S.B. Wad, J.
(1) The parties were married at Delhi on February 27, 1970, They come from lower middle class families. Both were employed even at the time of marriage. The wife left the matrimonial home in July 1970 allegedly for purposes of delivery and never returned. A female child was born to them on 15th of December, 1970. On February 27. 1971 the husband filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. After amendment of the Hindu Marriage Act. making desertion as a ground for divorce under Section 13(1)(ib) the husband filed a petition for divorce. Thereafter he got the petition for conjugal rights dismissed as withdrawn on 22.9.1976.
(2) The husband's allegation in the petition was that the wife was working in the Institute of applied manpower and her salary in July 1970 was Rs. 475.00 . When she was pregnant in July 1970, her parents took her to their own residence on the pretext that she would be looked after better in her parent's house. The salary of the wife was kept by the parents. He was not allowed any access to the wife after 1-10-1970. The husband had told the? Wife to keep t he salary to herself and not to give it to her parents and that is why her parents were annoyed. The parents of the wife had cat off the relations with the family of the husband so much so that the intimation of the birth of the female child was sent by telegram. His parents were not allowed to see the child or to offer prests. They made number of attempts for reconciliation and to take her back but the wife, on the instructions of the parents, refused to go. The petition as such does not disclose any serious reasons or circumstances which should normally result into the break' down of the marriage. There are no serious allegations by the husband against the wile. Some allegations are against the parents ; such as utilising her salary or not allowing the wife to go back to the matrimonial home. As a matter of fact the parties are living separate from each other for the last 14 years. The girl born of the wedlock is also over 13 years of ago. The wife in her defense twice amended the writ petition. The gist of her case is that the parents of the husband are gready. They were annoyed with the insufficiency of dowry. They had expected more dowry because they knew that even before the marriage, the wife was employed. They got further annoyed because, they learnt that at the time of the marriage the wife and withdrawn Rs. 2 000.00 from her provident fund and monthly cut had started after the marriage towards repayment. In order to justify her leaving the matrimonial home she had asserted that on 8th/9th July, 1970 the husband gave her serious beating and on the mid-night threw her out with bare clothes and closed the door on her. The reason for the said beating alleged by the wife is that the mother of the husband used to interfere in the matrimonial life of the parties. On the night in question, she entered the room where the couple was sleeping. She accused the wife of being a sex meniac. The reason of the abuses was that although she was pregnant she was sleeping with the husband in the bed. It was further alleged by the wife that inspire of the efforts made by the family for her going to the matrimonial home, she was not allowed to do so. Throughout this period of the separation the husband did not care for the child so much so that he neither asked for the custody of the child nor made any arrangements for the maintenance.
(3) As usual both sides examined large number of witnesses mostly the close relations. Apart from this the wife produced some of her colleagues in the office and her superior. Both in the proceedings for restitution of conjugal rights as well as present proceedings, attempts were made for the re' conciliation between the parties by the trial court but they failed. I had also called the parties in the chamber separately and their advocates. There were no serious allegations such as infidelity or persistent cruelty. Even then it was difficult to bring the parties together after 13 years. As usual the wife showed her willingness to join the matrimonial home. In the context of her allegation of severe beating and inhuman treatment, on the fateful day i.e. 8th/9th 1970 and her charge that the husband's family was greedy, it was difficult to decide how far she was sincere in her claim. The husband expressed his inability to take the wife after a lapse of 14 years. The additional reason stated by him was that he would not like to take a risk of involving himself in any criminal case in the present day atmosphere of the alleged cases of dowry victims.
(4) For succeeding in the petition for divorce on the ground of desertion the husband must show that the wife had left the Matrimonial home without his consent and that there is factual desertion for a period of more than two year. He mast further show that the respondent-wife had left the matrimonial home without any intention to revert. He mast further show that he is willing to keep the wife but the wife, without any reasonable, cause was avoiding his company. For this purpose he must show the attempts made by him to get back the wife to the matrimonial home. The burden is primarily on the petitioner-husband but it shifts to the respondent-wife as. soon as the alleges reasonable cause or justification for her withdrawing the company from the husband.
(5) The parties have taken me through the evidence in the case. The evidence in the case is in the nature of personal reactions and interpretation to suit the partisan claims of the parties. Even the eve witnesses narrate the facts from respective point of view. Matrimonial cases are at times more banned by the extreme positions taken by the parties. Here, the set of facts asserted by one side is denied outright by other. The witnesses have added (by the depositions) to the mutual contradictory stands and confusion generated by the same. I broadly agree with the appreciation of the evidence by the learned Additional District Judge and his findings.
