GULAB RAI SHARMA Vs. PUSHPA DEVI

JUDGEMENT

(1.) This is an appeal by the husband against the dismissal of the petition brought by him for divorce under Section 13 of the Hindu Marriage Act (hereinafter to be called the Act).

(2.) The parties were married on 17-5-1970. They have no child. The appellant husband claims that they only lived for a couple of days i.e. upto 20-5-1970 when the respondent wife is said to have been taken to her parent's home by her brother. It is claimed that subsequently efforts were made to bring her back but she refused. Notices were said to have been sent by her in 1973. The appellant claims that he had been beaten by the relations of the respondent and even had reported to the police. e allegations were denied by the wife. Delay of six years was pleaded as a preliminary bar. "The wife maintains that they lived together first in Dharampura house and then shifted to Vakilpura along with the parents of the husband from 1972 onward. She claimed that she had been 1iying in the game house with the husband right upto 6-10-1976 (when she came on a short visit to her parent's house) that is even subsequent to the moving of the petition by the husband in September, 1976. She however admitted that she had sent notice which she of course claimed were sent because she had been sent away to her parent's house and was not being brought back by the husband. It is a common case that there was family house in Dharampura where the parents of the husband lived upto 1972 and then they moved to a house in Vakilpura. The trial court found that the wife had not deserted the husband but rather the husband did not want to live with the respondent wife. He therefore dismissed the petition. He also did not find any evidence of cruelty by the wife and that has brought the husband to this court in appeal.

(3.) The case of the husband is that after marriage on 17-5-1970 they lived together for a couple of days at his house at Dharampura and since 20-5-1970 the wife went away and never came back. He claims that efforts were made to bring back the wife but she never came. There is some oral evidence produced in support of this but there is a categorical denial by the wife that she went away in 1970. Her case is that she lived with the husband upto 1972 in the house at Dharampura when both of them shifted to house in Vakilpura along with the other members of the family of the husband. Oral evidence has been produced by the respective parties in respect of the conduct of the husband and wife between 1970 and 1973. The first question that arises is whether the version of the appellant that the wife went away on 20-5-1970 and never came back to the house is acceptable- As I have said there is no documentary evidence to support the ver either of the husband that she had left the house on 20-5-1970 and never came back or in support of the wife claiming that she had gone for a short visit and had come back and had lived upto 1973 in the house of the husband. The trial court has not accepted the version of the husband that the wife left the home on 20-5-1970. Apparently it seems to me a little untenable that even after a couple of days the wife should have left the husband's house permanently with the intentions of deserting him. No plausible reason has been put forward by the appellant in support of such assertion. Moreover it seems to me that had she moved out of the house on 20-5-1970 with no intention to come back, the wife would normally take some more positive steps to dissolve the marriage but the things dragged on with out any step by her uptil 1973. The first document which seems to shed some light is the notice of 27-3-1973 in which the wife claimed that she had been sent away many times and the last time that she had been sent is on 18-3-1973. he notice clearly makes a very strong charge that unless the conduct of the husband is amended it is quite impossible to live with him. To this no doubt the husband sent a reply on 3-4-1973 denying the allegations and objecting to the manner she had allegedly been away since 20-5-1970 and taking the stand she never came back and the date 18-3-1973 mentioned by her was just put up as an execute. I do not mind confessing the difficulty in accepting the full version of either party because of lack of credible evidence so as to fix the date. The version that she had left the house on her own on 20-5-1970 and has not returned to the husband's house has not found favour with the trial court which had the benefit of seeing the witnesses closely and then coming to the conclusion. Moreover it seems to me that had the situation been of total desertion by wife since 20-5-1970 one may well have expected some positive steps by the husband to bring the marriage to end much earlier. I therefore am not in a position to accept this version of the husband.