ISHWARLAL SARAF Vs. SHASHIKALA

JUDGEMENT

(1.) APPELLANT /plaintiff feels aggrieved by the judgment and decree dated 31st July, 1991 passed by Shri M.P. Sahlam, II Additional District Judge, Raigarh in Civil Suit No. 14 -A/1990 dismissing his petition for divorce, and challenges legality and validity (hereof in this first appeal filed under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act).

(2.) THAT the parties were married on 10th July, 1981 in accordance with Hindu rites at Sarangarh, District Raigarh and lived together as husband and wife upto December, 1982 does not teem to be in dispute. Case of the appellant/plaintiff, as available in the plaint, is that the respondent/wife had treated him with cruelty, consisting of her intimate relationship with a youngman at Sarangarh. It if alleged that the respondent used to tease the appellant for his colour and activities by comparing him with her lower and thereby causing cruelty. It is further submitted that the parties had gone to Champa in November, 1982 to be with appellant's parents for some time. At that time, appellant's mother was sick and had to be taken to Raigarh for treatment. The respondent was left at Champa to look after his father and younger brothers and sisters. The respondent then ill -treated his father and others and left home on 12 -12 -1982. It is, therefore, submitted that since that date, the parties have neither lived together nor they have expressed any intention to live together. The respondent filed her written statement and denied those allegations. Her defence was that she was ill -treated by the appellant and forced to bring gold from her father and since she could not fulfill the demand, she was treated with cruelty and occasionally given heatings. She denied that she had any previous relationship with any one or that she left the appellant's home at Champa. According to her, the appellant gave her beating on 23 -11 -1982 at Sarangarh and went to his father's house at Champa. On return to Sarangarh on 30 -11 -1982, he again beat her several times upto 4 -12 -82. On 5 -12 -1982, he left alone and went to stay in the house of Sukhdeo and since then they are living separately. She denied that she had deserted or treated the appellant with cruelty. Both parties adduced oral evidence in support of their respective contentions. The teamed trial Judge, on appreciation of evidence adduced by the parties, held that allegations of cruelty were not proved. The learned Judge specifically held that previous intimacy of the respondent with any one was not established by evidence on record. The learned Judge also held that the evidence does not indicate that the respondent bad deserted the appellant. According to the learned Judge, since the appellant bad beaten the respondent and left her at her father's homo, she was compelled to stay separately. That is how the suit was held to be without substance and dismissed and the matter is before this Court in the present appeal.

(3.) AS regards desertion, it must be recalled that 'desertion', in order to constitutes ground for divorce, does not consist of living separately, though it is one of the ingredients thereof. Equally important ingredient is the animus desarendi, i.e . the intention to bring the relationship to an end. In the instant case, nothing whatsoever has been established to indicate any such intention on the part of the respondent. The respondent as D.W. 1 has stated on oath that she wants to go back to the appellant and live with him. The appellant has, on the contrary, not expressed any desire and has insisted on divorce. Even the allegation against the respondent having left the house does not seem to be established by evidence. Allegation in this behalf is contained in para 6 of the petition from which it appears that both the parties went to Champa to stay with the parents of the appellant in November, 1982. At that time, the mother of the appellant was sick and, therefore, the appellant took his mother for treatment at Raigarh, leaving the respondent at Champa to look after his father and younger brothers and sisters. It is alleged that the respondent illtreated his father and others during his absence and left Champa on 12 -12 -1982 with her father. This fact is denied in the written statement and it has been submitted that on 23 -11 -1982. when they were living in the house of the respondent's father at Sarangarh, the appellant gave beating to the respondent and went to Champa. On return on 30 -11 -1982. ha again beat her almost regularly upto 5 -12 -1982, after which she was left with her mother. Allegation in the petition would, therefore, indicate that the respondent left Champa on 12 -12 -1982 in his absence. He would, therefore, not be in a position to depose about the events leading to her leaving Champa. Rambai (P.W. 2) who is the younger brother's wife of the appellant and lives at Champa, however, does not say anything about this incident. Shyamlal Soni (P.W. 3), the father of the appellant also does not say that respondent left on 12 -12 -1982. Indeed, be does not say that both the parties came to live with them in the month of November, 1982. If allegations, as contained in para -6ofthe petition were correct, this witness would have been the best person to depose about them. As against this, the evidence led by the respondent, which consists of her own statement and the statement of Thakur Prasad (P.W. 4). her father, clearly establishes that the appellant gave beating to the respondent and left her at her father's home. In view of (his evidence, even the fact that the respondent left the appellant's home without any excuse cannot be said to have been established. The learned trial Judge was, therefore, fully justified in, holding that no case of desertion has been made out.