Agarwala, J. - (1.) This is an appeal by Mrs. Annie Baron against an order dismissing her petition for judicial 'divorce and for consequential relief.
(2.) The parties were married on 11th October 1930 at the Methodist Church at Almora. Of this marriage they had three children, two boys and a girl. The eldest boy was born in December 1931. In March 1984 a girl was born and in September 1988 a second son was born. According to the appellant, for about four or five months after the marriage, the parties lived happily, but after that the respondent began exhibiting a disposition of distrust in money matters towards the appellant. The appellant alleged that the niggardly and distrustful behaviour on the part of the respondent began to increase as time went on; that the opposite party began to abuse and scold the appellant in the most filthy and obscene language on the slightest provocation, called her a bastard and a woman of low extraction and made her perform the most arduous and menial tasks. This behaviour was later on as companied by assault and beating on several occasions, Particular instances of callous behaviour of the respondent were mentioned by the appellant. She alleged that at the end of 1933 when she was expecting the second child, the respondent gave her a thrashing and turned her out of the house with the result that she had to go to her brother at Mukteshwar and lived there for three years: that at that time she contemplated proceedings against the respondent but the respondent's aged parents, who occupied high social status as taluqdars, prevailed on the appellant to refrain from doing so as a law suit would necessarily tarnish their reputation; that she returned to her husband at the end of 1936; that in February 1941 the appellant was severely beaten by the respondent with fists and cane, the only cause of that brutal behaviour being the appellant's reprimand at the respondent's indecent behaviour towards their daughter Joyce, then aged about 7 years; that on 23rd June 1941 the respondent locked up the appellant with her youngest child in a room and kept them there for the whole night denying them any food or water and would not allow them to go even to the bath room and that when the appellant managed to get out of the room in the morning after breaking a glass-pane, the respondent knocked her down and after seating himself over her beat her with his fists and throttled her, and that finally on 19th November 1942, the appellant was again cruelly beaten with fists and cane by the respondent while the parties were staying in Marine Hall, Mussorie, and that on account of the constant cruel behaviour of the respondent, the appellant ultimately left him for good on 24th November 1942. She filed the petition which has given rise to this appeal on 29th March 1943. The reliefs sought for were a judicial separation, custody of all the three children who were then aged 11, 9 and 5 years respectively, and costs.
(3.) In defence, the respondent admitted the marriage and the birth of the three children but denied that he had been guilty of cruelty towards the appellant. He admitted that the petitioner had gone away in 1983 and returned to him in 1936. According to him, the appellant is of low class being of illegitimate origin and born of a hill woman and, as such proved herself incapable of being a good wife or a good mother. He married her at the recommendation of the Principal of a Mission School for girls at Almora. At that time, according to him, he was not acquainted with the true facts of the appellant's birth or with respect to her temperament which, according to him, was so violent that she would behave like a mad woman, shout out filthy abuse at him and in the presence of her children and neighbours and would throw things on him and would beat him if he came near her. The respondent alleged that on certain occasions he himself was assaulted by the appellant and that instead of he being guilty of cruelty, the appellant was guilty of it as against him. According to him, in March 1932 at Dehra Dun, the appellant all of a sudden lost her temper and started throwing things at him and when the respondent tried to stop her, she bit him on various parts of the body; and in September 1933 the appellant drove him out of the house where they were staying, namely, Homestead at Mussoorie, and he had to engage a separate room for himself leaving the appellant with another family. He admitted that in 1933 the appellant had left his house, but alleged that she did so of her own accord at the instigation of certain mischievous persons and also to have a second confinement with her relations. According to him, during this period he always maintained the appellant by sending Rs. 40 per month for six months and Rs. 60 for 21/2 years. He did not admit the beating alleged by the appellant to have been given to her in February 1941. The incident of July 1941 was described by him in a different fashion, She mercilessly assaulted him by hitting him with shoes and other articles on his head and other parts of the body. The next morning she rushed into his room with a stick and when he caught her hand she gripped his thumb between her teeth and inflicted a deep wound which had to be treated for more than 20 days. He denied the other incidents of abuse and assault alleged by the appellant. He complained that the appellant was of indolent nature and did nothing about the house, that he had to engage as many as five servants to look after the house and that later on he could not afford this expenditure and he himself had to see to the house, food arrangements and the children. He even sent the appellant in 1936 to the Agricultural Institute at Allahabad to undergo a course of home craft and domestic science but the appellant did not put the knowledge she acquired there to arty practical use in her home. He admitted that he had quarrels with the appellant in 1941 and 1942 because he noticed that the appellant was leading a frivolous life and was keeping undesirable company to which the respondent objected, The respondent further said that he was satisfied that the appellant was guilty of adultery with different persons on diverse occasions, in Marsh April and May 1943, that is, after she had left him in November 1942 and after the petition had , been filed by the appellant. The respondent alleged that the appellant had filed this application because she wanted to live an immoral life without any restriction from him, that she imagined that he had inherited considerable property after the death of his mother and that she would get a liberal allowance to enable her to lead her own immoral life.;