Shyam Sunder Byas, J.
1. This is Hindu wife's appeal against the judgment and decree of the learned District Judge, Bikaner dated September 24, 1983, by which the marriage between the parties was dissolved by a decree of divorce. The appellant will be referred to as the wife here in after while the respondent as the husband.
2. The husband presented an application under Section 13 of the Hindu Marriage Act, 1955 (for brevity 'the Act') against the wife in the court below on August 25, 1981 for the dissolution of marriage. The case set-up by him is that the parties are Hindus and the marriage between them was solemnized on May 1, 1969 in the city of Bikaner in accordance with the traditional rites and ceremonies. The wife, after marriage lived with the husband for some years. However,on October 25, 1974, she left his house and went to live with her parents. The husband made persistent efforts to pursuade her to come to live with him but the attempt proved abortive. The wife declined to live any more with the husband. It was alleged that the wife has, thus, deserted him without reasonable and sufficient cause. The husband has two daughters from his first wife. They were ill-treated by the appellant so long as she lived with him in his house. The wife did not treat his mother and daughters with kindness and at times used physical violence against them. The wife was said as living in adultery, but no particulars of adultery were alleged. The dissolution of marriage was, thus sought on two grounds, viz. (1) willful desertion without reasonable and probable cause and (2) cruelty. The application was resisted by the wife. The marriage was admitted, but the grounds of desertion and cruelty were categorically refuted. According to her she had to leave the husband's roof and had to seek shelter with her parents on account of the ill-treatment met out to her by the husband. The learned District Judge framed the following issues:
(1) whether the respondent has deserted the petitioner without any reasonable or sufficient cause before two years preceding the presentation of the petition ?
(2) Whether the respondent has committed cruelty against the petitioner as pleaded in paras 5 and 8 of the petition ?
(3) whether the petitioner is entitled for a decree of the dissolution of marriage ?
3. Both the parties adduced evidence. The husband examined himself and two witnesses, while the wife also examined herself and two witnesses. On the conclusion of trial, the learned District Judge recorded his findings as under:
(1) The wife has deserted the husband without reasonable or sufficient cause. This desertion also amounts to cruelty on the part of the wife, and
(2) As regards cruelty, covered by issue No. 2, no specific finding was recorded.
4. Siree it was held that the wife had wilfully deserted the husband, the marriage between the parties was dissolved by a decree of divorce. Aggrieved against the said judgment and decree, the wife has come-up in appeal.
5. I have heard Shri Mridul Jain, learned counsel appearing for the wife and Shri M.M. Singhvi, learned counsel appearing for the husband. I have also gone through the case file carefully.
6. In assailing the impugned judgment and decree, the first contention raised by Mr. Jain is that the finding of the court below on the essential question of desertion is erroneous and is not based on a proper appraisal of the evidence and various circumstances arising in the case. It was argued that the wife had not deserted the husband. On the other hand, it was the husband who used physical violence against her and turned her out from his roof It is, thus the husband who had deserted the wife. It was, on the other hand, contended by Mr. Singhvi that the parties are admittedly living separately since October 25, 1974. The wife voluntarily left the husband's house. Her allegation that she was beaten and turned out has not been found true by the court below. She was not willing to return to the husband's house and made no efforts to have a reconciliation. She did not visit the husbands' house even on the death of his mother. All these facts are sufficient to show that the wife has deserted the husband for ever with an intention never to reinstate the martital relations. I have taken the respective submissions into consideration.
7. In order to dissolve the marriage on the ground of desertion, the petitioning spouse is required to prove (1) the factum of separation, (2) the intention to bring cohabition permanently to an end-animus deserendi and (3) the separation must continue for not less than two years immediately preceding the presentation of the petition.
8. The desertion, as defined in the explanation attached to Sub-section (1) of Section 13 of the Act, implies permanent forsaking and abandonment. The desertion should be further without reasonable cause and without the consent or against the wish of the complaining party.
9. Here in the instant case, the parties have been admittedly living separately since October 25, 1974. The petitioner Kapilmuni (husband) (PW 1) deposed that in the noon of October 25, 1974, the wife left his house in his absence even when she was requested by his mother not to leave the house. Later on, he, his sister's husband Gopi Kishan (PW 2) and Lalchand (PW 3) went to the house of the wife's parents where she was living with them and tried to pursuade her to return to his house. But the wife declined to come back to his house. He further deposed that his mother died on February 12, 1981. Information was sent to the wife to return on this occasion, but she did not come. He refused in his cross-examination that he used any physical violence against the wife. PW 2 Gopi Kishan stated the same facts. The wife left the husband's house on October 25, 1974. Despite best efforts, the wife refused to return to the husband's house. Even on the occasion of the death of the husband's mother, the wife did not visit the husband's house. PW 3 Lal Chand has deposed the same facts. He also stated that in the absence of the husband the wife left his house even when she was requested by his mother not to leave the house. Later on, he, the husband and Gopi Kishan (PW 2) went to the wife's parents' house to bring her back to the husband's house. The wife refused to come back to her husband's house. All these three witnesses were cross-examined, but nothing could be elicited from them which may render any assistance to the wife.
10. In rebuttal, the wife examined hereself, her father and one witness Laluram (DW 3). The wife Smt. Taradevi (DW 1) deposed that on October 25, 1974 she was beaten by the husband. She, therefore, left his house and came to live with her parents. After 4-5 months, she went to the husband's house but was turned out by him after using physical violence against her. Now, there is no evidence on record to corroborate her on the allegation of the husband's using physical violence against her. She did not tender any medical certificate in evidence to show the presence of injuries on her person. No neighbour of the locality has been examined to speak about using the physical violence against her by the husband. No complaint was made by her to police or elsewhere against the husband's using physical violence against her or his beating her. Thus, the allegations of the husband's beating her or using physical violence appear to be absolutely baseless and unfounded.
