JUDGMENT
C.K. Prasad, J.
1. Husband-respondent filed petition for dissolution of marriage with his wife-appellant performed on 22-6-1986 by decree of divorce on the ground that the wife after the solemnisation of marriage treated him with cruelty and further deserted him for a continuous period of not less than 2 years, which are grounds as contemplated under section 13(1)(i-a) and (i-b) of the Hindu Marriage Act. The First Additional District Judge by his judgment and decree dated 2-9-1993 decreed the petition and directed for payment of Rs. 300/- per month as permanent alimony, to the wife. Wife-appellant aggrieved by the aforesaid judgment and decree has preferred this appeal under section 28 of the Hindu Marriage Act.
2. According to the husband-respondent, marriage between the parties was performed on 22-6-1986 and after the solemnisation of the marriage, the behaviour of the wife with him as that of his family members was cruel. It has been further stated that the wife never used to do household work and used to get up at 10 O’Clock and without any reason used to quarrel. It has been stated that the wife always used to run away to her parents’ place and did not fulfil her marital obligation. According to the assertion of the husband the wife treated him with cruelty. Further case of the husband is that on 22-1-1989 the wife fled away to her parents’ place and thereafter in spite of his efforts she did not return to the matrimonial home. Petition was presented before the trial Court on 19-6-1991.
3. Wife, in her reply, denied the allegation of the husband and according to her assertion, husband and his family members demanded dowry and on its non-fulfilment she was sent to her parents place. It has been further stated that she was being abused by her husband and also his family members and she was forcibly sent to her parents place. It has been further stated that during her ill health she was not being treated by doctor and some medicine used to be given to her as a result thereof, she became mentally sick. According to the wife it was her husband and his family members who had forced her to leave the house. She has further stated that she has filed a criminal case on 17-6-1991 against her husband, his parents and brother under section 498A of the Indian Penal Code.
4. On the basis of the pleadings of the parties the trial Court framed various issues viz :-
(i) Whether the wife was not fulfilling her marital obligation since 23-1-1989?
(ii) Whether the wife has deserted the husband voluntarily or the wife was harassed by the husband and his family members and forcibly sent to her parents place?
5. The trial Court answered all the issues in favour of the husband. It held that the wife is not carrying out its marital obligation since 23-1-1989, she has deserted the husband voluntarily and it was the wife who treated the husband with cruelty.
6. Husband in support of his case has examined himself as PWs. 3 and 2 other witnesses, PW 1 Shyamabai, who resides in front of his house and PW 2 Anil Shrivas who resides near her house. Wife in support of her case has examined herself as DW 1 and another witness Harish Kumar Thakur as DW 2. PW 1 Shyamabai has stated in her evidence that the wife never used to do household work and she was living at her parents house since last 3 years. In the cross examination she has stated that the wife used to say that she would go to her parents place. This witness has not been cross-examined in relation to her statement that the wife is living at her parents place for the last 3 years. PW 2 has stated in his evidence that after the marriage the wife had gone to her parents place in the year 1989 and since then she is living there. He has further stated that her behaviour with her husband and in-laws was not proper and she used to quarrel. In the cross examination this witness has denied the suggestions that the wife used to be beaten for not bringing sufficient dowry. PW 3 Ramdeo Rathore who is a friend of the husband has stated in his evidence that he was married on 22-6-1986. He has further stated that her younger sister was married to the elder brother of his wife Harish Rathore and it was a Gurawat marriage. He has stated in his evidence that after the marriage the wife came in November, 1986 and on some pretext or the other she used to quarrel with him and his family members. He has further stated that she used to get up at 10 O’Clock in the morning and remain always ready to go to her parents place. He has further stated that without his permission or that of his family members she used to go to her parents’ place and on 23-1-1989 she went to her parents’ place and since then she has not returned. He has further stated in his evidence that on 22-1-1989 she wrote a letter (Ex. P-1) that she does not want to stay with him. In the cross examination this witness has denied the suggestion that she was forcibly removed from the house. He has further stated in the cross examination that on 14-1-1991 his wife’s brother came to his place but he denied the allegation that he demanded dowry and did not permit the wife to remain in the house. DW 1 Satyavati i.e. wife has stated in her evidence that her husband used to harass her for not bringing dowry. She has further stated that all the jewellery given by her father was retained by her husband. She has further stated that she fulfilled her marital obligation and whenever she used to stay with her husband, he used to assault her. She has further stated that after she was sent to her parents’ place, her husband never came to pick her. She has further stated that her brother had gone along with her to drop her but the husband declined. In paragraph 4 of her cross examination she has stated that her brother had been married to the sister of her husband and it was Aata Sata marriage. She has further stated that in that marriage there was no demand of dowry. She has further admitted in her cross examination that altogether she lived with her husband for 3-4 months, she visited her parents place regularly. She has further admitted that she has gone to her parents place on 23-1-1989 and living there since then. She has further stated that she does not want to live with her husband. DW 2 Harish Kumar Rathore has stated in his evidence that he used to go along with the appellant to drop her at her husbands place and for the first two times their behaviour was good. On 14-6-1991 when he went along with the wife, her husband lost his temper and said that he will not keep her.
