Court:DELHI HIGH COURT
Bench: JUSTICE N.N. Goswamy
SHARDHA NAND SHARMA Vs. KIRAN SHARMA On 8 February 1985
Making false and reckless allegations on the character of the spouse amounts to mental cruelty.
This appeal by the husband is directed against the judgment dated September 26, 1983 passed by the Additional District Judge, Delhi whereby his petition under section 13 of the Hindu Marriage Act, for dissolution of marriage on the grounds of cruelty and desertion, was dismissed.
2. The appellant filed a petition for a decree of divorce under sections 13(1)(ia) and (ib) of the Hindu Marriage Act (here-in-after called ‘the Act).’ It was alleged that the parties were married at village Bhains Rawli, District Gurgaon on 13-5-1970 according to Hindu rites and ceremony. From the Wedlock a daughter was born namely Kavita on 23-8-1972. The said daughter is in the custody of the respondent wife. At the time of marriage the appellant was doing his B.Sc (Engineering) in Delhi College of Engineering and he completed his study in June, 1971. During this period, the appellant was visiting the respondent and his parents whenever it was possible for his after getting leave from the college. The appellant was appointed as Research Assistant, in Irrigation Department, Haryana and later as Sub-divisional Officer (Irrigation). Between April, 1972 and June, 1976 he was posted at various places such as Charkhidadri, Rohtak, Bhiwani, Sarsa, Gohana and Hissar. In June, 1976 he was transferred to Delhi and took charge as S.D.O. Delhi Sub-division on 11-8-1976. He was allotted government accommodation at 4, North End Road, Civil Lines, Delhi.
3. It is further alleged in the petition that the appellant’s father demanded Rs. 25,000/- from the appellant in May 1977 for contesting Haryana Assembly elections to be held on 12-6-1977. The appellant expressed his inability to the matter and told his father that he was not in a position to arrange the money demanded by his father. As a result, his father became annoyed and having grudge against him threatened him with dire consequences and the relations of the appellant and his father became strained since then and continued to be so. The father of the appellant started instigating the respondent against the appellant in order to take revenge from the appellant. The appellant asked the respondent to join him at Delhi to join the appellant. Immediately on arrival, the respondent started treating the appellant with cruelty and she also made frivolous charges against the character of the appellant by alleging that he was having illicit relations with Miss Ram Piari Bhardwaj, Staff Nurse of Lady Harding Hospital, New Delhi, which allegation was totally false and baseless and the same caused mental pain and agony to the appellant. Miss Ram Piari Bhardwaj is the daughter of appellant’s Bua’s Jeth whom the appellant was treating as his sister and she was tying rakhi as his sister and she was tying rakhi at his wrist and performing the ceremony of Bhaya Dooj to the appellant and she is still performing these ceremonies. Even before the marriage the said Miss Ram Piary was often visiting the house of the parents of the appellant being a relation and was performing the said ceremonies. She also attended the marriage of the parties. The appellant never had any illicit relations with the said Ram Piyari although she was visiting the bungalow of the appellant at Delhi in the usual course. The respondent did not stop merely by making all false allegations and went to the extent of making false report against the appellant to the Chief Minister, Haryana on 30-1-1979 and levelled false charges against him regarding his character, demand of dowry, etc. As a result of which, the appellant had to face the departmental inquiry which was held against him. However, no action was taken against the appellant as the charge was found to be baseless. The appellant got fed up with the cruelties committed by the respondent, and her brothers who were also making conspiracies against the appellant in the said bunglow when the appellant was in office or on tour. In the circumstances, the appellant had in the alternative to take shelter in a temple in the first week of October, 1978 on the bank of river Jamuna and applied for cancellation of the allotment of the bungalow vide his application dated 3-11-1978 as the life of the appellant was in danger in the said bungalow in the hands of the respondent and her brothers. The said application of the appellant was forwarded by the Executive Engineer, Delhi Division to the Superintending Engineer by stating that the request of the appellant was genuine due to an alarming family affairs and he recommended that his allotment of the bungalow be cancelled. As no action was taken, the appellant moved another application for the said purpose. As a consequence, the allotment of the bungalow was cancelled w.e.f. 3-3-1979. The respondent, however, left the bungalow only on 26-3-1979.
