JUDGMENT
K.M. Agrawal, J.
1. This is an appeal under Section 28 of the Hindu Marriage Act, 1955 (in short the ‘Act’) by the wife against a divorce decree in favour of the husband.
2. It was not disputed that the appellant and the respondent were married to each other on 19.4.1980 in accordance with Hindu Rites and Rituals and that they were living Separately since 1.2.1983. The petitioner for divorce was filed by the respondent on the grounds of cruelty and desertion. It was alleged that so long the appellant lived with the respondent. She adopted an indifferent and disrespectful attitue towards the respondent and his family members, causing mental tension to them. Ultimately she deserted the respondent by voluntarily leaving the matrimonial home on 1.2.1983 in the company of her brother. She was also alleged to have taken away with her gold and silver ornaments, weighting about 22 tolas and 1 Kg. respectively. The appellant registered the petition by contending that she herself was haressed by the respondent and his parents as he did not bring dowry upto their exectation and her parents could not meet their dowry demands. It was further asserted that the respondent intended to bring a second wife and, therefore she was thron out of the matrimonial home by calling her brother to take her back. She also complained that she was not allowed to take away her ornaments, which were presented to her by her parents at the time of marriage, the Respondent was believed and a decree for divorce was granted in his favour by the Court below, which has resulted in filling of this appeal by the wife.
3. Having heard the learned Counsel for the parties, find it difficult to support the impugned decree for divorce passed by the Court below, cruelty is a ground for divorce under Section 13(1)(ib) of the Act, but the term, ‘Cruelty’ has not been defined. The accepted legal meaning of this expression has been conduct of such a character as to have caused danger to life, limb or healthy (bodily or mental) or as to give rise to a resonable apprehension of such danger. It may be said that in order to constitute cruelty for the purpose of divorce, there must be such treatment of the petitioner which causes suffering in body or mind whether in realization or apprehension in such a way as to render cohabitation harmful or injurious having regard to the circumstances of each case, keeping always in view the character and condition of the parties, In this context, I find nothing on record to warrant a conclusion that the respondent was entitled to a decree for divorce on the ground of cruelty. In paragraph 8 of his deposition as A W. 1, the respondent Ram Swarup stated that the behaviours of the appellant was disrespectful. How it was disrespectful, he, tried to explain by saying that the appellant refused to work by saying that she was not a maid servant and that she threatened to leave the matrimonial home, if she was asked to work. According to his father Hariram Soni (A.M. 3). The relations became strained, because the respondent refused to take the appellant to her parents, as the wife of his elder brother had undergone operation. In paragraph 4 of bis deposition, he said that the behaviour of the appellant was good for a period of about one month (from the date of marriage, but thereafter, it became indecent. How the behaviour’ became indecent was not explained by furnishing necessary details of relevant facts, which might have provided basis for forming an opinion about legal cruelty justifying a decree for divorce. The respondent was, therefore, not entitled to any decree for divorce on the ground of cruel treatment.
4. Desertion for a continuous period of not less than two years immediately preceding the presentation of the petition also affords a ground divorce under Section 13(l)(ib) of the Act. Explanation added to sub-Section (1) of Section 13 says that the expression ‘desertion’ means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and it grammatical variations and cognate expressions shall be construed accordingly. Section 23(l)(a) of the Act further provides that the Court shall not grant any relief under the Act unless it is satisfied that :
‘ANY OF THE GROUNDS FOR GRANTING RELIEF EXISIS AND THE PETITIONER…………is not any way taking advantage of his or her own wrong or disability for the purpose of such relief?
In the present case, it is not in dispute that the appellant has been residing with her parents since 1.2.1983. According to the appellant, she was sent to the house of her parents by the respondent against her wishes, because her parents could not meet the demands of the respondent for a sum of Rs. 50.000/-. She also alleged the attempts made on her behalf to pursuade the respondent to take her back failed. As against this, the respondent alleged that the appellant left her matrimonial home of her own accord without his consent and against his wishes at a time when his ‘BHABHI (Sister-in-law) was on bad after operation. He also alleged failure of all attempts to bring about reconciliation between the parties. In the context of their revalco contentions, when I look into the pleadings and evidence of the parties and their conduct during reconciliation proceedings before this Court, I find it different to resit the conclusion that the respondent was responsible for deserting the appellant and, therefore, he was not entitled to a decree for divorce on the ground of desertion. Both the parties tired to create evidence in their favour by introducing caste panchayats, which were alleged to have taken place with a view to resolve the disputes between the husband and the wife and their relations. The story of Panchayats, set up by either party to be proceedings deserves to be rejected, because it appear highly improbable that either the wife or the husband might have confessed that she or he was guilty of desertion. The parties talked of different panchayats with different panchas. The wife denied the alleged panchayat of the respondent. Similarly the respondent denied the Panchayat alleged to have been convened by the wife. During reconciliation proceedings before this Court, the wife expressed her willingness on 15.7.1991 to return to her matrimonial home. With the ornaments which she had with her and which consisted of one Mangal Sootra, one Fayal and one Per-patti. She specifically stated that her offer and willingess to go back to her husband was unconstitutional. As against this, the respondent was not willing to take back the appellant unless she came back with the ornaments mentioned in Ex. P. 6 which is a notice sent by him appellant. In this notice he had alleged that gold and silver ornaments weighting about 22 Tolas and one Kg. respectively were taken away by the appellant. In other words, the respondents was unwilling to accept the offer of the appellant to resume cohabitation unless and until his condition about the ornaments was fulfilled. In Paragraph 10 of his deposition as A.W. 1, the respondent Ram Swarup Soni stated that at the time of marriage the appellant was given one Mangal Sootra of Gold weighting about 2 tolas and one per-patti of silver. He specifically stated that no other ornament was given to her from his side. He further said that he did not know what ornaments were given to the appellant by her parent. In this back ground, the insistance for 22 tolas of gold ornaments and one Kg. of silver ornaments by the respondents, leads to only one conclusion that the appellant was deserted by him because her parents could not fulfil his dowry demands. It is well-known that ordinarly in a Hindu wife is very much relutent to leave her matrimonial home even if she gets cruel treatment by her husband and his relations. In the present case, threw appears no reason or rhyme why all of a sudden and only a few years after the date of marriage the appellant would have decided to desert her husband. I am, therefore of the view that the respondent utterly failed to prove desertion as contemplated in Section 13(1)(ib) of the Act and he was not entitled to a decree for divorce even on the ground of desertion.
5. For the foregoing reasons, this appeal succeeds and it is hereby allowed. The impugned decree of divorce passed by the Court below is set aside. However, in the circumstances of the case, I make no order as to costs of this appeal.