7. On analysing the evidence of husband and wife its seems clear on the basis of the wife’s own statement that she left her matrimonial home on 23-1-1989 and since then she is living with her parents. She has further admitted that she does not want to stay with her husband. It is relevant here to state that, it is the case of the wife that she has withdrawn from the society of the husband because she was ill treated by her husband and his family members because of dowry. Husband and wife in their respective evidence have stated that the marriage was in the form of Aata Sata which in the present context means that the sister of husband was married to the brother of the wife. Wife has further admitted that there was no talk of dowry in the marriage. In the background of the aforesaid fact that the marriage was in the form of Aata Sata and there was no talk of dowry before the marriage, it does not seem probable that the wife was sent to her parents place because of the non-fulfilment of the demand of dowry.
8. Accordingly, I concur with the findings of the trial court that the wife has deserted the husband for a continuous period of more than 2 years immediately preceeding the presentation of the petition and she has deserted the husband without any reasonable cause.
9. Husband in his statement has further stated that the behaviour of the wife was not proper and she used to quarrel with him on any pretext. According to his evidence she never used to do the household work and used to remain sleeping till 10 O’Clock in the morning. He has further stated that the wife never fulfilled her marital obligation. PW-1 Shyamabai who lives in front of the house of the husband has stated in her evidence that the wife never used to do the household work and used to live like a mad person. This witness has further stated that the wife always used to say that she does not want to stay at her husband’s place and used to remain ready to go to her parents place. PW 2 has supported the case of the husband and stated that he being his friend, met his wife and her behaviour was never good. She used to quarrel and never used to do the household work properly.
10. Wife in her statement has stated that she fulfilled her marital obligation and although sexual intercourse took place but she did not conceive. It is relevant here to state that wife in her letter Ex. P.2 has also the. statement made before the Court has clearly stated that she does not want to live with her husband. It is relevant here to state that wife has instituted a criminal case under section 498A of the Indian Penal Code, against her husband on 17-6-1991.
11. Learned Judge after holding that the marriage performed between the parties being Aata Sata the demand of dowry by the husband is incorrect and therefore, the institution of the case amounts to cruelty. Accordingly the learned Judge found that the husband is entitled for dissolution of marriage by decree of divorce on the grounds mentioned in section 13(1)(i-a) of the Hindu Marriage Act.
12. The finding arrived at by the courts below is on analysis of the evidence and nothing has been pointed out to show that the same is in any way illegal.
13. Shri Ruprah, appearing on behalf of the appellant, however, submits that the impugned decree is vitiated as the trial Court did not make any effort for reconciliation between the parties as required under section 23(2) of the Hindu Marriage Act. Section 23(2) of the Hindu Marriage Act reads as follows :-
“23 Decree in proceedings :-
XXX XXX XXX
(2) Before proceedings to grant any relief under this Act, it shall be the duty of the Court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties :
Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of sub-section (1) of section 13.
XXX XXX XXX”
14. Shri Ruprah, submits that it was the duty of the court to make every endeavour to bring out reconciliation between the parties before grant of relief of dissolution of marriage by decree of divorce. It is an admitted position that no such effort was made.
15. Shri P. R. Bhave, appearing on behalf of the respondent submits that the said defect can be removed by the appellate court. When the matter was taken up on 26-6-1997, I have directed the husband and wife to be present personally. They have appeared on 29-7-1997 and an effort for reconciliation was made but failed. The defect as pointed out by Shri Ruprah appearing on behalf of the appellant can be rectified by the appellate court is writ large from the Judgment of the Patna High Court in the case of Sushma Kumari v. Omprakash, AIR 1993 Patna 156 wherein it has been held that “if the procedure under section 23(2) has not been followed by the trial Court, same can be followed by the appellate court.” Reconciliation having failed, defect as pointed out by Shri Ruprah no longer exists.
16. In the result, I do not find any merit in this appeal. It is dismissed accordingly.