RAM ASARI Vs. PIARA RAM

JUDGEMENT

(1.) Smt. Ram Asari has filed the present appeal against the judgment dated January 4, 1978, of the District Judge, Hoshiarpur, whereby a decree of divorce under section 13 of the Hindu Marriage Act had been granted against her at the instance of her husband Piara Ram on the ground of desertion. The respondent filed his petition on June 14, 1977, and mentioned therein that the appellant at that time had been residing at village Bhogpur with her parents. The respondent himself was residing at village Bajwara Kalan in District Hoshiarpur. The parties were said to have married in the month of June, 1952. According to the respondent, the appellant had deserted for a period extending to about two years preceding the presentation of the petition. The appellant gave this story in her written statement that her husband was annoyed with her because she had not given birth to any male child and that he wanted that she should not reside with him so that any more female child might not be born. She showed her willingness to live with the respondent but, according to her, he did not want to keep her at his house.

(2.) There was only oral evidence produced from both sides. The appellant in her evidence given as RW 1 admitted that her husband had visited her after about a week of the delivery of the child and, according to the lower Court, it showed that the respondent had no desire to neglect her. It was then mentioned that after the separation between the parties the appellant did not file any petition for restitution of conjugal rights or any application for obtaining maintenance allowance and hence all this showed that respondent did not have any intention to desert her. I am of the view that the evidence on record is not sufficient for proving desertion for any period on the part of the appellant. It is significant to note that the respondent did not mention in a definite manner any starting point of desertion. He did not say anything in the petition about the circumstances in which both the parties had separated. There is nothing to show that it was the appellant who had gone away from his house with intent to desert him. There is then this fact mentioned in the petition that the appellant had been suffering from some mental disorder. He had made it a second ground of divorce. He had, however, not mentioned that the appellant was incurably of unsound mind. The second ground alleged has been held by the trial Court to be not proved. Any way, the ground taken is an indication of this fact that there was some such defect in the appellant from which the respondent could form an intention to desert her. The appellant gave this evidence on December 6, 1977, that about three years back she had gone to her parental house in connection with the delivery of a child. It could not, therefore, he said that when she left her husband's house she had any intention to desert. It was for a particular need that she had gone to her parental house and subsequently, it is to be seen whether the respondent was willing to bring her back. It had been mentioned by the respondent in the petition that he had been taking steps for bringing back the appellant to his house. At the trial Piara Ram, the respondent, gave evidence as PW. 1 and pointed out several occasions on which he was said to have gone to the parental house of the appellant. According to him, twice he had gone all alone and on the third occasion he had taken Bhagwan Dass who had arranged their marriage. Then on the fourth occasion he was said to have taken a Panchayat consisting of Santa Singh and Malkiat Singh who were subsequently produced as PWs Nos. 2 and 4. Bhagwan Dass himself was produced as PW. 3. The cross-examination of all these witnesses brought out some discrepancies showing that what was being said was not truthful. Piara Ram deposed that it was one month after the Lohri festival of the year 1975 that the Panchayat had gone to Bhogpur. Santa Singh without specifying any period when he went with the Panchayat simply said that he had accompanied the respondent along with Malkiat Singh. He then said that there were two occasions upon which he went with the respondent. When he was asked how many days after the Lohri festival he had gone, he said that he did not remember. As about the second time, he said that he went in the month of Baisakh 1977. His case was that no member of the Panchayat of village Bhogpur was summoned for having a talk about reconciliation. Bhagwan Dass PW. 3 deposed that after about two days of the Lohri festival he had accompanied the respondent. He was emphatic on the point that it was he alone who went with the respondent. Malkiat Singh made a mention of this fact that it was after about a week of the Lohri festival of the year 1975 that the Panchayat had gone.

(3.) The respondent even during the course of his statement as P W. 1 was unable to say at what point of time his wife left him. He gave his statement on November 19, 1977, and said that it was more than two years back that she had gone away from his house. He then said that she was insane and that he had tried to get her treated but the treatment was without success. Then in the cross-examination he said that his wife had been suffering from mental disorder for about ten years past. Charan Das PW. 5 was examined for proving the mental illness of the appellant and he deposed that she was suffering from some ailment in connection with intestinal worms. She was also said to be anaemic. The appellant herself as DW. I admitted that she was keeping indifferent health and that she got herself treated at Phagwara. With regard to some mental ailment. It is this quite possible that the respondent had been fed up with his wife who often remained ill and, therefore, thought of filing a petition for divorce and then falsely alleged that he had been deserted by his wife. There is hardly any reason for the wife to desert the husband. She was aged about 35 years and on account of bad health she required every assistance from her husband. Under these circumstances this inference is possible that she had no desire to desert her husband. As the desertion on her part does not stand proved, the present appeal is accepted. The decree of divorce is set aside. There shall be no order as to costs.