S.N. Deedwania, J.
1. This civil miscellaneous appeal is preferred against the judgment and decree dated 22-12-1979 of the learned District Judge, Jodhpur, whereby the petition for divorce of the appellant was dismissed. It was alleged in the petition that the appellant is the legally wedded wife of the respondent. Their marriage took place in the year 1973 according to the Hindu rites at Jodhpur. After the marriage appellant went to the house of the in-laws and the marriage was duly consummated. After two days the appellant returned to her parents house. Two months thereafter the father of the appellant died. The respondent did not pay a condolence visit. The respondent does not want to keep the appellant with him and since then has not brought her to his house. The father of the respondent became angry because adequate dowry was not paid. The respondent and his father now want to give the appellant 'nata' to someone else or to sell her. This conduct of the respondent was stated to be cruel. The petition is resisted on the ground that it is the appellant who has deserted the respondent who has been always willing to keep her as the wife. Issue No. 1 raised on the pleadings was with regard to desertion. The learned District Judge held that the appellant failed to prove her case of desertion. He disbelieved the evidence of appellant and her mother and placed reliance on the statements of the respondent and his father.
2. It is argued by the learned Counsel for the appellant that the learned District Judge failed to take into account the probabilities of the case that in disbelieving the evidence of the appellant and her mother. Normally a Hindu wife would not come for divorce. It is an admitted position that the parties are living separately since two days after the marriage. None appeared on behalf of the respondent in his court. I have considered the argument carefully. The fact of separation is proved that the parties are living separately for the last seven years and the petition for divorce was filed as late as on 6-11-1978. PW 1 Bhagwati deposed that after the marriage respondent did not visit the house of her parents for a single day. Her mother called a Panchayat in which the respondent was summoned but he did not turn up there. Anandaram respondent had expressed that he will remarry because the dowry given was insufficient. This was even told by the respondent to her. It is further stated that two days after the marriage, she returned to her parents house. Anandaram complained about the inadequacy of dowry and threatened her With minor contradictions PW 2 Mst. Phooli has deposed similarly. One contradiction is that the mother stated that two or four months after the death of her husband she took the appellant to the house of the respondent but he refused to keep her and demanded Rs. 5,000/- for dowry. On the other hand the appellant stated in her statement that her father-in-law came to her house and said that she would be sold or sent in 'nata' with some other man. This was according to the learned District Judge unnatural. According to the learned District Judge, therefore, the factum of desertion was not proved because of these contradictions and the finding arrived at this that the appellant of her own free will was living with the mother, and was not going to her husband. Another ground given by the learned District Judge is that no one from the alleged Panchayat convened by the mother of the appellant has been produced.
3. On the other hand the evidence of the respondent is that for one reason or the other the appellant was not coming to her though he made every effort and even made a report in the police. The witness further stated that he along with the Panchas went to the parents of the appellant to bring her. It is further stated that Munni Lal, Shyam Lal, Banshilal, Gangabishan, Babu, Shanker and Laduji were sent to bring the appellant The respondent however, admitted in his statement that if the appellant wanted to divorce him, he had no objection, DW 2 Ramuji the father of the respondent naturally supported the statement of his son.
4. From the perusal of this evidence it is evident that the appellant had given a cogent reason that her in-laws are angry because of the inadequacy of dowry. The father of the respondent wants to remarry his son and if possible to send the petitioner in 'nata' or to sell her away. The learned District Judge commenced adversely on the non-production of independent witnesses by the appellant but the same is applicable to the evidence led by the respondent who also failed to produce any independent witness. The fact remains that it is almost a broken marriage with no chances of reconciliation. The probabilitiesof the case are that the respondent because of the insufficiency of thedowry does not want to keep the appellant with him. Lack of serious efforts by the respondent to bring the appellant to him is an indication of this position. The respondent has failed to show any reason why the appellant is disinclined to live with him or come to him. But for cogent reasons or for the disinclination of the husband and the members of his family a Hindu wife would never try to obtain a divorce and refuse to go to her spouse. I am, therefore, of the opinion that it is the respondent who has deserted the appellant and the finding of the learned District Judge in this regard is inconsistent with the probabilities of the case. The law in this respect was thus laid down in Bipin Chand v. Prabhawati : 1SCR838 :
For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving these elements in the two spouse respectively and their continuance throughout the statutory period.
5. The factum of separation for more than the statutory period is an admitted position in this case. The intention to bring cohabitation permanently to an end is evident from the conduct of the respondent in as much as he is threatening to sell away the appellant and also has not made any serious attempt to bring her. For want of cogent evidence, I am not inclined to believe the case of the respondent that he made various attempts to bring the appellant to his house. I am, therefore, of the opinion that the desertion for the statutory period has been proved in this case. However, there are still some chances, though few that the parties may yet reconcile. In these circumstances, I am of the view that alternative relief of judicial separation under Section 13A of the Hindu Marriage Act should be granted. The parties may yet reconcile.
6. I, therefore, accept the appeal but instead of dissolving the marriage by a decree of divorce pass a decree for judicial separation only.