RISHI RAJ ARORA Vs. SMT. CHANDER KANTA AREA

JUDGEMENT

(1.) This appeal is directed against judgment and decree dated 30th Sept., 1982 of an Additional District Judge vide which he dismissed the petition of the appellant for dissolution of marriage by a decree of divorce on the ground of desertion falling under Sec. 13(l) (ib) of the Hindu Marriage Act (for short 'the Act').

(2.) The undisputed facts of the case are that the appellant and the respondent were married on 6th March, 1972 at Saharanpur (U.P.) where the parents of the respondent reside, in accordance with the Hindu rites and ceremonies. The parties then resided together at Delhi and consummated the marriage but no issue was born out of the wedlock. In Dec., 1972 the appellant was selected for and offered Permanent Commission in the Indian Army. He was called upon to join the Indian Military Academy at Dehradun by If the Jan., 1983 for training. Accordingly he reported at the said Academy and underwent training for about eleven months. He was eventually granted Permanent Commission in the Army on 23rd Dec., 1973. The contention of the appellant is that in view of his impending training it was agreed between the parties that the respondent would stay and live with the appellant's family at Roorkee where his parents were then residing and the household effects would also be shifted to that place. However, the younger brother of the respondent Shri Prem Dass came to Delhi on or about 12th Jan., 1973 and expressed a desire to take the respondent direct to Saharanpur to which the appellant consented. Accordingly, the respondent accompanied her brother to Saharanpur and he transferred all his household effects to Roorkce in order to join the Indian Military Academy. During the period of his training the respondent mostly remained at Saharanpur and she visited Roorkcc only twice, once for two or three days in Feb., 1973 on the occasion of the marriage of the appellant's younger sister and once thereafter. On being granted Permanent Commission, the appellant came to Roorkce on 25th Dec., 1973. The respondent too arrived there on the same day but she went back to Saharanpur with her brother after staying there for three or four days. The appellant went to Saharanpur to meet her and to bring her back to Roorkee about three or four days but she did not agree to return to Roorkee. The appellant came back but again went to Saharanpur and after four or five days to bring her to Roorkee but she declined to come with him. Eventually the appellant left for Bangalore to join his duties after staying at Roorkee for about nine days. He was then sent to Pune in Jan., 1974 for six months young officers' course. Thereafter in July, 1974 he was transferred to Panagarh in West Bengal. The contention of the appellant is that during all this period the respondent stayed at Saharanpur and visited Roorkee, where his parents were living, only once or twice. However, there was usual exchange of letters between the parties. In september, 1974 the appellant came to Saharanpur to join the marriage of respondent's brother and stayed there for about six or seen days. He also visited Roorkee on that occasion. Since he was having knee trouble he reported at Military Hospital, Roorkee, where he was admitted as an indoor patient for about a month. In the first Ncek of Nov., 1974 he was referred to Military Hospital, Lucknow, for further investigation and treatment. He was operated upon his left knee at Lucknow in Jan., 1975 and on being relieved from the hospital on 18th June, 1975 he went back straight to report to his Unit at Panagarh. The contention of the appellant again is that during the said period the respondent stayed with her parents at Saharanpur and she paid a visit to see him at Lucknow Military Hospital only once for a day along with her father and uncle. In April, 1976 the appellant was posted to Lucknow but before being relieved he applied for annual leave for sixty days so that he may live with his wife. However, he was granted leave for 45 days with effect from 1st April, 1976. After reaching Roorkee in the first week of April, he visited Saharanpur and stayed there for four or five days and during his stay there lie noticed for the first time that the attitude of the respondent was indifferent. She refused to visit Roorkee along with him without any cogent reason and told him that she would join him at Lucknow after he was allotted married accommodation. On the expiry of leave the appellant reported for duty at Lucknow in the middle of May, 1976 and married accommodation was allotted to him on 9th Nov., 1976. He wrote to the respondent informing her about the said allotment and asking her to join him at Lucknow but she neither replied nor came to Lucknow. Even thereafter he wrote several letters to the respondent asking her to join him at Lucknow and asking her as to why she was unwilling to come to Lucknow but there was no response from her. He then asked his parents to check up with the respondent as to why she was not responding to his letters and why she was not willing to shift to Lucknow. Accordingly the father of the appellant paid a visit to Saharanpur and enquired from the respondent and her parents the reason why she was not willing to join the appellant at Lucknow but no reason was assigned by them and they simply gave an evasive reply that she was keeping well and as such she was unable to shift to Lucknow. The parents of the appellant paid several visits even thereafter with a view to persuade the respondent to join the appellant at Lucknow or to stay with them at Roorkee but their efforts yielded no results. Hence, the contention of the appellant in nut shell is that despite repeated efforts made by him and his parents to persuade the respondent to come back to the matrimonial home and live with the appellant as a wife, there was no favour- able response from her. Thus, she failed to discharge her matrimonial obligations and withdrew from the society of the appellant without any justification.

(3.) The petition was contested by the respondent who refuted all material averments contained in the petition and asserted that in fact it was the appellant who was guilty of the matrimonial offence of constructive desertion inasmuch as he was never earnest or keen that she should join his company and return to the matrimonial home although she had been always willing and was still willing to join the company of the appellant and live with him as a wife. In particular, she took up the stand that the appellant was at no time willing to keep her with him at the station of his posting even when he was allotted married accommodation. On the contrary he always insisted that she should stay with his parents at Roorkee. So, most of the time she stayed with his parents as desired by him and she even went to see him at Lucknow Military Hospital. She expressed a desire to stay there but he would not agree to the same. She further alleged that despite her insistence that she would go and stay with the appellant at the place of his posting, the latter always discouraged her and took no steps to take her with him. Thus, she was always denied company of the appellant and she was deprived of enjoyment of marital life without any rhyme or reason. Eventually the appellant wrote a letter to her indicating plainly that she need not worry about his ailment and that he did not like her or anyone else to write to him or approach him. As regards visits of the appellant's parents to Saharanpur, she averred that on their visit they simply advised her to join them at Roorkee and they never asked her on any of their meetings with her or her parents that she was wanted by the appellant and she should come back to her marital home. On the contrary she always impressed upon the parents of the appellant that she was desirous of living with her husband wherever he was posted at the essence of marriage was performance of marital obligations towards each other and not just living at the house of husband's parents. Thus, according to her, the appellant was himself guilty of laches and depriving her of his lawful company and making her lead a life of deprivation and frustration. She specifically prayed the court to make efforts at reconciliation as enjoined by Sec. 23(2) of the Act. The following issues were framed by the trial Court on the pleadings of the parties :