J.D. Jain, J.
(1) Thus, the first phase of their married life ended on a sad not. At a time when a wedded couple would be normally gripped by euphoria of sharing bliss and happiness of togetherness the seed of disharmony was sown and the marital bond was put under considerable strain. It is no wonder that disenchantment was to follow.
(2) On a consideration of the entire evidence on the record I see no cogent reason to disbelieve the appellant and her father and brother when they say that Sushil Kumar never visited Bombay, as alleged. Surely the bald statement of the respondent which is tendentious and is aimed at casting aspertion on the character of the appellant cannot be taken as gospel truth, especially when he is actuated by a malevolent desire to somehow get rid of the appellant. He is very much prone to make every kind of pernicious insinuation against her because it subserves his real purpose of portraying the appellant as a person who would mal-treat and insult her husband so often because she could not reconcile to her marriage with the respondent on account of her infatuation and love for Sushi Kumar.
(3) Having steered clear of many a controversy between the parties, the stage is new ripe for a probe into the cause of all the bickering, turmoil and acrimony which persisted in the conjugal life of the parties and which eventually led to a cleavage in their matrimonial bond. The respondent has painted the appellant jet black on the marriage canvas by imputing not only conjugal infidelity to her but also describing her as an arrogant, hot-headed and short-tempered woman who would pick up a row on the slightest or even no provocation. She would not bother about the daily chores of the household or the personal needs and comfort of the respondent. She had developed strong hatred for the respondent and even hurled abuses at him throwing all decency to winds. The reason for this hostile and non-compromising attitude of the appellant is stated to be her promiscuous relationship with Sushil Kumar Tandon. On the other hand, the appellant has ascribed disharmony in their marital relations to persistent greed and avarice on the part of the respondent who all the time pestered her to get money from her parents for a car/flat at Bombay. He was all the time smouldering under the feeling that his father-in-law had not given a dowry commensurate with his status in life. As for the allegation about the conjugal infidelity and promiscuous relationship of the appellant with Sushil Kuniar Tandon is concerned, 1 have already dwelt on this subject at length need not recalculate the same. It is, thereforee, to be seen whether the continuous wrangling between the parties and the alleged lackadaisical attitude of the appellant was due to highly sensitive nature and peevish temperament of the appellant or insatiable greed of the respondent.
(4) It clearly demonstrates how desperate and frustrated she was feeling and she was constrained to retort by way of retaliation. But even then she was having anxious thoughts about her future. The graphic details given by her in both these letters have a ring of truth. It is is lure that there is no reference in these letters to any direct demand having been made by the respondent for money for purchasing a car/flat but the circumstances do warrant such an inference. She deposed in categorical terms Hint throughout her stay at Bombay the respondent would try to find fault and on small incidents lie would abuse her and her parents and her parents and at times would not hesitate to assault her physically. He used to ask her to write to her father to bring cash for a flat. She then explained that quite often when the respondent returned home after traveling in a train or a bus he would complain that he would not have to undergo jolts in the buses had her lather given money for a car. Similarly he would say quite often that had her father given some money for a flat he would have purchased one at sea-shore and he would not have been rotting in a small room on fourth floor. Further she went on to state that her father visited Bombay in January 1968 in response to a letter written by her and he looked for some flats which were available then but he left Bombay saying that if at all she purchased a flat it would be in her name. Evidently both the above mentioned letters were written by the appellant to her father subsequent to her father's visit to Bombay. It is quite comprehensible that the father of a married daughter would prefer to purchase any property, even though he wants to placate his son-in-law, in the name of his daughter rather than his son-in-law because that gives some sense of security to her. 84 (b) It would thus appear that the respondent was not satisfied with the quantum of dowry given by the appellant's parents in her marriage and he kept on grumbling about it. This dissatisfaction reflected itself in the day to day behavior of the respondent towards the appellant and caused great strain on the marital relations between the parties. No doubt, the respondent did not openly tell his parents-in-law about the insufficiency of the dowry but he used to blurt out/give vent to his feelings while abusing and taunting the appellant. That besides it would appear that the respondent is a hot-headed, self-centered, haughty and easily excitable person. He would expect his wife to obey his orders and submit to his authority without demur. So, he would not brook even the slightest voice of dissent or protest on the part of the appellant and whenever she dared question his authority she was not only scolded but even manhandled. He presents a perfect picture of male chauvinism. It is despite his being a highly qualified person and his receiving education even in foreign countries. It would appear that even the father of the respondent was lukewarm in his attitude towards the appellant probably because the respondent would not listen to him.
