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Sarla Sikrodia Vs. Dr. Krishan Chandra Sikrodia - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Appeal No. 125 of 1978
Judge
Reported inAIR1982Raj220; 1981()WLN596
ActsHindu Marriage Act, 1955 - Sections 13(1)
AppellantSarla Sikrodia
RespondentDr. Krishan Chandra Sikrodia
Appellant Advocate P.C. Jain,; N.L. Jain and; Prem Ashopa, Advs.
Respondent Advocate N.L. Tibrawal and; Jagdeep Dhankar, Advs.
DispositionAppeal allowed
Cases ReferredIn Lachman v. Meena
Excerpt:
hindu marriage act. 1955 - section, 13(1)(ib)--desertion--test of--deserting spouse having reasonable cause--held, it is not desertion in eye of law.;the separation of one spouse from the other with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end but the explanation reproduced above makes it clear that if the deserting spouse has a 'reasonable cause' to desert, such desertion will rot be 'desertion' in the eye of law.;(b) hindu marriage act, 1955 - section 13 (1) (ib)--desertion--husband repeating allegations of loose sexual character & unchastity--husband asking wife to accompany to house from court--wife requiring husband to take her from parents home which husband declines--held, husband's attitude is not genuine.;any hindu wife in.....k.s. sidhu, j.1. this is a wife's appeal from a decree of divorce made by the district judge, kota, dissolving her marriage on the ground of desertion as provided for in section 13(1)(i-b), hindu marriage act, 1955.2. the facts which are material for the decision of this appeal may be shortly stated here. the marriage between dr. krishan chandra sikrodia and sarla sikrodia was solemnized according to hindu rites at new delhi on june 11, 1973. before and at the time of the marriage, the husband was employed as a medical officer in (he railway hospital, kota. the wife is a teacher by profession. she was teaching at that time in lady irwin school (junior section). defence colony, new delhi. the parties las) resided together at kota till may 17, 1974. no issue was born in this wedtock. the.....
Judgment:

K.S. Sidhu, J.

1. This is a wife's appeal from a decree of divorce made by the District Judge, Kota, dissolving her marriage on the ground of desertion as provided for in Section 13(1)(i-b), Hindu Marriage Act, 1955.

2. The facts which are material for the decision of this appeal may be shortly stated here. The marriage between Dr. Krishan Chandra Sikrodia and Sarla Sikrodia was solemnized according to Hindu rites at New Delhi on June 11, 1973. Before and at the time of the marriage, the husband was employed as a medical officer in (he railway hospital, Kota. The wife is a teacher by profession. She was teaching at that time in Lady Irwin School (Junior Section). Defence Colony, New Delhi. The parties las) resided together at Kota till May 17, 1974. No issue was born in this wedtock. The wife left the matrimonial home with consent of the husband on May 17, and went to Delhi for medical examination and treatment of suspected fibroid uterine tambour. She did not thereafter return to the matrimonial home and resume cohabitation with the husband in spite of request by him. The husband filed a petition for restitution of conjugal rights in the district court at Kota on Oct. 3, 1974. He filed the present petition for divorce on grounds of cruelty and desertion in the same court on Dec. 21, 1976, when his petition for restitution of conjugal rights aforementioned, was still pending in that court. The petition for restitution of conjugal rights was dismissed as withdrawn on April 30, 1977.

3. The particulars of cruelty and desertion as given by the husband in paragraphs 4 to 8 of his petition may be recapitulated here. The wife was suffering from fibroid uterine tumour even prior to the marriage, but this fact was concealed by her and by her parents from him. He discovered this fact after the marriage. Her brothers came to Kota to take her from there to her parents house at Delhi. He allowed her to go on her representation that she would like to spend a few days at her parents house and utilize the opportunity for consultations with medical specialists regarding fibroid uterine tumour. She went to Delhi on May 17, 1974. He wrote her many letters thereafter requesting her to come back to him. He informed her well in advance about an operation on him for hernia on August 18, 1974. He sent telegrams requesting her to be by his bedside at that time. She ignored all his requests and continued to stay on in Delhi. His father died on March 13, 1975. His mother died subsequently on December 14, 1975. She did not come and join him even in his days of grief. Efforts were made by the matrimonial court during the trial of the previous petition for reconciliation. She refused to return to the matrimonial home with the result that the said efforts failed. He complained that she had throughout been adamant because she is determined to ruin the marriage bliss,

