- (1.) The marriage between the parties stands dissolved by a decree of divorce under section 13 of the Hindu Marriage Act (for short, the Act) at the instance of the respondent wife. She pleaded two grounds for securing that decree, that is, cruelty and desertion on the part of the present appellant. While non-suiting her on the first ground, the lower Court has granted the decree on the basis of the second ground. Interestingly the same set of facts, which has been held by the lower Court to have not been proved to accept the first ground pleaded by the respondent, has been accepted while granting the decree on the basis of the second ground, that is. desertion on the part of the appellant.
(2.) In brief the allegations made by the respondent in the petition were that just after one month of the birth of a son to her in the beginning of January, 1978 (they were married in the month of Kartik, 2033 (Bikrami) i. e. November, 1976 AD, she was turned out of the house after giving a heating. This is stated to have been done by the appellant at the instance of his brother's wife, namely, Satya, with whom he was having an affairs. Further allegations in the petition were that whatever little the appellant used to earn as a labourer, he would pass it on to Satya and not to the respondent According to her, she tried to persuade the appellant to mend his ways but in return she always got insulted, chastised and abuses. It was further pleaded that some attempts were made by the village respectables on her behalf to rehabilitate her in the house of the appellant but with no results. It was on these facts that the respondent accused the appellant of cruelty and desertion.
(3.) As has already been pointed out above, the story that the appellant had been carrying on with his sister-in-law, Satya, which essentially was to support and sustain the ground of cruelty towards the respondent has not been accepted by the lower Court. But strange as it may look, the said Court while granting the relief to the respondent on the other ground, has held as follows : "The respondent (now appellant) must he on the wrong side and his wife must have been asking him to desist from his activities in going to the house of his elder brother and spending night there and he must build his own house and keep her with him treating her with dignity and affection but the respondent seems to have no animus reverantandi." A bare reading of this observation indicates that while recording the conclusion that the appellant was guilty of desertion, the Court was resorting to some sort of guess work or imagination. As has already been pointed out, this very version of the respondent has been discarded and disbelieved while deciding issue No. 1, that is, whether the respondent (now appellant) has after the solemnisation of marriage treated the petitioner with cruelty. This inconsistency apparently makes the judgment completely shaky. Besides all this I find that there is evidence on record in the forms of two Panchnamas. Exhibits P.1 and P.2, dated December 21. 1979 and July 2, 1980 respectively, which, to my mind, lend support to the stand of the appellant that the respondent was staying away from him without any justifiable cause and was rather insisting that unless he 'constructed a new house and made her live there-away from his parents, she would not like to join him. Undoubtedly both these Panchnsmas came into existence as a result of the deliberations of the two Panchayats of village Jalhhay, village of the respondent and of Jandu Singh, village of the appellant, when the former Panchayat had come to village Jandu Singha to effect some sort of reconciliation between the parties. In Exhibit P.1 it has been recorded that Bant Ram, father of the appellant, would part with six marlas of his land in favour of the appellant so that the latter may be able to construct a house thereupon. Further, according to this settlement, this house was required to be constructed by the appellant within a period of four months from December 21, 1979 and on the fulfilment of that condition the respondent (Bhajno) would, of her own accord, go and live in that house. In the second Panchayma, that is, Exhibit P. 2, it is recorded that the appellant had failed to construct the house within the stipulated period of four months and on that account the Panchayat had no hope of recognising the parties and, therefore, suggested that the parties should seek divorce. These documents, to my mind, lend credence to the stand of the appellant that it was only the respondent who was insisting that unless he is in a position to accommodate the respondent in a newly constructed house, independent of his parents, she would not join him. Had the version of the respondent about the indecent affairs between the appellant and his sister-in-law Satya even a grain of truth, then why should she reconcile with that fact or situation merely on the ground that the appellant should construct a separate house for her. Of what use that house was going to he to her if the appellant could continue his affair with Satya. Mere construction of a house by the appellant obviously could not be any restraint or check on him to not to continue the illicit relations with Satya. To me it appears clear that having failed to persuade or compel the appellant to construct a new house for her, the respondent in her anxiety to take the final step of seeking a divorce, coined the story of immorality between the appellant and Satya. As per documents Exhibits P.1. and P.2, there is no mention of this story or assertion on the part of the respondent. Had it even a grain of truth or was the real cause of estrangement between the parties, the same must have figured in the deliberations of the Panchayats and would have found a mentioned in these documents. From the reading of the evidence as a whole. I feel satisfied that the alleged sordid affairs between the appellant and his, sister-in-law is not established anywhere and, therefore, the respondent (petitioner in the lower Court) could not successfully plead it as a justification for her staying away from the appellant. In a nut shell, if out of the two anybody has to be accused of desertion, it is the respondent and not the appellant.;