Judgment:
Mahinder Narain, J.
(1) This is a husband's appeal against the orders of the Additional District Judge, Delhi, dated 11th July, 1984. The Additional District Judge had refused to grant a decree of divorce under Section 13(l)(ib) to the husband.
(2) It is the case of the petitioner husband, the appellant before me, that the parties were married on 20th February 1977, and a daughter has born to the parties on 24th January, 1978.
(3) It is the case of the husband that the respondent wife wanted to live separately from the parents of the husband, that he gave into the desire of the wife and a separate accommodation, a rented house, was taken at B-3/49, Safdarjang Enclave. New Delhi. In this house the younger brother of the petitioner. Din Dayal, also resided with the parties to the marriage.
(4) It is the care of the husband that the wife used to make demands on the husband that he give financial assistance to her parents, i.e. the mother and father, five other sisters and three brothers of the respondent. It is the husband's case that he works in his father's cloth shop at Sarojini Market and the wife's father used to have a shop, in which he used to make and sell tea, at Sri Niwaspuri, New Delhi.
(5) It is the husband's case that the wife left home on the 9th of November, 1978. This wag because on that day, early in the morning, information was received at husband's house, where the wife was also residing, that the wife's father had died. It is the further case of the husband that the wife never returned from her father's house where her brothers continued to live, after the demise of the father.
(6) It is the husband's case that he sent a notice through his lawyer dated 26th December, 1978 to the respondent wife that she should come back and perform conjugal duties within seven days of the receipt of that notice. This notice, which is Ex. P-l was admittedly not replied to by the wife.
(7) The notice Ex. P-l is important and needs to be reproduced in full. It reads as under :- 'JIWAT Ram Priani Office : B.Sc. Ll, New Delhi Courts, Advocate. Patiala House, New Delhi Registered A.D. Dated : 26th Dec. 78 To Smt. Neetu alias Asha W/o Sbri Kishan Lal, D/o Shri Baksho Mal. R/o C-555, Sriniwaspuri New Delhi. Madam, I have been instructed by my client Shri Kishan Lal son of Shri Narain Dass resident ofB-3/49. Safdarjang Enclave, New Delhi, to serve you with a notice, on his behalf, to the following effect :- 1. That my client married you on 20-2-1976 at C-555, Sriniwaspuri, New Delhi, according to the Hindu Dharma Marriage rites and ceremonies. After the marriage you lived with my client as his legally wedded wife at Flat No. 40, Sarojini Market, New Delhi for about 3 months. 2. That you misbehaved with my client and his old parents and 292 3. That in order to make you happy, my client agreed to live separately from his old parents, and started living in a rental house at B-3/49, Safdarjang Enclave, New Delhi. . 4. That your father Shri Baksho Mal was running a tea-shop and you have 4 brothers and five sisters. Your eldest sister is living with her husband separately from his parents and next to her has been living separately from her husband for the last about 23/4 years. Your two younger sisters are unmarried. 5. That you insisted upon my client to give financial help to your parents on the plea that their financial position was very poor. You gave valuable clothes and money to your younger sister and parents against the wish of my client on several occasions. 6. That you treated my client with cruelty. When my client asked you to have mercy on him and not to give money to your father and sisters, you made his life miserable, refused to cook food for him and to perform your conjugal duties. So much-so, your brothers and sisters also abused and humiliated him. That out of this wedlock one daughter named Poonam now aged about 11 months was born. 3 That your mother died about 11/2 years back and at that time you forced my client to give a sum of Rs. 1000.00 to your father to meet the expenses. This amount remain unpaid to my client inspire of repeated demands. Whenever my client demanded his money back, you quarrelled with him. That about 2 months back your father fell ill and you asked my client to lend your brothers a sum of Rs. 500.00 for his treatment. My client gave you a sum of Rs. 500.00 for the same. Unfortunately your father expired and you asked my client to give a sumofRs.5,000.00 more to your brothers for performing customary rites My client expressed his inability to pay the further sum of Rs 5.000.00 on which you and your brothers and sisters quarrelled with him and insulted him. That after performing the customary rites of 'BARAHA' my client requested you to accompany him to his house but you refused to do so on the plea that you will come after the rites of 40 days. During this interval my client visited you on several occasions but he was always insulted and humiliated by all of you That after the rites of 40 days my client again came to you and requested you to accompany him to his house but you refused and you Along with your brothers and sisters quarrelled with him and threatened him to go away or else he would be killed My client went away in order to save his life After that my client visited your house Along with his other relatives with the request to live with him and allow his minor daughter also to go with him on which you refused and threatened him with dire consequences. Many respectable persons and common relatives have visited your house on several occasions to persuade you to live with my client Along with his daughter but you refused to do so. That you have withdrawn from the society of my client and refused to perform your conjugal duties without any reasonable cause. You have deprived my client of the sweet company of his minor daughter and thereby caused mental torture which has affected his health adversely. He hat to cook his food with bids own hands and to do all his house-bold work in your absence. Please take notice thereforee you must come Along with the minor daughter of my client to the house of my client and to live with him and to perform your conjugal duties within 7 days of the receipt of this notice failing which my client will be constrained to take action against you in accordance with the law at your risk and cost without any further notice to you which please note. A copy of this notice has been retained in my office, for future reference, if any. Yours faithfully, Sd/. J. R. PRIANI) Advocate.
