TATIA, J. - (1.) THIS appeal is against the judgment and decree passed by the Court of Addl. District Judge No. 1, Bikaner in Divorce Petition No. 44/99, dated 30. 3. 1999 by which the trial Court dismissed the appellant-applicant's divorce petition filed on the ground of desertion by the wife.
(2.) BRIEF facts of the case are that the marriage of the appellant and respondent was solemnized on 29. 11. 1993. The appellant's case is that the respondent lived in the house of the appellant till December, 1995 and since thereafter she is residing with her parents at Jaipur. The husband is resident of Bikaner. Before filing present divorce petition on the ground of desertion, the appellant submitted a petition under Section 9 of the Hindu Marriage Act, 1955 on 11. 3. 1997. In the said case, the non-applicant gave her statement on 16. 4. 1998. In the said statement, non-applicant respondent wife admitted that since 19. 11. 1995 she is residing with her parents at Jaipur and she is not willing to live with the husband on any condition. In the same line, the father of the respondent-wife also gave statement in the Court. According to the appellant-applicant husband, in view of the said statements, the appellant withdrawn his petition filed under Section 9 of the Hindu Marriage Act on 24. 4. 1998 and it appears from the record that on the same day, i. e. 24. 4. 1998 itself, the applicant submitted this divorce petition. In the divorce petition, it is alleged that non-applicant lived with the applicant for two years and during this period she used to visit her parent's house also. There was no misbehaviour of the applicant-appellant and his family members with the non applicant respondent nor they ever demanded any dowry. It is also alleged by the applicant that whatever ornaments and goods were given by the family of the non-applicant at the time of marriage, a list thereof was prepared, copy of which is placed on record as Annex. 1. The applicant stated that if there are some of the items are lying with him, he is ready to hand over those goods to the respondent. It is alleged that the non-applicant respondent left the appellant without any reasonable cause and thereby deserted the applicant-appellant and both are living separate and period of more than two years has passed and non-applicant has shown her unwillingness to live with the applicant on any condition. The non-applicant submitted reply to the divorce petition denying all the allegations and thereafter submitted that just after sometime of the marriage, the applicant-appellant's mother and father started demanding dowry and abusing the non- applicant's family members. However, the non-applicant tried to live in the house and tolerated torture of the applicant and his mother and father. It is stated that the non-applicant's mother and father arranged several meetings for reconciliation between the applicant and the non-applicant with the help of persons (panchayati) but the applicant's mother and father were adamant for the dowry. It is stated that non-applicant's parents had no means to fulfill the demands of the applicant and his family members and ultimately, the non-applicant was turned out in one dress by the applicant and his family members on 19. 12. 1995. Since then she is residing at Jaipur with her parents. In view of the pleas taken by the parties, only one relevant issue about fact was framed and that is whether the non-applicant is living separate from the applicant since last two years without any reasonable cause and thereby has deserted the appellant-applicant? The another issue was the consequential issue, whether the applicant is entitled to decree for divorce? In the trial Court, both the parties led their evidence. The appellant gave his statement as PW. 1 and produced his father Bhanwar Lal Sharma as PW. 2, whereas the non-applicant-respondent gave her statement as NAW-1 and also produced her father Mahesh Chand Sharma as NAW-2. In addition to above, the respondent non applicant produced one letter alleged to have been written by the father of the applicant dated 24. 12. 1994.
(3.) THE trial Court while dismissing the divorce petition took note of the fact that earlier the applicant appellant submitted petition under Section 9 of the Hindu Marriage Act and that was withdrawn by him. THE applicant's father wrote letter dated 24. 12. 1994 Ex. 1, which clearly shows that by the said letter the dowry was demanded by the father of the applicant. It appears that the letter dated 24. 12. 1994 was treated to be a good proof for proving the cruelty by the husband against the wife respondent. In view of the above reasons, the trial Court dismissed the divorce petition filed by the husband appellant. Being aggrieved against the judgment and decree of the trial Court dated 30. 3. 1999, the appellant husband has preferred this appeal. The learned counsel for the appellant vehemently submitted that admittedly the marriage of the appellant and respondent took place on 29. 11. 1993 and they are living separate since 19. 12. 1995. The divorce petition was filed in the Month of April, 1998. According to the learned counsel for the appellant, it is clear from the statements of the non-applicant and her father given in the proceedings for restitution of conjugal rights filed by the applicant husband that they unequivocally stated in their statements that the respondent non applicant is not ready to live with the applicant appellant husband on any condition and even if the appellant husband keeps the respondent with full love and affection. Not only this, the father of the appellant, after taking instructions from her daughter, in his statement further stated that even if the applicant starts living separate from his mother and father in separate house, still the non-applicant is not ready to live with the husband. ;