JUDGMENT
Sarojnei Saksena, J.
1. This appeal under Section 28 of the Hindu Marriage Act, 1955 (for short ‘the Act’) is directed against the judgment and decree dated 15.6.1992 passed by the Additional District Judge, Jalandhar, in H.M. Case No. 45 of 1991.
2. Uncontroverted facts are that the parties are Hindus and were united in wedlock on 4.3.1987. In this wedlock the respondent gave birth to a son on 20.1.1988. The petitioner-appellant is a Doctor. The respondent is in service of Punjab National Bank, G.T. Road, Phagwara.
3. The appellant-petitioner filed petition under Section 13 of the Act alleging that in his marriage dowry was not accepted. At the time of marriage, the respondent was in service of Punjab National Bank and it was settled before marriage that she would give on her job and join the petitioner-appellant at the place of his duty because he was in Govt. Service as a Doctor. After the marriage, the parties lived together in village Chak Kalan upto 6.4.1987. Thereafter, respondent-wife went back to Phagwara to join her duty. Though it was decided before the marriage that the respondent would leave the job, but she declined to leave the job on one pretext or the other. When she was in the family way, she promised to leave the job after availing the maternity leave, but even after the birth of the son she declined to leave the job. The appellant-petitioner used to go to her parental home. He always persuaded her to leave the job and join him in the conjugal home, but she never accepted his offer. On 7.8.1989 he went to her parental home to bring her back, but she and her father instead called the Police and got him arrested. Finally, on the intervention of certain relations and his father he was released by the police. In the presence of all those persons the respondent and her father flatly refused to have any relation with the appellant-petitioner and declared that they would not allow him to come to their house. Thus the respondent has deserted the petitioner from 20.1.1989 without any reasonable excuse, she did not allow him to see his son. Thus she is guilty of desertion and cruelty. He gave a notice to her on 10.5.1991 to join his company to save sacred knot of marriage, but she neither came to the matrimonial home nor replied to his notice. Hence, prayer for dissolution of marriage on these counts was made.
4. The respondent-wife in her reply averred that the appellant married her only because she was a working woman. After marriage she took leave and stayed with him in his village Chak Kalan. Thereafter she came to her parental house where she is living since then. Her son was born at Phagwara. The petitioner-appellant used to come to her at Phagwara. She also used to go to her matrimonial home during vacations. It is denied that it was settled before marriage that she would leave the job. According to her during that period the petitioner-appellant was suspended. He was not doing any job. Therefore, he wanted to marry a working girl. She and her parents never agreed that she would leave the job after marriage. The petitioner-appellant is a habitual drunkard and spend-thrift. Whenever, he asked for money she acceded to his demand. But after the birth of the son, she refused to give him money any more. The petitioner-appellant never came to her house to ask her to leave the job. The petitioner-appellant came to her parental home, threatened her parents and abused them which ended in an altercation. The police had to be called. The petitioner-appellant begged pardon before the police and then he was let off. It is denied that she has deserted the petitioner-appellant. She is always ready and willing to live with the petitioner-appellant as they used to live earlier that is during holidays. She never refused cohabitation with the petitioner-appellant. Even after the receipt of notice, she and her parents approached the petitioner-appellant, but he was admant that either his demand for money should be satisfied or marriage should be broken. She cannot leave the job because that is the only source of earning to maintain her and her son. She never did any act of cruelty towards the petitioner-appellant.
5. The parties adduced evidence. On appraisal of the evidence on record, the Trial Court came to the conclusion that the husband has failed to prove that the wife has deserted him or she has treated him with cruelty. Hence the petition was dismissed.
