Arun Kumar, J.
(1) This is wife's appeal against the judgment dated 8th February 1985 of a Learned Single Judge of this Court whereby the husband's appeal against the judgment of the trial Judge, dated 26th September, 1983 dismissing his petition had been accepted. The husband has been hereinafter referred to as the petitioner while the wife has been referred to as the respondent. The facts giving rise to the present appeal are as under :
(2) The parties come from orthodox Brahmin families having rural background. The father of the petitioner, Shradhanand Sharma, was a small time Vaidya in the village. The parties were married on 13th May, 1970 at Village Bhains Rawli, Distt. Gurgaon. At the time of his marriage, Shradhanand Sharma was studying for his B.Sc. in Delhi at the Delhi College of Engineering while his wife, Kiran was a non-matriculate. The petitioner completed his studies in or about June 1971. Thereafter, he was looking for a suit- able job and ultimately he was appointed as a Research Assistant in the Irrigation Department of the Government of Haryana some time in July, 1972. From 1972 to 1976, he was posted at various places in Haryana in the course of his employment which included Rohtak, Bhiwani, Sirsa, Gohana, Hisar, Charkhi Dadri, Chandigarh, etc. On 16th August, 1976, he was posted as S.D.O., Delhi Sub-Division, Canal Deptt. Government of Haryana at Delhi. During this entire period, the wife stayed either with her parents or with her parents in law and she never lived with the husband. A daughter named Kavita was born to the parties on 23rd August, 1972. When the petitioner was posted at Delhi, he was allotted Govt. accomodation which is a bungalow situated at 4, North End Road Delhi. On allotment of the said bungalow, the petitioner started staying there.' It is the common case of the parties that it was in September, 1977 that , the wife, for the first time, started staying with her husband Along with the daughter of the parties. It is both parties case that till September, 1977, their relationship was normal and that there was no trouble or friction between them. So it was only from September, 1977 when the wife joined the petitioner at Delhi, the trouble started.
(3) Further, it is the common case of the parties that the petitioner left the residence at 4, North End Road. Delhi in October, 1978 leaving his wife and the daughter staying in the said house and thereafter, the parties have never stayed together. After leaving the house, the petitioner admittedly wrote to his Department for cancellation of the allotment of the Govt. accommodation at 4, North End Road, Delhi in his favor. The water and electricity connections of the house were also got disconnected by him. Ultimately, the allotment of the sear Govt. accommodation was cancelled in. March, 1979 and the wife had to vacate the said house and go back to her parents in law. It is further an admitted fact that on 30th January, 1979, the wife made a complaint to the Chief Minister of Haryana against her husband. Before this complaint, the father of the petitioner had also written a letter to the Chief Minister of Haryana complaining about his son.
(4) With this background, the husband filed a petition on 16th November 1981 under Sections 13(l)(ia) and (ib) of the Hindu Marriage Act for divorce. The said petition was dismissed by Shri G.S. Dakha, Addl. Distt. Judge, Delhi on 26th September, 1983. The husband filed an appeal against the said judgment of the Additional District Judge, Delhi being Fao No. 258 of 1983. The said appeal was accepted by a learned Single Judge of this Court and the husband's petition for divorce was allowed on both the grounds of cruelty as well as desertion vide judgment dated 8th February, 1985 and the marriage of the parties was ordered to be dissolved. The present appeal by the wife is against the said judgment of the learned Single Judge of this Court.
(5) In his petition, the .husband admitted that since marriage, the wife had been staying with her husband's parents and the husband used to visit his parent's house as and when he could get leave. The husband has also stated in his petition that on 11th August, 1976, be took charge as S.D.O., Canal Department, Govt. of Haryana in Delhi and he was allotted the bungalow at 4, North End Road, Delhi which was occupied by him. Admittedly, the wife and the child joined him at Delhi in September, 1977 and immediately thereafter trouble started between them. The petitioner has made the following allegations in his petition for divorce:
(i) His father demanded a sum of Rs. 25,000.00 from him in May 1977 for contesting elections to the Haryana State Assembly which he could not arran
(6) The petitioner has further stated that thereafter he was transferred to Dadupur, a small town in Haryana on 22nd June, 1979. He was involved in two road accidents in the year, 1979 and 1981, of which the wife is alleged to have had knowledge and inspire of that, it is averred, that the wife did not come to visit the husband. It is further alleged by the petitioner that the wife has deserted him for a period of more than two years i.e. immediately preceding pre- sentation of petition for divorce as the parties were living separately since first week of October 1978.
