JUDGMENT
S. Ravindra Bhat, J.
1. This is an appeal under Section 28 of the Hindu Marriage Act, 1955, preferred by the wife, against the judgment and decree of the Additional District Judge, dated 21.04.90 in HMA 450/1987.
2. During pendency of the appeal, the respondent husband died on 28.12.01. Since the question as to status of the appellant, and her entitlement to assets of the deceased husband would survive, the heir and legal representative of the deceased husband, i.e. his mother, was imp leaded as a party respondent on 25.02.04. Thereafter, the appeal was adjourned from time to time.
3. The marriage between the parties was solemnised on 06.06.1983 according to Hindu rites. It is an undisputed fact that the respondent had been previously married. The appellant lived separately from the husband since 14.7.1983.
4. The husband had, preferred a petition for divorce on the ground that the appellant wife had treated him cruelly and also deserted him. The trial court held that the allegations of cruelty were unfounded. However, it concluded that the husband had succeeded in establishing desertion by the wife from her matrimonial home.
5. The findings of the trial Court were based on the contradictions between the position taken by the wife in the written statement and her testimony. It was held that though she averred that physical abuse and that slapping had taken place, on 13.2.1983, she did not say so in her evidence. The trail court also held that the wife’s stand that Rs. 10,000/- had been demanded by the husband as consideration for purchase of a residence, was not substantiated. It was lastly held that the wife should not have left the matrimonial home, even if her allegation about her brother in law throwing her out of it on 14.2.983, were assumed to be correct. The Court was of the opinion that it was her duty to wait till her husband returned home.
6. Learned Counsel for the appellant urged that the trial court fell into error in concluding that the appellant had deserted the husband. It was submitted that too much emphasis was laid on the stand taken by the wife, who was the respondent. The Court ought to have seen that the husband petitioner was under a duty to prove his case that the withdrawal from co-habitation was unreasonable or without cause, and was permanent.
7. Learned Counsel relied upon the order of the Metropolitan Magistrate, rendered in proceedings under Section 125 of the Criminal Procedure Code, to say that there was material variation in the stand of the husband in the two proceedings, and that the learned Magistrate awarded maintenance, on the ground of the conduct of the husband forcing the appellant to stay away from him. Counsel urged that even if there was some discrepancy in the stand of the wife regarding the nature of the dowry demand, the trial court erred in not appreciating that the humiliation meted out to her had forced the wife to leave the matrimonial home. Counsel also urged that the wife had no intention of staying away permanently, and the trial Court erred in casting the onus of seeking reconciliation on her, and holding her to be responsible for not doing so.
8. Learned Counsel lastly relied upon the husband’s recalcitrant attitude. It was submitted that during the course of recording oral testimony, on 21.11.1989, a query was put to the husband whether he was willing to take back the wife, to which he categorically replied in the negative.
9. I have been taken through the impugned judgment and the depositions of the witnesses, recorded by the trial court. What emerges is that the proposal for purchase of the house at Janakpuri was being considered by the husband’s family in the second week of July, 1983. Though as per the evidence of PW-3, the consideration was not Rs. 1,25,000/- the fact which stood established was that the family shifted to the new residence, the very next day after the incident, viz on 15.07.1983. It is an undisputed fact that the appellant left the matrimonial home on 14.7.1983. The appellant’s un-rebutted testimony was that she was asked to get out of the house on that day, by her “dewar” or brother in law. She had taken the position that the husband had slapped her on 13.07.1983.
10. The overall picture which emerges from the pleadings and depositions of witnesses is that the husband’s family was in the verge of finalizing acquisition of a house. The wife was asked to get out of the matrimonial home, on 14.07.1983. Unable to bear the humiliation, she left for her maternal home. The husband and his family shifted out the next day. The wife, in her testimony stated that she had visited the new home, to attempt a reconciliation.
11. The trial Court’s approach in virtually treating the husband as the accuser, and the wife as a defendant, bearing the burden or onus of disproving allegations of desertion, was not correct. It is settled law that matrimonial proceedings are like any other civil proceeding, where the party approaching the court has to prove the allegation. The facts discussed above disclose a strong possibility of the wife having been asked by the husband to make some amounts available for the acquisition of the new residence. The husband’s family did acquire it, and shifted out. The trial court, though acknowledging that the wife’s brother in law could have asked her to leave the house, yet faulted her for not staying back, as it was her “duty” to do so. Neither logic, nor any compelling legal reason requires a wife facing humiliation to continue staying in the matrimonial home. Equally, the trial Court was in error in laying the blame for not reconciling with the husband, only with the appellant, and in wholly ignoring the real intention of the husband, i.e. not to take her back, expressed during the course of proceedings.
12. For the above reasons, the findings of the trial court cannot be sustained and are hereby set aside.
13. During the course of these proceedings, the question as to the manner in which the terminal, retiral and service benefits of the deceased husband would have to be dealt with in the event the appeal were to be allowed, was put to the parties. The appellant, and the sole legal representative of the respondent have arrived at a mutually agreeable settlement.
14. The agreement arrived at between the appellant and Smt. Sushila Devi is as follows:
[1] Smt. Sushila Devi, mother of late Kanhaiya Lal Jagyasi shall be entitled to the sum of Rs. 3,50,000/- (Rupees three lakh fifty thousand only) out of the terminal, death cum retirement benefits, service benefits and family pension amounts, payable by his employer the Jawharlal Nehru University;
[2] The appellant shall be entitled to the balance amounts payable on account of the aforesaid benefits of late Kanhaiya Lal Jagyasi. She shall be exclusively entitled to claim, and draw family pension as per rules and conditions, applicable to employees like Kanhaiyalal Jagyasi, in the Jawaharlal Nehru University;
[3] The parties do not have any other claim against each other; they further agree to co-operate with each other to facilitate payment of the amounts, and realization of entitlements as per (1) and (2) above.
15. The appellant and Smt. Sushila Devi have filed affidavits, before this Court, in support of their compromise, besides separate statements have been recorded.
16. In view of the above discussion, the judgment of the trial court is hereby set aside. This appeal is allowed in terms of the compromise indicated in para 14, and in terms of the affidavits filed by the appellant and the legal representative of the respondent, viz Smt. Sushila Devi. Decreed accordingly.