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Ambujam Vs. T.S. Ramaswamy - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 163 of 1971
Judge
Reported inAIR1973Delhi46; 8(1972)DLT292
ActsHindu Marriage Act, 1955 - Sections 3 and 10
AppellantAmbujam
RespondentT.S. Ramaswamy
Advocates: D.B. Mukerjee,; S.K. Dholakia,; Rishikesh,;
Excerpt:
(i) hindu marriage act (1955) - sections 3(b), 19, 21 and 28--appeal against judgment of single judge--certificate, that case was fit for appeal not required--letters patent of the punjab high court as applicable to delhi high court, clause 10.;(rejecting the contention that unless a certificate was granted by the single judge of this court that the case was a fit one for appeal, no appeal could be preferred against his decision) that on reading clause 10 of the letters patent of the punjab high court which are in force for the high court of delhi also, it is manifest that a further appeal from the judgment, decree or order of a single judge of this court made in exercise of appellate jurisdiction can be filed keeping in view the provisions of section 28, read with section 3(b) 19 and 21.....prakash narain, j.(1) this appeal under clause 10 of the letters patent is directed against the judgment of a learned single judge of this court, whereby accepting the appeal of the respondent herein, the petition of the appellant herein for judicial separation under section 10 the hindu marriage act, 1955 (hereinafter called the act) was dismissed. (2) the appellant and the respondent are hindus who were married at delhi on 2nd may, 1960. after their marriage, they resided together for some time as husband and wife at delhi as well as chittor. the respondent thereafter went to madras in november 1960 and it is claimed by him that he had gone there to study law. the appellant was left behind at delhi. in december 1961 the appellant was taken to madras by her step-mother to the house of.....
Judgment:

Prakash Narain, J.

(1) This appeal under clause 10 of the letters patent is directed against the judgment of a learned single Judge of this court, whereby accepting the appeal of the respondent herein, the petition of the appellant herein for judicial separation under section 10 the Hindu Marriage Act, 1955 (hereinafter called the Act) was dismissed.

(2) The appellant and the respondent are Hindus who were married at Delhi on 2nd May, 1960. After their marriage, they resided together for some time as husband and wife at Delhi as well as Chittor. The respondent thereafter went to Madras in November 1960 and it is claimed by him that he had gone there to study law. The appellant was left behind at Delhi. In December 1961 the appellant was taken to Madras by her step-mother to the house of the respondent who was residing at No. 60 Bhaktavatsalam Nagar in Madras. After staying for some time in Madras the step-mother came back leaving the appellant with respondent. The appellant claims that she stayed with the respondent at Madras for about six months and thereafter went to Waltair at the instance of the respondent but during her holidays she kept on visiting the respondent at Madras. She stayed in Waltair till March 1964. Then she came away to Delhi and two months later resigned her appointment at Waltair where she was working. After her return to Dilhi, the appellant kept on writing letters regularly to the respondent expressing a keen desire to be with him, but the respondent neither called her to him nor fetched her from Delhi. This state of things continued till December 1964 where after the appellant stopped writing to the respondent and in March 1965 filed a petition for judicial separation under section 10 of the Act on the grounds of cruelty and desertion against the respondent. This petition was, however, withdrawn on 17th October, 1966 with liberty to file a fresh petition on the same cause of action as there was likelihood of the petition being dismissed on a technical ground. On 27th October, 1966 the appellant filed another petition under section 10 of the Act claiming judicial separation from the respondent on the grounds of cruelty and desertion. The Trial Court allowed the petition but on appeal the decision was reversed leading to the filing of the present Letters Patent Appeal.

