N.N. Goswamy, J.
(1) This appeal by the husband is directed against the Judgment and decree dated 22-7-1982 passed by the Additional District Judge, Delhi whereby his petition under section 13(i),(ia) and (ib) of the Hindu Marriage Act for dissolution of marriage by a decree of divorce was dismissed.
(2) It is alleged in the petition that the parties were married according to Hindu rites and ceremonies on 22-11-72 at Delhi. The parties cohabited at Delhi and from the wedlock two female children were born, first in November, 1974 and the second in November, 1975 who are at present residing with the respondent at Ajmer. It is further alleged that the respondent was aggressive since the day of marriage and she was proud of her education. She used to pay more attention towards her parents and used to visit them frequently. Finally, on 2-10-76 she left the matrimonial home without any excuse or reason. She also took away with her the utensils, jewellery and other belongings. At the time of leaving the matrimonial home she told the appellant that she had decided to desert him and to deprive him of the love of his children. The appellant made several attempts to bring back the respondent but she was determined not to return to the matrimonial home.
(3) In the month of January, 1978 the parents of the appellant went to Ajmer along with certain respectables, common friends and relatives. They went to the house of the respondent and tried to persuade her and her parents to re-establish the marital life but the respondent did not agree and was not willing to join the society of the appellant. She also misbehaved with the parents of the appellant. The desertion by the respondent has further increased the mental agony and tension of the appellant. The respondent has also threatened the appellant for further harassment. It is also stated that the respondent visited Delhi in the month of October, 1978 and stayed at her relatives house. Having come to know, the appellant went in person to the respondent and suggested the respondent to join him and re-establish the broken ties. The respondent became aggressive and infuriated and insulted the appellant by abusive language and warned. the' appellant that the respondent was determined to harss the appellant and make his life miserable.
(4) The petition, was contested by the respondent-wife. In the written statement it was stated that this was only an attempt by the appellant to take advantage of his own wrongs and the petition is liable to be dismissed on that short grounds. It is further pleaded that in reality the cruelities were inflicted by the appellant and not by the respondent as alleged. It has been denied that the respondent was in any way aggressive or proud of her education. It is further stated that the bone of dispute is one Smt. Santosh Kapur with whom the appellant had and still continues to have affair in Gwalior. The respondent tolerated even this extreme cruelty to save the honour of the families. It has specifically been denied that there had been any desertion by the respondent at all and that the respondent has been visting the matrimonial home and residing there from time to time even up to June, 1980. However, she was not allowed to stay in the matrimonial home by the appellant. As regards the specific date of 2nd October, 1976 it is pleaded in the written statement that the appellant willingly sent the respondent to her parents and he infact went to see her off.
(5) It is further pleaded that from the communications and various letters which have been placed on record it is amply clear that it is the petitioner who at all points of time did not want the respondent to stay in the matrimonial home and the letters addressed by the appellant to the respondent were bulging bags of abuses to the respondent her parents and were full of threats. She admitted that she had joined a private school as a teacher as he had no other means of liviihood and the appellant was not supporting. She denied that the appellant or his relations ever made an attempt to get her back to the matrimonial home. She specifically denied the alleged visit of the parents of the appellant to get her back. According to her it was the appellant who did all to keep the respondent out of her matrimonial home. The respondent ignoring all the abuses hurled and indignities showered and economic support withdrawn, still persisted for keeping the matrimonial house intact. She went to the matrimonial home several times up to June, 1980 but she was always forced to leave. She admitted that she had gone to Delhi in October, 1978 but denied the allegation that the appellant ever visited her place and asked her to go back with him. On the contrary, she pleaded that she Along with her brother went to the house of the appellant. The appellant was not willing to keep her in bids house and all that he wanted was that she should sign the papers for divorce by mutual consent.
(6) The apellant filed replication wherein he denied the allegations in the Written statement and reiterated his pleas taken in the petition. In paragraph 4 of the replication he specifically stated that Mrs. Santosh Kapur was a friend of the respondent and he had no occasion even to talk to her at any time.
(7) On the pleadings of the parties, the learned trial Judge framed the following issues:-
ISSUES1. Whether the respondent has deserted the petitioner as alleged? 2. Relief ?
(8) No issue regarding cruelty was framed for the simple reason that there was hardly any allegation in the petition regarding cruelty. All that was alleged in the petition was that the respondent was aggressive since the date of marriage and was proud of her education. This certainly could not amount to cruelty under law and as such neither any issue of cruelty was claimed nor was framed.
(9) In support of their pleas about desertion the parties examined oral as also produced documentary evidence. After discussing the entire oral and documentary evidence the trial Judge came to the conclusion that the respondent had not deserted but was forced to leave the matrimonial home and with this finding the petition was dismissed.