4. It is alleged that on 26-2-1979 (corrected in the replication as 25-2-1979) at night while living in Shiv Mandir, the appellant was performing the Pooja, Shri Munna Ram, Siya Ram and Radha Charan, brothers of the respondent along with four or five unknown persons came to the Mandir and attacked the appellant by giving lathi blows as a result of which the appellant sustained injuries on his forehead near the left eye as well as on his right thigh. In order to seek help the appellant raised a cry and as a result the other worshippers assembled there and the appellant was saved. The brothers of the respondent and their other accomplices who had come along with them, had slipped away. This incident took place at the instance of the respondent who already knew that the appellant used to go to the said Shiv Mandir for performing Pooja on Shiv Ratri Day. A report to that effect was made to the police on 26-24979 vide D.D. No. 32 dated 26-2-1979.
5. It is further alleged that the appellant is posted at Dadupur as S.D.O. (canals) and being a responsible officer is unable to perform his duties due to the cruel acts of the respondent. The respondent also tried to get him murdered and he was saved by the grace of God. The appellant suffered a great mental agony and shock due to the false charges regarding the character etc. made by the respondent and cruel acts of the respondent and her brothers. The respondent deserted the appellant since the first week of October 1978 and since then the parties are residing separately. The appellant got himself transferred from Delhi to Dadupur in order to save his life at the hands of the respondent and her brothers who were residing at Delhi and also because the respondent had made the life of the appellant a hell due to her cruel acts and deeds. Since the first week of October 1978 neither the respondent nor her relations made any effort for coming and living with the appellant. The marriage between the appellant and the respondent has utterly been broken down and there is no possibility of their residing together. It is further alleged that during June 1979 to February 1981, the appellant met with two serious accidents. He got stitches on his upper lips in the second accident which were caused due to the mental tension and agony caused by the wrongful and cruel acts by the respondent. Although the respondent and her brothers and relations knew about these accidents but none of them even bothered to know the condition of the appellant.
6. The petition was contested by the respondent. In the written statement, it was admitted that the appellant remained posted at various places between 1972 to 1979 and he was keeping the respondent at the residence of his parents for the simple reason that his post was transferable and he had the accommodation problem, it is stated that whenever the respondent asked the appellant to take her with he refused on the ground that his post was transferable and no government accommodation had been made available to him. It is further stated that whenever the appellant used to visit her at his parents’ house she found indifferent behaviour of the appellant. The appellant insisted that the parents of the respondent should see to it that the respondent completes her Matriculation as before her marriage she had a appeared in the Matriculation but had failed. It is further alleged that though the parents of the appellant were not greedy but the appellant was insisting the respondent to bring money from her parents and he used to taunt the respondent that she had not brought adequate dowry in the marriage. Seeing the behaviour of the appellant towards her she became suspicious of the activities of the appellant and later on she learnt that even before their marriage the appellant was having illicit relations with Miss Ram Piyari who is working as a Nurse in Lady Harding Hospital, New Delhi. It is alleged that in August 1976 when the appellant was transferred to Delhi and was allotted Government accommodation, the father and mother of the appellant brought the respondent to the said residence of the appellant. They were shocked to see that the said Miss Ram Piyari was present there in the house of the appellant. The father of the appellant finding his position embarrassed in the eyes of the respondent felt offended and rebuked the appellant for his conduct. When the environment became so tense, the appellant was left with no option but to tell Ram Piyari to leave the house. She left the house and the respondent started living with the appellant but the behaviour of the appellant became harsh towards the respondent day by day. The appellant started coming very late and many times slipped from the house in the night. His parents and relatives contacted him several times and tried to persuade him to live with the respondent harmoniously and to disassociate himself from the said Ram Piyari is in any way related to the appellant and that the relations between Ram Piyari and the appellant are of brother and sister. It is stated that the appellant was