J.V. Gupta, Ag. C.J.
1. This is husband's appeal whose petition for divorce on the basis of desertion and cruelty was allowed by the learned Additional District Judge, but dismissed in appeal and consequently, petition for divorce was dismissed.
2. The marriage between the parties took place on February 19, 1973. Out of this wedlock, one daughter was born on June, 10, 1974 and a son was born on October 12, 1975. Earlier, there was a litigation between the parties. They separated finally on March 21, 1980. The petition for divorce was filed alleging that inspite of the best efforts on the part of the husband, the wife did not return to his house. Earlierly. the husband had tiled a petition under Section 9 of the Hindu Marriage Act, (hereinafter called the Act), for restitution of conjugal rights and in view of that application, the wife returned to his house at Kurukshetra. After staying there for four days, she, again left on August 14, 1976, for Delhi. Meanwhile, he got his petition dismissed. He further pleaded that the wife filed the petition under Section 125, Code of Criminal Procedure, in the Court at Delhi, which was ultimately got dismissed by her. She also filed a complaint under Section 494 which was dismissed for default in 1979. Thereafter, he again shifted to Delhi at the instance of his wife in the middle of 1979. However, she started insulting him. At his persuation, she agreed to come to Kurukshetra and to stay with him. On March 21, 1980, she came to Kurukshetra with the children, but she again left his house on March 25, 1980, without any reason and without his consent. Thus, she had deserted him since that date without any sufficient cause; hence he prayed for a decree of divorce in his favour. The said allegations were controverted by her. She pleaded that she was maltreated and turned out of his house in April, 1974 and since then, she had been residing in Delhi. The application under Section 9 of the Act was dismissed on the ground of non-payment of maintenance pendente lite and the litigation expenses. Moreover, the husband had developed illicit relations with one Pushpa and was leading a comfortable life with her. He also filed a complaint against her and her father under Sections 323 and 506, Indian Penal Code, which was dismissed on September 10, 1979. She also pleaded that in the complaint under Section 494, Indian Penal Code, the husband promised that he would not keep the said Pushpa with him and stay at Delhi with her. Thereafter, he lived with her at Delhi up to March 22, 1980, and then deserted her without any reasonable excuse. . His another petition under Section 9 of the Act, was also dismissed on October 29, 1981, on account of non-payment of litigation expenses. The learned Additional District Judge came to the conclusion-
'In my opinion, the insistence on the part of the respondent that the petitioner should come and live with her at Delhi and then and only then, she would live with him, as his wife, would not only amount to desertion by her, without any reasonable excuse, but, in my opinion, would also amount to mental cruelty, on which ground as well, the petitioner is entitled to a decree of divorce, against the 'respondent.'
3. In appeal, efforts for reconciliation were made by the learned Single Judge. As a result, the wife agreed to go to her husband on May 15, 1984, and the case was adjourned to May 25, 1984, in order to find out whether they started living together or not. However, according to the allegations made by the wife, she was turned out of the house on June 30, 1984, by the husband by giving her beating. She also stated that she cohabited with her husband during her stay with him. However, the affidavit filed by the wife in this behalf was controverted by the husband. The learned Single Judge after going through the entire evidence and commenting upon the statement of the husband, came to the conclusion-
'The answers to the questions in cross-examination go a long way to show that he was concealing the true facts. The version given by the wife appears to be truthful. His version is further falsified from the fact that he admitted in cross-examination that he had not brought his luggage from Delhi as he feared that his father-in-law did not permit him to shift to Kurukshetra. In case ' he had returned to Kurukshetra with the wife and children, he would not have left his luggage at Delhi.'
Ultimately, it was concluded that after going through both the statements and taking into consideration the circumstances, the version given by the wife appears to be correct. Consequently, it could not be said that she deserted the husband on March 25, 1980, as alleged by him. On the other hand, she had been deserted by the husband and he did not care even to maintain her in terms of the compromise between them. He even did not provide any maintenance to the children. As regards the allegations made by the wife after the reconciliation proceedings before the learned Single Judge, it was found-
'The story of the husband appears to be without any foundation. The story of the wife is also supported by the prescription of the lady doctor. There are no grounds to disbelieve the affidavit of the wife and the prescription of the doctor. Therefore, I am of the opinion that the incident took place on 29th and 30th June, 1984, as depicted by the wife and no fault can be found out with her conduct.' As a result of these findings, the divorce petition was dismissed.
4. Efforts for re-conciliation were also made in this Court, but nothing fruitful came out of it.
5. The learned counsel for the appellant submitted that once the offence as regards desertion is proved then subsequent events were not relevant and relief could be granted on the allegations made in the petition. He further submitted that after the amendment in the Hindu Marriage Act, the burden of proof of desertion is on the spouse who deserts and, therefore, the view taken by the learned Single Judge in this behalf was wrong. Moreover, argued the learned counsel, the wife never took the relations of her husband with the lady named Pushpa seriously and, therefore, that was of no consequence to decide the petition for divorce. It was also contended that even if it be assumed that there was a second marriage by the husband, the same was condoned and, therefore, the consideration of the same was irrelevant.
6. After hearing the learned counsel for the appellant, we do not find any merit in this appeal.
7. It is the conduct of the husband which speaks for itself. His relations with the lady named Pushpa are not denied. In spite of that she expressed her desire to live with him. Not only that, before the learned Single Judge, she went to her husband's home to live with him, but she was maltreated and turned out of the house. Once she had joined the matrimonial home during the pendency of the appeal before the learned Single Judge, the earlier allegations of desertion, if any, were no more available to the husband. From the facts and circumstances of the case, it is quite evident that the fault is that of the husband who has deserted his wife and that being so, he is not entitled to the decree of divorce as claimed.
8. Consequently, the appeal fails and is dismissed with costs.