TEJA SINGH SUBEDAR SANTA SINGH Vs. SARJIT KAUR

JUDGEMENT

(1.) TEJA Singh appellant applied under section 9 of the Hindu Marriage Act (No. 25 of 1955), for restitution of conjugal rights alleging that he was married to the respondent Surjit Kaur about 13 years back and they lived together as husband and wife for about 3 years. The respondent thereafter left him of her own accord and started living separately in spite of his repeated requests. On the other hand the respondent filed an application under section 488, Criminal Procedure Code, in a Court at Ludhiana and obtained an order of maintenance at the rate of Rs. 30/per mensem against the appellant. The application the marriage but averred that she was maltreated by the appellant at the instance of his brother's wife.

(2.) AS a result of that he turned her out of his house after giving her beating and never took care of her thereafter. She denied that the appellant ever made any attempt to bring her back, but asserted that her father along with some respectables of the village unsuccessfully approached the appellant with a request that the should take her back to his house. She also pleaded that she had been totally neglected by the appellant for a period of six or seven years and it was because of this that she had to make an application under section 488, Criminal procedure Code, against the appellant. Her contention was that this application was made by the appellant only to avoid his liability to pay the maintenance fixed by the Court. On the pleadings of the parties the following issues were from. Whether the respondent has withdrawn from the society of the society of the petitioner without sufficient cause? Whether the applicant has been guilty of cruelty towards the respondent? If so, its effect? what is the effect of the petition having been made after the expiry of 6 or 7 years from the date of the respondent from the society of the petitioner? whether the applicant deserted the respondent for more than 2 years before the making of his application? relief. After recording evidence Shri Radha Krishan, Sub-Judge 1st class, Ludhiana found issues Nos. 1, 2 and 3 against the appellant and issue No. 4 in favour of the respondent, and dismissed the application vide his order dated the 13th October, 1960. Feeling aggrieved against that order Teja Singh has approached this Court in appeal. (2) The case was argued at considerable length principally on the point whether the respondent had reasonable excuse or cause to withdraw from the society of her husband and leave his house, and whether Teja Singh had deserted her for a continuous period of not less than two years. What is meant by desertion has been fully explained in Bininchandra Shah v. Prabhavati (S) AIR 1957 SC 176, where their Lordships of the Supreme Court observed that

(3.) WE find that the respondent left Teja Singh's house quite a few years back, but he did not consider it necessary even to give her notice to come back to him or make an application under Section 9 of the Act as has been done now but waited till she obtained an order from the criminal Court for maintenance against him. There has, therefor, been unnecessary and improper delay in instituting these proceedings and under the provisions of S. 23 of the Act such a delayed application merits dismissal. It appears that the only intention of the appellant is to somehow or other escape the liability imposed upon him under S. 488, Criminal p. C. as mentioned above.