M.C.JAIN, J. - (1.) THIS is an appeal by the husband against the judgment and decree dated 16 -6 -1979 passed by the District Judge, Jodhpur, whereby the husband's petition for divorce, was dismissed.
(2.) THE appellant -petitioner Om Prakash averred in his petition that he was married with the respondent No. 1 Shakuntala on 22 -11 -1972. She lived with him on 23 -11 -72. The marriage of her brother Jay Shankar, non -petitioner No. 2, was solemnised on 30 -11 -1972 She continued to visit the petitioner's house in the day up to 4 -12 -1972. Thereafter they were living separately. The petitioner sought the decree of divorce on the grounds of desertion, illicit relations with her brother Jay Shankar Vyas, non -petitioner No. 2, and mental cruelty on account of such illicit intimacy. It was also averred by the petitioner that the marriage was never consummated. The petitioner came to know of the illicit relations of the non -petitioner No. 1 with the non petitioner No. 2 after a few weeks of his marriage, whereupon she was asked to severe such relations and to return to the house of the petitioner, but she refused to severe such relations. The non -petitioners submitted their replies to the petition, in which the accusation levelled against the non -petitioners, were denied. The non -petitioner No. 1 in her reply averred that she lived with the petitioner and the marriage was consummated. The petitioner exercise his marital fights and the non -petitioner discharged all marital obligations. It was denied that the non -petitioner No. 1 did not live with the petitioner after 4 -12 -1972. Even after this date she lived with the petitioner and discharged her marital obligations It was further averred that her mother in -law had died long before the marriage and the petitioner's father's sister Mst. Sharda alias Mangi is living in the petitioner's house. She is a quarrelsome lady. The petitioner is under her influence. On account of her mis -conduct she has created differences between the petitioner and the non -petitioner No. 1. It was also alleged that it is learnt that she administered poison to her husband and thereafter she ran way from her 'susral'. The non -petitioner No. 1 also alleged that the petitioner is having illicit relations with his 'Bhua' Mst Sharda Because of such relations the non -petitioner No. 1 was not called by the petitioner. It was stated that the petitioner and the non -petitioner No. 1 used to study together for Secondary Examination and both of them appeared in the Secondary Examination and lived together even in 1973. The non -petitioner No. 1 gave birth to a female child as a result of cohabitation with the petitioner. The allegation regarding the illicit relations between the non -petitioners was emphatically denied. The non -petitioner No. 1, in her additional pleas, also averred that she made a complaint against the petitioner to her father -in law for cot being kept by the husband whenever he used to visit Jodhpur, but her father -in -law too had a bad eye on her. He wanted to have sexual intercourse with her for which she was not prepared She was asked by him to live with him at Ajmer where he was posted, but the non petitioner No. 1 refused to do so despite insistence by him. The non -petitioner No. 1 prayed that the petition of her husband be dismissed and in the alternative she prayed that of the grounds stated in reply to the petition, if the Court considers proper, a just decree for dissolution may be passed.
(3.) ON the pleadings of the parties the following issues were framed: (1) Whether non -petitioner No. 1 is Living in adultery with non -petitioner No. 2? (2) Whether the petitioner never had any sexual intercourse with non petitioner No. 1? (3) Whether the non -petitioner No. 1 deserted the petitioner on or about 4 -12 -1972 (wrongly typed as 4 -271) without any reasonable cause and since then the petitioner is in desertion? (4) Whether the non -petitioner No. 1 caused mental cruely to the petitioner? (5) Relief. ;