A.S. Tripathi, J.
1. This appeal has been preferred against the judgment and decree dated 22nd of April, 1993, passed by the Vllth Additional District Judge of Gwalior, whereby the petition of the plaintiff/appellant under section 13 of the Hindu Marriage Act for dissolution of marriage with the respondent/defendant was dismissed.
2. It is not disputed that the parties were married on 26-11-1978 according to Hindu customs and vedic rites. The respondent/wife at that time was serving in the Scheduled Tribes Welfare Department in the Government of Madhya Pradesh, and was posted at Khandwa since 1972. Khandwa is about 1000 Kilometers from Gwalior.
3. The appellant/husband alleged that the respondent/wife after marriage remained with him for sometime. Thereafter, she started avoiding to live with him. The plaintiff had earlier filed a suit for restitution of conjugal rights, which was withdrawn by him on the assurance of the respondent to live peacefully with him.
4. On 6-6-1986 the respondent left the house of the appellant without his permission and went to her parents house. The respondent was serving as a teacher in the primary school in the district of Khandwa. She never tried for her transfer to Gwalior. The appellant could not leave his house on account of his old father and mother and an unmarried sister. For the last three years, the respondent has not visited the house of the appellant, and is not interested in living with him. The respondent refused to leave the service. The parties had no issue, and the respondent had deserted appellant and also treating him with cruelty. A petition for dissolution of marriage was filed on the grounds of desertion and cruelty.
5. The respondent/wife contested the suit on the ground that she was already in service before marriage. She has been in service with the consent of her husband. The mother of the respondent is very old and one brother is handicapped, and she is also looking after them. The respondent has always been visiting the house of the appellant and living with him peacefully for quite sometime. She is still visiting his house periodically and performing duties as wife. She herself requested the appellant to get her transferred, but in spite of some efforts being made by the respondent, her transfer to Gwalior could not materialise. The appellant had assured that he will get the respondent transferred to Gwalior, but he did not make any efforts, and the petition has been filed without any ground. She never deserted the appellant and had never treated the appellant with cruelty.
6. Following issues were framed by the trial Court :-
(i) Whether the respondent had deserted the appellant for more than two years?
(ii) Whether the respondent had treated the appellant with cruelty?
(iii) Whether the appellant was trying to marry another lady?
7. The trial Court, after recording evidence held that the desertion and cruelty on the part of the respondent, as alleged by the appellant, have not been proved. With this finding, the suit for dissolution of marriage was dismissed.
8. Heard counsel for the appellant/husband, Shri R. A. Roman, and counsel for the respondent/wife Shri S.C. Dubey, and perused the record.
9. On the point of desertion, the trial Court had made efforts for reconciliation, but the same could not succeed. In this Court also, efforts for reconciliation were made, but it could not succeed.
10. The claim of the plaintiff/appellant that the defendant/respondent had deserted him for more than two years was to be established by the appellant himself. It is admitted that the respondent was in Government employment from before her marriage since 1972. The appellant married with her knowing fully well that she was in service and will remain in service. It is also not disputed that the respondent whenever used to get leave, visits Gwalior and was living with the appellant for a number of years. The distance from Gwalior to Khandwa was 1000 kilometers and it was not possible for the respondent, who was in Government employment to visit every time Gwalior. Efforts for transfer were made by the respondent, but the same could not materialise. There is nothing on record to suggest that the appellant had ever made any effort for the transfer of the respondent to Gwalior. In the statement of the respondent, it has come’ that she has been visiting Gwalior once in a month to live with the appellant. Letters were exchanged between the parties in which the respondent had disclosed at one stage that she was prepared to leave the service and had actually left, but on account of her monetary condition, the respondent actually did not leave the service and later on she thought fit to remain in service and perform the duties of wife with the appellant whenever she gets leave. Letters Ex. D/3 and Ex. D/5 are on record, which have a bearing on this point.
11. It was never agreed at the time of marriage that the respondent will leave the service. The burden was upon the plaintiff/appellant to prove that the respondent had deserted him since 1985 and was living separately. On this point, no convincing evidence was produced by the appellant. His sole testimony was not found reliable by the trial Court. P.W. 1 Laxmanrao the plaintiff admitted in the cross-examination that at the time of marriage it was agreed that the respondent will leave the service. According to him her parents had disclosed that after marriage they will see that the respondent would leave the service. The appellant himself had admitted that he had not visited the respondent for the last 3-4 years. However, he denied the suggestion that he himself did not want to keep the respondent. The trial Court had recorded a finding that the appellant was insisting the respondent to leave her service, whereas, the respondent to earn her livelihood was unable to leave the service and that was a bone of contention between the two.
12. The trial Court had also found that on 3-1-1991 the respondent was directed to go to the house of the appellant and in the evening she went to the appellant’s house, but only after 2/3 hours she left for her parents house. Another application was presented by the appellant on 22-1-1991 that the respondent had left his house with her brother after getting permission, but she did not return after 2/3 days. This application was considered by the trial Court and it was found that this application was moved to discredit the respondent. In these circumstances, it was not found proved that the respondent herself had deserted the appellant at any stage. On the other hand, the trial Court found that the respondent was ready and willing to live with the appellant and she was prepared to live with the appellant by visiting Gwalior, whenever she gets leave from the service. But the appellant did not agree to this and was not keeping her properly. In these circumstances, the point of desertion as alleged by the appellant was not found to have been proved.