11. It has been admitted by the wife and her father Rewatmal (PW 2) in their cross-examinations that information was sent to them by the husband regarding the death of his mother. They further admitted that even then the wife did not visit the husband's house. It is expected that the wife would at least visit the husband's house on the death of his mother. The wife's not visiting the husband's house on this occasion shows that she had left the husband's house with an intention to bring cohabitation permanently to an end.
12. The evidence thus adduced by the parties establishes that (1) the wife left the husband's house on October 25, 1974 and since then she has been living separately from him with her parents; (2) her allegation that she was turned out by the husband or that she had to leave her husband's house on account of his beating her or using physical violence against her, is not true and is wholly unfounded and baseless and (3) she did not visit the husband's house even on the death of his mother which took place in February, 1981. These proved facts make out a case that the wife is guilty of matrimonial offence of desertion. She had deserted the husband without reasonable cause. The finding of the learned Judge on the question of desertion appears to be correct and requires no interference.
13. It was argued by Mr. Jain that the wife, during the pendency of the trial of the petition expressed her readiness to live with the husband. This offer of reconciliation made by the wife should be seriously taken into consideration while deciding the question of desertion. Now, there is no evidence in the wife's side that she had, at any time before the presentation of the petition, made any effort to have reconciliation with the husband. She did not visit the husband's house even on the death of his mother. There was, thus, no sincere desire on the part of the wife to sink the past and patch the differences. She had a very good opportunity at that time on the death of the husband's mother to go to the husband's house and make efforts for the reinstatement of marital relations. But she failed to do so. The offer made by her during the pendency of the petition does not appear to be a genuine offer made in good faith. The first contention of Mr. Jain, thus, fails.
14. It was next argued by Mr. Jain that there has been unnecessary and improper delay in instituting the proceeding for divorce and no explanation has been furnished by the husband for coming late to the court. It was argued that as per averments in the petition, the wife left the husband's roof on October 25, 1974 and did not return thereafter. The desertion, thus, took place on October 25, 1974 The petition was filed on August 25, 1981, that is, nearly after seven years of the alleged desertion. It was argued by Mr. Jain that this unexplained delay on the part of the husband in instituting the proceeding for divorce is sufficient to refuse the relief to him. The contention of Mr. Singhvi is that the husband had a lingering hope for the return of the wife to him. The hope was finally and completely shattered on February 13, 1981 when his mother died and the wife even on that occasion of mourning did not visit his house. It was further urged that the wife has not raised the defence of delay in her written statement. Had she raised the defence of delay in her written statement, an issue would have been framed. He would have then an opportunity to lead evidence as to why the delay had occurred.
15. Admittedly, in her written statement, the wife did not raise the defence of delay. No issue was, therefore, raised on the point of delay. The trial court was also not addressed on the point of delay and as such the point, of delay was not dealt with by the learned District Judge.
16. According to the husband, the wife left his house and went to live with her parents on October 25, 1974. She thereafter did not return to his house. The desertion, thus, took place on October 25, 1974. The petition for divorce was filed on August 25, 1981. There is, thus, a delay of seven years. But the pertinent question is whether the petition should be dismissed on the ground of delay Section 23(1)(d) of the Act lays down that the relief under the Act can be granted when there has not been an unnecessary and improbable delay in instituting the proceeding. The expression 'unnecessary or improper delay' connotes culpable delay. In one way, the delay should be intentional. Now, in a case where divorce is sought on the ground of desertion, different considerations arise. The matrimonial offence of desertion is a continuing wrong. It is in the knowledge of every body that when one spouse lives separately from the other, the spouse who has been deserted has a sweet and lingering hope for re-union on the impression that good sense may prevail over the other spouse to come and re-unite. There is, thus, always an element of patience and forbearance on the part of a spouse who has been deserted by his or her counter-part.
17. Here in the instant case, the parties are high caste Hindus. It was, therefore, quite natural on the part of the husband to have a hope for the wife's return to him. This hope, it appears, continued to linger on and the hope came to be completely shattered on February 13, 1981 when his mother died and the wife even then did not visit his house for mourning on that occasion. It was, thus due to the patience and forbearance on the part of the husband that the delay had occurred. In the circumstances of the case, the petition cannot be thrown away on the ground of delay. The contention relating to delay, thus, holds no ground.
18. The marriage between the parties has been dissolved on the ground of desertion. As stated above, the parties are high caste Hindus. During trial the wife expressed a desire to have reconciliation and to return to the husband. Though the husband has expressed his unwillingness to keep her any more with him, it is expected that by lapse of time he may reconsider the matter to have the re-union with the wife. Time may heal his wounds and better sense may prevail over him to have the re-union with the wife. It is not difficult to patch-up differences between the spouses if they desire so. Section 13A was introduced in the Act keeping all these considerations in view. This Section empowers the court to grant a decree of judicial separation in a proceeding for dissolution of marriage. Looking to the circumstances of the case, it would not be improper to substitute a decree for judicial separation in place of dissolution of marriage. The spouses will have an opportunity to come closer, sink the past and patch the differences.
19. In the result, the appeal of the wife is partly allowed. The decree passed by the District Judge, Bikaner dissolving the marriage between the parties is substituted by a decree of judicial separation. Parties to bear their own costs of this court.