Judgment:
G.R. Majithia, J.
1. The husband aggrieved against the order of the Matrimonial Court dismissing his petition for dissolving his marriage with his wife by a decree of divorce has come up in appeal under Section 28 of the Hindu Marriage Act.
2. The facts unfolded in the petition briefly are :
The marriage of the parties was solemnised on November 23, 1983;that out of the wed-lock a daughter namely, Renu was born on December 8, 1985; (hat the wife grumbled over the low standard of living of the husband's family; that the wife's behaviour towards the petitioner and his family members was insultive and abusive and she used to insult the husband in the presence of his friends whenever she was asked to prepare tea for them; that she always used to threaten to commit suicide in order to give mental torture to the husband; that the wife would leave the house of the husband 3-4 times in a month without his or his family members' permission; that on December 18, 1986, when the husband had gone to the parental house of the wife to bring her back, he was abused, insulted and man-handled by her brother in the presence of Master Lachhman Singh, who had gone with him to persuade her to return to the matrimonial home; that the wife consumed acid in the month of January, 1987 in order to give mental torture to the husband and she was taken to hospital for treatment and she remained under treatment for 4-5 months and was operated upon twice and she caused mental cruelty to the husband; that the parties came to Rohtak in July, 1988; the wife under the pretext that she wanted to see her ailing mother took all her jewellery and went to her mother's house and on request by the husband, she refused to return to the matrimonial home; that the wife threw away the daughter, the husband brought her back to her parents' house; .that the conduct of the wife caused mental cruelty to the husband and she had deserted her husband since July, 1988 and that she also filed an application under Section 125 of the Code of Criminal Procedure.
3. The wife denied the allegations made in the petition. She admitted that she was suffering from minor ailment in January, 1987 and she was treated for that and that she had been consuming medicines brought by her husband; that she was treated in the hospital of the husband's choice for a few weeks. She denied that she had taken the valuables from the husband's house and to the contrary, pleaded that all the ornaments, istri-dhan and other valuables belonging to her were in the custody of the husband; (hat the husband was employed as Assistant Station Master in the Indian Railways and the wife was a daughter of a widow with very limited resources and her mother could not give valuable gifts to the husband as per their standard and he was annoyed on that account.
4. On the pleadings of the parties, the following issues were framed :-
1. Whether the petitioner is entitled to dissolution of the marriage by a decree of divorce on the grounds of cruelty and desertion, as alleged OPP
2. Whether the petition is not maintainable OPR
3. Relief.
5. Issue No. I was decided against the husband and issue No. 2 was decided against the wife being not present and the petition was dismissed.
6. Learned counsel for .the husband submitted that the wife attempted to commit suicide and this conduct of her caused mental agony to (he husband. Her conduct in the presence of husband's friend' was insultive and abusive and the husband felt slighted. The learned counsel relied upon the statement of PW-1 Dr. Mobile Jayant Damodar in support of his submission that the wife had attempted to commit suicide. PW 1 Dr. Damodar deposited on the basis of the summoned record that the wife was admitted in K.R.M. Hospital, Bombay on February 5, |987 and was discharged on March 9, 1987. According to him, she had a history of having consumed hydrochloric acid resulting in persistent vomitting. On examination, it was found that because of the consumption of acid, her ges-tro had narrowed down due to corrosive burns and she was vomitting for that reason. She was also found having four months' old pregnancy. The pregnancy was terminated because she was to undergo major operation. The abortion was done on February 10, 1987. Since her food passage was totally narrowed down, surgery was under taken on February 13, 1987. She was again operated upon on February 25, 1987. Thereafter, she fully recovered. The wife was again admitted in the hospital on May 14, 1987 and discharged on May 23, 1987 since she complained of connected problems relating to previous surgery. During her second admission in the hospital, she had given the history with regard to having consumed acid for the purpose of committing suicide and she was referred to Psychiatry Department, as it was noticed that her behaviour was abnormal. The doctor had admitted that it was not mentioned in the records that she had taken acid for committing suicide. In cross-examination, he also admitted that there was no writing from the wife that she had consumed hydrochloric acid for committing suicide. The doctor only drew inference that the wife attempted to commit suicide, although there was no basis for that inference. The evidence of PW-1 does not support the case of the husband that the wife attempted to commit suicide. Consumption of hydrochloric acid may be accidental. The husband appeared as PW-3 and deposed that on January 3, 1987, the wife consumed acid early in the morning and she started vomitting. She was treated by a doctor at Kasara and thereafter, she was taken to K.E M.-hospital, Bombay for treatment. He does not say that hydrochloric acid was consumed by her with a view to bring her life to an end. The medical evidence read in conjunction with husband's evidence does not suggest that the wife had tendency towards .suicide. To the contrary, it probablises that the wife accidentally took acid and for that she was treated in the hospital. There was problem during her first surgery and she was operated upon again in May, 1987 and on both the occasions, she was co-operative with the doctors.