(3) A preliminary objection was mooted that no appeal is Competent under clause 10 of the Letters Patent. The contention was that unless a certificate was granted by the learned single judge of this court that the case was a fit one for appeal, no appeal could be preferred against the decision of the learned single Judge of this court. There is no force in this contention inasmuch as on a reading of clause 10 of the Lettes Patent of the Punjab High Court which are in force for this court also, it is manifest that a further appeals from the Judgment, Decree or Order of a single Judge of this Court made in exercise of appellate jurisdiction can be filed keeping in view the provisions of section 28 of the Act read with sections 3(b), 19 and 21. The appeal to the High Court from the Decrees and Orders passed in petitions under the Act lie either under section 96 of the Code of Civil Procedure or section 39 of the Punjab High Court's Act read with section 28 of the Act, and a further appeal from the order and judgment of the single Judge who hears the the first appeal would lie to a Division Bench. We are fortified in coming to this conclusion by a Bench decision of the Punjab and Haryana High court 171 Smt. Dassi versus Dhani Ram Thakur, . A similar view was also taken by a Full Bench of the Patna High Court in Ramji Singh v., Mussammat Chhulghhana Kuer, : AIR1958Pat655

(4) Turning to the merits of the case, the allegations of the appellant are that the respondent did not do any work and used to demand money from her but when she did not comply with the demands of the respondent he became enraged, took to drink and beating and competely neglecting her. This behavior on the part of the respondent not only amounts to the respondent deserting the appellant but treating the appellant with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious for her to live with her husband. The respondent denied these allegations. He also offered and showed his willingness to live with the appellant as husband and wife. According to the respondent he was involved in a family litigation which prevented him from being attentive to the appellant but the moment that litigation ended early in 1965 he came running to Delhi in order to take back his wife to live with him but the appellant was neither ready I nor willing to go with him and indeed did not even meet him. thereforee, he was not the guilty party in any respect and the appellant was not entitled to the grant of judicial separation.

(5) Before we proceed to discuss the issues in this case and the evidence adduced by the parties, it will be advantagenous to read the relevant provisions of section 10 of the Act. These are :

'10.(1)Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district court praying for a decree for judicial separation on the ground that the other party : (a) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition: or (b) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party: or (c) to (f )................ Explanationn.-In this section, the expression 'desertion', with its grammatical variations and cognate expressions, means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage.'

(6) In the petition for judicial separation, the appellant stated that the respondent has deserted her since March' 1964 for a continuous period of two and a half years immediately preceding the presentation of the petition and has treated the appellant with cruelty as envisaged by clause (b) of sub Section (1) of section 10 of the Act. She further stated that the respondent had not been doing anything after 1959 and cannot stick to any particular job. As he declined to work, he could not maintain and support the appellant. During the period of their stay at Madras their expenses were met by the appellant's step-mother from Delhi, but in spite of these remittances, as the respondent wanted more money the appellant was forced to join service as a teacher in St. Joseph's College for Women at Waltair; the respondent possessed unbearable temperament and was given to frequent fits of outbursts of anger, abuse and violence; he regularly and persistently drinks to excess with intention to inflict mental injury on her; during their stay at Madras and Chittoor the respondent frequently suspected the appellant's fidelity and brought indecent accusations against her on several occasions; at Madras he would not only abuse her but also beat her on many occasions causing minor body injuries; even when the appellant visited the respondent during her vacations from Waltair he would behave indifferently towards her; on several occasions he would level accusations against the appellant and abuse her. During the period of their last stay together at Bangalore and Chittor between 20th March 1964 to 24th March 1964, the respondent kept the appellant in a hotel and himself would go out early in the morning and return late at night. During this period also the appellant received beatings from the respondent. Finding an opportunity to get away and forced by the circumstances, the appellant left Chittor and came to Delhi to her stepmother in March 1964. After coming to Delhi she had to take medical treatment for a long time for restoration of her health which had run down. Thus, the appellant was compelled to leave the marital home and the common roof that she shared with her husband. She thereupon in March 1965 filed a petition under section 10 of the Act but withdrew the same inasmuch as two years had not elapsed since the alleged desertion by the respondent of the appellant. She then filed the present petition on the same allegations. As already noticed earlier the respondent had denied these allegations and the following issues were settled by the Trial Court :

1. Whether the respondent has treated the petitioner with cruelty as alleged? 2. Whether the respondent has deserted the petitioner for more than two years immediately preceding the presentation of the petition? 3. Relief.