(8) It is the husband's case that the wife's desertion started from the expiry of the period of the notice, that she has deserted him for a period of more than two years, and, thereforee, filed a petition under Section 13(l)(ib) of the Hindu Marriage Act, (hereinafter called 'the Act'), on 22-3-1984.
(9) Section 13(l)(ib) of the Hindu Marriage Act reads as under :-
'13(1) .Any marriage solemnised whether before or after commencement of this Act. may, on a petition presented by either the husband or wife, be dissolved by a decree of divorce on the ground that the other party- (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition: or Explanationn- In this Sub-section, the expression 'desertion' means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner, by the other party to the marriage, and its grammatical variations and expressions shall be construed accordingly.'
(10) In Bipinchandra Shah v. Prabhavati, : [1956]1SCR838 , it has been laid that 'for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (1) the factum of desertion; and (2) the intention to bring cohabitation permanently to an end.
(11) The wife contends that she is not in desertion, that as stated in the written statement, after the 12th day ceremony in connection with demise of her father she went to the house of the husbaad, (that is to lay, she went to the house of the husband on the 21st November, 1978) that she lived in the house till 8th December, 1978, and that is when she was given a severe berating and thrown out of the home.
(12) In the deposition made in court the wife does not say that she was given a 'severe beating'. What she says is that ihe was 'beaten'. In other words instead of severe beating being administered to her, according to the wife, only a beating is administered on 8-12-1978. Since the assertion in the written statement is that 'severe beating' was administered, one would have expected that the nature of the beating, the nature of the hurt caused, the nature of the implement u(r)ed to administer the beating, be it an open palm of the hand or the mailed fist, or any other implement which was used to administer the beating, would have also been specified and particularised. In any case, a severe beating would need to be treated by a medical practitioner. No such evidence, of the nature and extent of the beating, the nature of the medical treatment, has been deposed to. For this reason, like the trial, court, I disbelieve the story as propounded that she was beaten, as asserted, whether severely, or just simply beaten.
(13) It is asserted by the husband that be made some efforts to get the wife back and this he did by visiting the house of his father-in-law and brother-in-law on 13th November, 1978. At that time, according to the husband, he was told by the wife that she will came only after 48 days from the date of the demise of the father were over. The appellant husband appears not to have gone again to gel the wife back. Indeed in view of what the wife had told him there was no need for him to go again and again to collect the wife from the residence of her brother. He was only respecting her wishes to stay with her family for 40 days He did all that was needed to be done, that is to say, ask the wife to come back
(14) It is not as if the husband and his father-in-law brother-in-law were living at a great distance apart. The husband was residing at Safdarjang Enclave, and the wife was residing in Sriniwaspuri which is within a distance of approximately 5 to 7K.MS., that too along what is known as a Ring Road of Delhi. The two places, Sriniwaspuri and Safdarjang Enclave have a public bus service connecting the two areas which is a frequent bus service, and in any case, other modes of transport are available, to go to and fro.
(15) I am of the view that no husband can be called upon as a matter of law to keep on chasing his wife, who is living quite nearby to return to him. It is the wife's right to live with the husband, just like it is the right of the husband to have the company of the wife, and no extra cajoling is necessary for them to be together, if both of them deliria to be together.
(16) In this case what appears to have happened is that after having visited the house of his brother-in-law once. for bringing the wife back with him on 15-11-1978 he did not cajole her to return to him. He waited for the promised return after 40 days. When the wife did not return on the 40th day, as the husband says she had promised, he sent the notice dated 26-12-1978, Ex. P-l. In this it was in no uncertain terms stated that the wife must come along with the minor daughter to the house of the husband and to live with him and to perform the conjugal duties within seven days of the receipt of the notice failing which it was stated, that the husband would be constrained to take action against the wife in accordance with law without any further notice.
