SMT. LAKSHMI KAPUR Vs. SUBHASH CHANDER KAPUR

JUDGEMENT

(1.) (Oral) - This order will dispose of two appeals, namely, FAOs 67 and 66 both of 1973, which have been filed by the wife against her husband. The first appeal is dirtied against the order of Mr. M K. Chawla, Additional District Judge, Delhi, dated 11th Dec., 1971, by which he was granted a decree for judicial separation in favour of the husband against the wife-appellant. The other appeal is directed against the order of the same learned Judge, dated 14th Dec., 1972, by which he has disallowed the claim of the appellant - wife for her maintenance pendente lite or litigation expenses, but the learned Judge, has, however, allowed a sum of <del>&#2352</del> 60.00 p.m. towards maintenance and education of the child with effect from 30th Oct., 1972.

(2.) I shall take up the fist mentioned appeal for consideration and will derive facts of the case from its record. The respondent-husband filed a petition under section 10 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act'), for a decree of judicial separation on the ground that the wife had deserted him for a continuous period of not less than two years immediately proceeding the presentation of the petition The allegation made in the Petition was that the parties were married on 7th May, 1973 and had a son born on 21st Dec., 1964, but since 28th Nov., 1967 the wife had deserted the husband without having any lawful excuse and has ever since lived at Muzaffarnagar with her parents and had repeatedly refused to return to marital home at Delhi and to perform her obligations and there has been no cohabitation between the parties since 28th Nov., 1967. The respondent-husband also relied on the agreement between the parties dated 28th Nov., 1967 to which reference will be made later on. It was also averred that the wife had taken up service as a Lecturer in the Arya Kanya Pathshala Inter College, Muzaffarnagar, U.P. on a basic salary of <del>&#2352</del> 150.00 per month, The petition was contested by the wife and she averred that the husband had already filed a suit No. 79/70 which had been dismissed on 29th Nov., 1971 by the Sub-Judge. Delhi; that the petition suffered from long delay and fiches. It was also pleaded that the petition was defective and did not contain the full particulars as required by section 23 of the Act. On the merits, it was asserted that instead of her deserting, it was the husband who had driven her away from the house and had maltreated and beaten her and had created an apprehension in her mind that she could not live with the husband safely. She also complained of neglect to maintain her son. With regard to the alleged agreement, she pleaded that the agreement had not been executed by her and it was all the same void, illegal and unlawful and ineffective as it was obtained by undue influence, coercion and force, or threat of force, and the same did not affect the legal rights to claim maintenance. In addition, she stated that several incidents took place in which altercations in the house grew into mal-treatment and heating causing mental cruelty and she had to take recourse to the doctors for curing the injuries on her body, and the said incidents were witnessed by the neighbourers and other persona who all tried to intervene and thereafter she was asked to sign a blank paper which had been converted into an agreement which was void. She further averred that after seeing the treatment of the husband, the wife had left the house as asked by the husband and she had been living with her parents since March, 1968. Replication to the written statement was filed in which the husband controverted all the pleas taken by the wife in her written statement and reiterated his allegations made in the petition.

(3.) On the pleadings of the parties, the following issues were framed :