(10) I have been taken through the entire oral and documentary evidence on record. In my opinion, it is not necessary to discuss the oral evidence because the admitted letters on record fully clinch the entire matter. The case of the respondent in the written statement is that the bone of contentions between the parties was Mrs. Santosh Kapur who was a neighbour of the appellant at Gwalior. In the replication, the appellant denied this allegation and went to the extent of saying that Mrs. Santosh Kapur was a friend of the respondent and he never had any occasion even to talk to her. This pleas is completely falsified from the admitted letter of the appellant Ex. D-2 dated 9-9-73. In the said letter the appellant tried to impress on the respondent that his relations with Mrs. Santosh Kapur were innocent and Mrs. Santosh Kapur had been looking after him when he was alone and even at a time when the respondent had left Gwalior. The appellant has praised Mrs. Santosh Kapur for her affection in the letter which clearly goes to show that he knew Mrs. Santosh Kapur very well though I am not prepared to go to the extent of saying that he had any illicit relations because there is no evidence on record to prove that except the statement of the respondent.
(11) It is admitted fact that after the respondent received the aforesaid letter Ex. D-2, she re-joined the company of the appellant at Gwalior in 1973 itself. Right From 1973 to 2nd October, 1976 she lived with the appellant and give birth to two female children, one in November, 1974 and the other in November, 1975. It is further an admitted fact that during these three years she never went to meet her parent and continuously stayed with the appellant. On 2nd October, 1976 she was willingly sent to her parents by the appellant. This fact is born out from the letter Ex. D-1 written by the mother of the appellant to a cousin brother of the appellant. In the said letter the mother of the appellant has informed the cousin of the appellant that the respondent was sent willingly to her parents by the appellant and the appellant had also gone to see her off. In the said letter she has made a complaint that inspire of the fact that two daughters were born to the parties, the parents of the respondents had given nothing for the children or any other members of the family.
(12) The admitted case of the parties is that when the respondent left on 2nd October, 1976 she agreed to come back before the 'Diwali' which was somewhere on 20th October, 1976. However, before Diwali she informed the appellant that due to the sickness of her brother she would not be able to reach before Diwali and would come soon thereafter.
(13) In reply to that letter the appellant wrote a letter to the respondent Ex. D-4 dated 17-10-1976. I have been taken through that letter. The letter is full of filthiest abuses given to the respondent. It actually starts with a very filthy abuses for the respondent and in the body of the letter also such abuses find, place which cannot even be described in this judgment. The appellant was not satisfied by giving such filthy abuses to the respondent and went to the extent of blaming her of being a bad character to the extent that she was like a prostitute and was enjoying sleeping with her friends and even with her own father. In the end he wrote that she should never think of coming back to the matrimonial home and if she ever tries to come back, not only she but her helpers would be given swear shoe beatings.
(14) This letter is admitted by the appellant and the Explanationn is that he had written all this because he was annoyed for her not having come back. This . letter by itself is sufficient for the respondent to keep away from the company of the appellant because after such a letter it could not be said that she is remaining away without a sufficient cause. However, inspire of this letter she admittedly made attempts to go back to the matrimonial home. The appellant in his statement has admitted that she did come back after few days but was not permitted to stay in the matrimonial home. According to the appellant the respondent said that if she was not permitted to stay she would go back and the appellant said that she could do that and the respondent left the matrimonial home. There is yet another letter of the appellant written to his father which is Ex. D-5 and is dated 16-11-1978. This letter is rather revealing. The appellant has admitted in this letter that the respondent had come to the matrimonial home on or about the Diwali day and again on 3rd November, and wanted to stay in the matrimonial home. She had also brought the child along. He, however, did not consider it proper and dropped her at the outer door of maternal aunts house. It is further written in the letter that the respondent still had some pride left and he told her in harash words that he was not prepared to keep her and the only way .out was the divorce, for which she was not ready. There is yet another letter Ex. PW1/1 dated 7-2-1978 written by the cousin of the appellant (PW 1) to the appellant The said letter discloses that the respondent had gone to the said cousin several times at his house and had always expressed her desire to live in the matrimonial home and re-establish the matrimonial ties. As a result, the cousin of the appellant had written to the father of the appellant to intervene in the matter and get the matters settled. This letter of the cousin to the father of the appellant annoyed the appellant and that is why the cousin of the appellant tried to explain his position to the appellant. He has further written that one of his neighbours is a Munsif and he has consulted him for the divorce proceedings between the parties. According to the said Munsif the appellant should give a legal notice to the respondent and if the respondent does not come back, he could initiate the divorce proceedings. He has further tried to explain in the said letter that the appellant will not have to pay any alimony to the respondent and will also be able to get the custody of the child. He has further said that for divorce proceedings it will be necessary to have some evidence to the effect that the appellant and his parents and relations tried to get back the respondent but she was not willing to come and such a evidence would be created without much difficulty.
(15) All the aforesaid letters show the conduct of the appellant and his relations. From these letters it is amply clear that the respondent was all alone willing to come back to the matrimonial home and she had no intention to bring cohabitation to an end. Even when she left the matrimonial home on 2-10-1976. She did so with the consent of the appellant and without any intention of not returning to the matrimonial home. In view of the aforesaid letters, it is impossible to think that the appellant was at any point of time ready and willing to take back the respondent because he has categorically stated in the letters to the respondent also to his father that he is not willing to keep the respondent and would seek divorce.
(16) For the reasons recorded above, I am clearly of the opinion that the appellant wants to take advantage of his own wrongs which in law he can not be permitted. No fault can be found with the impugned judgment and decree and the appeal has no merit at all. The appeal is, consequently, dismissed with costs. Counsels fee Rs. 500.00 .