having and in fact even then had illicit relations with the said Ram Piyari. She has denied any knowledge about the demand of Rs. 25,000/- by the father of the appellant from the appellant. It is further alleged in the written statement that the appellant stopped paying any amount for the maintenance of the respondent or the child and in the circumstances, the father of the appellant seeing the pitiable condition of the respondent and the child wrote a letter to the Chief Minister Haryana stating the facts but later one when no action was taken by the Haryana Government, the respondent, out of disgust, wrote a letter dated 30-1-1979 to the Chief Minister in continuation of the letter of the appellant’s father stating that even water and electricity were got disconnected by the appellant to comple her to vacate the accommodation. It was further stated that the appellant tried his level best to get rid of the respondent so that he could maintain association with Ram Piyari freely and without interference from the respondent. Later on the respondent came to know that the appellant had himself written to the Department that he be transferred from Delhi to some other place in Haryana and for cancellation of the government accommodation. It is further alleged that the appellant started coming very late and many times slipped from the house at night when the respondent was staying at North End Road. In the month of February 1978, the mother of the appellant came to Delhi at the request of the respondent as he was living all alone during those days. She has denied that the appellant started living in Shiv Mandir as alleged. As regards the incident of 25/26th February 1979, it is stated that when the father of the appellant was in Delhi he went to Shiv Mandir to perform Pooja as the said day was Shiv Ratri day. There is the Park near the temple the father of the appellant saw the appellant alongwith Ram Piyari sitting very close to each other and holding each others hand. On seeing this, the father of the appellant rebuked and abused the appellant as well as the said Ram Piyari with the result that the appellant felt offended and insulted his father in the presence of the said Ram Piyari. The appellant became red with anger and started insulting his father. The father of the appellant being a Hindu and respectable persons could not tolerate being insulted by his own son in the presence of the said Ram Piyari and out of anger slapped the appellant. It is stated that the appellant has purposely not mentioned the name of his father and has mentioned the names of the brothers of the respondent. In fact, it was the father of the appellant who slapped the appellant and not the brothers as alleged. The respondent bad nothing to do with this incident and there was no conspiracy to get the appellant killed as has been alleged. It has been denied that she was responsible for any cruel treatment or that the appellant got any mental injury. It is stated that the respondent had no alternative in the circumstances already mentioned but to approach the Government of Haryana by writing the said letter. It is further stated that the desertion, if any is by the appellant and not by the respondent as the respondent continued to stay in the matrimonial home and was not responsible for any cruelties as alleged. She has denied of having any knowledge about the accidents as alleged.
7. The appellant filed the replication wherein he denied all the allegations levelled in the written statement and reiterated the pleas taken in the petition. He specifically mentioned that Miss Ram Piyari was tying rakhi aod was performing the ceremony of Bhaya Dooj to the knowledge of the respondent.
8. On the pleadings of the parties, the learned trial Judge framed the following issues :
1. Whether the petitioner has been treated with a cruelty by the respondent as alleged ?
2. Whether the petitioner has been deserted be the respondent for a continuous period of more than two years immediately preceding the presentation of the petition ?
9. In support of their cases besides the voluminous documentary evidence, the parties examined five witnesses on either side. Unfortunately the learned trial Judge hardly dealt with the oral evidence and has completely misread and misinterpreted the documentary evidence. After rejecting most of the oral evidence on erroneous grounds, the learned trial judge in paragraph 11 of the judgment observed :
“That the most important statements are of the parents of the appellant. They have fully supported the respondent on all material facts. They have emphatically stated that they had seen the petitioner in the company of Ram Piyari and had objected to his relations with her but the petitioner still continued his affairs with the said Ram Piyari.”
10. In fact neither the father nor the mother of the appellant who appeared as witnesses have stated that they had seen the appellant and Ram Piyari together except in the temple in the circumstances, I have been taken through the entire oral and documentary evidence on record.
