SARASVATI BAI Vs. NITAI CHAND

JUDGEMENT

(1.) This appeal under Sec. 28 of the Hindu Marriage Act, 1956, is directed against the judgment and decree passed by the Fourth Additional District Judge, Jabalpur, whereby the appellant's suit for a decree for divorce has been dismissed.

(2.) It is common ground that appellant was married to respondent in Calcutta and they have six children out of this wedlock. She was on her family way in Dec., 1977 when, according to her, on 12-12-1977, she was maltreated, kicked and severely beaten. She left her matrimonial home along with children and went away to stay with the family of one Anil Deonath. On 15-12-1977, the respondent went to the house of Deonath where instead settling the matter, again quarrelled with the appellant. On 17-12-1977, he brought her children back with him and since then the parties are living separately. It is the case of the appellant that the respondent treated her with cruelty and even went to the extent of accusing her with adultery. She, therefore, sought divorce on the ground of cruelty. The petition was resisted by the respondent who denied all accusations of beating the appellant or of illtreating her. According to him, the appellant herself withdrew from his society without any just cause. He stated that the appellant is living in adultery with one Deonath since Dec., 1977. He admitted that he had brought with him all the children from the custody of the appellant. At the trial, the appellant examined herself as A.W. 1, Nandlal as A.W. 2, Anil Deonath as A.W. 5 and a few witnesses to establish cruel treatment from the respondent as alleged. The respondent also examined few witnesses besides himself. The respondent even at the stage of trial and inspite of doubting the character of the appellant, offered to get her back with him and live with her. Their son Gopal Chandra Shah (N A W.6) denied any beating of his mother by his father and expressed that he had equal regards for both of them and would like to live jointly with them. On assessment of evidence, the lower Court held that the appellant could not establish cruelty on the part of the respondent and, therefore, dismissed the suit.

(3.) Shri Sohan Choudhary, learned counsel for the appellant, supporting the appeal, argued that there is sufficient material on record to substantiate the allegation of cruelty and pointed out that the appellant was beaten even when he was carrying. It was suggested that nothing will be more cruel than the imputation of unchastity to the wife by the husband. After going through the entire evidence on record, I find myself unable to accept the argument so advanced. The evidence on record shows that the appellant herself withdrew from the society of the respondent for reasons best known to her. Although both the parties have tried to support their rival contentions by oral evidence but, in my opinion, what may be clinching is the evidence of Gopal Chandra Shah (N.A.W.6). From this deposition, it is apparent that it is the appellant who left the company of the respondent at about 3.00 P.M. in the afternoon and went to the place of one Shanti Deonath. This Shanti Deonath was the tutor of the children and was thus acquainted with the family. It is his version that when the appellant, he his brothers and sisters were living with Shanti Deonath, the respondent went to them, tried to settle the matter but the appellant remained adamant and refused to go back. Repeated attempts by the respondent to get back the appellant failed. The children came back but the appellant refused to join the company of the respondent. It appears that the appellant preferred the company of Shanti Deonath to that of the respondent. He denied the suggestion that when the appellant with her children left the house, there was any quarrel between the appellant and the respondent. fie has further denied that the respondent used to beat the appellant or that there were frequent quarrels between them. From this deposition, it does not appear that he was tutored or that he was deposing under influence of the respondent. His deposition appears to be very natural and as a son, he expressed his earnest desire to live with his parents. The respondent as N.A.W. 7 has also denied the accusation of beating. He has also deposed that he went to the house of Shanti Deonath where his wife was living and persuaded her to come back and join him. He requested Shanti Deonath not to disturb their family life and allow his wife to go back with him. He deposed that he has always been ready and willing to keep his wife with him. During the proceedings in the lower Court also, he made attempts to get her back with him and live with her.