4. The wife contested the petition and filed a written statement in answer to it. She denied the allegations of cruelty and desertion made against her. She denied that she and her parents had any knowledge before her marriage that she had been suffering from fibroid uterine tumour. She averred in this connection that it was only after the marriage that the petitioner who is an experienced medical practitioner discovered that she was suffering from this growth and that it needed treatment and surgery. According to the wife, the petitioner himself sent her to Delhi for treatment, Riving her two letters addressed to the Medical Superintendent. All India Institute of Medical Sciences, New Delhi, requesting him to arrange to have a thorough medical check-up of the respondent and give her necessary treatment including surgery, if necessary. She complained that after the discovery of this growth in her uterus, the husband began to mistreat her and that his subsequent conduct revealed to her in retrospect that he had been acting in a pre-planned and calculated manner to get rid of her and to create fake grounds for getting the marriage dissolved. She averred in this context that when the medical investigation at Delhi indicated the need for her of surgery, he suddenly brought up the question of his own operation for hernia at Kota and wrote to her asking her to return to him at Kota immediately. She complained that, while he was asking her to return to Kota without waiting for her operation at Delhi, he simultaneously kept accusing her of unchaslity and those moral character. He also filed a petition for restitution of conjugal rights against her on Oct. 3, 1974. She was operated for removal of the tumour from her uterus on March 13, 1975. She admitted that she had come to know about the death on March 13, 1975, of his father. She also learnt about the death of his mother on Dec. 14, 1975. She however explained that taking into consideration the facts that he had been making false allegations against her moral character, that he had already filed a petition for restitution of conjugal rights against her and that she had been advised surgery for removal of her uterine tumour, she could not possibly return to Kota for his operation for hernia and for condolences on the sad demise of his parents. She repeated that after having himself sent her to Delhi for treatment and removed of the fibroid uterine tumour and thereafter making false accusations against her moral character, he could not reasonably expect her to return to Kota to be present at the time of his operation for hernia and subsequently at the obsequies on the death of his parents. She denied that she had withdrawn from his society without reasonable excuse. She also denied that she had deserted him for two years before the presentation of the petition. She complained that he had himself created the situation which had compelled her to stay away from him during that period. She accused him or having created the said situation with a view to obtaining a decree of divorce against her. She pleaded that the petition for divorce is not maintainable during the pendency of the petition for restitution of conjugal rights.

5. The parties were taken to trial on the following issues:

(1) Whether the petitioner is entitled to a decree of divorce on the grounds (of cruelty and desertion) mentioned in paragraphs 4 to 8 of the petition?

(2) Whether the wife took away the entire jewellery, and if so, whether the petitioner is entitled to recover it from her?

(3) Whether the petition for divorce is not maintainable during the pendency of the petition for restitution of conjugal rights?

(4) Relief?

6. The learned trial Judge recorded his findings on these issues as under:

(i) It is established on record that the wife's brothers, namely Girdhar Gopal and Krishan Gopal and her sister, Meera, took her away from Kota to Delhi on May 17, 1974. Though she left the matrimonial home and went to Delhi that day, ostensibly with the consent of the husband who agreed so that she could get the necessary treatment from the All India Institute of Medical Sciences, New Delhi for the growth in her uterus, the real reason why she separated from him that day was a letter which he had sent to her brother Girdhar Gopal earlier on May 7, 1974, making accusations against her chastity and moral character. The matrimonial offence of desertion thus commenced on May 17, 1974.

(ii) Even assuming that she left the matrimonial home on May 17, 1974, with the consent of the husband and that therefore desertion did not commence on the even date, it is proved on evidence that since the medical investigations by the All India Institute of Medical Sciences, New Delhi were completed by August, 1974, and the surgery was to take place much later in March, 1975, the wife could have easily and conveniently come back to the matrimonial home at Kota and resume cohabitation with the husband, which she did not resume in spite of repeated and urgent requests by the husband through letters and telegram sent to her from Kota to Delhi. Desertion therefore commenced latest by August, 1974.