11. The main allegation of the appellant in the petition is that the respondent made frivolous charges against the character of the appellant by alleging that he was having illicit relations with Ram Piyari Bhardwaj, the Staff Nurse, Lady Harding Hospital New Delhi, which allegation, according to the appellant was totally false and baseless. It is not necessary to discuss the oral evidence on this aspect because it stands admitted in the written statement as also in the statement on oath by the respondent that she used to chastise the appellant for having illicit relations with Ram Piyari. The respondent has also admitted having reported the matter, in writing, to the Chief Minister of Haryana with copies to all senior officers of the appellant. By now it is judicially well recognised that making false and reckless allegation on the character of the spouse so as to injure his her reputation amounts to cruelty as envisaged by section 13 of the Hindu Marriage Act, However, if it can be shown that the spouse reasonably believes that the other spouse is committing adultery it may offer him/her a fair and good defence. The burden of proving that the allegations are bona fide or reasonable will necessarily be on the spouse making such allegations. A Division Bench of this Court in Smt. Kanta Gupta v. Shri Mukesh Kumar Gupta, FAO (OS) 124 of 1984, while upholding, my judgment observed that making reckless allegations of immorality against the other spouse amounts to mental cruelty. A learned Single Judge’ of this Court in Smt. Lajwanti Chandiok v. Shri O.N. Chandiok, II (1981) DMC 97, held that defamatory complaints to the employer or other authorities constitute worse type of cruelty. The crucial date for determining whether the allegations, made by the respondent, have any basis in September, 1972, According to the case of the respondent in the written statement, the father and the mother of the appellant brought the respondent to the residence of the appellant at Delhi in September 1977. They were shocked to see that the said Miss Ram Piyari was present there in the home with the appellant. The father of the appellant, finding his position embarrassing in the eyes of the respondent, felt offended and rebuked the appellant for his conduct. When the environment became so tense the appellant was left with no option but to tell the said Miss Ram Piyari to leave the house. She left the house and the respondent started living with the appellant there. In the evidence the said father of the appellant deposed as RW 2 that he came to Delhi in October 1977 along with his wife, the respondent and the parties’ daughter. At that time, the appellant was not at home and he found Ram Piyari in the house. He further stated that he does not know as to when the appellant returned and after waiting for some time, he left the place leaving the other members in the house. On his enquiry from Ram Piyari as to why she was living there, she replied that she would stay there. He further deposed that he had not met the appellant from 1977 to 1979. In cross-examination, he stated that he never had any talk at any time with Ram Piyari. The respondent appearing as RW 3 deposed that she was brought to Delhi by her father-in-law and mother-in-law. At that time, the appellant was not at home but Nurse Ram Piyari was present there. On seeing the said Ram Piyari her father-in-law became angry and inquired from Ram Piyari as to what she was doing ? She replied “Agar Main Yahan Par Rah Rahi Hoon to Tera Kiya Le Rahi Hoon ?” Thereafter her father-in-law left the house saying that he will come back after two or three days and will take over the matter with the appellant. The mother of the appellant appeared as RW 4. She deposed that about 6 to 7 years ago, daughter had come to Delhi at the house of the appellant but the appellant was not there. One Nurse namely Ram Piyari met them. Her husband after leaving them there, left for Faridabad. She asked the said Ram Piyari as to why she was living there, but she replied that she would live with the appellant and that the house belonged to her. When they were quarrelling, the appellant also came there and Ram Piyari left from there. From this evidence, it is clear that a different version has been given by all the three witnesses and is contrary to the version given in the written statement. This being the first incident of its type, it is unimaginable that the respondent or the other witnesses would forget the same and give a different version. It only shows that it is a made up story and has no basis.