(7) About his relationship with nurse Ram Piari, the petitioner has stated that she is like his sister who had helped him financially when the petitioner was a student of Engineering at Delhi and he never had any illicit relations with the said Ram Piari. It is stated that Ram Piari used to tie Rakhi on his wrist and there was nothing abnormal in his relationship with the said lady. The petitioner has further stated in his petition that the marriage between the parties has completely broken down and there is no possibility of their residing together as husband and wife.
(8) The petition was contested by the wife. It was stated in the written statement by the wife that the husband had been avoiding to keep her with him after the marriage on one pretext or, the other, mainly on the ground that he had a transferrable job and there was accommodation problem. It is stated that whenever she asked the petitioner to take her with him, he refused to do so on this ground and even when the petitioner used to visit her, she found his behavior to be quite indifferent to her. Immediately after the marriage, the petitioner insisted that she should first complete her metriculation while staying with her father since she had earlier appeared for the metriculation examination and failed. The wife has also made an allegation that the husband was insisting upon her to bring money from her parents and on her failure to do so, he used to taunt her by saying that she had not brought adequate dowry in the marriage. This behavior of the husband made the wife suspicious about him and later on she learnt that even prior to the marriage, the husband was having illicit relationship with Ram Piari who was working as a nurse in the Lady Harding Hospital, New Delhi. It is further stated in the written statement that on coming to know of the husband's transfer to Delhi in August, 1976 and his having been allotted Govt. accomodation at 4, North End Road, Delhi, the father and mother of the petitioner brought her to Delhi so that she may be with her husband Along with the daughter of the parties. The wife goes on to say that when they reached the house at 4, North End Road, Delhi, they were shocked to see that the said Ram Piari was present in the house. The father of the petitioner felt embarrassed in front of his daughter-in-law. Ultimately, the petitioner had to tell Ram Piari to leave the house. The wife started living in the said house Along with the daughter of the parties but the behavior of the petitioner became harsh towards her day by day. He started coming very late at night and many a times slipped from the house in the night. His parents and relatives contacted him several times and tried to pursuade him to live with his wife harmoniously and dissociate himself from the said Ram Piari but he did not pay any heed to this advice. It is denied by the wife that the relations between her husband and the said Ram Piari are that of brother and sister. It is stated that the petitioner was in fact having illicit relations with the said Ram Pkri. The wife has denied any knowledge about the demand of Rs. 25,000.00 by the father of the petitioner from him. It is further stated that when the petitioner abruptly left the house in first week of October. 1978, his father had to look after her and it was on account of the pitiable condition of the wife and the young five year old daughter that the father wrote a letter to the Chief Minister of Haryana staling all the facts and making a complaint about his son's conduct and behavior. When no action was taken on the said complaint, out of disgust, the wife made a complaint vide letter dated 30th January, 1979 to the Chief Minister of Haryana staling that even the water and electricity of the house where they were staying and which was Govt. accomodation allotted to the husband, were got disconnected by him to compel her to vacate the said accomodation. It was further alleged that the husband was trying his level best to get rid of his wife so that he could maintain his association with Ram Piari without any interference from her. Later on, the wife came to know that the husband had himself made a request for his transfer out of Delhi and cancellation of the Govt. accomodation in order to deprive her of the roof above her. The Wife has denied knowledge about the husband staying in the Shiv Mandir near the river Yamuna after he left the house in the first week of October 1978. As regards the incident of 25th February 1979. it is stated that when the father of the petitioner, who was at that time in Delhi, went to the Shiv Mandir to perform puja on the Maha Shivratri Day, he saw his son in the park near the temple Along with Ram Piari sitting very close to each other and holding each other's hands. On seeing this, he rebuked his son as well as the said Ram Puri, with the result that the petitioner got offended and insulted bids father in the presence of Ram Piari. The father could not tolerate this and in anger, slapped his son in the presence of Ram Piari. ft is further stated that the petitioner had purposely not mentioned the name of his father in connection with the said incident and instead named her brothers who had nothing to do with the said incident. According to the wife, it was the father of the petitioner, who had slapped him and not her brothers. Moreover, it is stated by the wife that she had nothing to do with this incident and there was no conspiracy between her and her brothers to harm the petitioner. The wife has denied the allegation of cruelty or any such behavior on her part or that the husband suffered any mental agony on account of her. The wife maintains that there was no desertion on her part as she had rather desired to stay in the matrimonial home all along and it was the husband who left her alone Along with her child in October, 1978. She has denied any knowledge about the accidents, alleged to have been met by the petitioner in 1979 and 1981. The wife has completely denied the allegations of cruelty and desertion made against her by the husband.
