P.C. Naik, J.
1. Aggrieved with the decree of divorce passed by the Judge, Family Court, Cuttack, on a petition filed by the husband, the wife has preferred this appeal.
2. On 26.5.1992, the respondent-husband filed a petition under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 (in short, 'the Act') for dissolution of his marriage by a decree of divorce. The case of the husband is that the parties were married according to the Hindu rites and customs on 30.6.1989 and ' stayed together as husband and wife for a period of about eleven days whereafter the wife left for Kendrapara to resume her duties as she was serving there. It is averred that in spite of attempts made by him (the husband) as well as through his relatives, the wife refused to cohabit with him accusing him of impotency and inability to maintain her. According to the husband, non-resumption of conjugal relationship with him by the wife and her failure to come to the matrimonial home amounted to desertion and the allegation that he was impotent, caused him acute mental torture and amounted to cruelty and desertion which entitled him to a decree of divorce under Sections 13(1)(ia) and 13(1)(ib) of the Act.
3. In her written statement, the appellant-wife while admitting the marriage, denied the allegations made against her by the husband. It is her case that she lived with the plaintiff (respondent herein) for over two years and after the marriage, she has resigned from her job. She also denies to have cast any aspersion against her husband. On the contrary, it is averred that in November, 1991 her husband left her at her parental home and thereafter did not turn up to take her back even though an emissary was sent for that purpose. It is further alleged that after the marriage, the plaintiff had demanded some money for his family business and as the same was not paid, he started misbehaving with her and indicated that he would marry another lady. It was also alleged that she was threatened and coerced to write certain letters. Thus, according to the wife, the petition was liable to be dismissed.
4. The husband examined himself as P.W. 1 and has stated that after staying for about eleven days, the wife went to join her duties as F.S.I. Co. (P) Ltd., at Kendrapara and though he had on more than one occasion gone to bring her back, she refused to accompany him on the ground that he was impotent and unemployed. Some mediators were also sent for persuading her to join the matrimonial home, but she refused. A number of letters were also sent but to no avail. Reply received from the wife has been exhibited and marked 'X'. He has further stated that the wife has, in fact, deserted him and her refusal to resume matrimonial ties also amounted to cruelty as also desertion. In the cross-examination, he has stated that they had conjugal relationship only for a period of eleven days after the marriage and thereafter, they have not stayed together as husband and wife. He has reiterated that whenever he had gone to Kendrapara to persuade his wife to resume cohabitation, she had refused to do so on the ground that he was impotent and unemployed. He has admitted that in May and June, 1990 he had gone to Kendrapara to persuade his wife to resume cohabitation but to no avail. He has denied the suggestion that till November, 1991 they had stayed together and thereafter he had made no effort to bring her (the wife) back to the matrimonial home. He has also denied the suggestion that he had filed the petition for divorce as he was interested to enter into wedlock with another girl.
5. P.W. 2 - Bijoy Kumar Padhy, who stays in a house adjoining to that of the husband, states that after the marriage the husband and wife stayed together for about ten to eleven days whereafter she went away and has not returned to the matrimonial home, not even to attend the Sudhi ceremony of her father-in-law. It was suggested to him in the cross-examination that he is not a neighbour of the husband and in fact, stays at a distance of five miles from his house, but this has been denied.
6. The wife, respondent witness No. 1, admits that after her marriage she remained in the matrimonial home for about ten to twelve days and then she left for Kendrapara to re-join her duty as her leave was to expire. This, according to her, was with the consent of her husband. She further states that occasionally, her husband used to visit Kendrapara to meet her where she was serving; and that in August, 1989 she had gone to matrimonial home where she stayed for about twelve days and thereafter returned to Kendrapara on which occasion, the husband stayed over-night there at Kendrapara. She goes on to state that her father-in-law and husband had demanded Rs. 30,000/- for their family business and as the demand could not be fulfilled, her husband in October, 1991 left her at her parental home requiring her to arrange the money. She makes a reference to some portion of the letter (marked Ext. A) written by her husband in which there is some reference, according to her, regarding her divorce. She also states that as she had refused to handover her salary to her husband and could not meet the monetary demands made, difference crept up between her and her husband since October, 1991 and though some persons were sent to bring about a compromise, it could not materialise. After 1991, states the wife, neither the husband nor any other person from his side has ever approached her for resuming matrimonial ties. While admitting that she had commented that her husband was unemployed, she denies to have called him impotent. She further states that there was a proposal of marriage of her husband with another girl of his village. In the cross-examination, she admits that she had gone to the matrimonial home in August, 1989 and that thereafter she has never gone there nor was any attempt made to take her there. She also admits to have received the letter dated 27.9.1989 (marked Ext. A) from her husband and that in reply to the said letter of the husband who wanted to divorce her, she had stated that instead of going to Court, he may divorce her by mutual consent. The suggestion that there was no demand for dowry, is denied. She, however, admits that the matter was not reported to any authority. The suggestion that the misunderstanding did not arise in October, 1991 and that it started after she left the matrimonial home after few days of her marriage, is denied. The suggestions that the husband has never visited her at Kendrapara after 1989 and that there has been no resumption of conjugal relationship after she left for Kendrapara, have also been denied.