(iii) The husband did make accusations against the chastity and moral character of the wife, but those accusations do not amount to such conduct on the part of the husband as could legally terminate the matrimonial offence of desertion committed by the wife. The said accusations were the outpourings of an angry and grieved husband who was desperately trying to persuade the wife to come back to him. These accusations did not have much impact on the wife. She herself did not attach much significance to those accusations for she had later agreed to go back to him during the course of hearing of the present petition.

(iv) The allegation of mistreatment and marpit levelled by the wife against the husband is not proved.

(v) The charge of mental cruelty levelled by the husband against the wife is not proved.

(vi) Desertion of the husband by the wife without reasonable pause and without his consent for a continuous period of not less than two years immediately preceding the presentation of the petition, i.e. from August, 1974, to December, 1976 is proved.

(vii) No finding was considered necessary on issue No. 2 regarding jewellery and therefore none was given.

(viii) The pendency of the husband's petition for restitution of conjugal rights was no bar to the maintainability of a petition by him for divorce on the grounds of desertion and cruelty.

7. It was on the basis of these findings that the learned District Judge decreed the relief of divorce in favour of the husband and thus dissolved the marriage between the parties in accordance with the provisions of Section 13 (1)(ib), H. M. Act, 1955.

8. As already stated, aggrieved by the aforesaid decree, the wife has appealed.

9. The main argument raised on behalf of the wife in this appeal is that the learned trial Judge is in error in holding that the husband's accusation of unchastity and those moral character against her did not have any impact on her and that, if the evidence is read as a whole and properly appraised, it leaves no manner of doubt that she was compelled to separate from the husband on May 17, 1974, due to the latter's constant nagging and a persistent inquisition, as it were, regarding her alleged unchastity and sexual immorality prior to the marriage. It is further submitted that even after she had separated from him on May 17, he kept repeating the said accusation in his communications to her and he persisted with this charge in his deposition before the court in the trial of the petition for restitution of conjugal rights. It will be presently seen that these arguments are fully supported on evidence of an irrefutable nature.

10. The first and foremost piece of evidence is a letter, dated, May 7, 1974, which the husband had written to the wife's elder brother, namely Girdhar Gopal, since deceased, making serious accusations to the effect that she had been leading a sexually immoral life before the marriage. This letter had been produced in evidence in the previous petition for restitution of conj ugal rights. The wife was desirous of proving the said letter in support of her case in the present petition, but discovered to her dismay that it had disappeared from the previous file. She applied to the trial Court and obtained permission to produce secondary evidence of the contents of that letter. Girdhar Gopal to whom that letter was addressed had already expired before he could be called and examined as a witness in this case. It was therefore left to P.W. Narin-der Gopal and P.W. Dr. Meera Mathur, brother and sister, respectively, of Girdhar Gopal deceased and the appellant-wife to prove the contents of that letter. Both of them deposed that they had read it and recalled that the respondent-husband had made filthy allegations therein to the effect that the appellant had had sexual relations with one C. P. Mathur before the marriage. Narinder Gopal who was able to reproduce from memory a portion of the said letter testified that it made a very painful reading. He recalled a portion of the contents of the letter as under:

'I am writing an unexpected letter on an unexpected theme. This tells an untold story stretching over a period of fourteen years...... This is a story of your shame and now my shame. This is the story of Sarla your sister, and now my wife. It is a story of Sarla's pre-marital adventures with a person of her own choice and her seduction by one Shri C. P. Mathur, a person who is well known and respected in your family. Sarla and Shri Mathur devetoped physical attraction for each other and they had physical love for months, if not for years. This happened under your very nose and your, roof which provided all the protection. Mathur was making indecent overtures towards Sarla even two or three days before her marriage. When Sarla left in June, 1973, for Delhi, I had guessed she was having affair with some body, but, it took me nine months of coaxing and persuasion to extract a full confession from her on May 1, 1974.'

