SINGHAL, J. - (1.) THIS appeal under Section 19 of the Family Court Act has been filed against the judgment of the Judge, Family Court, Jaipur dated 6. 9. 1991.
(2.) SHRI Kaushik, learned counsel for the appellant has raised only one objection that the petition for divorce, which was filed on 29. 08. 1988 under Section 13 (1) (b) of the Hindu Marriage Act, 1955 is not maintainable before the expiry of two years from the date of desertion. Brief facts giving rise to the present appeal are that the marriage of Smt. Suman Nahar and Abhay Kumar was solemnized on 7. 05. 1985. An application under Section 13 (1) (b) of the Hindu Marriage Act was filed by Shri Abhay Kumar Nahar on 29. 08. 1988 on the ground of desertion. In the said petition, it has been stated by the respondent that the appellant lived with him till 10. 06. 1986 at Jaipur and at that time she was pregnant. At her insistence, the respondent had taken the appellant to her parental house at Kekari on 10. 06. 1986. It has further been stated that thereafter, the respondent has gone to Kekari and has, taken care of the appellant by showing her to the doctors. A male child was born on 3. 10. 86 of which it has been alleged that no intimation was given and thereafter the respondent went to take the appellant and the son, but she refused to come. The father, elder brother and brother-in-law and other relatives also went to Kekari to bring the appellant to Jaipur. She refused to come It is alleged that a letter was written on 15. 04. 1987 under U. P. C, but no reply was given by the appellant and, therefore, a notice by registered A. D. was sent on 8. 05. 1987, the reply of which was sent on 16. 05. 1987. According to the respondent, the appellant has deserted the respondent since 10. 06. 1986, without any reasonable cause and a petition was filed on 24th June 1987 for restitution of conjugal rights. The said petition was dismissed as not pressed on 14. 04. 1988 since the appellant stated that she is not ready to live with the respondent as his wife. It was stated while withdrawing the said petition that the respondent shall take other legal action. It has further been submitted in the petition filed by Shri Abhay Kumar before the Family Court that he has made his efforts on 11. 05. 1988 and 30. 07. 1988, but the appellant was not ready to live with him, but has insisted on divorce. On behalf of the respondent, Abhay Kumar Nahar and six witnesses were examined, while on behalf of Smt. Suman Nahar 3 witnesses were examined. In the written statement filed by Smt. Suman various allegations with regard to harassment, demand of dowry, beating etc. were levelled, but the learned Judge, Family Court after examining the evidence came to the conclusion that the said allegations are not proved. The order and decree of divorce was passed on 6. 09. 1991 on the ground that the appellant has deserted her husband without any reasonable cause for a period of more than 2 years.
(3.) LEARNED counsel for the appellant has referred to the various statements and submitted that the burden to prove desertion from a particular date was on the respondent and that he himself has accompanied the appellant from Jaipur to Kekari for leaving her to her parental house for delivery purposes on 10. 06. 1986. It has further been pointed out that the respondent has further admitted to have visited Kekari thereafter for the purpose of showing the appellant to the doctor and thus at that stage there was no desertion by the appellant. The appellant had to file an application under Section 125, Cr. P. C. as even after sending information for birth of male child, the respondent has failed to visit or take care of the appellant. According to the learned counsel for the appellant, if the appellant has refused on 14. 4. 88 then that date should have been taken for the purpose of period of two years under Section 13 (1) (b ). Even if the period of 2- months after the birth of the male child is taken into consideration when 2 - the family members have visited the appellant, it comes to 18. 12. 1986 and the period of two years has not lapsed at that time. The submission of Mr. Lunia on behalf of the respondent is that the appellant has stated in her statement that she left Jaipur on 10. 05. 1986 and had not come thereafter to Jaipur, therefore, it should be considered that she has deserted from this date and the subsequent conduct of the appellant should have also been taken into consideration. ;