the appellant to behave, then she left her daughter leaving the meals there in the house and that the respondent was forced to leave the appellant's house on 14th Feb., 1966 at about 11-00 in the night. It is hard to believe that her other would leave her daughter in such a state. If is highly improbable in our ;oiety. The natural love and affection of the mother for the daughter would compel her to adopt a different mode or line of action when the daughter is seen in pain. There is no other indpendenti evidence in support of the allegations made in para 4 of the written statement. When the respondent failed to prove by independent and cogent evidence the cause or justification or the turning out by the appellant, then there was no basis to prefer the version of the respondent. The learned Additional District Judge has given undue importance in para 14 and 15 of the Judgment to certain facts. The factum of separation being admitted from February 1966, the trial court had to find out the cause.
(8) Another significant aspect ignored by the trial court is the filing of a petition by the appellant for restitution of conjugal rights. The appellant instituted that application in January, 1968 which was resisted by the respendent.It is only thereafter that on 9th October, 1969, the appellant filed the petition for judicial separation which is now converted into a petition for divorce. A reasonable inference that can be drawn from the contest of the respondent unless justification is established, is that the respondent wanted to bring co-habitation permanently to an end.
(9) For the above reasons, the finding of the Additional District Judge, Delhi is reversed and I hold that the respondent has deserted the appellant for a continuous period of two years, immediately preceding the presentation of the petition with the result that the appeal succeeds. The appellant is granted a decree of divorce under section 13(l)(1b) of the Act against the respondent. In matrimonial matters I am not normally pursuaded to burden any one with costs. The parties will bear their own costs.
(10) Counsel for the parties pray for passing of the orders under section 25 of the Act regarding payment of alimony and maintenance of the respondent and custody, maintenance and education of the minor son under Section 26 of the Act. Counsel for the parties are agreed that the custody, maintenance and education of the minor son born during the lawful wedlock of the parties be left with the respondent-wife. In my view also the son has been living with the respondent-wife from February, 1966. It will be in the interest of and welfare of the minor that the custody, maintenance and education of the minor son remains with the mother. The parties are also agreed that permanent alimony and maintenance both for the respondent-wife and the minor son be assessed at Rs. 10,OOU.00 to avoid any future litigation between the parties. The appellant has made a payment of Rs. 10,000 by bank draft to the respondent-wife in Court. This payment is recorded. The parties also state that henceforth the claims and disputes between the parties are settled and neither of the parties has any claim against each other.