(9) On the pleadings of the parties, the following issues were framed by the trial Judge:
(i) Whether the petitioner has been treated with cruelty by the respondent as alleged (ii) Whether the petitioner has been deserted by the respondent for a continuous period of more than two years preceding the presentation of the petition (iii) Relief.
(10) The parties led both documentary as well as oral evidence in support of their respective cases. The husband has, besides himself, examined Ram Piari around whom the entire case revolves. So far as the respondent is concerned, apart from making a statement in support of her own case, the parents of the husband have appeared as her witnesses to support her case. The trial Judge dismissed the husband's petition for divorce. The following observations of the trial Judge are significant :
'11. The most important statements are that of the parents of the petitioner. They have fully supported the respondent on all material facts. They have emphatically stated that they had seen the petitioner in the company of Smt. Ram Piari and had objected to his relations with her but the petitioner still continued his affairs with the said Ram Piari. 14. The wife respondent is admittedly residing with the parents of the petitioner. She never deserted her matrimonial home and lived with the parents of the petitioner even during the period the petitioner was posted outside Delhi. It appears that the petitioner somehow or the other wants to get rid of the respondent and that is why he has filed the present petition for divorce. In my opinion the petitioner has failed to substantiate bids allegations against the respondent wife and is thus not entitled to any relief.'
(11) The husband filed an appeal against the said judgment of the Trial Court which was registered as Fao No. 258 of 1983. The appeal was decided by a learned Single Judge of this Court vide judgment dated 8th February, 1985. The learned Single Judge has accepted the appeal of the husband and decreed his petition for divorce thereby dissolving the marriage of the parties. While accepting the appeal, the learned Single Judge has held that both the grounds on which divorce was sought by the husband i.e. cruelty and desertion are made out against the wife. Broadly speaking, the learned Single Judge has disbelieved the wife regarding her allegations against the husband that he was having illicit relationship with the nurse Ram Piari. The learned Single Judge has found some discrepancy in the oral testimony of the wife and the parents of the husband on the one hand and the case pleaded in the written statement by the wife on the other hand, which has led him to disbelieve the wife. On the basis of the fact that relations between the husband and his father were strained since 1976, the learned Single Judge has felt that the father's testimony was unreliable. The learned Single Judge has gone to the extent of saying that the father of the petitioner husband is the villain of the piece and he is responsible for ruining the marriage of the parties. Further, it has been found that there was nothing wrong in the relationship between the petitioner and nurse Ram Piari and the same was that of a brother and sister.
(12) In view of these findings, the learned Single Judge has held that the letter of the wife to the Chief Minister making complaints and allegations against her husband amounted to cruelty. Regarding the Shivratri day incident, the learned Single Judge has held that the wife was not a party to the same since there was no evidence to connect her with the said incident. On the question of desertion, the learned Single Judge has held that it was the wife who was responsible for driving the husband out of the matrimonial home. Applying the doctrine of constructive desertion, the learned Single Judge has held that though the present is a case of husband leaving the matrimonial home, yet this was on account of the conduct and behavior of the wife and thereforee, it is the wife who is guilty of desertion and not vice versa. It has been held that the physical act of departure of a spouse does not necessarily make him or her guilty of desertion. The onus of justifying departure from the matrimonial home is always on the deserting spouse. The spouse may be forced out of the house. thereforee, merely on the basis of the fact of departure from the matrimonial home, the Question of desertion cannot be decided. Desertion has to be decided on the basis of animus deserandi. The learned Single Judge relying on his findings regarding cruelty on the part of the wife, held that the husband could not reasonably be expected to live with her in the circumstances created by her. Thus, the finding on desertion is based on the finding on cruelty,
(13) The learned Single Judge has noted in his judgment that the other allegations of cruelty .made by the husband against the wife in the petition were not pressed before him. The same applies to the hearing before us.
(14) Dissatisfied with the judgment of the learned Single Judge, the wife has filed the present appeal. This Court, while admitting the appeal, stayed the operation of the judgment under appeal vide order dated 6th March 1985. The stay order was confirmed till the disposal of the appeal on 26th April 1985.