7. Dolagovinda Sahu - respondent witness No. 2, who was examined on the 20th of July, 1996, states that the parties were married about seven or eight months back in the month of Asadha during the Raja Festival and at that time cash, other Articles and a scooter were given to the groom by way of dowry. He also states that the wife was in service and after staying for a period of ten to fifteen days, she went to resume her duties with the permission of her husband. He further states that the husband was also a teacher in a private school at the time of his marriage and that he continued to be in service thereafter. It is also stated by him that the husband was using to visit Kendrapara and that the wife was also visiting the matrimonial house at times. He goes on to state that the wife had gone to her matrimonial home on leave when a demand for Rs. 30,000/- was made from the husband's side as the money was required for business. As the wife's father expressed his inability to meet the demand, the husband left the wife at her parents house and despite requests made by the wife's father and others, the husband did not agree for any reconciliation. In cross-examination, he admits that he is unable to name the office where the wife is serving nor can he give the address where she is residing, and states that on one occasion he had seen the husband and wife moving about in Kendrapara Bazar. He denies the suggestion that the husband and the wife are living apart after eleven days of their marriage, and states to have seen them staying together in the wife's house. The suggestion that he had never gone to the house of the plaintiff (the husband) and that the wife has, after leaving the matrimonial home, never gone to the matrimonial home to stay there, is denied.
8. Before proceeding further, we may observe that though in her written-statement the wife has stated that she tendered resignation after her marriage and as such was no longer in service, in her evidence as respondent witness No. 1 she admits that after marriage she has gone to Kendrapara to resume her duties. Then again, the stand in her written-statement that after the marriage the husband and the wife lived together for about two years and a half, is given a go-by. In her written-statement she has also averred that her husband had threatened her and at a dagger's point had forced her to write two letters which were subsequently taken away by him, but in her evidence she has not stated so. Her witness, respondent witness No. 2 also admits that after ten or twelve days of the marriage, the wife had gone back to the place where she was serving.
9. After having carefully perused the evidence of the parties and considered the matter from all aspects, we are inclined to accept the evidence adduced by the husband. From the material on record, it is clear that after the marriage, the husband and the wife stayed together only for ten to twelve days whereafter the wife went to resume her duties. Thereafter she has not cared to come back to the matrimonial home. This, she admits in the cross-examination. Not only this, she also did not go during the Sudhi ceremony of her father-in-law. Though she states that there was some misunderstanding between her and her husband as she refused to handover her salary to him, we find ourselves unable to accept the statement for the simple reason that she was staying at Kendrapara all along and that her husband was definitely not in the same town. Had she been left at her parental home by the husband, as she alleges, the best person to have deposed about this would be her father who, however, has not been examined.
10. We are not inclined to place much reliance on the evidence of respondent witness No. 2 for the reason that he had made certain statement which in view of the statement of the wife stands contradicted. For example, though the wife as respondent witness No. 1 states that she has not gone to her matrimonial home after August, 1989, respondent witness No. 2 states that the wife was occasionally going to her matrimonial home.
11. It is no doubt true that after the expiry of the leave, the wife had gone to resume her duty and that fact cannot be termed as an act of desertion by the wife. But, her subsequent conduct in not resuming conjugal relationship with her husband by not going to the matrimonial home or rather avoiding going to the matrimonial home for a number of years though the husband made efforts for cohabitation, clearly establishes the fact of separation and also the intention of the wife to remain separate.
12. We do not find anything on record to indicate that the wife had any cause whatsoever to 'desert the husband'. She may have initially left the matrimonial home with the consent of her husband to resume her duty but her refusal to resume marital obligation and refusing to come to the matrimonial home for years together despite requests of the husband to join him, would, we feel, amount to desertion, because by permitting her to go and resume her duty would not mean that the husband had agreed or permitted her to severs the matrimonial ties or that the wife could treat the permission as one not requiring her either to go to matrimonial home or to resume matrimonial ties. We are, therefore, inclined to accept the statement of the husband that ever since she left the matrimonial home, the wife has neither cared about her matrimonial home nor the matrimonial obligations, and inspite of efforts being made in that regard, she failed to join him at any time. That means, both the elements stand established--not only the factum but also animous. The facts and circumstances, therefore, in our view, clearly establish that the wife is guilty of deserting the husband and that there has been a wilful neglect by the wife, of the husband as also her marital obligations. Thus, to our mind, a case of desertion within the meaning of Section 13(1)(ib) of the Act has been made out.
13. From the. facts which have emerged from the record, there is no escape from the conclusion that the wife is voluntarily depriving her husband of her society and cohabitation for years. The husband, therefore, can definitely be said to be under the strain of wilful separation for years and complete denial of conjugal relationship. This would amount to causing mental cruelty. The husband is in his thirties--the prime of his life--and once he entered into the wedlock, he could naturally like to have conjugal relationship with the wife and in case the latter refuses to cohabit with him for years together, it is bound to cause him both mental and physical torture which, would be covered by the expression 'cruelty' as used in connection with matrimonial matters covered by Section 13(1)(ia) of the Act.
14. The petition for divorce was also opposed on the ground that it was premature, for, according to the wife, the husband and the wife were meeting each other till 1991. It has also been stated by the wife that in September, 1991 her husband had gone to Kendrapara where he stayed overnight However, on a consideration of the other material on record, we are not inclined to accept the statement. It is no doubt true that on more than one occasion the husband had gone to Kendrapara and met the wife, but this was not persuade her to resume conjugal relationship with him by going to her matrimonial home. The fact of the husband going to the town where the wife is serving, with the intention of asking her to resume conjugal relationship with him and to return to her matrimonial home, cannot amount to wiping out the act of desertion of the wife. On the contrary the fact that inspite of the efforts made by the husband, the wife refused to discharge her marital obligations and failed to return to the marital home, would indicate that the wife was not interested in resuming matrimonial ties. This clearly indicates the wife's intention for abandonment of her spouse and further goes to show that the wife had no intention to join the matrimonial home. Therefore, the contention that the petition for divorce under Section 13(1)(ib) of the Act was premature, stands rejected.
15. In view of the aforesaid discussions, the Civil Appeal stands dismissed, but without any order as to costs.
P.K. Mohanty, J.
16. I agree.