11. The appellant-wife came on the witness box stand and testified that she had herself read that letter and that her husband had accused her therein that she had had sexual relations with C. P. Mathur before the marriage and haunting her and her brother that he would eat the marriage declared null and void and thus pave the way for her marriage with the said Mathur. She further deposed that it was on receipt of that letter that her sister, Dr. Meera Mathur, brothers Girdhar Gopal and Krishan Gopal and Krishan Gopal's wife immediately rushed from Delhi to Kota and took her away to Delhi with the consent of her husband. It is in this context that she deposed that her husband had given her two letters, Ex. A-3 and Bx. A-4, addressed to the All India Institute of Medical Sciences, New Delhi requesting that he would have no objection to any investigation or operative procedure for her treatment.

12. The respondent-husband, who seems to have been aware too well that he had written a letter to Girdhar Gopal on May 7, 1974, making accusations that the appellant had been leading a sexually immoral life before the marriage and that therefore he did not want to keep her as his wife at first made a brazen denial that he had written any such letter, and instead asserted that he had not suspected her moral character at all. On being confronted with a copy, Ex. A-l, of his previous statement recorded in the trial of the petition for restitution of conjugal rights, wherein he had admitted that he had written such a letter to Girdhar Gopal on May 7, 1974, making allegations against the moral character of his wife, he tried to prevaricate about it stating that he had no idea if he had made any such statement. The cross-examiner persisted with his questions and drew the respondent's pointed attention to that portion of Ex. A-l wherein he had stated that:

'...... I had written letter to Delhi regarding the character of my wife. It was on receipt of that letter that those people (i.e. Girdhar Gopal, Krishan Gopal, Dr. Meera Mathur and Krishan Gopal's wife) came to Kota to discuss the matter with me. They discussed the matter with me, but were unable to satisfy me. I still stand by what I had written in that letter about the moral character of my wife.'

It was only on this confrontation with the above material that the respondent-husband could be brought round to admit that he had made the said statement. He had also to admit that he had deposed in Ex. A-l that his wife had made an incomplete disclosure to him in June, 1973, and that she had made the full disclosure only on April 28, 1974 and May 1, 1974. Pressed further by the cross-examiner to explain what the disctosures were about, the respondent evaded reply saying that he had forgotten it due to lapse of time, and that therefore, he would not be able to explain it. It is quite obvious that the respondent was being deliberately selective in his memory and that he is not a reliable witness. I am fully satisfied that he started his inquisition about the character of his wife within a few days after the marriage and kept hammering it into her head throughout the period of nine months of their co-habitation till, according to him, he was successful in obtaining a complete confession from her.

13. The learned trial Judge was in error in holding that the wife did not make any serious grievance about the accusations of her husband against her chastity and moral character. In her written statement, she made this grievance at three or four different places, She even mentioned this grievance in the context of the uncongenial scenario, allegedly created against her by the husband in the matrimonial home prior to her departure from it on May 17, 1974. It is true that she also made in this context allegations of mistreatment and mar-peet and that those allegations have not been substantiated. The mere fact that in her written statement she laid more stress on allegations of unsubstantiated cruelty, mistreatment and marpeet than on her proven complaint of having been subjected to accusations of unchastity is not a good ground for ignoring the fact that such accusations were made against her before May .17, 1974, with such vehemence and virulance which compelled her to leave the matrimonial home on the even date. Even then, she took care to take his consent for leaving the matrimonial home, assuring him that the visit to Delhi was essential for medical treatment. She clearly had in the back of her mind the possibility of her husband's misunderstanding regarding her character being removed in course of time and her eventual reinstatement in the matrimonial home with honour and dignity. This was however not to be. As will be discussed in a later part of this judgment, the husband did not relent even after she had separated from him on May 17, 1974. He kept making accusations against her moral character in some of his subsequent letters to her. The tone and tenor of his letters and telegrams to her was such as could not be reasonably expected to afford any assurance to her of a change of attitude on his part,

