Judgment:
A.A. Desai, J.
1. The appellant-husband has questioned the correctness and legality of the judgment and decree passed by the trial Court refusingsto grant him a decree of divorce on the ground of desertion and cruelty.
2. The marriage between the parties took place on 17th February1975. As per the case made out the respondent wife left the matrimonialhouse and went to reside with her parents on or about 15th July 1975. Thepetitioner-appellant therefore presented a petition under Section 13 of theHindu Marriage Act, on 27th July 1981 claiming relief of divorce on thegrounds of desertion and cruelty. The trial Court framed the necessaryissues i.e. nos. 2 and 3 and reached to a conclusion that the petitioner failed toprove both the grounds and therefore dismissed the petition by the orderimpugned before me.
3. Heard Shri Govilkar at length. According to him the wifevoluntarily, without the consent or permission, withdrew from the companyof the petitioner husband. It was mental design and with determination shewithdrew and as such it amounts to desertion and the petitioner is entitle to arelief of decree of divorce on that ground.
4. With the assistance of the learned Counsel, I have gone throughthe pleadings as made in the petition. In para 3 of the petition he alleged thatthere were bickering and quarrels with the respondent and the aunt of thepetitioner. He averred in para 3 that 'In the circumstances, the petitionersuggested that .the respondent should go and reside with the petitioner's parentsbut the respondent refused to do so point blank and instead without thepetitioner's consent and against his wishes, on 15th July 1975 the respondenttook all the ornaments and clothes and certain other articles and inspite of thepetitioner's protests went away to reside with her parents B.D.D. Chawl No.10, Sewree, Bombay 15'. This averment candidly suggestive that the petitioner himself consented for withdrawal of the company by wife under thecircumstances then prevailing in the home. Only grievance that could be madethat instead of going to the house of the petitioner's parents as suggested, shewent to reside with her parents. This does not amount to desertion as wilful acton the part of the respondent-wife. It is then clear from his evidence thathad been to his place after delivery of a child in April 1976. The petitionerin his deposition has categorically admitted this and considered by the trialCourt in para 50 of the impugned judgment. However, the petitionerrefused to take her back and locked the door and went away. This is suggestiveof the desire, willingness and readiness of the wife to co-habit with thehusband. He was not inclined to continue the conjugal rights. As such thepetitioner is not entitle to claim a decree of divorce on the ground of desertion.Besides this the petitioner has not pointed out that after her departure on 15thJuly 1975, he made any attempt to bring her back to her matrimonial home.On 5th March 1976 she was blessed with a daughter. It is his case thatimmediately in April 1976 she had been to his place. As such the ground ofdesertion is totally devoid of substance. It is further tried to urge by Mr.Govilkar that she took forcible possession of the premises which is located in alocality known as Chunabhatti. Her residing in her matrimonial home takenon lease by the petitioner in an area known as Chunabhatti also completelydemolishes his case of desertion. Mr. Govilkar tried to make out a case that hewas forcibly driven out of the house. However, this submission is totallymisconceived. The trial Court was, therefore, justified in rejecting the relief onthe ground of desertion.
5. The next ground for claiming divorce is cruelty. The petitionerhas pleaded this ground in para 3 of the petition, wherein he has stated thatthe respondent-wife used to make reckless and irresponsible allegations quarelationship between the petitioner and his aunt. It is pertinent to note atthis stage that the nature of allegations have not been specifically pleaded. Mr.Govilkar tried to place reliance on the pleadings made by the wife in herwritten statement wherein she has stated that the petitioner had illicit relationswith his aunt. Mr. Govilkar tried to urge that this amounts to cruelty.According to him these allegations are false and baseless. Even accepting theseallegations, the incidents took place prior to July 1975. The instant petitionfor divorce on the ground of cruelty was presented on 27th July 1981. Theincident of allegations has no proximity with the cause on which relief asclaimed is based. According to Mr. Govilkar, she repeated the allegationsand the process was continuous and it continued till July 1981. The submission is without any merit. It is true, in the proceedings for maintenance, shemade an averment for legal requirements. According to her she is entitle tothe maintenance under Section 125 of the Criminal Procedure Code as shecould not reside with the husband since he was having relations with his aunt.Such averment in a subsequent legal proceeding, would not amount to repetition of the allegations. It is only that the respondent wife tried to narratethe circumstances which constrained her to withdraw from the company ofthe husband.
6. Another time of submission on this count is that this being acontinuous affair, it constitute cruelty. However, no such case has been madeout in the petition. Next aspect which tried to be urged by Mr. Govilkar isthat respondent-wife has failed several false and vexatious as also maliciousprosecution against the petitioner. In para 6 he has given the list of cases.Excepting cases at Sri. Nos. 1, 2 and 7 all other cases have been filed by thepetitioner himself. This prosecution could not, in any manner constitute acruelty on the part of the respondent-wife. Respondent-wife filed cases atSri. Nos. 1 and 2. They are proceedings for maintenance under Section 125.As such it does not amount to cruelty, while making a claim for maintenanceagainst the husband. The prosecution at Srl. No. 7, according to the learnedCounsel, pertains to a charge of theft against the husband. It is urged by Mr.Govilkar that he was charged by wife for theft of articles owned by him. Mr.Govilkar made a submission that this charge came to be made when he wasremoving certain articles from the matrimonial home. According to him, thepetitioner was the owner of the articles and as such making such chargeamounts to malicious prosecution which constitute cruelty. A husband removing household articles from the matrimonial home, even if an owner of the property, was wholly without justification. In that eventuality if respondent-wifewas constrained to file prosecution it does not amount to cause harassment orpractices mental cruelty on him.
7. The petitioner failed to substantiate the plea of cruelty also.Hence the appeal is without any merit.
The appeal is, therefore, dismissed, with no order as to costs.