(15) The learned Single Judge has come to his finding about cruelty mainly on the basis of the wife's complaint dated 30.1.1979 Ex. Public Witness 1/1 against the husband to the Chief Minister of Haryana. According to the learned Single the husband is an admitted fact that the wife used to chastise the husband for having illicit relations with Ram Piari. It has been observed ;
'By now it is judicially well recognised that making false and reckless allegation on the character of the spouse so as to injure his/ her reputation amounts to cruelty as envisaged by Section 13 of the Hindu Marriage Act. However, if it can be shown that the spouse is committing adultery it may offer him/her a fair and good defense. The burden of proving that the allegations are bona fide or reasonable will necessarily be on the spouse making such allegations.'
(16) The learned Single Judge has relied on two judgments of this court. (Kanta Gupta v. Mk Gupta, Fao (OS) 124/84; & Lajwanti Chandiok v. On Chandiok 1981 (2) D & M 97. As a proposition of law the above observation of the learned Single Judge cannot be disputed. However, we feel that this has not been correctly applied in the the facts of the present case. This proposition of law has two parts and both are equally important :
(a) making false and reckless allegation on the character of the spouse so as to injure his/her reputation ; (b) the spouse making such allegations being able to prove that he/she reasonably believes in the correctness of the allegations and has acted bona fide.
(17) Of course, the burden of proving (b) will be on the spouse making the allegations or in other words who defends the charge of cruelty based on such allegations. Thus proceeding on the basis of the learned Single Judge's own reasoning we have to find whether the allegations by the wife against the husband were without any reasonable basis or lacked bona fide. The learned Single Judge has found that the relationship between Ram Piari and the husband was that of brother and sister and allegations to the contrary by the wife were malicious; Finding of malice is simply based on the finding of incorrectness of the allegation. We feel that this should not be automatic consequence. Both aspects are separate. The learned Single Judge has not gone into the question of reason- able belief on the part of the wife in the correctness of these allegations and her bona fides at all. The conclusion regarding the allegations of the wife being malicious flows from the finding that the allegations are not correct. As already noticed above we are of the view that these are two distinct aspects and both are equally important and are independent of each other. If the wife had reasonable belief in the correctness of the allegations made by her, she will stand ex- onerated. In other words the allegations should have been made with the bona fide belief in ther correctness. Unfortunately this aspect of the matter did not receive attention of the learned Single Judge. We find that there is lot of material on record which justifies the wife's belief in the existence of such a relationship between the husband and Ram Piari. We have to look into wife's conduct and actions in the facts of the case to find out whether they were justified.
(18) At the outset we may examine the nature of the allegation. The wife has alleged illicit relationship between her husband, the petitioner and Ram Piari. The word illicit is defined in the dictionaries as : Unlawful ; not authorised or allowed; not sanctioned by law, rule or custom. In the case in hand Ram Piari is a very distant relation of the petitioner, husband. He has maintained an extremely close relationship with her so much so that it transcends the limits of relationship between a real brother and sister. The husband's case is that this relationship was that of brother and sister. We feel it was more than that. If that is so, it has to be unauthorised or improper or irregular. In other words it is one which is not sanctioned by law, rule or custom. In this scheme sexual indulgence is not essential though there may be a strong possibility of its existence.