(6) The first question is why is it that the wife felt like leaving the matrimonial home when she was in the fifth month of pregnancy The reason stated by the husband is that her father took her away on the pretext of looking after her during the pregnancy. He further states that he war allowed to have access to her up to first week of October, 1970 but not thereafter. According to him the wife had deserted him from first week of October, 1970. But in law it is not sufficient for the petitioner to show the mere fact of avoiding the company by the respondent but he must further show by means of evidence that the respondent had formed a permanent intention of not to return. The husband had failed to discharge this burden of proof in the present case. The learned Additional District Judge on the evidence on the record has disbelieved the wife's version of severe beating administered by the husband, and physically turning her out at mid-night on 8th/9th July, 1970. I agree with this finding of the learned Judge. We may assume that some quarrel might have taken place on the said night. The father took away his daughter probably feeling that in her 5th month of pregnancy she required more congenial atmosphere at his place rather than the husband's place. There is nothing unnatural about it. Admittedly the husband was given the access 'up to the first week of October, 1970'. Withdrawal from the company in matrimonial language means 'stopping co-habitation'. Withdrawal from co-habitation in the normal circumstances without any reason may be a matrimonial mis-conduct. But that cannot be- said to be the position when the wife is in the 7th month of her pregnancy. thereforee, neither the factual desertion nor desertion in law can be attributed to the wife in the first week of October, 1970. For probing; the question of desertion, further we must look to the events and evidence subsequent to her delivery in December, 1970.
(7) It was generally stated by the husband in his paras 8 and 9 of the petition that he tried to contact the respondent for persuading her to return to the matrimonial home. It was also asserted that he contracted the parents of the wife but they did not allow her to Come back. No dates are given, no particular occasions are mentioned when the husband visited the wife's place after October 1970 and particularly after the birth of the child in December 1970. The learned Judge has considered the evidence of the husband, PW-4 Satya Pal, the father of the husband and PW-3 Sushila Devi the mother of the husband. The learned Judge has found this evidence unsatisfactory, because there are no definite averments as to the date on which they visited the house of the wife or what exactly were the attempts made for persuading the wife to go to her matrimonial home. The complaint of the husband is that the information of the birth of the child was given by telegram. Normally, where the parties stay in the same city this is not the mode of communication. Sending a telegram might show that the relations between the families were not as good as they should be, but nothing further. No deliberate plan to sap the matrimonial tie can be inferred. The learned Judge has disbelieved the husband and his witnesses when they deposed that they were not allowed to see the child nor were they allowed to give any gifts but instead rebuked by the parents of the wife. The husband's version does not appear to be natural because according to him in the month of October itself, the wife had made up her mind to permanently desert him. In the proceedings for the conjugal rights and thereafter, the husband did not make any attempt to see the child or to ask for his custody. He did not make any offer to pay maintenance for the child. On this evidence the learned Judge was quite rights in holding that it was not proved by the husband that the wife was at fault and she had left the matrimonial home with a permanent intention of not to return.
(8) The reason for the alleged desertion of the wife suggested by the husband also appears to be imaginary. It is submitted that he had asked his wife not to give her salary to her father but to keep it for herself. The father felt annoyed because he wanted to utilise The salary. It is pointed out that the father was working as a U.D.C. with a large family to support. The indirect suggestion is that due to his low income and the burden of the family the father of the wife had an eye on her salary and was, thereforee, persuading the wife not to return to her matrimonial home. First of all, the instruction of the husband not to pay salary to the father, is itself quite unreasonable. Admittedly the wife's family is a lower middle class family with the usual tale of low income, and large families. Apart from the normal maintenance of the wife and the child, additional money was required for medical expenses and diet, immediately after the delivery. Annoyance of the father is, thereforee, understandable. But it is unbelievable that the father wanted permanently to appropriate her salary and, thereforee, prevented her from Joining the husband. In Hindu families, particularly, the strata of the society to which the parties belong, longer stays of the married daughters in the house is almost equal to a socielstigma. thereforee, normally, the anxiety is to send back the daughter to the husband's place within a couple of months after delivery.
