Full Judgment
P.P. Naolekar, J.
1. The parties to the proceedings were married according to Hindu rites in the month of February, 1985 at village Parichhat Hanota, Tahsil and District Sagar. The appellant/defendant lived with the respondent/plaintiff in his house till June 1985. The husband/respondent filed a petition, under Section 13(l)(ia)and 13(l)(ib) of the Hindu Marriage Act, 1955 on the allegations that the appellant/wife left her place of residence in the month of June,' 1985 and inspite of his best efforts to call her back the appellants/wife refused to come back to the respondent's house and the appellant/wife is not discharging her marital functions and, therefore, that tantamounts to a cruelty.
2. The defence, it is the case of the appellant/wife that she got pregnant and when she was pregnant, she was illitreated by the respondent/husband and driven her out of the house and since then she was forced to live with her brothers and the respondent/husband in spite of the birth of a child has not visited her. Thus, the respondent/husband himself has deserved the appellant/wife and, therefore, he in not entitled to a decree of divorce.
3. Under Section 13(l)(ia) of the Hindu Marriage Act, 1955 the plaintiff is entitled to a divorce if after the marriage, if the plaintiff has been treated with cruelly, or. under Section 12(l)(ib) has deserted the plaintiff for a continuous period of not less than two years immediately proceeding the presentation of the petition. In the present case, the petition for divorce was presented in the Civil Court on 2-12-1987 and, therefore, it would be necessary to see whether there was a desertion two years prior to the presentation of the petition, i.e. 2-12-1987, in Bipin Chander v. Prabhawati, (l956) SCR 838 principles have been laid down for she offence of desertion as under :
'So far as the deserting spouse is concerned, two essential conditions must be there, namely, (i) the factual of separation, and (ii) the intrusion to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned : (i) the absence of consent, and (ii) absence of conduct giving reasonable cause to (he spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period.'
4. The plaintiff/respondent has examined himself as P. W. 1 and has stated that after the marriage the appellant/defendant came to his place of residence 2-3 times only and left the plaintiff's house in June 1985 and thereafter she never returned back to his house, although he went two times So call her back and the appellant/defendant specifically refused to go with him. It is further stated that he has kept the appellant nicely, he has never demanded any dowry, nor his given any illtreatment to her. In the cross examination also he has reiterated that the appellant/defendant refused to go with him Nothing has been brought about by the defence in the cross-examination of this witness. Another witness examined by the respondent/plaintiff is Jagdish Prasad Soni who has stated that when he asked the appellant/wife as to why she does not want to live with her husband she replied that she does not wish to live with him and that from June 1985 till date of evidence they arc not living together. In the cross-examination of this witness nothing has been brought about to prove that the statement of this witness is not reliable. It would be pertinent to note that the appellant/defendant had not entered the witness-box to contradict the facts stated by the respondent/husband in his evidence nor to support her case.
5. It is established now on the basis of the statements recorded that the appellant/wife had left the house of her husband with the intention of bringing the cohabitation to an end permanently more than two years prior to the presentation of the petition, as is clear from her refusal to go and life with her husband when her husband went to fetch her back. There is evidence on record to show that the appellant/wife left the house of her husband not on account of the cruel treatment given to her or that she went with the consent of her husband. On the perusal of the entire evidence it is established that the appellant/wife and not the plaintiff/respondent has deserted thereby making a ground under Section 13(l)(ib) of the Hindu Marriage Act. The learned trial Judge has decreed the suit of the plaintiff/respondent on this ground I do not find any irregularity or illegality committed by the trial Court in granting a decree of divorce.
6. As a result thereof, this appeal fails and is dismissed with costs Counsel's fee according to schedule, if certified.