(7) The Trial Court found all the issues in favor of the appellant but in the first appeal these findings were reversed. The learned single Judge was of the view that there was no evidence worth the name about the respondent treating the appellant with cruelty and as far as desertion is concerned, it was the appellant, for reasons best known to her, who decided to break off the marriage. In coming to these conclusions reference has been made to the evidence of Mr. Balram, a neighbour of the parties at Madras, Mr. K. Subrahmanyam, who had known the step-mother of the appellant for 25 years, and Dr. Chowdhary, who was the family doctor of the appellant for 20 years. Construing the testimony of these witnesses, it was held that no cruelty was proved. With regard to desertion, reliance has primarily been placed by the learned single Judge on a large number of letters written by the appellant which were produced by the respondent. Quoting from these letters, the learned single Judge came to the conclusion that the charge of desertion by the respondent was not proved inasmuch as all these letters written by the appellant were in affectionate terms showing her desire to be with him with no complaint of desertion by the respondent and acknowledged that the respondent was busy in a family litigation. It has also been observed that had the respondent been cruel or had he deserted the appellant, such letters could not have been written by her right up to December 1964. It was thus deduced that all these letters show that the appellant made up her mind, for reasons best known to her, to leave her husband and it was she who left her husband, not that the husband deserted her.

(8) The ancient Hindu Law was based on the concept of Dharma which included the supremacy of morals and the established code of conduct laid down by the scriptures. With the change in the way of life and the outlook of people the thought of process for bringing about changes in Hindu Law also started. It was realised that the ancient way of life must yield to a more realistic approach in human relationship. This ultimately resulted in codification of various facts of Hindu Law adapted to suit the requirements of the modern way of life. The enactment of the Hindu Marriage Act, 1955 was a result of this change in thinking, to do away with the ancient outmoded concept of marriage and to put this human relationship on a more rational basis. thereforee, in construing the provisions of this law, a practical and human approach has to be adopted and a technical view is not justified. The object of the enactment being to modernise this delicate human relationship and sort out the difficulties, a realistic approach to the problems should be adopted and not an approach which defeats the very purpose of this social legislation. It is on this view of the Statue that the various terms used in the Act have to be construed. Indeed, as it is apparent on a reading of the Explanationn to Section 10 of the Act, 'desertion' is not to have the meaning attached to it in dictionaries alone but also includes 'willful neglect'. Similarly, 'cruelty' is to have a wider meaning than mere infliction of physical or mental injury. Desertion does not only mean one party physically leaving the matrimonial home. The meaning given to this word is much wider. It of course implies cesssation of cohabitation but this cessation has to be on account of the party complained against. The husband and wife may live in the same house but there may be such neglect on the part of one of the other that it may amount to desertion. The husband and wife may be living apart and yet there may be no desertion. There has to be what is called animus deserendi or an intention to desert. For example, separation between husband and wife on account of professional or vocational necessity will not be desertion. If a party to the marriage willfully and without the consent of the other party fails or refuses to fulfill marital obligations there is desertion and as we have observed earlier, even if the parties are living under the same roof, circumstances may be created by one spouse for another whereby the former may be compelled to leave the matrimonial home. In such cases it is not the spouse who has been compelled to leave who would be guilty of desertion but the spouse whose action or conduct has resulted in the other leaving the matrimonial home. For example, if a wife separated herself from her husband on account of his adultery with a concubine in his house, it has been held by a Full Bench of the Madras High Court in Rot (Bari) Stree v Rassinga Naik and another, I.L.R. 58 Mad 684 that inasmuch as the conduct of the husband brought about a cessation of co-habitation between himself and his wife, in law he had committed an act of desertion. Thus it is the state of things which really determines whether one spouse has deserted the other. The physical leaving of the matrimonial home or cessation of co-habitation by one party does not necessarily mean that that party is guilty of desertion. The law takes note of not only the physical act of leaving or cessation but also other factors in determining which of the parties is guilty of dereliction of matrimonial duty. Thus desertion may be physical or constructive.

