Decided on October 28,1983

KAMLA Appellant
Shri Kishan Gehani Respondents


N.N. Goswamy, J. - (1.)This appeal by the wife is directed against the judgment and decree dated 15-9-1982 passed by the learned trial Judge whereby the marriage between the parties, was dissolved by a decree of divorce on the grounds of desertion.
(2.)The respondent-husband filed a petition under section 13(1)(ib) of Hindu Marriage Act for divorce on the ground of desertion. It is alleged in the petition that the parties were married in Delhi on 18-6-1977 according to the Hindu rites. They lived together in the matrimonial home up to 7-3-1978. During this period, the respondent treated the appellant with upmost love and affection and the appellant also conceived during this period. It is further alleged that on 8-3-1978 in the morning the appellant who is working in the Regional Office of the Director, Marketing and Inspection went out with all her ornaments given by the respondent on the pretext that she had to attend a function at the house of a office friend in Gandhi Nagar and she would return late. The appellant, however, did not return and the respondent made several efforts to locate her. He contacted some of her office friends but was unable to trace her. He also tried to contact the parents of the appellant who are living at Kanpore but did not receive any communication from them. He, how. ever, received a telegram dated 14-3-1978 from the uncle of the appellant only to call the respondent at Kanpore, but saying nothing about the appellant. On 22-3-1978 the respondent sent a letter in Sindhi script to the appellant's father and uncle requesting them to send the respondent to Delhi so that she could take rest as she was pregnant. A copy of that letter was also addressed to the appellant at her place in Delhi. Thereafter the respondent personally went to the office of the appellant in April, May and June, 1978. He tried to persuade the appellant through relatives and friends but all in vain and she refused to return to the matrimonial home. It is further alleged that the respondent addressed several letters to the appellant asking her to return to the matrimonial home but without any result. On 15-9-1978, the appellant delivered a female child at the Lok Nayak Jai Parkash Hospital, New Delhi and she did not care to inform the respondent that a child was born to her. She never informed about the health and progress of the child. The respondent went to her residence to see the child but the appellant refused access to the respondent. Since then, the respondent has been undergoing pangs of separation from the appellant and the newly born child. It is further alleged that after 8-3-1978 till the date of filing of the petition i.e. 14-1-1981 there has been no cohabitation between the parties and the period of two years having elapsed the respondent was entitled to a decree of divorce.
(3.)The petition was contested by the appellant. Besides the premliminary objections in the written statement with which I am not concerned in this appeal, it was pleaded on merits that the respondent treated the appellant with cruelty ever since the date of marriage and has always been quarrelling with the appellant without any reason or cause. It is further pleaded that on 8-3-1978 the appellant was forcibly kicked out of the house by the respondent. She was mercilessly beaten at the advice of his mother in the presence of many respectable persons of the locality by saying that he would marry with another girl and earn sufficient and handsome dowry which the appellant had failed to bring from her parents' house. It is further stated in the written statement that the respondent is a very greedy man and always demanded money etc. from the appellant and her parents and for that reason the respondent used to treat the appellant with cruelty by teasing her and torturing her. The respondent also made the allegation that the appellant belongs to a very poor family and the respondent cannot tolerate the poverty of the appellant in his future life. The respondent had kicked out the appellant from his house knowing fully well that she was pregnant at that time and by the act of cruelty there was risk to the life of the appellant. The respondent closed his door for the appellant and only in these circumstances the appellant left the house of the respondent. She left the house in only two clothes which she was wearing at that time and for that reason she had to take some money from her friends in her office for boarding the train for her parents' house at Kanpore. After reaching at Kanpore, the parents of the appellant informed the respondent on telephone. She denied having received any letter at Kanpore from the respondent. She stated that to her surprise she had received two registered envelopes which contained no letter or message from the side of the respondent. She admitted having delivered a female child as alleged in the petition. It is also stated that at the time of going to the hospital for delivery and on the next day of the delivery she had informed the respondent. Again a person went to the house of the respondent with the news regarding the birth of the child but the respondent, instead of receiving him, said "LARHKI KA HAMAIN KYA KARNA DONO KO KUAN MAIN DALDO". Thereafter the respondent never visited the hospital to inquire about her welfare or welfare of the child. It is further pleaded that after being discharged from the hospital, the appellant along with the child, went to the house of the respondent, but the mother of the respondent, instead of receiving her, said to the appellant "JAHANSE AYE HE CHALI JA HAMAIN SHAKAL MAT DIKHANA" and closed her doors. It is further pleaded in the written statement that the status of the respondent as given in the petition before his marriage "bachelor" is incorrect inasmuch as he was a divorce which fact was concealed from the appellant and her parents at the time of marriage. The appellant has come to know about the same later on from the neighbours of the respondent and that the said divorce was obtained by the previous wife of the respondent on the ground of cruelty. It is alleged that the respondent is not entitled to any relief as the appellant was kicked out of the house and she has not deserted the respondent. She also volunteered to join the respondent along with the child without any precondition.

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