Gupta, J. - (1.)This is an appeal by the wife and it is directed against a decision of the learned Judge, 7th Bench, City Civil Court, Calcutta, allowing her husband's petition under Section 10 of the Hindu Marriage Act, 1955 praying for judicial separation. The parties were married on December 14, 1950 at Calcutta according to Hindu rites. In the petition the husband alleged that his wife is a bad tempered, quarrelsome and intolerant woman and that all his efforts to correct her ways have proved ineffective. On October 21, 1951 a daughter was born of this marriage. On or about April 24, 1952, it is alleged, a love letter written by her to one Sudhangshu Sekhar Chose was detected and she left the matrimonial home leaving the baby. She was later found in her father's house where she went on living for about 8 or 9 months. Thereafter through the intervention of Dr. D. P. Basil, a well known physician related to the parties, she was taken back by her husband. It is stated that before she returned to the matrimonial home she signed a document admitting her guilt. Her conduct however did not change according to the petitioner. She often abused him in filthy language and used to hurl things at any one who protested against her behaviour. On April 11, 1953 her father is alleged to have forcibly taken her and the child away with him though it is not stated why. About four years thereafter she wrote a letter to the petitioner's father apologizing for her conduct and requesting him to take her back. As his father wanted her to come back, the petitioner did not object and she returned sometime in February, 1958. The petitioner's case is that very soon she lapsed into her old habits. She used to go away to her father's place whenever she pleased and threaten the petitioner that she would divorce him. The situation reached a climax on the night of January 1, 1966 when she tried to throttle the petitioner in sleep. According to the petitioner, since the happening on January I, 1966 he began living in a separate room. In paragraph 10 of the petition the petitioner states that "on 18-8-1966 the respondent finally deserted your petitioner and she is still residing in her father's residence at 15, Gopi Bose Lane, Calcutta-12". Paragraph 11 of the petition states "that due to continuous tortures by the respondent and her misdealing and ill-treatment through all these years have made your petitioner's life miserable and your petitioner could not pass a single day in peace and happiness. For constant worries and tension, your petitioner has been a victim of diabetes. The respondent treated your petitioner with such cruelly, that it caused reasonable apprehension in his mind that it would be harmful and injurious for the petitioner to live with the respondent any more." It would seem from the statements made in paragraphs 10 and 11 of the petition that the petitioner sought relief on two grounds, desertion and cruelty by the wife. It appears from the judgment of the Court below that the case of desertion was not pressed at the hearing and the learned Judge rightly held that in any event the ground was not available to the petitioner. Under Section 10 (1) (a) of the Hindu Marriage Act, desertion in order to be a ground for judicial separation must be for a continuous period of not less than two years immediately preceding the presentation of the petition. It is alleged that the wife deserted the petitioner on August 18, 1966 and this petition was filed on March 15, 1967 which is short of the statutory period by about five months.
(2.)Thus the only question for decision is whether on the evidence on record the ground of cruelty can be said to have been established. I have summarised the allegations made in the petition on this point. The petitioner examined in all six witnesses including himself. Deposing as P. W. 1 he stated that he found the alleged love letter (Ext. 1) from a shoe box. On cross-examination however he admitted that exhibit 1 did not contain anything to show that it was a love letter. He also referred to the agreement reached between him and his wife at the intervention of Dr. D. P. Basu, the terms of which were put in writing. The terms are referred to in a letter (Ext. 1g) addressed presumably to the petitioner's father by Dr. D. P. Basu. The terms appear to be as follows :--
"(1) I Sm. Aloka De went away alone on foot from 'Harinibas' [name of the petitioner's house] in the night of 22nd April, 1952 leaving my daughter and without informing any one. I am sorry for that and shall not do so again in future. (2) If I have to write letter to any one I shall write it on a post card which my husband will have full right to see. (3) The allegations I made previously that my father-in-law, mother-in-law and my husband beat me are wholly false and for that I am sorry."
There was a further assurance by the wife that she would not act again in a similar fashion. In his evidence the petitioner filled in the gap in the petition as to why his father-in-law took away his wife and the child on April 11, 1953. He stated that on that day his wife abused him filthily and then summoned her father on the telephone and left with him taking the child with her. He proved exhibit 1 (a), a letter, written by his wife to his father in which she apologized for "uttering evil words" and asked her father-in-law to forgive her out of his own goodness. The petitioner said that he took her back on or about 18th July, 1958 though the date mentioned in the petition is sometime in February, 1958. In his evidence the petitioner repeated that she tried to throttle him on the night of January 1, 1966 and that he began sleeping in a separate room since then. She left him finally on August 18, 1966. According to the petitioner, before leaving, his wife left a signed note (Ext. 2) which is as follows :-- "Received all my articles to my satisfaction. My jewelleries are with me". The petitioner stated that his wife's conduct made severe impact on his body and mind that caused him to suffer from diabetes since 1955 and that he was afraid to live with her. In answer to a question put by the Court he denied that exhibit 2 was written at his dictation.
(3.)Petitioner's elder sister Renukana Saha deposed as P. W. 2. Her evidence is that the appellant was rude to the petitioner's parents and used to quarrel with the petitioner and throw things at him. The witness stated that "there was trouble" on January i, 1966 since when the petitioner and his wife used to sleep in different rooms. This witness did not refer to any specific act of cruelty during the period between 18th July, 1958 and 18th August, 1966 except the incident on January 1, 1966.