(9) Legal cruelty may be difficult to prove, but sometimes the cruelty practiced may be a justification for stopping co-habitation. In such cases, the party stopping co-habitation may be entitled to claim justification making the concepts of cruelty and desertion overlap each other. In Edwards v Edwards (1949)2 All. E.R. 145 the court of appeal was concerned with finding out whether there was constructive desertion in the case. The parties in the case were married in ` wife left the husband. In 1948, the husband petitioned for divorce on the ground that the wife had deserted him without just cause. The wife, in her answer, alleged cruelty, in that the husband had struck her on many occasions, inflecting severe pain and causing her to be in fear, and that her husband had often associated with other women, causing the wife anxiety and distress. The learned commissioner was not satisfied that the wife had made out a case of cruelty against the husband, but he found that the conduct of the husband was such as to justify the wife in leaving him. On appeal against this finding, it was held that conduct which falls short of legal cruelty may justify one spouse in leaving another, provided it is of grave and convincing character.

(10) Cruelty by itself is not a ground for judicial separation. It has to be such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party. In early days the expression 'cruelty' was construed as actual physical violence but in the present concept it is not confined to physical violence alone. This change in concept was largely brought about by the views expressed in Russel v Russel (1897) A. C. 395. Legal curelty comprises two different elements, viz., ill treatment actually complained of and the resultant danger or the apprehension thereof. It is not necessary for the applicant to prove that he or she needs protection for the future. Proof of past cruelty should confer a right to relief. Violent assaults on several occasions would, of course, be cruelty. But there need not be actual physical violence and cruelty could be spelt out from various other factors taken as well in the matrimonial relations between the parties like injurious reproaches, complaints, accusations or taunts. The impact of personality and conduct of one spouse on the mind of the other must also be considered. The question whether one spouse treated the other with cruelty is a question to be answered after all the facts have been taken into account. The guilty spouse may not have any intention of being cruel, but his or her unintentional acts may amount to cruelty as was held in Forbes v Forbes 1955 (2) All E. R. 311

(11) It is in the light of the above state of law today that the evidence in the present case has to be examined. The respondent's counsel, Shri K. L. Arora, laid great stress on the fact that the various letters written by the appellant proved on the record would show that there could be no desertion or cruelty for which the respondent could be blamed. Inasmuch as the learned single Judge of this court has mainly relied on these letters to agree with the contention of the respondent herein, it will be advantageous to examine these letters but the same have to be read in the context of the appellant and the respondent living apart from each other from June 1962 when the appellant went to Waltair and also from March 1964 onwards. The contention of the appellant that the respondent was not doing any work and was entirely on the money provided by her or her step-mother and his demand for more money resulting in the appellant taking up a job at Waltair, has also to be kept in view. The effect of the respondent's contention that he was deeply engrossed in his family litigation, has also to be borne in mind.

(12) It is the common case of the parties that the appellant and the respondent were related to each other even before marriage, the father of the appellant being the respondent's maternal uncle. The respondent used to live in the house of appellant's father who died in 1952 leaving behind his second wife and the appellant, his daughter from the first wife. The appellant's father had a flourishing business in Delhi and that was inherited by the appellant and her step-mother. When the appellant and the respondent got married in Delhi in May 1960, the respondent did have a job but the resigned his job and proceeded to Madras to continue his studies leaving the appellant behind in November 1960. The appellant joined the respondent at Madras in December 1961. Right from the time that the respondent left Delhi in November 1960 till 1965 he did not have any job. As already noticed earlier, in June 1962 the appellant took up a job at Waltair and came to Delhi in March 1964 and never joined or was joined by the respondent thereafter. According to the respondent he was persuaded to leave his job at Delhi and go to Madras to pursue his studies by the appellant and her step-mother and while he was there he received letters from the appellant complaining of ill-treatment by her step-mother and pleading him to call her to Madras which would be incompatible with the plea of cruelty and desertion. The appellant's contention is that soon after marriage the respondent wanted her and her step-mother to sell off their business at Delhi and give him the money but as they did not accede to his demand, he got annoyed and first took to drink and then went away to Madras. While at Madras he was being supported by the appellant and his mother-in-law. However, when ultimately the appellant did join the respondent at Madras, having been left there by her step-mother, she was forced to take up a job at Waltair because of continued demands by the respondent for more money and she was ill treated and even beaten during this period. In that process she lost her health and came away to Delhi finally in March 1964. Even after that she continued to write to the respondent in an affectionate tone to please him and finally made up her mind to seek judicial separation because of the cruelty and desertion by the respondent.

