JUDGMENT
S.S. Dewan, J.
1. This appeal has been filed by Prem Chand appellant against the judgment and decree of the Additional District Judge, Jalandhar, dated March 7, 1987, dismissing his application under Section 33 of the Hindu Marriage Act.
2. The material facts giving rise to this appeal are as follows :
The appellant is the husband of the respondent. The parties were married according to Hindu Rites on 13th March, 1980. In the month of August, 1982, the father of the respondent came to the appellant and took the respondent with him on the pretext that she was to attend the marriage of her cousin and that while leaving the appellant’s house, she took away her costly clothes and jewellery. On 10th January, 1985, father of the appellant alongwith some other persons of the village went to the father of the respondent to bring her back and on that occassion the respondent and her father collected Panchayat and they threatened the father of the appellant and his associates with dire consequences if they did not sign the resolution of the Panchayat. The respondent and her father got thumb impressions of the appellant’s father and other persons on a paper under duress. The appellant sought divorce on the grounds that the respondent treated him with cruelty and she also deserted him. The respondent contested petition of the appellant. She denied that she treated the appellant wish cruelty and that she had deserted the appellant as alleged by him. She pleaded that as a matter of fact her parents could not meet the ever rising demands of the appellant who wanted her to bring T.V. set, Camera, Scooter and Refrigerator etc. from her father and when she could not meet the demands, she was given beating by the appellant. It was further stated by the respondent that she was having serious skin disease and in that situation her parents took her to their house and that the appellant never made any attempt to take her back. Dealing with the episode of 10th January, 1985, the respondent pleaded that the father of the appellant along with some other persons came to her father at village Bopa Rai Khurd, where a gathering was held and that after thorough discussion in cordial atmosphere, an agreement dated 10th January, 1985, was entered which was thumb-marked by the father of the appellant in token of its correctness. In that agreement it was stipulated that the appellant would take the respondent to his house within two months and on his failure to do so, he would give Rs. 50,000/- as compensation and Rs. 35,000/- as return of dowry articles. The pleadings of the parties gave rise to the following issues :–
(1) Whether the respondent has treated the petitioner with cruelty ? OPA. (2) Whether the respondent has deserted the petitioner for a continuous period of more than two years prior to the presentation of the petition ? OPA. (3) Whether the petition is not maintainable ? OPR. (4) Whether the petitioner is estopped by his act and conduct from filing the petition ? OPR. (5) Whether the petition is not maintainable under Section 23 of the Hindu Marriage Act ? OPR. (6) Relief.
3. On issues Nos. 1 and 2, it was held by the trial Court that the respondent was not guilty of deserting the appellant or of cruelty. Under issue No. 5, it was also held that since the appellant was taking the advantage of his own wrong, no relief could be given to him as laid down under Section 23 of the Hindu Marriage Act. In view of the aforesaid findings, it dismissed the petition. He has now come up in appeal to this Court.
4. I shall take up the issue of cruelty first. As laid down in Dr. N.G. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534, harm or injury to health, reputation, the working career or the like would be an important consideration in determining whether the conduct of the respondent amounts to cruelty. It has, therefore, to be found whether the appellant alleging cruelty proves that the respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious to him to live with the respondent. Speaking of the standard of proof required to establish the charge of cruelty for obtaining a decree of divorce or judicial separation, it was pointed out that belief regarding the existence of facts may be founded on a balance of probabilities. At the first place it was alleged that the conduct of the respondent was unbecoming of a wife as she used to insult the appellant in the presence of his family members but I am not prepared to believe that the conduct of the respondent was such which may fall within the ambit of cruelty as understood in law. It cannot be deduced from the evidence of the appellant that the conduct of the respondent caused any physical or mental agony affecting his mental or physical health. Therefore, the charge of cruelty is not proved on that count.
5. We now take up the second ground i.e. of desertion upon which the appellant claims a decree for divorce. Offence of desertion as matrimonial offence means the intentional abandonment of one spouse by the other without reasonable cause and without consent or against the wish of the other. It is a withdrawal from a state of things and not from place. In order to prove desertion one has so establish the factum of separation, the intention to bring cohabitation permanently to end and that such withdrawal continued during the entire statutory period. Desertion is thus a matter of inference which has to be drawn from the facts and circumstances of each case. Where there has been a separation in fact the animus deserendi assumes importance. Thus, animus deserendi must co-exist throughout statutory period. It is, therefore, necessary that in order to establish desertion, the deserted spouse must affirm the marriage and must be ready and willing to resume married life on reasonable condition. The allegation in the instant case is that the respondent voluntarily left the appellant and in spite of his efforts she did not agree to come. Instead the respondent maintained her stand that she was always prepared to go back, but the appellant never came to fetch her. This stand she maintained even at the stage of trial. It is borne out from the evidence of the appellant that on 10th January, 1985, father of the appellant accompanied by some other persons of his village went to the house of the father of the respondent but there is no evidence if there were any preliminaries or if the date of meeting was pre-arranged. The appellant, however, did not accompany his father and this fact goes a long way to show that he had no intention to take back the respondent. He sent his father and some other persons only to explore the mind of the respondent if the ties could be snapped. On the other hand, the case of the respondent was that she left the house of the appellant as she was having skin disease and the appellant did not care to give her proper treatment. The evidence of the appellant is not such on which a finding can be based that it is the respondent who has withdrawn from the appellant’s society. Instead the respondent’s evidence that she is prepared to go back to the appellant’s house. She had examined witnesses to support her stand. I agree with the trial Court’s finding that the respondent’s evidence is natural and cogent. I am of the opinion that the appellant could not prove essential elements of animus deserendi during the statutory period and has, therefore, been rightly refused relief of divorce on that count.
6. As a result of the discussion aforesaid, this appeal fails and is dismissed with costs.
