PRABHAKAR Vs. SOU MANGALA

JUDGEMENT

(1.) THIS is an appeal in which the question of the right of a wife in matrimonial matter is involved. It is not in dispute that the appellant-husband is in service in the Municipal Council, hinganghat, where he also resides. It is also not in dispute that his wife is also in service working as a primary school teacher under the Zilla Parishad Wardha. It is the case of he wife that she has been in service since 1962 and her service is transferable within the jurisdiction of the Zilla Parishad, Wardha. On 8-5-1975 the marriage between the parties was: solemnized. At that time the wife admittedly was not living in Hinganghat but was serving in village Hingani. It is also ah undisputed fact that after her marriage she continued to serve at a place different from hinganghat and during vacations or holidays she used to go to her husband's place in Hinganghat and so also vice versa her husband used to visit her at her place of service. During this period the wife conceived from the husband and delivered a female child who is living with her.

(2.) IT is the case of the husband that at the time of the marriage there was an oral agreement between him and his wife that she should leave her service and should come and live with him. According to him he suffered separation for about 2 years but thereafter he insisted that she must leave the job and come and reside with him and that he has not need of her income and can maintain her with his own income. It may be stated at this stage that the wife is doing a teacher's job and is holding a slightly higher position than that of her husband. She is also getting slightly higher salary than him. It appears that after the husband insisted upon his wife to leave the job and to start living with him he has not allowed the wife to come to his house and stay with him nor has he visited her residence and stayed with her. According to the husband after all the attempts to bring the wife to his house failed he filed the instant petition under Section 13 (1) (ib)of the Hindu Marriage Act, 1955 on the ground that his wife has deserted him for a continuous period of more than two years prior to the date of the petition.

(3.) IN answer to the case set out by the petitioner/husband the case of the wife is that there was no oral agreement at the time of the marriage that she should leave her service and should stay with her husband in his house. According to her she was even helping her husband by sending Rs. 150/- per month as her husband was living with his parents at Hinganghat. It is further her case that she was ready and willing to continue the same arrangement of going to the husband's place during vacations or holidays and that the husband also could come to her place whenever he desired. She has also alleged that she had tried for her transfer nearer to the place of her husband and during the pendency of the instant appeal in this Court I am informed by both the parties that she is nearer to Hinganghat as she is transferred and posted at Hamdapur which is 20 to 25 kilometres away from-Hinganghat. It is, therefore, the case of the respondent wife that she has not permanently forsaken or withdrawn from the matrimonial obligations and, therefore, there is no desertion on her part within the meaning of Section 13 (1) (ib) of the Act. There is also no animus diserandi to permanently withdraw from cohabitation.