(5) The foregoing concatenation of circumstances is conclusive of the issue. Raw social realities and not- fine spun legal niceties make the law. It is, thereforee, necessary to lift the veil and look at the conspectus of factors governing matrimonial relations between the parties in order to discern the naked truth. It is unfortunate that despite spread of education and tall talk of complete emancipation of women by breaking the old shackles and bondage in which they were held, the Indian society is by and large male dominated. Even today the demands for dowry are a constant plague and a source of great distress to young women and their parents. Ill-treatment due to not bringing sufficient dowry is not an unusual practice. It is, thereforee, no wonder that the respondent not being satisfied with the quantum of dowry given by the appellant's parents became harsh and showed callous indifference to the sentiments of the appellant from the very start. Further the evidence on the record, both direct as well as intrinsic i.e. circumstantial, leaves no room for doubt that the respondent is a fastidious, over-bearing and hotheaded husband. He was prone to always find fault and the scold the appellant over trifles. Persistent harsh conduct and maltreatment of the appellant by the respondent was bound to evoke retaliation and it is no wonder that she used abusive language for him in the letters written to her parents etc. It may as well be that she uttered abusive language in the course of altercation with her husband but one thing is obvious that the provocation came from the respondent. After all there is a limit to the patience and endurance of a wife. In Uma Bassi v. Anil Kumar 1 (1983) Dmc 166, Leila Seth, J., observed. I do not think that woman have a monopoly of sensitivity ; men can be as sensitive to accusations and allegations of infidelity'. With respect I may add that the converse is equally true and persistent callous indifference to the feelings of the wife and harsh treatment to her is bound to boomer an sooner or later. This is precisely what seem to have happened in the instant case. As said by Lord Reid in his speech in Gollins. v. Gollins (1963) 2 All E.R. 966:
'In matrimonial cases we are not concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer of priori assumptions we make about them the better. In cruetly cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people'.
(6) Thus, looking to the totality of circumstances, I have no hesitation in holding that-the respondent is primarily responsible for matrimonial disharmony and virtual breakup of the marriage tie between the parties. Of course I do not mean to absolve the appellant of blame altogether because she, too, reacted very sharply and added to the gravity of the situation which she could have perhaps saved from worsening by being more tactful and sweet. All the same, the conduct of appellant, looking at the entire matrimonial relationship between the parties, cannot be termed as cruel even in the ordinary sense of that term. It has been repeatedly held both by English Courts as well as Indian Courts that the conduct complained of in order to constitute cruelty must be grave and weighty. Occasional outbursts of temper and even use of strong language which may often be attributed to incompatibility of temperaments do not amount to cruelty. It bears repetition that in the instant case the appellant was mostly at the receiving end and she would resort to harsh words and abusive utterances in retaliation. Under the circumstances, the finding of cruelty recorded by the trial Court cannot be sustained.
(7) That brings me to the other ground of divorce, namely, desertion. D.Tolstoy in his 'Law and Practice of Divorce' 6th Edition at page 38 defines desertion thus :
'Desertion is the cessation of cohabitation brought abut by the fault or act of the deserting spouse. This requites two elements on the part of the deserting spouse, namely, that fact of separation and the intention to desert, and there will be no desertion unless both elements are present. It is uncertain whether it is possible for both spouses to be in desertion at the same time ?'
The legal position was further enunciated by the Supreme Court in Bipinchandra v. Parbhavati, : 1SCR838 , wherein it was held that :
'For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned ; (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.'
