YASHWANT KUMAR Vs. KUNTA BAI

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The marriage of the appellant and respondent took place in the year 1979. They lived together upto 21-2-1988. According to the appellant, since the behaviour of the respondent with appellant was not good since time of marriage, there were usual quarrels between the appellant and the respondent. According to the appellant the respondent used to go to her parents house at Mandsore without taking permission of the applicant and normally in absence of the appellant. Because of this, there was mental tension for appellant. He tried to resolve the dispute raised by the respondent but on 21-2-1988, when appellant was on duty, the respondent left the house of the appellant with her three children and went to Mandsore. Since then the respondent is living at Mandsore. The appellant tried his best to bring back the respondent but he failed in his efforts. According to the appellant, the respondent's mother and father are also not interested in sending the respondent to the house of the appellant. Compelled by this situation, the appellant submitted a petition under Section 9 of the Hindu Marriage Act, 1955 on 28-4-1989 which is registered as Case No. 76/89. Despite that effort, the respondent did not come to the appellant. According to the appellant, respondent's father had one power loom factory at Mandsore. The appellant's children started working in that factory, therefore, the respondent's parents to take benefit of the situation, kept the respondent and appellant's children so that the respondent's parents can use the respondent and appellant's children for earning. However, admittedly the petition under Section 9 of the Hindu Marriage Act, 1955 was withdrawn by the appellant and thereafter, he filed the present divorce petition under Section 13 of the Hindu Marriage Act, 1955 before the Court below. The appellant sought decree for divorce on the ground of desertion and mental cruelty and on the ground that the respondent did not re-establish the relations with the appellant despite filing of the petition by the appellant under Section 9 of the Hindu Marriage Act, 1955 on 28-4-1989.

(3.) The respondent-wife of the appellant submitted reply to the divorce petition and stated that their marriage took place in the year 1979 and out of this wedlock, she gave birth to two daughters and one son. She admitted that upto 1986, she lived with the appellant at Chittorgarh upto this period there was no dispute between the appellant and the respondent, before going to chittorgarh, the appellant and respondent were living at Udaipur because of the employment of the appellant in the General Hospital at Udaipur. After appellant's transfer from Udaipur to chittorgarh, he developed illicit relation with one lady nurse Nalini, who was also working in the General Hospital at Chittorgarh. The appellant even brought Nalini in the house and started living with her as husband and wife, which was seriously opposed by the appellant and because of this reason, the relation of the appellant and respondent became unhappy. The appellant started beating respondent and started giving inhuman treatment to the respondent. Initially the respondent tried to bear with the situation but she could not tolerate it. The respondent stated that in case the appellant is ready to leave the said lady Nalini, she is still ready to live with the appellant. So far as the petition under Section 9 of the Hindu Marriage Act, 1955 is concerned, according to the respondent, that petition was filed only to take benefit of the legal provision and the appellant never intended to keep the respondent with him. Because of third persons' entry in the house of the appellant and the respondent, the situation compelled the respondent to live separate from the appellant. It is submitted that the respondent and his father and other relations tried to persuade the appellant to leave the nurse Nalini but all efforts failed. The appellant even started beating his two daughters and son also and, therefore, the situation compelled her not to live with her husband.