(13) We may first deal with the documentary evidence on record to find out whether the appellant had made out the case pleaded by her. Before we proceed to examine the evidence, it will be pertinent to note that the parties are Hindus and traditionally a Hindu wife would like to save her marriage at all costs. In a nutshell the appellant's case appears to be that the behavior and conduct of the respondent was such as spells out cruelty and inasmuch as he completely neglected her he must be regarded as having deserted, her.

(14) The earliest letter of the appellant on record is dated 22nd July, 1962 (Ex.R.27) . It was written from Waltair and a reading of it shows the great concern that the appellant had for the respondent and his affairs. It also mentions her indisposition and that the climate and environment of Waltair were not suiting her. It does show that she was very unhappy to be in Waltair and was looking forward to be with the respondent during holidays in December. A wish is also expressed in this letter that the respondent could secure a job. The next letter dated 31-10-1962 (Ex.R.32) is also from Waltair and is in the same strain. In this letter there is a mention of snuff and an advice from the appellant to the respondent to stop taking it. All the other letters produced as written by the appellant are of 1964 with which we shall deal presently. These two letters written from Waltair show that the appellant was staying in Waltair either against her wish or by force of circumstances for she certainly did not like the place or the work there. Coupled with the appellant's testimony in the witness-box explaining that she was forced to go to Waltair against her wishes, we have no doubt that a wife who was so concerned for her husband would not stay at Waltair of her own accord. There is no allegation that the appellant had interest in any one else resulting in her staying away from her husband or that she preferred to stay at Waltair and not with the respondent at Madras for any other specific reason. There is no Explanationn given by the respondent in his testimony in Court as to why the appellant went to Waltair except for saying that she wanted to take the B.A. degree privately and so she accepted a job at Waltair. That the appellant was studying for her B.A. degree also at Waltair is evidence from the two letters noticed above but it does not stand to reason that she would have stayed on at Waltair in spite of the place not agreeing with her for two years mainly because she wanted to take her B.A. degree. We are more inclined to agree with what the appellant says that she was forced to take a job at Waltair by the respondent as be wanted more money and while at Waltair she also decided to study for the B.A. degree. Indeed, this becomes clear from the admission of the respondent himself when he appeared as R. W. 3 that the appellant was sending her salary from Waltair to him in Madras and her expenses were being met by receiving amounts from her step-mother from Delhi. In the context of a good dutiful Hindu wife, the whole picture fits in and particularly when we examine the future conduct of the parties which becomes evident from the correspondence of 1964 placed on record.

