DAYA WATI Vs. RAJ SINGH

JUDGEMENT

(1.) The respondent-husband Lt. Raj Singh Mathur has applied for divorce under Sec. 13 of the Hindu Marriage Act, 1955, on the ground of cruelty as well as the ground of desertion without reasonable cause. The conclusion of the learned Additional District judge was to grant divorce on the ground of curelty on material I will presently refer to, but to refuse divorce on the ground of desertion on the footing that the desertion was not for a continuous period of two years. On the point of desertion, the finding was that the petition was pre-mature, but the period of desertion of two years did elapse during the pendency of the petition.

(2.) The facts of the case can shortly be stated. The parties were married on 17th Feb., 1973, on 1st March, 1973, the husband left for duty as an Army Officer. A male child was born to the parties on 23rd Nov., 1973. According to the husband, the wife went back to her parent's home on 4th March, 1973, after he went on duty. Although the petitioner was ill at Bhatinda with the result that he was removed to the Military Hospital, Ferozepur, the wife did not visit him at Ferozepur. Later in April 1973, the husband had an accident which made him an in-door patient at the Military Hospital, Delhi, but the respondent did not care to see him. Then the husband obtained family accommodation in Chandi Mandir in June, 1974, but the wife did not join him inspite of repeated requests. The husband had visited his home town on leave in April 1975, Aug. 1975 and April, 1976, but the wife had avoided him on some pretext or the other. It appears that the wife wanted the husband to live separately from his parents to which he did not agree with the result that she came to the matrimonial home sometimes and left the home as she liked and finally on 13th Oct., 197f t, she deserted him leaving behind the son aged three years. The wife tiled a petition for judicial separation on 15th Oct., 1976, on the ground o l cruelty, but this was dismissed on 5th July, 1978. It was also claimed that the wife had written derogatory letters concerning the husband to his senior officers and also made complaints about him, hence, it was claimed that there was cruelty and desertion. As may be noticed, the desertion was alleged on 13th Oct., 1976 and the petition was filed on 23rd August, 1978, i.e., over two years had not elapsed from the date of desertion.

(3.) The wife's case was that she went home as was customary after the husband went back on duty, but nobody had come to fetch her. She claimed that she lived at her parents' house; and that she went back to the petitioner's parents and did not visit her own parents' house because she was restrained from going outside the matrimonial home. It appears that she had learnt of the husband's illness at Bhatinda but nobody had visited him. However, she denied that the husband had met with an accident in April, 1973 which led to him being admitted in the Military Hospital at Delhi. She did not say anything about going to Chandi Mandir. She alleged that after the birth of a male child, the husband was quite indifferent to her and thus she had gone to her parent's to live there. She had, off and on, at various times, gone to live at the house of the parents of the husband, but then difficulties had forced her to leave. She had last gone in February/ March, 1976, but had to return on 13th Oct., 1976. It was her case that she had been forced to file a petition for judicial separation in the above circumstances.