6. The appellant’s learned Counsel vehemently argued that from the parties evidence it is evident that after marriage they lived together till 6.4.1987. Since then she is living at her parental home and despite appellant’s various attempts to bring her back, she has declined to join him in the conjugal home. During her pregnancy period also, she lived in Phagwara. He went there before delivery, admitted her in the hospital and lived therefor two days. But even thereafter she has refused to come back to him. No doubt she is in service of Punjab National Bank, but she is merely a Clerk while the petitioner-appellant is in Govt. Service as Doctor. He is earning about Rs. 10,000/- per month. Before marriage the respondent and her parents agreed that after marriage she would leave the job, but she has not left her job and on that count she has refused to resume cohabitation with the petitioner-appellant. Thus, the appellant has proved both the parameter of desertion i.e. factum of desertion and animus diserdendi. Even during conciliation proceedings, she declined to come to the Court. Thus from her conduct, it is apparent that she has totally broken down the material ties and she had no intention to come back to her conjugal home. Relying on Usha v. Vimal Kumar, 1987 (1) H.L.R. 166, Neelam v. Vinod Kumar Midha, 1986(1) H.L.R. 89 and Inderpal Kaur v. Gurvel Singh, 1989(1) H.L.R. 658 = I (1989) DMC 275, he contended that from the conduct of the respondent, it is evident that she has deserted the appellant. Since she has failed to resume cohabitation with him and is not joining him, her this conduct amounts to cruelty towards the appellant. The Trial Court committed an error in holding that the petitioner-appellant has failed to prove both the grounds of divorce. The respondent’s Counsel supported the Trial Court’s judgment.
7. In Inderpal Kaur’s case (supra) the wife withdrew from the society of her husband without there being any sufficient cause with an intention not to return to the matrimonial home and to bring an end to their married life. Both the spouses were posted at different places. The husband filed a petition for restitution of conjugal rights also which was returned due to Lack of territorial jurisdiction. The wife filed a suit for mandatory injunction against the husband for the return of dowry articles. From her proved conduct, the Court held that she has deserted the husband. The formal offer made at the trial in that petition that she was ready and willing to live with him was held only a ritual. On these facts the decree of divorce was granted which was affirmed by the High Court. In Neelam’s case (supra), the spouses lived together for a short period. As difference arose between them, the wife went to her parental home and did not return thereafter. No serious efforts were made by either party to resume cohabitation. She filed a petition under Section 125 Cr.P.C. Another litigation for return of dowry was also pending between the parties. On these facts, the Court held that the desertion is clearly writ large and on this ground the decree of divorce was passed. In Usha’s case (supra) during the period the wife lived in conjugal home her conduct was harsh and cruel towards the husband. She engaged herself in a scuffle with him and also slapped him. She left the matrimonial home and thereafter refused to come back. There was no evidence that the husband was in any way instrumental in her leaving the conjugal home. He served her with a notice, but she kept quiet. On these facts, it was held that the husband has proved the grounds of cruelty and desertion and a decree of divorce was passed. The wife’s appeal was dismissed by the High Court.
8. In this case the facts are slightly different. The petitioner-appellant has pleaded that before marriage it was settled that the respondent would give up her job and join the petitioner at his place of duty because he was/is in Govt. Service as a Doctor. The wife has denied such a settlement. Kundan Singh (P.W. 1) is appellant’s father. He has deposed that before marriage it was settled that she would leave the job. But the appellant while appearing as P.W. 2 has testified that before marriage, the respondent’s parents told them that the respondent will not do service after the marriage. They also made it clear that after the marriage the respondent will continue to be in service if he would like her to continue; otherwise not Balwant Singh (P.W. 4) is the Sarpanch of village Chak Kalan. He was present when the marriage was settled. According to him when the marriage was settled, the respondent agreed to leave the job. Even her parents agreed to it. The appellant has filed a letter Exhibit P-4 alleged to have been sent by his father-in-law. The respondent has admitted on oath that this letter bears the signatures of her father. It was argued that in this letter, the respondent’s father has written that she has tendered her resignation. This letter was written before the marriage was solemnised. But the respondent has clearly stated that it was never agreed that she would leave the job, rather the appellant agreed to marry her only because she was in service. After marriage she went to village Chak Kalan and lived there upto 4.4.1987. Thereafter, she came back and joined her duty. The appellant used to come to her and used to live with her at Phagwara. She is categoric that after marriage the appellant never asked her to leave the job. She has testified that the petitioner-appellant is a drunk addict. He used to take money from her. For certain period he was suspended. He never contributed to the household expenses. After the delivery of the son she refused to give him money. That was the real cause of estrangement between the parties. In August, 1989 he came to her parental home, demand Rs. 1,50,000/-. When the demand was not acceded to, he beat her mother and her son. Then Police was called. But since he begged pardon he was released by the Police. She has clearly stated that she is willing to live with the petitioner-appellant. She never refused to live with him. She has produced few letters written by him to her.