12. The respondent deposed that when she arrived at Delhi along with the parents of the appellant, the appellant was not available in the house and the father of the appellant met him in his office where he was insulted by the appellant. As against that, the father of the appellant has deposed that he never met the appellant from 1977 to 1979, and he does not mention any occasion when he met the appellant in his office. It is an admitted fact as it has been categorically admitted that the relations between the appellant and his father are strained since 1976. The father of the appellant has also admitted that the appellant completed his engineering course in June, 1971 while he stopped financing him from June 1969. The appellant was admittedly studying engineering course, at Delhi and was living in a hostel. The case of the appellant as also of Smt. Ram Piyari is that the appellant wanted to give up studies as he had no source for getting the finance and at that point of time, it is Ram Piyari who came to his rescue and started financing him to the tune of more than Rs. 100/- per month. There is no suggestion that the appellant had any other source of getting money to continue with his studies besides Rs. 75/- per month which he was getting as scholarship. The case of the appellant is that Ram Piyari was like his sister and was tying rakhi and performing Bhaya Dooj. This fact is proved from a photograph Ex. PW 2/P1 wherein Ram Piyari is seen tying rakhi on the wrist of the appellant. Ram Piyari as also the appellant have been identified by the father of the appellant in the said photograph Looking at the said photograph, leaves no manner of doubt that the photograph was taken at a time when the appellant was around 17 to 18 years of age. Ram Piyari is again admittedly about 10 years older to the appellant. Besides this, photograph, the respondent has also admitted in her statement that at one occasion rakhi was received from Ram Piyari and she, in turn, had sent money to Ram Piyari. She also admitted that she was treating Ram Piyari all along as a sister of the appellant and the appellant used to address Ram Piyari as a sister. Later she turned round and said that the appellant used to call her as a sister because she was a Nurse. Ex. DX/1 is a letter dated 4-9-1970 written by the respondent to Ram Piyari. The letter is full of affections and she has been addressed as Didi. This letter stands admitted by the respondent. According to the appellant, Ram Piyari is related to the appellant through his Bua whose name is Smt. Mewa. The father of the appellant comes out with a story in his statement that Ram Piyari is not at all related to the appellant and he came to know Ram Piyari only since 1976 when he had gone to Hissar and not before that. However, in cross-examination, he deposed that Ram Piyari has one brother Satya Narayan and he came to know the said Satya Narain after he came to know Ram Piyari. Further in cross-examination, he deposed “Chintu Ram is my sister’s husband, Moji Ram is not his brother. Parentage of : Chintu Ram is Nathwa. I do not know if his grand father’s name is Badle. This is however correct that Ram Piyari is the daughter of Moji Ram whose parentage is Nawal. Nawal and Nathwa were not real brothers, none of them alive. “It is surprising that he knows the entire pedigtetable of Ram Piyari and still invent, a story that he came to know Ram Piyari only in 1976 and she has no relationship with them. The attitude of the father of the appellant is clear from another circumstance also. He stated that in June 1976 he had gone to Hissar where the appellant was posted He went to his office and on his request a peon was deputed by the office to take him to the private house where the appellant was living. He met the landlady there and inquired about the appellant from her. He was told by the said landlady that the appellant had gone to see off his wife. He was shocked to hear as the appellant’s wife was living with him at Daulatabad. He waited for about two hours but the appellant did not come back. He was told by the landlady that the name of the appellant’s wife was Ram Piyari who had black complexion and she used to come and stay with the appellant for two to four days every month. He was also told that the appellant used to describe the said Ram Piyari as his wife. This statement of the appellant’s father is obviously false as is clear from the admitted letter of the appellant Ex. R 16 written to his brother at Daulatabad. Soon after the visit of the appellant’s father, the appellant had written to his brother that it was not possible or him to go to his in-laws to bring back his wife for which purpose his father had come to Hissar. He further stated in that letter that there was no occasion at that time for his wife to come to Hissar as he was under orders of transfer. The letter shows that the respondent during those days was living with her parents and not with the parents of the appellant. The case of the respondent as also of the appellant’s father is that at that point of time, the respondent was living at Daulatabad with the parents of the appellant. The respondent has also not produced the said landlady to corroborate the statement of the father of the appellant. This letter, which has been produced by the respondent and is written by the appellant immediately after the visit of the appellant s father to Hissar mentions the message which the appellant’s father had left with the landlady. It is stated that the appellant’s father had gone to fetch the respondent from her parents’ house but she refused to come and wanted the appellant to go to her parent’s house and bring her from there. Thus the story of the appellant’s father regarding the message be left and the talk he had with the landlady is clearly false.