7. The other allegation that the behaviour of the wife was unbecoming of a good wife and (hat she used abusive and insultive language for the husband in the presence of his friends, has to be rejected for want of particulars. No details of such insultive behaviour have been given in the petition by the husband. The husband appeared as his own witness at the trial as PW-3 and he did not furnish the details of the misbehaviour of the wife. According to the husband, the wife refused to prepare tea for his friends and she used abusive language when asked to do so. The name of the friends and the dates on which the incidents took place have not been disclosed either in the petition or in evidence. This part of the evidence appears to be an innovation and does not commend itself and deserves to be rejected.
8. The story that (he wife's brother maltreated the husband when he had gone to the wife's parents' house to fetch her is spurious.
9. The last ground that the wife bad deserted the husband and he is entitled to a decree for divorce on this ground also is equally substance-less. No attempt has been made to define 'desertion' by the legislature. The desertion in its essence means the intentional permanent forsaking and abandonment of one spouse by (be other without that other's consent and without reasonable cause. The essence of desertion, as judicially understood, is a total repudiation of the obligation of marriage or an abandonment of the deserted spouse with an intention to bring the cohabitation permanently to an end. (Sec Lachhman Uttam Chand Kirpalani v. Meena, AIR 1964 Supreme Court, 40). Mere physical separation between the spouses or mere intention of one to separate from the other without any overt act would not by itself amount to desertion. Under the matrimonial law desertion is not only a physical act but also involves essentially a mental act. Two important elements are essential to constitute desertion viz., firstly, the fact of separation and secondly the intention to bring cohabitation to an end permanently (animus deserendi). The evidence brought on record does not suggest that the wife left the matrimonial home to bring cohabitation to an end permanently. Before granting a relief on the ground of desertion. Matrimonial Court has to be satisfied that the matrimonial offence complained of is established. The spouse complaining of matrimonial offence of desertion must prove it beyond all reasonable doubts. The husband has failed to discharge the onus. To (he contrary, it appears that the instant petition for divorce was filed on December 12, 1989 after the wife bad filed a petition under Section 125 of the Criminal Procedure Code, dated December 6, 1988 against (be husband. It was registered as Case No. 3/4 of 1989 (3-1-1989), Exhibit RZ/1. The husband was served for May 11, 1989 and he sought adjournment to June 12, 1989, for filing written statement as is evidenced by Exhibit RY and Exhibit RZ. The petition for divorce appears to be a counter-blast to the petition for maintenance under Section 125 of the Code of Criminal Procedure. The wife has given the details of woes in the petition under Section 125 of the Code of Criminal Procedure and it was not brought to my notice whether the petition has been finally adjudicated upon or not. Be that as it may, one fact is apparent that the petition for divorce was filed after the wife had moved the Criminal Court for fixation of maintenance. This fact per-se discredited the husband's version of desertion. The husband has failed to establish any of the matrimonial offences. The order under challenge calls for no interference.
10. For the reasons stated above, the appeal fails and is dismissed, but with no order as to costs.