J.P. Jain, J.
1. This appeal arises out of an action brought by Chandra Shekhar, husband, for judicial separation against his wife Smt. Hem Kanwar. Chandra Shekhar succeeded to obtain a decree for judicial separation on the ground of desertion from the Court of District Judge, Udaipur, vide his order dated April 7, 1973.
2. Chandra Shekhar and Smt. Hem Kanwar were married according to Hindu rites on May 11, 1965. She stayed with him upto January 16, 1967. According to husband petitioner, she left his he use on January 16, 1967, with her father against his will. She had also taken away all the gold and silver ornaments with her. According to him he tried his best on several occasions to call her back, but she did not return and in this manner she deserted him for without any justifiable cause. This petition was filed on January 14, 1971.
3. Smt. Hem Kanwar contested the petition by her Written statement dated September 10, 1971. The factual aspect of separation is not disputed. She admitted that she left the house of her husband on January 16, 1967, but her case is that she was treated very cruelly by her step mother in law and at the instigation of her step-mother-in-law her husband used to beat her. She was also asked many a time to bring money from her to there. Her contention further is that she was confined in a room on January 16, 1967. Some one from the neighbor hood informed her father, who came there with his wife, that is with Hem Kanwar's mother, and intervened and some how he took her away to his house. It is not disputed that after that she did not go to her husband's house but the allegation is that she was never asked to come back to her husband's house. No attempt was made even to call her. Her father to formed them many a time to take her back and to make lives peaceful, but it was always ignored and it was said on their behalf that that they will remarry Chandra Shekhar. It might as well be mentioned that at the time of the marriage Hem Kanwar bad passed her 9th class and she was the student of 10th class. Her parents-in-law, including her husband, were against her continuing study. During her stay in her husband's house, she passed her matriculation examination After she was compelled to leave his house she had done her B.A. and B.Ed. and she is working as a lady teacher earning about Rs. 300/- p.m. She bad stated in her written statement that the was always prepared and still ready and willing to discharge her marital obligations towards her husband but the husband is not prepared to take her back; as he another step mother-in-law always wanted to treat her as a slave in the house.
4. On behalf of the petitioner seven witnesses, including Chandra Shekhar as P.W. 2, have been examined, where as on the other side 'Hem Kanwar examined her self and in addition to that four more witnesses have been examined, which include her father Pannalal (D.W. 5). The learned trial Judge believed the version of the petitioner and found that there was no cruelly worth the name and the separation being admitted, he granted a decree for judicial separation by the order under challenge. Smt. Hem Kanwar has come in appeal.
5. With the assistance of the learned Counsel for the parties, the pleadings and the evidence were need out before me. It is not disputed that Chandra Shekhar and Smt. Hem Kanwar are living separate from January 16, 1967. But the question that arises before me whether this is a desertion in law As noticed above, Hem Kanwar's case was that her step-mother-in-law and her husband created circumstances which compelled her to leave the house. She also apprehended danger to life as they threatened her to kill by burning with kerosene oil. I regret I am unable to agree with the view taken by the trial Judge. Chandra Shekhar in his staement as P.W. 2 has stated in his examination-in-chief that he went to fetch his wife two or three times, but Hem Kanwar told him that she did not want to stay with him as she was wanting to remarry. This statement is obviously false. That apart, in his cross-examination the petitioner admitted that his treatment and that of his step-mother was very good and cordial towards. Hem Kanwar and they always praised her. They did not want her, of course, to continue her studies, inspire of Hem Kanwar's inclinations to study further. According to him, the story that she was compelled to leave the house and she has a justifiable cause to live separately. It must be noticed here that there is absolutely no allegation against the character of Hem Kanwar. I am unable to understand as of why a Hindu lady would not like to stay with her husband in his protection and under his care is she was a subject of praise. This witness has been unable to tell the court any reason. As a matter of fact, from the allegations in the plaint it appears that Hem Kanwar left the house with her father on January 16, 1967, with all the ornaments of gold and silver, yet he said that she left the place without his permission. I am unable to accept this allegation, as well. Now coming to the other evidence led by the petitioner, it is hardly of any use it fails to disclose that Hem Kanwar has been saying out of her mantel home without any justifiable cause.
6. Now I advert to the statement of Hem Kanwar (D.W. 1) Her first grievance in the statement is that while she was living with her husband she was never allowed to go to her father's place. She was also not permitted to proceed with her studies and on that account on the instigation of the step-mother-in-law, her husband used to beat her. Yet another grievance is that she was always asked to get more money from her father's place and after she left her marital home on January 16, 1967. She continuously stayed with her father's place and her husband never cared to look after her not did he make any attempt to call her back. With her own strong will the continued her studies and succeeded to pass B.A. and B.Ed. Examinations. She further stated that no notice was ever sent to her by her husband. As regards ornaments, she stated that she had to leave the house in compelling circumstances and there was no question of bringing any ornaments from he house with her father. All the ornaments that she had, are still in her father in law's place She stated on oath that she was always treated as a slave and they (that is her step-mother-in-law and her husband) only wanted her to do all the house-hold work and her step mother-in-law never give her any affection, father had always been nagging after her She also reiterated in her statement that many a time she was threatened that she will be burnt alive if she did not bring money from her father's place. She supported her version that she was closed in a room on January 16, 1967, and remained confined for nearly 25 minutes. This story of Hem Kanwar has an impress of truth. She has also been sup potted by D.W. 2 Heera Lal According to this witness, he was in terminal in bringing about the engagement between the parties, but he said that he later found that the step-mother-in-law treated her very badly and on that account Chandra Shekhar did not give her any affection, Pannalal (D.W. 5) substantially supports the story of Hem Kanwar. He informed the Court that he somehow got the message that his daughter bad been confined by her parents-in-law. He immediately rushed to the place with his wife and somehow brought her back. After that he tried many a time to get the differences settled between them, but it was always ignored and the parents-in-law of Hem Kanwar did not listen to his entreaties. The fact that Chandra Shekhar did not give any notice, is admitted by Chandra Shekhar. Chandra Shekhar failed to give any clear information to the Court as to how and when be went to his father-in-law's place to bring Hem Kanwar. As noticed earlier, the allegation that Hem Kanwar went with her father with all her ornaments by itself falstfies his statement that she went without his consent. Inspite of the fact that the separation between the parties is admitted, It am unable to hold that Hem Kanwar is living separately without any good reason.
7. I tried more than once and directed the learned Counsel for the parties to send for their clients so that I could, with the assistance of the learned Counsel, explore the possibility of reconciliation. Hem Kanwar appeared in the Court twice and she expressed her willingness to go to her husband's place, but it is regretted that Chandra Shekhar did not appear in this court in spite of the fact that his learned Counsel tried to send for him so to attend this Court in person. In this view of the matter, I feel convinced that Hem Kanwar has not deserted her husband and Chandra Shekhar is not entitled to get judicial separation on the allegations that he made in the petition. The finding of the learned trial Judge is erroneous. I may also observe here that be made a mountain of a mole hill by saying that Hem Kanwar stated in her examination-in-chief that she left the house of her husband on January 16, 1966. I read her statement. In her cross-examination, she made in clear that it was in the year 1967 that she bad to leave her husband's house with her father in the circumstances the had alleged in her reply and in her statement. The error is a mere slip. The order of the learned District Judge cannot, therefore, Be sustained.
8. In the result, the appeal succeeds. The decree passed by the learned District Judge on April 7, 1973, is set aside. The petition for judicial separation filed by Chandra Shekhar is dismissed. Smt. Hem Kanwar will get costs from Chandra Shekhar of both the courts.