9. About the incident of his arrest, the petitioner’s evidence is inconsistent. Kundan Singh (P.W. 1) has stated that he was informed by Amarjit that in Phagwaras the appellant has been arrested by the police. He immediately went to Phagwara alongwith Sarpanch Balwant Singh (P.W. 4) and the police informed him that the respondent and her father told them that the appellant is a terrorist. When his identity was disclosed, the police released him. The petitioner-appellant has stated that he was arrested by the Police on the ground that he came armed with a Pistol in order to kill his wife, but when he showed his identity card he was released by the police. Balwant Singh (P.W. 4) has no knowledge as to why the appellant was arrested by the police. He too admits that when they disclosed his identity, the appellant was released.
10. Thus from the parties’ evidence, it is evident that in August 1989 when the appellant went to his in-law’s house, the police was called there and he was arrested by the Police. This incident by itself shows that at that time the conduct of the appellant must have been so arrogant and anti-social verging on cruelty that his wife and his father-in-law were compelled to call the Police, otherwise normally in Hindu Society this is inconceivable that the wife or her father would call the police to get the husband/son-in-law arrested by them. Thus on account of this evidence, it cannot be held that the respondent wife behaved cruelly with him.
11. The respondent’s contention is that the appellant is drunkard by habit and he is a spend-thrift. He used to take money from her. Since she refused to give him money after the delivery of her son, that is the real cause of differences between the two. With a view to maintain herself and her son, she has not left the job. She has examined Brij Bhushan (P.W. 1), who has produced two documents Exhibits R-1 and R-2 and has proved that show cause notice Ex. R-2 and chargesheet. Ex. R-1 were given to the appellant in which one of the charges is that under the influence of liquor he misbehaved with senior officers. This witness has admitted -that the appellant was never suspended. Thus by producing the official record of appellant’s office, the respondent has proved that even in the office, the charge of being drunk was levelled against him though till then no departmental inquiry had commenced against him.
12. The appellant’s learned Counsel vehemently argued that the appellant is earning Rs. 10,000/- in a month while the respondent is only a Clerk in the Bank. Surprisingly, enough the appellant is silent on this point. Kundan Singh (P.W. 1) has stated that his son gets Rs. 4500-5000/- per month. The respondent has examined Sohan Lal (RW-2) who has produced bank account papers showing that in March, 1987 she was getting Rs. 2550/- but now she is drawing Rs. 5238/-. The respondent has also stated that her pay is Rs. 5200/- per month.
13. Kundan Singh (PW 1) has stated in his cross-examination that at the time of respondent’s delivery, appellant gave her Rs. 3,000/- and his wife gave Rs. 900/-. The petitioner-appellant as P.W. 2 has stated that at the time of respondent’s delivery, he spent Rs. 4500/- and his mother gave Rs. 900/- cash and clothes to the child, but the respondent has testified that at the time of her delivery, she spent Rs. 3,500/-. No question is put to her in her cross-examination that at that time the appellant gave her Rs. 4,500/- or his mother gave her Rs. 900/-. She has denied that all the hospital expense were borne by her husband. The appellant has also stated that he had been regularly sending Rs. 2000-2500/- to the respondent till her delivery, but no question is put to her in this regard. Further there is no other evidence on record to prove that any such amount was given by the appellant to the respondent.
14. From the parties evidence on record, it becomes clear that because the respondent is in service and is posted at Phagwara, she is not in a position to reside in the conjugal home, but she is ready and willing to leave her job and to come to her matrimonial home; provided she is given financial security. The appellant has utterly failed to prove that he ever gave any amount to his wife to maintain herself and her son. It is also evident that Chak Kalan and Phagwara are not far off. If the appellant so desires, he can reside at Phagwara or the respondent can come and live with himat Chak Kalan. But the appellant is all through insisting that the respondent should leave the job, whereas she does not want to leave the job as she has no other source of income to maintain herself and her son. Thus in these hard times when prices are rising daily she does not want to leave the job. Thus, it cannot be said that she has deserted the appellant or she has totally broken the marital tie. Appellant’s intention is clear from letters Exhibits R. 8 and R.9.
15. On a careful consideration of the material on record, I find that the learned lower Court has rightly held that the respondent is not guilty of desertion or cruelty. The conclusions arrived at by the learned lower Court are on firm foundation and are not liable to be interfered with.
17. In the result, the appeal fails and is dismissed with no order as to costs.