14. Before parting with the discussion about the husband's letter, dated, May 7, 1974, to Girdhar Gopal deceased, it must be mentioned here that the learned trial Judge also noticed this letter in his judgment and indeed construed it as being the flash-point resulting in the wife's decision to quit the matrimonial home on May 17, 1974. The learned Judge seems to have correctly sized up the situation when he observed that though she had obtained the consent of her husband on May 17, for going to Delhi for treatment and the like, the real reason why she separated from him on the even date was this letter which contained serious accusation against, he' to the effect that she had had pre-marital sex relations with one C. P. Mathur and that he would himself get the marriage annulled to pave the way for her marriage to Mathur. That is why, per-i haps, the learned Judge recorded a finding that desertion by the wife had in fact commenced on May 17, 1974. The learned Judge seems to think that if a spouse leaves the matrimonial home with the consent of the other spouse by obtaining such consent on a false pretext, such conduct on the part of the separating spouse must automatically amount to desertion regardless of the fact that the real motivating force which led to the separation was reasonable or not. Now, this is a view which is not legally tenable. 'Desertion' is defined in the Explanation appended to Sub-section (1) of Section 13, H. M. Act, 1955, as follows:

Explanation.-- In this sub-section, the expression 'desertion' 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, and its grammatical variations and cognate expressions shall be construed accordingly.'

It is true that desertion, in its essence,: is the separation of one spouse from the other with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end, but the Explanation reproduced above makes it clear that if the deserving spouse has al 'reasonable cause' to desert, such desertion will not be 'desertion' in the eye of law. The Supreme Court has explained! In Lachman v. Meena, AIR 1964 SC 40, that one of the essential elements of desertion, which must be proved by the spouse praying relief on the ground of desertion, is that such desertion was without reasonable cause. The letter discussed above hardly needs any further comments and it may therefore, straightway be held that it certainly provided the appellant-wife just and reasonable cause for separation from the respondent. Such separation cannot by any means be treated as 'desertion' as de-fined in the Explanation to Sub-section (1) of Section 13, H. M. Act, 1955.

15. A careful consideration of the appellant-wife's deposition in the trial would also reveal that the main impediment to her return to the matrimonial home was the husband's conduct in making and repeating accusations against her chastity and sexual character. It will be seen that in the course of efforts for reconciliation in the petition for restitution of conjugal rights, she did not agree to go back to the matrimonial home and told the Judge concerned (see copy of the proceedings, Ex. 13) that she would not go back to the matrimonial home at Kota straight from the Judge's court at Kota as desired by the husband and that, instead, she would like the husband to come to her at her parents house at Delhi and bring her from there to Kota. The husband refused to go to Delhi and bring her from there with the result that the efforts for reconciliation failed. Dealing with her alleged adamant conduct during the reconciliation proceedings in the trial of the previous petition, she deposed and explained in the trial of the present petition that she did not reject the advice for return to the matrimonial home and that what she really desired was that before she returned to him, he must give proper assurances that he would let her live there in peace and desist from making false accusations against her chastity. It is somewhat surprising that after having heard all this from her in the witness box, the learned trial Judge came to the conclusion that the accusation of unchastity by the husband against her did not have any impact on her mind and that the desertion committed by her was therefore without reasonable cause. A little reflection and deliberation on the explanation rendered by the wife of the stand taken by her in reconciliation proceedings in the previous petition would reveal that she had adopted a very reasonable attitude. Any Hindu wife in her position possessing a modicum of self-respect and common sense, against whom repeated allegations of unchastity and those sexual character had been made by the husband petitioning for restitution of conjugal rights and who had been called to appear in the court to cated in the home-town of the husband, as in the instant case, would not accompany the husband to his house straight from the court without being assured of the change of attitude on his part. Mere verbal assurances in such a situation are not enough. If the husband declines the wife's request to come to her at her parents house and bring her from there to the matrimonial home, then in a situation as the present one, the wife would not be far wrong in assessing that there is no genuine change of attitude on the husband's side. After all, this is the minimum that a husband may be expected to do to assuage the injured feelings of the wife and to reinstate her in the matrimonial home with dignity and honour which are so essential for the mutual benefit and happiness of the two spouses.