(15) Coming now to the letters of the appellant, written from Delhi in 1964, we find that all the letters are by the large in the same strain. The first of these letters on the record is dt. 28-3-1964 (Ex.R.3) . It informs the respondent of the appellant's safe arrival at Delhi and makes an enquiry about drafts to be sent either directly to the respondent or to the bank. The second letter is dt. 1-4-1964 (Ex. R.5). In this letter the appellant is expressing the hope that a good house could be taken where both of them could live. It also makes enquiries about the respondent getting a job. There is also mention of drafts of money being sent to the respondent but the appellant keeping back some money for her use. The third letter dt. 4-4-1964 (Ex.R.6) again speaks of a house and also mentions sending of a draft. Future payment is promised by the 15th of the month. The fourth letter dt. 8-4-1964 (Ex.R.7) shows appellant's anxious hope that the affairs of the respondent will be settled soon and her eagerness to join him in their new house. In this letter the apellant has written that she would start immediately on hearing from the respondent and join him, and shows how much she was looking forward to be with him in a house of their own. The fifth letter is dated 18-4-1964 (Ex.R.9). Again in this letter there is a mention of the house the respondent intended to purchase and the eagerness of the appellant to join him. There is also mention of a draft of Rs. 600 which the appellant promises to send soon to the respondent. The next letter is `. There is a complaint in this letter that she had not heard from the respondent and was anxiously waiting to hear from him. This is a very practical letter in which the appellant informs the respondent about her sickness and how her doctor had advised her to attend to her health before it was too late. She also writes to the respondent that her doctor had advised her that the best cure for her was to be with him; so, she enquires how soon could she join him. In this letter she has also written that by going to Waltair she lost her health and if necessary she could take up a job in Chittoor, so long as she could be with the respondent. It is a letter in which the appellant is pleading in all sorts of ways that he should call her from Delhi to live with him. There is disappointment shown in this letter that the respondent has changed his mind about purchasing a new house and a plea that he should take a house on rent so that she could be with him as it was high time they started their life together. It is apparent on a reading of this letter how anxious the appellant was that the respondent should have her back so that they could live together as husband and wife. The next letter is dated 2-5-1964 (Ex.R.13). In this letter again there is a plea that the respondent should look for a house soon and take one anywhere so that both of them could lead a 'homely life'. She has written imploring the respondent that she must come to him and has made enquiries about his obtaining a job. After this there is the letter of 8-5-1964 (Ex.R.14). This letter shows that perhaps after a long time the respondent wrote to the appellant in an affectionate tone. The joy of the appellant in receiving such a letter is apparent. Again in this letter she has mentioned that the only cure for all their ailments was that they must be together and lead a 'good homely life'. She has implored the respondent to let her know when she could join him. There is also mention of money being sent by her to him. The letter of 21-5-1964 (E.X.R.15) also shows how keen the appellant was to join the respondent She writes 'when will I have the privilege of serving you which is the only aim and ambition in my life'. The next letter is of 17-6-1964 (Ex.R.17). In this letter she enquires from the respondent as to what she should do with the salary which she had received from Waltair, whether she should keep it or send it to him. After this there is an undated letter written probably in July or August 1964 (Ex.R.12) in which there is mention or money being sent by the appellant to the respondent and an apology for not sending two drafts for the months of May and July because the money was needed by her for her own expenses. It is strange that the appellant was accounting for her own money to her husband. The next letter is of 8th July 1964 (Ex. R.I 9). In this letter also there is an account being given by the appellant of her money to the respondent. On 12-8-1964, the appellant wrote a letter (Ex.R.22) to the respondent: In this also there is a plea that the two of them had lost enough time and should be together soon so that they do not lose anymore time of their married life. There is mention that people had started talking about her staying on in Delhi and not joining her husband. The people were insinuating that they have had a quarrel. An earnest plea is made that he should take a rented house soon so that they could be together. The next letter is dated 24-10-1964 (Ex.R.23). It is also in the same strain.