13. After considering the facts and circumstances of the case, I agree with the findings recorded by the trial Court on this point that the respondent has not deserted the appellant as alleged by him.
14. The second point raised by the appellant was that of mental cruelty on the part of the respondent.
15. The claim of the appellant was that the respondent was not living with him for a considerable period. She only visited occasionally, and this has resulted in mental cruelty to him and he was entitled to get a divorce on that ground.
16. The trial Court had examined this point and found that even mental cruelty was not proved since the respondent was always ready and willing to live with the appellant. She has been visiting his house whenever she gets leave. It was the appellant himself who turned her out and was not ready to keep her properly. The trial Court further held that the parties had to reconcile for living with the condition of service in which the respondent was already serving before her marriage and she could only live with the appellant whenever she gets leave. The appellant himself had never tried to go to the respondent’s place to live with her even for a day. In this way, the trial Court was fully justified in holding that there was no mental cruelty to the appellant by any conduct of the respondent. Simply because in view of the conditions of the Government service the respondent was living at Khandwa on duty, the same could not be said to be amounted to mental cruelty to the appellant. The trial Court rightly held that whenever the respondent got leave she came to the appellant’s house, and it was the appellant who was not treating her properly and the respondent had to loiter sometimes to the appellant’s house, and sometimes to her parents house, and when her leave is over she had to go on duty in Government service. In this way, the second point of mental cruelty was not found to have been proved by the trial Court, and therefore, since the trial Court having found that no ground for desertion and cruelty was made out, the suit was accordingly dismissed.
17. Learned counsel for the appellant ultimately urged that since the parties are not reconciling to live together and the respondent was not prepared to leave the service, the marriage has broken, and the same must be dissolved. He placed reliance on the case of Romesh Chandra v. Savitri, AIR 1995 SC 851. In this case, the Supreme Court found that once the marriage has broken and the parties were not able to live together, it is better to dissolve the marriage. The facts of that case were entirely different. In that case, both the parties had agreed for dissolution of marriage on certain statement of giving a house by the husband to the lady. That is not the case before me. The observations of the Supreme Court were applicable only to the facts of that case and no general law could be laid down on this point. In the present case, the respondent was always ready and willing to live with the appellant and it could not be said that the marriage has broken.
18. Learned counsel for the appellant also placed reliance on the case of Smt. Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90. In that case, the Supreme Court held that if the Court is satisfied that there is a permanent break down of the marriage, it may be justified to grant divorce.
19. As earlier pointed out, the facts of the present case are different. In this case, the marriage has not broken so far and the divorce could not be granted merely on assumptions.
20. On the other hand, learned counsel for the respondent/wife has placed reliance on the case of Deepak Natkar v. Smt. Deepali Natkar, 1992(2) VIBHA 120. In that case, brother S.K. Dubey, J. after considering the case-laws, held that whenever the wife is visiting the husband’s place on holidays from her place of service, and the husband himself is neglecting to treat her properly, it could not be said to be causing mental cruelty to the husband, and in such a case, divorce could not be granted.
21. In the case of Bhawna Advani v. Manohar Advani, 1992 MPLJ 40, it was held that for proving desertion, wilful negligence on the part of the spouse has to be proved beyond doubt. When the wife has been visiting the place of the husband it could not be said that she had wilfully neglected or deserted the husband.
22. In the case of Vibha v. Dinesh, 1991 MPLJ 975 again it was held that cruelty and desertion to the husband by the wife has to be judged in the facts and circumstances of each case. When the wife is in Government employment and has occasionally been visiting the place of husband whenever she gets leave, it could never be said that there was any desertion on the part of the wife. When the wife feels financially insecure, she was not bound under law to leave the service to live with the husband permanently.
23. In this case, as pointed out earlier, at the time of the marriage the appellant was fully aware that the respondent was in Government employment for quite sometime. It was never insisted or agreed that after marriage the respondent will leave her service and live with the appellant permanently. The respondent has always been visiting the appellant whenever she got leave. She also made efforts to get herself transferred to Gwalior. The appellant, on the other hand, never tried for her transfer to Gwalior. The appellant has been insisting the respondent to leave the service. In these days, when there are no issues between the parties, the wife/respondent was certainly feeling insecure for leaving the service. In these days, filling of belly is more important than sexual obligations and therefore, it could not be said that the respondent was unjustified in continuing in service to earn her livelihood, and also ready and willing to live with the appellant whenever she is getting leave giving company to the appellant. The distance of Gwalior from Khandwa is about 1000 kilometers and the expectation of the husband that the respondent should come to live with him was totally unjustified. The trial Court therefore, rightly held that the points of desertion and cruelty were not proved, and therefore, under law, no case for divorce was made out by the appellant, and the suit was rightly dismissed.
24. This appeal has no merit and is dismissed with costs.