(8) Applying these tests to the instant case it cannot be said by any stretch of reasoning that the appellant left the matrimonial home other own accord and without the consent of the respondent. Further her conduct throughout does not show an intention of permanently forsaking her matrimonial home. In otherwords, there is no evidence of animus deserendi on her part. On the other hand, there is clear evidence on record to point out that the respondent persistently ill-treated her and created conditions in which it was no longer possible for her to live in matrimonial home. According to him, the letter Ex. PW6/1 (which, as stated above, was written by Prabha to the appellant and was intercepted by the respondent) gave him such a shock that he almost lost all interest in life and he could not perform his sex acts with the respondent. He further stated that on Maj. Saraswat telling him that the appellant was having an affair with Sushil Kuniar Tandon even before her marriage and that she had told him that she was not keen to live with him (respondent) and hated him (respondent), he felt greatly insulted and humiliated and consequently stopped taking any interest in her. Thereafter, the appellant came to his house four or five times and stayed there just as a guest for holidaying and for visiting Bombay. When the appellant was in the witness-box, a suggestion was made to her that he did not cohabit with her after the Diwali of 1968 but she vehemently deniedthe same. Having regard to the repeated visits of the appellant to her matrimonial home at Bombay even after the so-called disenchantment of the respondent it does not appeal to reason that there would have been no cohabitation between them after Diwali of 1968 as is sought to be made out by the respodent. Admittedly she stayed with him at Bombay uptil the middle of March 1973 when when he was transferred to Delhi. Even in his letter dated 2nd February 1973, Ex. PW/D6, addressed to the father of the appellant, he conveyed regards to her mother and also showered affection on their daughter Agrita on behalf of both himself & appellant. So, even though the relations between the parties were considerably strained, the bald assertion of the version of the respondent that there was no cohabitation between him and the appellant since Diwali of 1968 is difficult to accept. At any rate, it is manifest that the appellant used to visit Bombay quite often because it was her matrimonial home and the contention that she used to go for holidaying is simply preposterous. Further, as observed earlier, the story of the respondent that she went straight to her parents' house on reaching Delhi in March 1973 is unworthy of credence and the truth of the matter seems to be that she was forcibly turned out of her matrimonial house by the respondent in June 1973. So he, rather than the appellant, is guilty of constructive desertion As observed by the Supreme Court in Bipinchandra Jaisinghbai Shah (supra) :
'If one spouse by his words and conduct compels the other spouse to leave the marital home, the former would be guilty of desertion though it is the latter who has physically separated from the other and has been made to leave the marital home.'
(9) Thus, constructive desertion by a husband may be established where he persisted, in spite of warning that his wife might leave the matrimonial home, in a course of conduct which a reasonable man would have known would probably have had that result. In Lang v. Lang (1954) 2 All E.R. 571, the husband deliberately ill-treated his wife. He knew that is was likely to cause her to leave him but he desired or hoped the she would not leave. He did not act with the intention of driving her out but he acted with the knowledge that was what would probably happen. Under the circumstances, the decision was that if without just cause or excuse a husband persists in doing things which he knew his wife will probably not tolerate and which no ordinary woman would tolerate and then she leaves, he has we fully deserted her whatever his desire or intention might have been.
(10) The instant case stands on a much stronger footing for the appellant. The respondent would not only mete out harsh treatment to her but would also on times assault her physically and in June 1973 he forcibly turned her out of his parents'house. Thus, the question of any desertion on the part of the appellant does not arise and it is the respondent who is guilty of constructively deserting her.
(11) Lastly, there is the interdict contained in Section 23(1)(a) of the Act which clearly provides that relief under the Act can be granted only when the Court is satisfied that any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief. As has been seen above that the respondent-husband in the instant case is by and large to blame himself for the situation which he brought about in a comparatively short period by his own misbehavior and mal-treatment of the appellant. Not only that he has leveled baseless and wild allegation of adultery in the petition for divorce itself and has tried to depict her as a virtual whore who was leading a life of unrestrained promiscuity after leaving the matrimonial house in June 1973. Thus, the misconduct on his part is serious enough to justify the denial of the relief to which he would have been otherwise entitled even assuming that the appellant is guilty of matrimonial offence of cruelty or desertion.
(12) Before concluding I feel constrained to record that efforts at reconciliation were made by me too, but unfortunately the respondent was impervious to any suggestion for resumption of conjugal relations although the appellant was desirous of returning to her matrimonial home. This indicates that there is irretrievable break down in the marital relations of the parties. But all the same, that is not a legal ground for dissolving the marriage between the parties by a decree of divorce.
(13) As a result, this appeal is allowed and decree of divorce granted by the trial Court on grounds mentioned in Section 13(1) (ia) and (ib) of the Act is hereby set aside. The appellant shall also be entitled to costs throught. Counsel's fee Rs. 1,000.00.