13. Though the appellant’s mother appearing as RW 4 deposed that she had seen Ram Piyari in the house of the appellant when she went to Delhi along with her husband and the respondent but in cross-examination, she stated that about 7 to 8 years ago her husband had come to know about Ram Piyari when he had visited Hissar and for the first time she had seen Ram Piyari at Dadupur. Admittedly the appellant had gone to Dadupur from Delhi after his transfer and as such this statement would show that she had seen nothing in the house of the appellant at Delhi.
14. The learned trial judge has rejected the statement of Ram Piyari only on the ground that the letters Ex. R. 14 and Ex. 17 written by the appellant to the respondent, show a soft corner for Ram Piyari and as such she is an interested witness. These letters have been used against the appellant A careful reading of these two letters would show the pious relationship which the appellant has with Ram Piyari. In letter Ex. 14 the appellant has written to the respondent that she should reply the letters of Ram Piyari at her hostel address. In letter Ex. P 17 the appellant has stated that if he can depend on any person it is his sister Ram Piyari as the respondent does not care for him. He has further written that it is possible to have a second wife but it is not possible to have a second loving sister like Ram Piyari. He has further expressed his hope that the respondent would care form Ram Piyari whom the appellant loves so much. In case the appellant had any illicit relations, as alleged, with the said Ram Piyari he would not have written all these letters to his wife and requested his wife to keep up the correspondence with Ram Piyari. The tenur of the letters only indicates the love of a brother for the sister and nothing more. The learned trial Judge has again relied upon photograph Ex. R. 3 to Ex. R. 11 and has stated that in all these photographs the appellant and Ram Piyari are sitting side by side in front of Taj Mahal, Agra. I have seen the photographs and I find that this observations of the learned trial Judge is entirely incorrect. It is only in two photographs that they are sitting together in front of Taj Mahal and in none of the other photographs they are seen together Ram Piyari as also the appellant have stated that a group of about 30 persons had gone to visit Agra by a chartered bus and this statement is corroborated by the photograps wherein the group is also seen. On a careful consideration of the entire evidence, on record, the only possible conclusion is that the relationship between the appellant and Ram Piyari is that of a brother and sister and the allegations of the respondent and her father-in-law are nothing but malicious. According to the appellant, the said Ram Piyari and her brother and attended the wedding of the appellant also. Initially the father of the appellant denied this fact and when he was confronted with the photographs, he insisted that Ram Piyari is not to be seen in the said photograph. Later when she was identified, the father of the appellant said that his eye sight was weak and he could not recognize. The trial judge has recorded a note in the order sheet wherein Ram Piyari has been identified in the photographs which were taken at the marriage ceremony of the appellant. It is obvious that the appellant’s father has acted as a villain of the peace and in entirely responsible for breaking the marriage of the parties for reasons best known to him.
15. Coming to the next alleged cruelty, it is stated that the appellant was beaten by the brothers of the respondent in the temple at the instance of the respondent. The appellant in his statement stated that on 25-2-1979 on the day of Maha Shivratri, he was offering prayers in the temple at 9.00 p.m. The three brothers of the respondent namely Munna Ram, Day a Ram and Ram Charan went there with four or five persons unknown to him. Munna Ram gave a lathi blow specifically hitting near the left eye brow. All other persons had lathis with them and they also gave lathi injuries at his left thigh and the respondent fully knew that on Maha Shivratri he must be in that temple to offer prayer to Lord Shiva. On getting the lathi blows he raised hue and cry and on hearing that, many people including the Priest Baba Lakhi Nath assembled there and he was rescued. Baba Lakhi Nath, the Priest of the temple has appeared as PW 3. He completely corroborated the statement of the appellant and also identified the three brothers of the respondent who were present in Court. Though the names of these three brothers were mentioned in the petition as also in the statement of the appellant yet only Munna Ram has been produced in spite of the fact that admittedly the other brothers were attending the Court and at least one of them was stationed in Delhi. The incident of Maha Shivratri night stands admitted but the version of the respondent is entirely different. According to her, it was the appellant’s father who had gone to the temple on that night. He saw the appellant and Ram Piyari together in the lawns of the temple. He scolded the appellant. The appellant insulted him and therefore he gave slaps to the appellant, To the same effect is the statement of the father of the appellant, He stated that he had seen the appellant and Ram Piyari on the back side of the temple holding hands of each other. It is surprising that the father of the appellant who, according to him, had gone to perform the Pooja, would go on the back side of the temple and search for the appellant while according to him, he did not know that the appellant was in that temple. The case of the appellant on this aspect is further corroborated by the complaint the names of the brothers of the respondent was a party to this incident since there is no evidence to connect her except the statement of the appellant. All the same the brothers of the respondent would not resort to such a course of action unless they have encouragement from the respondent. The change of stand taken by the respondent also goes to show that she had the knowledge of the incident and in spite of that she tried to support her brothers and not the appellant.