(9) That takes us to two averments made by the wife in her amended written statement. It is submitted by the wife that the husband's family was very much annoyed because of the fact that she had withdrawn Rupees Two thousand from her provident fund for purposes of her marriage. It is also submitted that the husband's family was very much dis-satisfied with insufficiency of dowry. She has submitted that almost immediately after the marriage the husband's family started grumbling about it and in fact expressed an opinion that they could have got a more effluent bride and more dowry. It is in the evidence that Shri Jagdish Thukral, RW-3, a cousin of the wife called both the families at his residence for a dinner. The husband's father expressed his unhappiness and felt as if he was cheated in the marriage and referred to the withdrawal of Rs. 2,000.00 from G. P. Fund and insufficiency of dowry. It is in the evidence that thereupon the father of the wife agreed to make payment for an additional money and also to pay Rs. 2,000.00 in Installments. The version of the wife is that the husband's side refused to accept the amount. On the other hand the husband says that the money was never actually paid. He has in fact denied any such dinner at the place of Jagdish Thukral or the alleged demand made by his father. The fact remains that no additional amount was paid by the wife's side. The learned Judge has believed the evidence of Jagdish Thukral. There are some inconsistencies in the evidence of witnesses of both the sides but broadly speaking the evidence of Jagdish Thukral inspires confidence. His evidence is to be understood on the present day realities of life. Although law prohibits dowry it is being freely extracted in most of the marriages. The evil persists not only in the poor families high prices and the consequent unbearable economic burdens stand in the way of the abolition of dowry. The expectation of dowry manifest itself in various forms. One of the ways is to accept bride who is employed and is earning. The learned Judge was not wrong in his assessment of the approach of the husband's family. They thought that the wife was in employment for a number of years before the marriage. She must have saved lot of money for marriage. thereforee, although the father had the humble background, substantial amount by way of dowry could be expected. On this background it does not appear to be unnatural for the husband to make a comment that the furniture was not of a quality or the ornaments were very light. Whether he saw the dowry articles on the day of the marriage or subsequently or whether he had actually counted them immediately after the marriage is immaterial. The husband has shown inconsistencies in regard to the matters from the depositions of the wife's witnesses. But to my mind they hardly matter. If the husband's side was expecting good amount of dowry it would certainly annoy them to know that the wile had withdrawn a sum of Rs. 2,UOO.00 from the provident fund and the recovery in Installments would start after the marriage. It may be out of greed for money or it may even be for the economic necessity of the family. But the fact is that the expectations of the husband's family in regard to the salary of the wife were not sufficiently fulfillled, and that could be a matter of dissatisfaction and quarrel. The wife had asserted that after the marriage, she was giving the salary to the mother-in-law while the husband asserted that she was keeping the salary with herself. The couple hardly lived together for five months after the marriage. Nothing much can be inferred either way from these averments.
(10) In these proceedings the appellant-husband moved an application, being C.M. 359 of 1985 to bring on the record the orders passed by the Sub Judge 1st class, in the proceedings for restitution of conjugal rights. The learned Judge had made an attempt that the couple live together again. The wife complained for the reconciliation between the parties and to see that the accommodation available to the husband was only two rooms and, thereforee, unless more accommodation was secured it would not be possible to join the husband. Thereafter, according to the husband he secured one more room from the landlord in the same house. The landlord was examined in the proceedings. Allegedly the wife refused to go even thereafter insisting that the husband should show a rent note for the separate house as she did not believe that a separate room was in fact, secured by the husband. The husband wanted to bring these facts on the record to show that in 1972 when he made an attempt for reconciliation the wife refused to join him on variousexcuses. The counsel for the wife strongly objected to tike the said orders on the record. He has also filed a reply objecting to the sime. He has submitted that the entire evidence will have to be recorded again in these proceedings to know the circumstances in which the offer was made by the husband and the refusal of the wife to join the husband. He submitted that the landlord was in collusion with the husband and the evidence was being created falsely so as to show that the wife was deliberately avoiding the company. The application for restitution of conjugal rights was pursued by the husband even after the said failure of reconciliation. The proceedings went on for four years thereafter in which the evidence of both the parties was recorded. When the Act was amended in 1976, the husband wanted to avail of it for securing divorce and he did in fact file the petition on the ground of desertion. No purpose would be served by looking to the record of the memorandum of the failure of reconciliation in the proceedings for restitution of conjugal rights. The wife had the problem with the mother-in-law. The wife had formed an impression that at the behest of the mother the husband was ill-treating her. According to the husband's own version, he could not leave his mother as she was very old and he was the only son. Securing a separate room in the same house would not have solved his problem. The wife is not highly educated but educated enough to have her personality and to do an independent job. Her insistence to produce the rent receipt perhaps would only show that she was not convinced that the husband wanted to live separately with her, leaving his mother. Any other women in her place would have taken a different view of the matter but it all depends upon the past experience, the temperament and ideas of privacy for the newly wed. The evidence before the court hearing the petition for conjugal rights, thereforee, is not sufficient to show that the wife was deliberately avoiding the company of the husband without any just cause.
(11) Another objection of the counsel for the wife is that proceedings for divorce were barred by Order 2 Rule 2 in view of the fact that the husband had already preferred a remedy for the restitution of conjugal rights. I do not think so. These are two separate remedies provided by law. One can be preferred after the other. If the husband had successfully secured the decree for conjugal rights and wife had joined him thereafter he could not have filed the petition for divorce on the ground of desertion. The submission of the counsel for the wife is, thereforee, rejected.
(12) For reasons stated above, I hold that the husband has failed to prove that the wife had deserted him law. He is not entitled to decree for divorce. The appeal is dismissed; but on the facts and circumstances of the case there shall be no order as to costs.