(17) If the wife had any desire to live with the husband at any time after the receipt of the notice, she could easily have, within the seven days period postulated thereby, gone back to live with the husband, who would have to keep her as his wife. Instead of returning to her husband the wife chose to ignore this notice, and let other persons, whether relatives or friends, talk of 'reconciliation' instead of taking the only action which she need have taken to live with the husband, i.e. go back to the husband. She admittedly never went back to the husband.
(18) The husband waited for the statutory period of two years to expire and filed his petition for dissolution of marriage on the ground of desertion of the wife on 22nd March, 1984.
(19) It is contended by Mr. Wig that the wife is willing to go back to live with the husband. He refers to : [1956]1SCR838 . It is stated therein that the bonafide effort for resuming matrimonial home with all the implications of matrimonial life before the statutory period if over or even after the lapse of that period can be taken into account. It is however, clarified therein that this cannot be done after the proceedings for divorce have commenced. The bonafide effort to resume matrimonial living according to the Supreme Court ceases to have any meaning after petition for desertion has been filed. This would be in my view, the natural consequence of the right conferred upon the husband by Section 13(l)(ib). After the lapse of two years the husband acquires a right to obtain a divorce provided that desertion is continuous and it is of not less than two years duration. If effort is made to resume matrimonial living after filing of the petition, it cannot be said to be bonafide, as its purpose is to defeat the petition The legislature, in its wisdom, has stipulated the period of two years. beyond which no person need to wait for the wife to come back, as the right to a divorce becomes effective and cannot be shaken by any alleged bonafide efforts. The effect of the two year period lapsing is that the assertion of 'bonfire' effort to resume matrimonial living is falsified
(20) In the instant case the difficulties which are normally present in cases of desertion have been simplified. It is always difficult to determine when the desertion would commence. Desertion is a course of conduct (Thomas v. Thomas, 1924 LR P D P. 194 1923 4 LJ R Vole 92/3). In this case fortunately the commencement of desertion is established by the notice dated 26-12-1978. Receipt of this notice is admitted. It would have been received a few days after it was posted. In any case the petition is filed more than two years after the date of the period postulated by this notice.
(21) The offer to resume matrimonial living together was made during: the cause of the proceedings in the court below. In the facts and circumstances of this case such an offer was meaningless, when made, and it continues to be meaningless even today.
(22) In my view the Additional District Judge has completely misdirected himself upon the effect of the notice on the mind of the respondent. Such a thing is irrelevant. Such an effect real or imaginary is irrelevant. The notice was sent with the object of getting the wife back, and as that purpose was frustrated then only conclusion to be drawn from that course of conduct is that the respondent was not interested in continued matrimonial living with the appellant husband.
(23) I am also of the view that the attempts to bring the respondent back which were made, as deposed to by Public Witness -2, Public Witness -3, Public Witness -4, and Public Witness -8 have also no bearing on this case. The husband has made his intentions very clear. It was for the wife to react to the notice; if she desired that the matrimonial living should not be put an end to, she could go back to the husband any time after she received the notice. She did not go back to the husband even till the filing of the petition, or till the recording of her statement in court. By sending this notice it has become clear that the respondent wife was keeping away without the consent of the husband. In fact he wanted her back.
(24) I, like the Additional District Judge , the story of her being 'severity' beaten up. There was no cause.let alone reasonable cause for her to stay away from the husband. As such there is no ground for not granting a decree of dissolution of marriage. In the circumstances of the case the husband is entitled to a decree of divorce on the ground of desertion of the wife.
(25) Before parting with the case I would also like to observe that in the Explanationn to Section 13(l)(ib) of the Act, the words ''willful neglect of the petitioner by either party to the marriage' have been used.
(26) In English Jurisprudence these words indicate the person who is. not maintaining the wife and the children according to Christian Dogma. While a similar concept of non maintenance maybe applicable to marriages in India also, I think it would be required to determine in an appropriate case whether 'willful neglect' would include within it, the non performance of obligations which arise between a Hindu husband and wife, during a normal matrimonial existence amongst the Hindu 'Grihast'-House-holders. i.e. the performance of obligations and duties 'of Dharma', 'Artha' and 'Kama'. If the husband and/or the wife do not aid and assist each other in the performance of duties and obligations of Dharma, Artha and Kama, imposed upon each other by the Hindu way of life, why should they not be held guilty of 'willful neglect' and granted 'Moksha' from each other by court I need, not however, decide this question in this case.
(27) As I have already held that the husband is entitled to a decree of dissolution of marriage, I set aside the judgment of Additional District Judge, dated 11-7-1984 and grant a decree of divorce under Section 13(l)(ib) of the Hindu Marriage Act, in favor of the husband and against the wife.
(28) There will be no order as to costs.