16. This takes me to the finding of the learned District Judge to the effect that the wife could have easily and conveniently returned to the matrimonial home at Kota after the completion of her medical check-up at Delhi by August, 1974, especially so when surgery was not to take place before March, 1975, and that since she did not return in spite of repeated requests by the husband, her separation from the husband on May 17, 1974, assuming that she had no animus deserendi at that time acquired the character of legal 'desertion' in August, 1974, by her unreasonable refusal to return to the matrimonial home, which refusal, according to the learned Judge, clearly betrays the requisite animus deserendi. A perusal of the various communications in the form of letters and telegrams, sent by the husband, from Kota to the wife at Delhi from June 28, 1974, onwards, asking her to return to Kota would reveal that, far from being persuasive, those communications, by their tone and contents, were bound to prove counter-productive in the back-drop of the accusations made in the letter, dated. May 7, 1974, discussed above. It appears that after having given consent for the Wife's treatment and operation at New Delhi, the husband had had second thoughts about it and wrote to her in the last week of June, 1974, asking her to return to Kota and get the treatment there. His telegram, Ex. 8, dated June 28, 1974, addressed to the wife's brother is abrupt and rude in tone. Let it speak for itself. It reads :

Suspend investigations. Send Sarla immediately. Reply telegraphically.

The next telegram (Ex. 9), dated June 30, 1974, could also not have been intended to be persuasive. It reads :

Delhi treatment not desired. Send Sarla seventh positively.

He then sent a letter (Ex. 6) by registered post on July 8, 1974, which is chock-full with taunts, insinuations and oblique references to the wife's unchastity about which she had allegedly confessed to him on May 1, 1974. He asked her to return to the matrimonial home by sending her an ultimatum, as it were, in these terms:--

Hither you reach here at the earliest or I must have your clear-cut reply (both by the l6th of July positively) failing which I will presume that you do not want to reply me and are no more interested as continuing my wife and I shall then be free to act further legally and you will be responsible for the same.

17. These communications were certainly not conciliatory. They were positively offensive and hostile in nature. It appears that the wife's reaction to them was calm and cool. She wrote him a letter signifying her willingness to return to Kota. This is evident from his next letter (Ex. 2) which he wrote in reply to hers on July 19, 1974. It may incidentally be noted here that whereas the wife has placed on the record all letters etc. received by her from the husband the latter has withheld most of her letters and her sister's received by him. He could not give any satisfactory explanation for not producing those letters. In fact, he quite often denied in his deposition in cross-examination having received a particular letter or telegram, and he could be brought round to admit them only when he was reminded by the cross-examiner that he had admitted them in his deposition in the previous petition. As already stated, the husband who is a medical doctor by profession depicted himself to be a shiftless and unreliable witness. Reverting to the discussion of his communications to the wife, I may again refer to bis letter, Ex. 2 in which he rejected her request for a trip to Delhi for bringing her from there to Kota in these words :

We are happy to note that you are willing to come here now. I had recently to be out of Kota and for the last some days I am not keeping well and as such you are wanted here at the earliest. Under the circumstances, I wish that you please come down here as soon as you can with some one from your family without waiting for me to come.

18. I may now turn to the husband's letter, Ex. 4, dated July 30. 1974, which is quite material and therefore needs careful notice. The original letter had been produced by the wife in the trial of the petition for restitution of conjugal rights. She had fortunately for her, kept a photostat copy of the original before producing it in that trial. She wanted to prove that letter in evidence during the trial of the present petition. She then discovered that a few pages material for this trial, were missing from the record of the previous petition. The photostat copy is to be found at pages 107 to 120 of the record of the present petition. The husband admitted all these pages to be true copies of the original except the pages which are missing from the original. When confronted with the photostat pages 114, 115 and 116, he started being evasive. He stated that photostat page 114 is partly in his hand and partly not. As for pages 115 and 116, he first stated that these were not in his hand. A little later he changed his mind and made an obviously absurd statement that the writing of these pages tooks like his Writing, but not the contents. Learned trial Judge has recorded the opinion, and I agree with him, that pages 114, 115 and 116 which purport to be the photostat copies of the original pages of the husband's letter to the wife are the true photostat copies of the original. The reason why he was trying to suppress the truth about these pages would become at once clear on reading these pages. For example, he wrote :--