16. The other acts of cruelties alleged, were not pressed by the counsel, for the appellant.
17. The respondent in paragraphs 7 and 8 of her written statement alleged that the appellant was greedy and was insisting the respondent to bring more money from her parents and used to taunt the respondent that she had not brought adequate dowry in the marriage. This allegation of the respondent, has neither been supported by her in her statement nor by anybody witness. In my opinion, the allegation is baseless and does not require any notice.
18. As I have already said above that the allegation of the respondent regarding the illicit connections of the appellant with Ram Piyari were baseless and malicious. The appellant was justified in not condoning the same, particularly, when the respondent had gone to the extent of making these false allegations to the Cbief Minister of Haryana with copies to all his superior officers in order to spoil his reputation in the field where he was working. In the circumstances, there is no escape from holding that these acts of the respondent amount to cruelty as envisaged by section 13 of the Hindu Marriage Act.
19. As regards the issue of desertion, the learned trial Judge has decided the same against the appellant only on the ground that the respondent-wife admittedly continued to stay in the matrimonial house and it is the appellant who left the said house and as such the wife cannot be held to guilty of desertion. I am afraid this approach is unsound in law. The physical act of departure by one spouse from the matrimonial home does not necessarily make that spouse the deserting spouse. However, the spouse which seeks dissolution of marriage, on the ground of desertion, must allege and prove that the desertion was without sufficient cause and was with an objection of bringing the cohabitation to an end. In the present case, it is the appellant who left the matrimonial home. He is the person who is seeking dissolution of marriage on the ground of desertion. It is for him to allege and prove that there was sufficient cause for him to leave the house on such circumstances had been created by the respondent which compelled him to leave the house and he had no intention to bring cohabitation permanently to an end. Desertion is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave home, it may be that the spouse, responsible for driving out, is guilty of desertion. It is not necessary to refer to various authorities dealing with this doctrine which is known as the doctrine of constructive desertion. It is enough to reproduce a paragraph from Rayden on Divorce XI Edition which is based on various decided cases. Paragraph 56 at page 229 is to the following effect.
“Desertion is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave home, it may be that the spouse responsible for the driving out is guilty of desertion. There is substantial difference between the case of a man who intends to cease cohabitation and leaves his wife ; and the case of a man who, with the same intention compels his wife by his conduct to leave him or, to put it another way, the case of one who persists in treating his wife in a way which he knows she probably will not tolerate and which no ordinary woman would tolerate and she leaves him. This is the doctrine of constructive desertion. Conduct by the respondent amounting to constructive desertion will, in the nature of things be behaviour in such a way that the petitioner cannot reasonably be expected to live with the respondent.”
20. Applying the aforesaid doctrine of constructive desertion and considering the facts of cruelty which have been found by me to have been committed by the respondent, I am of the opinion that the appellant could not reasonably be expected to live with the respondent in the circumstances created by the respondent. Therefore, the respondent has to be held guilty of desertion also.
21. For the reasons recorded above, the appeal is allowed, and the marriage between the parties, is dissolved by a decree of divorce.
In the circumstances, there will be no order as to costs.
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