HARNARAIN Vs. SMT. SUBHADRA

JUDGEMENT

(1.) Shri Harnarain has filed this appeal against the order of the learned Additional District Judge No. 2 Jodhpur dated Oct. 12, 1981 by which his application for divorce against his wife Smt. Subhadra alias Chhoti under section 13(1) (ia) and (ib) of the Hindu Marriage Act was dismissed. The case of the appellant Harnarain was that the parties are Hindus by caste and their Marriage has taken place according to the Hindu customs on March 8, 1962 at Phalodi. Out of this wedlock a son was born to Smt. Subhadra on Sept. 9, 1967 and another son was born to her in Aug., 1970, but unfortunately he did not survive. The parties lived together for sometime at Phalodi Jodhpur and Bombay but according to the appellant the Respondent Smt. Subhadra had been treating him with cruelty because she never gave him satisfaction in intercourse and avoided it that she had been suffering from T. B. but this fact was not disclosed to him at or before the time of the marriage but had come to his knowledge only in Oct., 1970, when she was admitted to the T. B. Hospital; that she had dirty habits, she did not wear clean clothes, did not have bath for many days, did not brush her teeth which gave foul smell, she did not entertain the appellants relations and friends who came to visit their house. She used to get up very late in the mourning. She used to ill-treat the appellant and his younger brother and on account of that the appellant's younger brother Dharamdutt became in same and that the respondent did not want to live with the appellant and used to stay at her father's house at Phalodi. The case of the appellant further was that they last resided together at Jodhpur from Aug., 1973 to Oct., 1973. Thereafter she again went away to her father's place and did not return to the appellant despite his requests and efforts to bring her back and thus she had asserted the appellant. He, therefore, wanted to decree of divorce on the ground of cruelty and desertion. The respondent Smt. Subhadra contested this petition. She denied all these allegations and alleged that she was always ready and willing to stay with the appellant as a dutyful wife. She had no dirty habits. She never ill-treated the appellant, his brother, his friends or his relations and she had been staying with the appellant whenever he wanted her to stay with him but it was the appellant who avoided keeping the respondent with him on one pretext or the other, sometimes by saying that he was carrying on his studies, some- times because he was short of accommodation etc. even after 1973 Oct., the respondent had not withdrawn from the society of the appellant but it was the appellant who had sent her away to her father's house at Phalodi. Still, she had been living with the appellant's father at Lodia for many years where her son was also living with her and studying there. It was only in 1979 that she want to stay with her father because he was seriously ill and on that occasion also she had gone with the permission of the appellant. On these pleadings the learned District Judge Jodhpur, with whom the case then was, framed three issues. Issue No. 1 related to cruelty, issue No. 2 related to desertion and issue No. 3 related to relief. The appellant examined six witnesses in support of his case and produced one letter Ex. 1 sent by his father-in-law to him. In rebuttal the respondent examined five witnesses and produced nine documents which were all letters written by the appellant to the respondent or her father. After hearing the parties the learned Additional District Judge No. 2 Jodhpur, to whom the case same to be transferred, dismissed the appellant's petition finding both the issues against him. It Is against this judgment and decree that the appellant has come up in appeal.

(2.) I have heard the learned Counsel for the parties and have gone through the record.

(3.) It is urged by the learned counsel for the appellant that the learned Additional District Judge has not approached the case from the right angle and has instead of considering the effect of the evidence as a whole has divided the evidence into parts pertaining to the periods of the stay of the parties at Jodhpur, Phalodi and Bombay. According to the learned Counsel the evidence relating to the period when the parties remained at Bombay or Phalodi was only with a view to show the conduct, nature and habits of the respondent bearing upon the question of cruelty but the real matter to be taken into consideration was the cruelty exercised by the respondent at the time she stayed with the appellant at Jodhpur during the year 1973 and her behaviour thereafter. The learned counsel has divided the acts of cruelty of the Respondent in four arts.