KSHAMADHAR PRASAD Vs. MT. SARASWATI

JUDGEMENT

(1.) 1. The plaintiff Kshamadhar Prasad Gujar married, defendant 1, Saraswati, by pat on 21st February 1916 and she lived with him at Chaura Hat for six years. On a day between the middle of February and the middle of March 1922 she set off from Chaura Hat, with her husband's consent, on a visit to, her mother at Sankla, as she had probably often done before, being escorted by her brother Dhanraj and Imrat Lal who is apparently some sort of a cousin. As is usual on such occasions, she took with her all the ornaments given to her at the wedding by the plaintiff, which were worth Rs. 823-8-0, Two months later, on a date between the 13th April and 11th May she was married to Parmeshwar Das Gujar of Sankla, and they both now live with her mother Radha Bai. The plaintiff thereafter demanded the return of the ornaments his wife had taken with her, and the demand was refused. Accordingly, on 9th March 1925, he filed the present suit for the payment of Rs. 823-80 against Saraswati and her mother (who died during the trial) and Parmeshwardas and also Dhanraj and Imratlal.

(2.) ONE of the many absurd results of the usual vague examination of questions of law that do not arise and the neglect of the actual details and facts of the case is the position of Dhanraj and Imratlal. It is obvious that on the allegations in the plaint neither of them has any concern with the case and they should both have been discharged as soon as they filed a written statement saying so. In the first Court, however, it was found that they were necessary parties to the suit because they were "proved to have removed defendant 1 with ornaments to her parents." There was no examination of their liability, and the decree for Rs. 823-8-0 was passed against all the four surviving defendants.

(3.) THE judgment of the District Court is as follows: Though the ornaments were given to Saraswati on the morning after the wedding they form a part of the wedding gifts and are not gifts unconnected with the marriage as was held in the first Court. They are therefore, her stridhan. It is stated by the plaintiff's witnesses Babu and Raghuraj Singh (P.W. 2 and P.W. 8) that as she has deserted her former husband, she is liable to return the ornaments. This evidence was admitted in spits of (the absence of) any pleading as to custom regarding divorce or desertion prevailing among the caste to which the parties belong. A divorce can only take place by mutual consent and there is no such thing as desertion by the wife of the lawful husband, and to recognize such desertion as lawful requires specific pleadings which are absent in the case. Mt. Saraswati, therefore, continues to be the lawful wife of plaintiff and her second marriage with Parmeahwardas cannot be considered an legal.