If there was nothing between you and rqEgkjs lkfgc then for what you played drama starting on your lqgkxjkr when instead of talking to me you were speaking endlessly about him. Sarlaji, I am sorry to note that your name and you are not the same and that you lack the necessary courage to own your moral lapses even with a husband like me who behaved with you with all considerations even on knowing every thing of your misadventures with your sahib. The impression gathered by me in about 91/2 months coupled with your confessions on your swearing by your husband can't be just wished away by putting the crude defence or baseless heaping allegations of torture on your husband from virtue at the hands of your sahib repeatedly by in your own home.

19. Thereafter, he sent her telegram. Ex. 10, dated August 12, 1974, and letter, Ex. 5, of even date, by way of conformation of the telegraphic message informing her of his hernia operation, fixed for August 18. He did not request her to come over for the operation. On the contrary, he told her in so many words that he was informing her 'for whatever worth it might be'. He concluded this letter by describing himself 'yours unfortunately'.

20. The follow-up action taken by the husband to the above communications was the presentation by him in the district court of his home-town of a petition for restitution of conjugal rights on Oct. 3, 1974. The present petition for divorce was instituted by him in the same court on Dec. 21, 1976, when the previous petition was still pending. The second petition was filed apparently on the belief that legal desertion had commenced in July or August, 1974, and that it had continued for more than two years, the period as prescribed by law, immediately preceding the presentation of the petition in Dec. 1976.

21. Now, it is in this background that the court is called upon to decide whether animus deserendi of the wife started in July-August, 1974, as pleaded, in the alternative, on behalf of the husband I have already discussed in detail the background in which the wife was compelled to leave the matrimonial home on May 17, 1974. She was compelled to do so because he was imputing unchastity to her and had virtually subjected her to an inquisition, as it were, extending over months to extract the alleged confession from her. She was discreet enough to keep her bridges intact and obtain his consent for leaving the matrimonial home, explaining that she needed a medical check-up at Delhi for the growth in her uterus which had been discovered by him and which he wanted her to get treated without delay. As already held, the wife separated from him on May 17, with reasonable cause. I may add here that the husband was himself guilty of expulsive conduct which compelled the wife to separate from him on May 17. His post-May 17 letters and telegrams to her unmistakably show that he persisted with such conduct till he filed the petition for restitution for conjugal rights on Oct. 3, 1974. The only way he could terminate such conduct on his part in the circumstances of this case, was to comply with the request of the wife by going to her at her parents house in Delhi and bringing her from there to Kota with grace and dignity. Such a gesture on the part of the husband would have helped erase all past accusations and imputations made against the wife, and would have enabled her to discharge her duties as a wife with good cheer. Instead of adopting the part of reason and reconciliation, he chose to further exacerbate the injured feelings of the wife by writing more accusatory letters to her and persisting with his imputations and insinuations against her in those communications. He betrayed his hostile attitude even during the trial inasmuch as he cross-examined the wife and her sister Dr. Meera Mathur, putting leading questions to them suggesting that the wife was still leading a sexually immoral life. Of course, they refuted these suggestions. This only shows that the husband is still persisting with expulsive conduct.

22. In the context of the finding that; the husband is guilty of expulsive conduct over a tong period of time compelling the wife to separate from him, the husband could not legally or reasonably expect her to be present by his bed side after his hernia operation in August, 1974, or for the obsequies on the occasion of the death of his father in March, 1975 and of his mother in Dec. 1975. Her absence on these occasions, though regrettable, must be held to have been with a just and reasonable cause.

23. I must therefore hold that the wife separated from him with reasonable cause and that the said cause still exists. The wife cannot therefore be said to have committed the matrimonial offence of 'desertion'. The contrary finding in that behalf recorded by the learned District Judge is set aside.

24. In view of the aforesaid finding that desertion by the wife is not proved, her appeal must be and is hereby allowed and consequently the decree of divorce passed against her by the trial court is set aside. The husband's petition filed under Section 13, H. M. Act, 1955, is dismissed with costs throughout to the wife.


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