UMRI BAI Vs. CHITTAR

JUDGEMENT

(1.) THIS is an appeal under Section 28 of the Hindu Marriage Act, 1955 (hereinafter called the Act ). In 1961 the appellant made an application under Section 10 of the act for judicial separation on the ground that the respondent had deserted her for a continuous period of more than two years immediately preceding the presentation of the petition and further that he treated her with cruelty. The parties were married in or about the year 1951. They lived together upto november 1957. No child was born to them. The petitioner's case was that for about three and half years prior to the presentation of the petition her husband deserted her and did not cohabit with her. He filed a criminal complaint against her under Section 494 of the Penal Code, alleging that she had contracted another marriage with one Chhinga. She was acquitted. Now she has apprehension in her mind that if she would live with the respondent, her life would be in danger, or her nose would be cut off, or she would otherwise be disfigured. The respondent's case was that it was she who left the matrimonial home of her own record and at the instigation of her father. He was prepared to take her back. He admitted that he had prosecuted her under Section 494 of the Penal Code and that she had been acquitted.

(2.) THE trial Court dismissed the petition on the ground that the petitioner's statement as to the facts constituting the alleged desertion were not proved and that she had herself left the matrimonial home when her mother died. As to the charge levelled by the husband against her that she had deflected from the path of rectitude, the learned trial Judge observes; " In bringing criminal complaint the purpose as it appears from the statement of Jhaboolal was to get the lady back and not to see her punished. The respondent and his witnesses have also deposed to the effect that Mst. Umri has been visiting Itarsi and she has illicit relations with Chhinga. This story docs not appear to be imaginary or malicious. " he reached the conclusion that as the husband was willing to take her hack, judicial separation could not be decreed.

(3.) WE are unable to agree with the learned Additional District Judge in his approach to the matter. He did not view it in the correct perspective. The respondent accused her of having contracted a second marriage with Chhinga. The criminal Court acquitted her of the charge which was not proved. But this is not all. Even in these proceedings, the respondent made no endeavour to prove any marriage between her and Chhinga, His statement is curious enough. He says that smt. Umri has taken Chhinga as her husband; she is still residing with him, but he does not disapprove of it; he is still prepared to take her back. "umri NE CHHINGA KO KAR LIYA HAI AB BHI USKE PAS RAHATI HAI yah BAT MUJHE KOI NAGAWAR NAIIIN HAI MAIN TO AB BHI LE JANE KO taiyar HUN. " it is quite plain from this statement that the respondent still persists in his allegations on which she was prosecuted earlier. He reiterates the accusation that she is maintaining illicit intimacy with Chhinga. It is obvious enough that his willingness to take her back is faked when he goes to the extent of saying that he does not disapprove of that conduct of his wife. The only purpose behind this statement is to defeat the present proceedings. His statement cannot be accepted on its face value. It does not accord with the natural conduct of an ordinary husband. He is not that ideal type who would forgive and forget. His own conduct in prosecuting her under the law of crimes proves the extent to which he took offence. His statement must therefore, be rejected.