I.S.TIWANA, J. - (1.) THE marriage between the parties stands dissolved by a decree of divorce granted at the instance of the respondent husband. Though it was sought on the twin ground of desertion and cruelty but it is only the later ground which has been held to have been established.
(2.) BRIEFLY , the background of the case is that the parties to this litigation were married on 21st March, 1972. As per the allegation of the respondent, the appellant deserted him with effect from 6th May, 1973. Later she initiated proceedings under section 125, Code of Criminal Procedure, and succeeded therein vide judgment of the Additional Sessions Judge dated 25th October, 1976 (Ex. R3), tinder which she was allowed Rs. 50/ - p.m. as maintenance. This Court, however, enhanced this rate of maintenance to Rs. 100/ - p.m. The relations between the parties continued to be strained and surcharged even after the grant of this maintenance. At one stage, the appellant launched security proceedings against the respondent under section 107/151, Code of Criminal Procedure, but as a result of the enquiry that following he was discharged. Somewhere during the month of February, 1979, when one of the brothers of the appellant was missing from her parents house, a report of kidnapping was lodged with the police suspecting the respondent of that offence. Luckily for him, some time later the boy returned to his house of his own and, thus, he escaped the consequences or a serious prosecution.
(3.) ON 22nd April, 1979 the respondent filed the present application seeking a decree of divorce, as already indicated, on the grounds of cruelty and desertion. It deserves to be highlighted here that on 28th February, 1979, the parties agreed to dissolve the marriage by mutual agreement and in order to secure a decree to that effect under section 13 -B of the Hindu Marriage Act (for short, the Act) they filed a petition in the court also. As a matter of fact. on that date, a Panchayatnanla was recorded between the parties expressing therein that the parties cease to be husband and wife and as a result of the settlement the respondent paid Rs. 2,500/ - to the appellant in lieu of the presents and dowry which, according to the appellant's parents had been given to him at the time of marriage. One significant fact stated in this compromise deed Ex. P1 is that the parties to the litigation were living separately for quite some time past and there was no hope of their reconciliation. Though at the trial, the appellant sought to nullify this compromise deed Ex. P -1 on the ground that the same was the result of fraud and undue influence, yet the trial court has recorded a Finding, to my mind for good reasons, that this was not so; rather, it was the result of free -will of the parties. The respondent has been non -suited on the ground of disertion, primarily for the reason that the appellant had succeeded in securing an order of maintenance against him under section 125, Code of Criminal Procedure. This, according to the lower court, prima facie established that it was the respondent who was neglecting her and the appellant could not be accused of living away from him without justificable reasons. Though Mr. Jain, the learned counsel for the respondent seriously dispute this approach and conclusion of the lower court yet I find it difficult to accept his argument. Anyway, this appeal to my mind must fail on the other ground, i. e., of cruelly. As already pointed out, for recording a finding that it was the appellant who had been cruel to the respondent, the lower court has depended on following three admissions of the appellant which are otherwise also duly supported by evidence on record : (i) That she has admitted that she launched proceedings against the respondent under section 107; 151, Cr. P. C and as a result of the trial that followed, the respondent was discharged; (ii) That she admits that during the course of her statement in the above -noted proceedings under section 125, Cr. P. C., she levelled the allegation that respondent was having "illicit relations with the wife of Lachhman Dass"; (iii) That she admits that "in February, 1979 my younger brother was missing and we suspected that he had been kidnapped by the petitioner and so we lodged a report at the police station. The police called the parties, including me and the petitioner at the police station." As has already been painted Out, the respondent escaped his prosecution and humiliation only on account of the fact that the younger brother of the appellant somehow came to his house of his own at a later stage.;