FAROOQ HASSAN, J. - (1.) APPARENTLY a coil of reversals is the fate of this litigative battle before this Court between the appellant and the respondent over a petition for divorce sought by the appellant-husband on the ground of desertion as provided for in S. 13 (1) (b) of Hindu Marriage Act, 1955, (for brevity, 'the Act' ). The first inning of the litigative match was fought and played before the District Judge, Kota, who, on an evaluation of the relative merits and demerits of the rivals, granted a decree of divorce dissolving the marriage solemnized between the parties, on the ground of desertion (supra), but this victory of the husband was short-lived because at the second inning of the legal bout, the Single Judge of this Court inverting the decree of divorce dismissed the husband's petition holding that the desertion by the wife is not proved. Hence the worsted appellant invokes the jurisdiction of the Division Bench of this Court by filing special appeal under Section 18 of the HIGH COURT OF RAJSTHAN Ordinance, 1949 seeking that we should review the decision impugned, re-judge the relevance and weight of the points, pro and con, and as a result of this, adjudicatory exercise on facts sparingly. .
(2.) THE voluminous accord which the spouses have collectively built up in the case contains a reflection of their rancour an acrimony, a thumb-nail sketch of which herein will help resolve the legal controversy canvassed in this appeal before us. The appellant was married with the respondent on June 11, 1973, according to Hindu rites at New Delhi, and the spouses were living in Kota where the appellant was employed as a medical officer in the Railway hospital. Soon after the marriage the appellant detected that the respondent was suffering from fibroid uterine tumour. Admittedly, the parties last resided together at Kota till May 17, 1974, on which date, the respondent' left her in-laws matrimonial home allegedly for the purpose of medical examination and treatment of the said tumour but, thereafter she did not return. The crux of the rancour is that, even after she was informed well in advance, she did not come to be pre-sent by the bed side of the husband during his hernia operation in August, 1974 so also thereafter, and did not join him even in his days, of grief or for the obsequies on the occasion of the death of his father in March, 1975 and of his mother in December, 1975 inspite of the fact that she was remembered by persistent requests by the husband. . The husband had also moved a petition for restitution of conjugal rights in the District Court at Kota oh October 3, 1974, which was resisted by the wife and obviously she was determined not to turn. Pendente petition for restitution of conjugal rights, the husband filed the present petition for divorce on grounds of cruelty & desertion made with animus deserend on December 21, 1976. The petition for restitution of conjugal right was got dismissed as withdrawn on April 30, 1977. The wife (respondent) resisted the petition for divorce tooth and nail by vehemently refuting all the allegations levelled against her especially the allegation about her chastity & moral character. She, denying that she and her parents had any knowledge before her marriage about her suffering from fibroid uterine tumour, asserted that it was only after the marriage that the husband being an experienced medical practitioner discovered the said tumour (supra) and it was the husband himself who sent her to Delhi for treatment which she plea-ded to continue there and because of that, as she pleaded, it was not possible for her to stay at Kota. She asserted that making wrong, malicious and reckless allegations against her chastity and moral character, she was virtually turned out of the home after maltreatment and beating. The maintainability of the petition for divorce was also assailed on the ground that the petition for restitution of conjugal rights was sub-judice though it was withdrawn later on. The foremost contention on behalf of the appellant is that non-return by the wife to her matrimonial home even after repeated requests by the husband clearly shows the animus deserendi of the wife on the basis of which, the trial Court had decreed by granting divorce. But, according to the appellant, learned Single Judge was not justified in reversing the finding of the trial Court because the Single Judge has erred in holding that the appellant has not only , to prove desertion but also that it was not for reasonable cause, in order to succeed in a petition for divorce. In this context, learned counsel contended that the Single Judge ought to have held that the factum and animus of desertion having been proved it was for the respondent to prove that it was for reasonable cause, and contrarily the Single Judge made out a case of persistent inquisition not pleaded by the respondent.
(3.) THE Single Judge ought not to have taken out passages from the appellant's long letters, torn from context and built up a case for the respondent not pleaded by her, whereas over-all look at the appellant's correspondence that over-looking pre-marital adventure of the respondent, he provided affections to the respondent, Shri R. M. Lodha added. Shri Lodha urged that the Single Judge missed philosophical part of the appellant's correspondence and misunderstood the appellant's moral exhortations to the respondent as sarcasm. Shri R. M. Lodha also urged that when the case of the respondent was clearly that she left matrimonial home for treatment at the All India Institute of Medical Science where her sister Dr. Meera Mathur was allegedly working and even the appellant gave introductory letters for her treatment, then also the Single Judge found that the appellant's conduct was expulsive. According to Shri Lodha, the Single Judge lightly brushed aside the appreciation of the evidence done by the trial Judge who had the advantage of seeing the witnesses and thus, the Single Judge failed to appreciate the concept of desertion and capture the background of the correspondence addressed by the appellant to the respondent. Shri R. M. Lodha then urged that the appellant has successfully proved that in view of the family circumstances, it was obligatory on the respondent-wife to have come to her matrimonial home and could have done service to the appellant as well as his father and mother at the time of their illness, but not coming of the respondent-wife on the occasion of their illness shows the crued attitude mind of the wife and in these circumstances only inference that can be drawn should be that the wife was adamant in not coming to the matrimonial home and not doing any service to her husband and/or in-laws. ;