- (1.) THESE two first appeals arise from a common judgment dismissing the appellant-husband's petition for dissolution of his marriage with the respondent-wife by a decree of divorce under S. 13 of the Hindu Marriage Act, 1955 and also dismissing the appellant's application made in those proceedings for the custody of the only child of the marriage, Gitika Gulati, a daughter.
(2.) THE parties were married on 22nd Jan. , 1967. THEy lived together for a few years at Allahabad and the child Gitika was born on 1st Oct. , 1970. According to the husband's case, as set out in his petition dated 17th Feb. , 1976 which was originally for judicial separation, the wife was more inclined to live at her father's place than at the husband's and even wanted that he should also live at her father's place. She was very very quarrelsome and always quarrelled with the members of the husband's family. THE quarrels became so frequent that the husband had to hire a house in Mohalla Kalyani Devi, but there too the husband had to change his residence a number of times because of the quarrels which the respondent-wife picked up with the neighbours and other tenants of the house. Ultimately, in spite of the best efforts of the husband to make the wife as comfortable as possible, she left his place with all her belongings, that is, ornaments and clothes and other light things and went to her father's house on 14th Oct. , 1971, as originally alleged in the petition, but now amended, to 14th Nov. , 1971 with the permission of this Court. It was said that the wife left without the husband's consent and against his wishes and that she had been living at her father's place without any reasonable cause and had thus deserted the husband since that date, 14th Oct. , 1971, now changed to 14th Nov. , 1971. By all amendment of the petition allowed by the trial Court, it was further alleged that the "short temper and repeated and constant quarrels of the wife" had caused "immense mental torture" to the husband which amounts to "both physical and mental cruelty" and that desertion had lasted for a continuous period of more than two years immediately preceding the presentation of the petition and the husband was entitled to have the marriage dissolved by a decree of divorce on the grounds of cruelty and desertion both; and instead of the relief of judicial separation, the relief of dissolution of the marriage by a decree for divorce was claimed, According to the wife she was turned out of the house by the husband after beating, and left at her parents' place. She was ill-treated and subjected to violence with the connivance of his parents and sisters as he wanted to marry again. Neither her father nor mother were living and there was no question of her living at her father's place. It was said that many a time simple and grievous hurt was caused to her by the husband's acts of violence. She never quarrelled either with the husband or with any member of his family. The husband had shifted to Mohalla Kalyani Devi for his own convenience, It was then urged that the husband once beat her so mercilessly as to break her jaw bone and after driving her out of his house had left her in a serious condition at the house of her brother's and had misappropriated and converted to his own use all her money, ornaments and belongings given to her by her parents. Further she was neglected and not maintained and not taken back in spite of requests. She never refused to live with the husband. The date on which she was turned out after being beaten was given as 14th Oct. , 1971. It was then added that she is a Member of Raj Yog Satsang Society run by Smt. Raj Gulati in Darbhanga Colony at Allahabad and in the month of Feb. , 1976 the husband approached her through Smt. Raj Gulati and offered Rs. 12,000/- by way at settlement to her and Rs. 5,000/for the maintenance of the minor daughter and also brought some ornaments and clothes for being returned to her. The husband wanted her to sign a writing which was brought by him but she did not sign it as it was meant to obtain her consent for separation and to enable the husband to marry again. She did not accept the money that was offered. She wanted to go back to live with him. The petition for judicial separation was filed on failure of that attempt. In her additional written statement filed in reply to the pleas of desertion and cruelly and the relief for divorce claimed by amendment of the original petition, the wife stated that she was a cool minded woman and never quarrelled in the family and emphatically denied the allegation of cruelty and re-asserted that she had not deserted the husband but had forcibly been turned out by him and that the husband was not entitled to the relief claimed. An application for custody of the child Gitika Gulati appears to have been filed on 9th April, 1980. Although the original petition for judicial separation that was converted into that for divorce bears petition No. 6 of 1976, the number of the case specified on the papers on the file is Matrimonial Petition No. 20 of 1976. It is not clear how the case came to be registered twice over, once as Matrimonial Case No. 6 of 1976 and again as Matrimonial Case No. 20 of 1976. Be that as it may, the record is one and indivisible and the application for custody is being treated by me as an application/petition made under S. 26 of the Hindu Marriage Act in the Matrimonial Suit which was instituted by petitioner originally for judicial separation, but later on amended into a petition for divorce. The application for custody of the child should not have been registered as an original suit but should have been registered as a miscellaneous case arising from the original Matrimonial Suit No. 6 of 1976.
(3.) THE application for custody of the child is dated 9th April 1980. It gives no facts. THE facts are alleged in the affidavit accompanying it. S. 26 of the Hindu Marriage Act requires that an application under that section should be made by petition which means that the application should have contained the facts and the grounds for the relief claimed. However, ignoring the technicality, the affidavit of the husband filed in support of the application states that Gitika was born on 1st Oct. , 1970 and was about 10 years of age at the time of the making of that affidavit on 19th April, 1980, that he was the father and the natural guardian of the child and entitled to her custody; that the respondent wife was living alone in her house at Meerapur with the child, that she was a teacher in a School and remained busy in her occupation. THEre was nobody else in her house to look after the child who was growing in age with the result that she was completely neglected and was getting spoilt in the company of street urchins; that the wife and the child have to use a common public latrine, a public tap and the wife used the child as a servant to bring water from the public tap, to cook food and tea; that the husband was on the other hand in business and leading a respectable life. He had a decent house attached with kitchen and bathrooms and had domestic servants. His mother also lived with him and the minor child could very conveniently live with him and his mother, that is, the child's grand mother and the welfare of the child lies in living with him. In the counter-affidavit filed by the wife it was stated that she was living in Mohalla Attarsuiya and not in Meerapur: that it was incorrect to say that the child was not looked after or was neglected and was getting spoilt in the company of street urchins, and that she was never used as a servant to bring water from the public tap or to cook food and tea; that there was a tap inside the house; that the child was being given the best education at St. Mary's Convent School. Allahabad and no one else could look after her welfare better than her mother, and that the husband who had turned the wife out and neglected and deserted her and never paid a single pie for the education or maintenance of the wife or the child was not a fit or proper person to do so. THE child had never received any affection from the husband. THE application was frivolous and was liable to be dismissed and was made to wreak vengeance upon the mother by torturing her by separating the child from her and letting her die as she could not five without the child. The following were the issues framed by the trial Court: (1) Whether the opposite party has treated the petitioner with cruelty, if so, its effect? (2) Whether the opposite party has deserted the petitioner for a continuous period for more than two years? (3) Whether the petitioner is entitled to the custody of minor daughter Km. Gitika Gulati, u/s. 26 of the Hindu Marriage Act? (4) To That relief, if any, is the petitioner entitled? The trial court found against the husband on all the issues and dismissed the petition for divorce as well as the application for custody, of the child.;