Judgment:
R.D. Shukla, J.
1. This appeal is directed against the judgment and decree dated 14-3-91 of the Additional District Judge, Barwani passed in Civil Case No. 15-A/89 whereby the respondent-husband has been granted a decree of divorce on the ground of desertion.
2. In brief the undisputed facts of the case are that the husband filed a petition on 21-S-87 with the assertions that the petitioner and respondent were married on 7-5-71. There was consummation of marriage. Both of them lived together for some time. However, they developed relations as such respondent (appellant here) filed an application under Section 125 of the Code of Criminal Procedure for maintenance. There was a compromise between the parties. Thereafter, both of them lived together at Kasarawad and Bediya. The last place where they lived together was Bediya-where the husband-petitioner is working as a teacher. There was exchange of notice between the panics. In the reply of the notice appellant-wife offered to live-with her husband (petitioner). Thereafter a notice was sent by the petitioner husband that he would come alongwith the relations for taking her to his house. On receiving (hit notice the appellant-wife refused to go alongwith the husband and made an allegation that he is having adulterous relation with Harkunwar Bai and in demanding dowry.
3. After this, the present petition was filed by the husband with the assertions that she has deserted him for no congent reasons and despite the best efforts of the petitioner she refused to live with him, and it is not possible for them to live together and, therefore, a decree of divorce was sought on the ground of desertion under Section 13 of the Hindu Marriage Act.
4. The wife (appellant) denied the allegations' and submitted that she is ready to live with the petitioner and further pleaded that the petitioner is having adulterous relations with one Harkunwarbai and has been illegally demanding dowry (they demanded Motor-cycle, Locket etc. and such other articles).
5. After trial, learned Judge has granted decree of divorce on the ground of desertion. Hence this appeal.
6. In the memo of 'appeal and during the course of arguments following points were raised :
(i) that the wife (appellant) on 5-12-87 during negotiations offered to live with the husband (respondent) during the proceedings of reconciliation but the husband refused to take her back;
(ii) the fact of desertion has not been found proved;
(iii) that the fact of cruelty has also not been found proved.
7. The petititioner-husband - has examined himself and P.W. 2, Shrikrishna Soni and P.W. 3 Basantkumar Malviya, both resident of Bediya, P.W. 4 Bhagirath, his own brother and P.W. 5 Mohan resident of Compels in support of his contention. Appellant wife has examined herself and her brother Chandrashekhar in support of her contention.
8. The petitioner has pleaded in paragraph 7 of the petition that the wife (appellant) has deserted him since the Rakhi festival of the year 1976 but the same fact has not been found proved rather stands contradicted from paras 9 and 10 of his statement. In paragraphs 9 and 10 be has admitted that appellant-wife lived with him in Bediya as well. He has further admitted in para 5 of the statement that he has been posted in Bediya since 1978. As against this, Shashikalabai has stated in para 4 of her statement that she lived with her husband for about 11-12 months at Bediya. In the same paragraph she had stated that she went to her husband on 28-6-79 and wanted to live with him but he refused to allow her to live in his house. This goes to show that both of them lived together as husband and wife till June. 1979 and therefore, the contention of the petitioner-husband that his wife (appellant) has deserted him since 1976, docs not appear to be correct and this finding is erroneous.
9. However, the wife (appellant) has refused to live with her husband (respondent). As stated in the notice Ex. D/4 she made an allegation that petitioner-husband is having illicit relations with Harkunwarbai and made further allegation that he is demanding dowry (Motor-cycle and gold-locket etc.).
10. The petitioner has examined Shrikrishna Soni and Basant Malviya to rebut the allegation that the petitioner-husband, is keeping any other woman with him or is keeping adulterous relations with her. Both of them have stated that they have never seen the petitioner (husband) with any other woman. The appellant-wife has made this allegation -. in paragraph 8 of her written-statement but has failed to adduce any evidence (o support this contention. She has admitted during the cross-examination that Harkunwar Bai has gone to Gujarat some-time in the year 1982, This shows that the allegation is false. The other witness examined by the appellant-wife i.e. Chandra Shekhar, her own brother, has also not stated about any adulterous relation with Harkunwarbai or any other woman.
11. The fact of demand of dowry has also not been proved by appellant-wife though she herself and her brother Chandrashekhar stated about it but they are interested witnesses and no independent witness have been examined, to show that there was any demand of dowry. As such this allegation made by the appellant-wife also appears to be false. It is an established principle of law that if any false allegation of leading adulterous life or demand of dowry is made that amounts to cruelty. This fact has been taken into consideration by the learned Trial Judge in paragraph 21 of his judgment. Though the decree had been granted not on the ground of cruelty but on the ground of desertion. It is also true that no issue on the point of cruelty was framed but the parties knew (heir case. They have led the evidence. The petitioner-husband has led evidence in rebuttal. Those witnesses have been cross-examined by the counsel for appellant (wife) and therefore, mere non-framing of issue cannot be taken to be fettered for the case.
12. The offer of appellant-wife during reconciliation before the Trial Judge on 5.12.87, does not appear to be genuine and bona fide as the same was denied by her by notice Ex. D/4 with allegations, referred to above, which amount to cruelty. However, the period of two years has not elapsed. Thereafter before filing the suit as the notice Ex. D/4 was sent on 24-1-87, and the present petition has been filed on 21-8-87, but P.W. 4 Bhagirath, brother of the petitioner has stated that he went to take back the appellant-wife from her father's house but she refused. No other witness has been examined on this point. The father of appellant-wife is dead and, therefore, he could not be produced in' the Court to rebate the allegations. However, Chandrashekhar has denied this fact. Thus, there is oath versus oath i.e. the statement of Bhagirath and Chandrashekhar against each other. The Trial Court has relied on the evidence of Bhagirath and has accepted the fact of going to the house of appellant's father and has further accepted the fact of refusal by the appellant-wife for going to the house of the petitioner-husband. The Trial Court, before whom the witnesses have appeared, has got a better opportunity of judging the veracity and the reliability of the witnesses. The findings of the Trial Court cannot be said to be perverse and, therefore, it would not be proper to disturb the finding on this point. it is, thus, found proved that the appellant-wife refused to go and live with her husband. Though the decree has not been granted on the ground of cruelty but the same has been found proved. But as discussed above, the tact of desertion has also been rightly found proved. In the opinion of this court, therefore, the decree of divorce has rightly been granted.
13. The appeal has, therefore, no force. It is hereby dismissed with no order as to coat.