(16) All the above letters fully establish the desperate effort of the appellant to persuade the respondent that they should live together. It is manifest on the reading of these letters that to start with, the respondent kept on telling the appellant that he was going to purchase a house and as Soon as he does that they can be together. This plan was given up and what we find thereafter is an earnest plea by the appellant that he should rent a house so that they could restart their married life. The mention of one or two letters being received by the appellant which were not in the usual trend but couched in affectionate terms, shows that the respondent was not writing to the appellant in the same strain as she was writing. We do not find any force in the contention of the respondent that all this while he was busy in his family litigation and so could not keep the appellant or respond to her. The litigation referred to was a suit for partition filed against the respondent by his stepmother and her children. Surely that was not the kind of litigation which could so involve the respondent as to completely neglect and foresake his wife. Even if he was under great mental strain, the company of a loving wife would have been a solace to him and she could not be a burden to him. By a reading of these letters we are also convinced that the respondent who was admittedly without a job in all these years was living on the money being remitted to him by the appellant. Indeed, the manner in which the appellant accounts for her money to the respondent and the manner in which she apologises to him for occasional lapses in sending the money from Delhi leaves no room to doubt the story of the appellant that the respondent was demanding money from her and she was supporting him. We can give no credence to the contention of the respondent that he had rental income of Rs. 60 per month from which he maintained the appellant besides some patrimony. There is no evidence to prove this except his bald statement, on the other hand the remittances by the appellant and her step-mother stand proved and the reference to the salary from Waltair in one of the letters mikes it evident thatthe appellant's contention is correct that the respondent demanded money from her, made her work for it and was being maintained by her and her stepmother. We may here notice letters dated 29-5-61 (Ex. P-2), 31-8-61 (Ex. P-3), 10-11-61 (Ex. P.-4) and 1-12-61 (Ex. P-5) written by respondent to the appellant's step-mother asking for money being sent to him. The letter dated 1-4-65 (Ex. P-8) written by respondent to his motherin-law completely proves the conduct of the respondent and shows repentance by him. We cannot persuade ourselves to agree with the finding of the learned single Judge that these letters show that the respondent had not deserted the appellant for if he had she would not have written in this strain. We have already observed what the expression 'desertion' connotes. It is evident on a reading of all these letters that in spite of the appellant pleading with the respondent to have her back on any terms and at any cost, he completely neglected her and thereby by his course of conduct was guilty of constructive desertion. In that situation it is evident that after pleading with the respondent for such a long time to have her, the appellant reached a stage where she became convinced that there was no point in further pleading with him and so she must obtain separation so that she could be at peace with herself and lead her own life rather than continue to be at the mercy of the respondent. The view that we have taken about desertion in this case also prompts us to hold that the respondent was cruel to the appellant. His conduct at least from 1962 to the end of 1964 was such which resulted in physical distress and emotional upset as far as the appellant was concerned. The strain of separation for many years and the deaf ear that the respondent turned to the pleas of the appellant would amount to mental cruelty. It cannot be regarded as merely negative conduct, for the letters of the appellant show positive neglect by the respondent which the appellant found unbearable. If interruptus coitus can be cruelty, then complete denial will be more so. In this view of the matter, we need not go into the evidence of the actual physical beating etc., for this may even be regarded as having been condoned by the appellant when in 1964 she kept on writing to the respondent that she must join him at any cost.

(17) Mr. K. L. Arora, the learned counsel for the respondent urged that desertion and cruelty as pleaded by the appellant have not been proved by her on the record. So, he contends, no relief should be granted to the appellant. According to the petition, the appellant was deserted in March. 1964 but thereafter till the end of the year she kept on writing to the rsespondent expressing her keen desire to be with him. We have already commented on this aspect of the case and are of the view that inasmuch as the appellant and the respondent separated in March, 1964 and never came together again in spite of pleadings by the appellant, the respondent must be regarded as having deserted her for he made no attempt to call his wife or accede to her requests that they should live together. Regarding cruelty, the appellant has cited some instances of maltreatment while she was living with the respondent and though these incidents of beatings, etc. may not by themselves constitute legal cruelty, all the same, on the ratio of Edwards versus Edwards, the conduct of the respondent did justify the appellant withdrawing herself from the company of the respondent for some time. She no doubt changed her mind as is evident from her letters on record but then desertion at least has been fully established by her. This marriage, which virtually came to an end in March, 1964, could not subsist because of the respondent's attitude and taking a practical approach to the problem, we cannot throw out the petition on technicalities. There is, thereforee, no force in the contention raised on behalf of the respondent.

(18) The result is that this appeal is accepted, the judgment of the learned single Judge is set aside and the judgment and decree of the Trial Court is restored. The appellant will be entitled to her costs Counsel's fee Rs 300.00.


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