V. P. Mathur, J. - (1.) THIS appeal purporting to be under section 28 of the Hindu Marriage Act, 1955, is directed against the judgment and order of Sri R. S. Tripathi, the then Vth Additional District Judge, Aligarh, passed on 19-1-84, in matrimonial petition no. 262 of 1980.
(2.) THE original petition was filed by the present appellant Vinod Chandra Sharma against his legally married wife Smt. Rajesh Pathak, and purported to be under section 13 of the Hindu Marriage Act, 1955. Divorce was prayed for. THE ground taken was that on 3-9-77 in the absence of the petitioner the respondent left the marital home alongwith her brother Vinod Pathak and since then she has not returned back inspite of repeated attempts. THE case is sought to be covered by Sec. 13 (1) (ib) and it is contended that the wife has deserted the husband for a continuous period of not less then two years immediately preceding the presentation of the petition. It may be mentioned here that according to the Explanation appended to section 13 the expression 'desertion' means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent and against wish of such party and includes wilful neglect of the petitioner by the other party to the marriage. The facts brought on the record by the petitioner were that they were Hindus and were married at Agra on 18-5-75 according to Hindu rites, On 23-5-75 the respondent returned back to her parent's house. Gona ceremony took place on 12-10-75 at Agra where the petitioner was posted and parties lived there and discharged their marital obligations affectionately and faithfully. On 11-7-77 the petitioner was transferred from Agra to Hathras. They came back to Nagla Jais, Tehsil Hathras, district Aligarh where they continued to stay and from there the petitioner used to go to Hathras by cycle every day. The respondent was all along insisting upon the petitioner to seek his re-transfer to Agra, which is also a place of residence of her mother and other relatives. The petitioner, however, could not manage the same. On 3-9-77 in tie absence of the petitioner, respondent's brother Vinod Pathak came in Nagla Jais and on the pretext that the mother of the respondent was ill he prevailed upon the petitioner's elder brother Panna Lal Parashar to allow the respondent to go with him. She then collected all her clothes and ornaments and also money and left Nagla Jais with an intention never to return. A few days afterwards the petitioner went to the house of the respondent's mother at Agra and tried to prevail upon the respondent to return back but it was all in vain. On the contrary, the respondent left even Agra and joined service at Balaji (Rajasthan). When she returned from there during summer vacation, the petitioner again tried to bring her back but she persistently refused to return. She joined B. Ed. classes and then took up job in a High School at Agra. She is a hot tempered lady and has for no fault of the petitioner deserted him. There is no consent and connivance between the parties. The claim is for a decree of dissolution of marriage by divorce and in the alternative for a decree for judicial separation.
(3.) CONTEST was put forth by the respondent. Her contention was that after the Gona she lived with the husband only for 25 days and after this period she was sent to Jais to live with the family of Panna Lal Parashar, elder brother of the petitioner. She lived there continuously upto 3-9-77 and during this period the petitioner remained in service at Agra where he was living in a rented house. He never gave her any amount for maintenance and never visited her while she was living in Nagla Jais. It was after the marriage that at the instance of the petitioner the respondent joined B. Ed. classes in Agra but thereafter since he was not happy with the dowry that he had received, he was constantly pressurising the respondent to bring more dowry from her house and in that connection she was occasionally given beatings. After his transfer to Hathras the petitioner rented a house in Hathras itself but never kept the respondent with him. During her stay at Jais, Panna Lal Parashar was constantly teasing her, as a result of which she fell ill and the petitioner then sent her back to Agra. He did not take any care of her during her illness and since then has not tried to bring her back. On the contrary, she has a number of times approached the petitioner and met him with a request that she should be kept with him but her request had always been turned down. The respondent took up her M. A. and B. Ed. and joined a High School at Namner, Agra, but her service there was terminated. She was always, and is still ready, to perform all the marital obligations and live with the petitioner and, therefore, the petition is not maintainable. The learned Judge of the court below struck three issues in this The first issue was to cover the case whether the respondent had deserted the petitioner with effect from 3-9-77 and if so, what will be its effect. The second issue covered the aspect of the jurisdiction of the court and the third was in respect of the relief to which the petitioner would be entitled.;