(19) In order to appreciate the wife's complaint, we feel that we must go to the starting point of the relationship between the petitioner and Ram Piari. The parties come from lower middle class orthodox brahmin families having a rural background. First, the newly wedded wife was compelled by the husband to stay with her father and complete her metriculation. After doing so the wife started staying in her matrimonial home which had everyone else except the husband. Thereafter he got a State Government job. He used to occasionally visit the wife who was staying with his parents in the village. The wife was keen on joining the husband but she was told that his job being transferable and Govt. accomodation not being available, it was not possible. So right from the beginning the circumstances were created which gave the wife a feeling that the husband was trying to avoid her. Coupled with this the wife was made aware of the presence of Ram Piari in the husband's life though stated to be as a sister. Wife was told to be subservient to the said lady. So much so that husband expressed his annoyance to the wife in writing for her not being subservient to Ram Pyari. Husband wrote to wife chastising her and showing his annoyance to her and went on to the extent of telling her that 'it is easy to get a second wife but not a sister like Ram Piari'. What impression would the wife have from this about her husband What affection did she get from him She never got his company. Rather she was avoided and neglected. Same behavior of the husband continued even after the daughter was born. He showed same indifference towards his own daughter. They. the wife and the daughter, never stayed with him. On the contrary, letter Ex. R-16 (husband's letter to his brother) shows that when he was posted at Hissar, Ram Piari had stayed with him for a few days. This letter further shows that he opposed the proposal of his father regarding,his wife and daughter being left to stay with him at Hissar. Thus, the wife and the daughter were not allowed any chance to stay with him even for a short while The husband was a young man. Ram Piari was a young woman, so was the wife Ram Piari may be elder to the husband in age. That by itself means nothing. The presence of Ram Piari in her husband's life was always haunting her. She had every reason to believe that they were together most of the time. Was she not entitled to think that she was being neglected because of Ram Piari? Was she not entitled to reasonably believe that the relations between her husband and Ram Piari were not as stated, but different Was there nothing unnatural in the relations between the husband and Ram Piari, an almost stranger
(20) We feel that these facts would make any woman believes that her husband was having illicit relations with the other woman. The wife was fully justified in harbouring a suspicion in her mind about her husband's relations with Ram Piari. As stated earlier we are here concerned with finding whether wife's conduct in making allegations against her husband was without any justification. If the wife was justified in what she did and her act and conduct was bonafide, she will have to be exonerated. We feel that it is the husband's obsession with Ram Piari, for whatever reasons, which has made life miserable for the wife and which has denied her due from the marriage. It is this which has led to the belief in wife's mind about his illicit relationship with Ram Piari. The husband has to take the entire blame for this. He is totally responsible for leading the wife to do what she ultimately did.
(21) We feel that the relationship between the husband and Ram Piari was not a normal or natural relationship and in any case the wife was fully justified in believing that this relationship was unauthorised, irregular, not sanctioned. by law, rule or custom and in other words 'illicit'. This is precisely the allegation of the wife against the husband in her complaint to the Chief Minister of Haryana in which she imputed illicit relationship between her husband and Ram Piari besides the other acts in consonance with such a relationship and which was held to be cruelty by the learned Single Judge. It is significant to note that the wife has not made a stronger allegation, may be of adultery, which she could have made, if she had any strong evidence of it with her.
(22) Finally, the wife lands up in September 1977 at the residence of the husband in Delhi. Another important factor to be noticed here is that earlier the husband had the excuse of not having any permanent posting and non-availability of Govt. accommodation, for not Jetting the wife join him. But the permanent posting and Govt. accommodation became available in August 1976. Why did he not call the wife and the child to join him thereafter. It is only in September, 1977 they come to join him in Delhi. Here he tells us and wants us to believe that he called the wife to join him when she came in September, 1977. If he were to call her why did he not call her for full one year since August, 1976 This makes us believe the wife's case that when the husband's father discovered about his son having been allotted and occupying Govt. accommodation at 4, North end Road, Delhi through a relation, he brought her to Delhi Along with the child to leave them with the petitioner. So the wife came to join the husband at Delhi as an unwelcome person. The troubles started immediately. This was the first time after seven years of marriage that the husband and wife were together with a prospect of being at last able to live together after the marriage. No wife who had waited for this day, would like to ruin her marriage. Likewise no husband having an interest in his wife and child would like to ruin his marriage. There is no other allegation by the husband about the wife except that she suspected his relations with Ram Piari and objected to it. Unless this was so, would the wife do anything to spoil the marriage. Matrimonial cases are civil cases. Standard of proof is of reasonable probability rather than that of beyond reasonable doubt, as in criminal cases.
(23) According to both parties's case the trouble started on account of Ram Piari. The husband says on account of unjustified suspicion of the wife about his relationship with Ram Piari while the wife says it was on account of presence of Ram Piari/visits of Ram Piari to their house and husband's maintaining his 'relations' with Ram Piari. The husband says his relations with Ram Piari were that of brother and sister while the wife says they were illicit. One thing is clear, the husband and Ram Piari maintained a regular relationship even after the marriage between the parties to these proceedings and for this reason, to say the least, the wife and the child were not getting their due. The wife waited for seven long years since marriage hoping for the marital bliss. We feel that the neglected wife was fully justified in having a grouse against the husband and in harbouring a belief in her husband's illicit relations with Ram Piari. This also leads us to believe the wife's case that she was not welcome in Delhi and became a hindrance in the husband's life when she joined him at Delhi which resulted in the troubles between them. The husband has not shown a single act on his part or a single effort from his side towards bestowing affection on his wife and/or child. The husband blames the wife and wants us to close our eyes on his own conduct. What kind of a husband or a father he was What has he given to his wife from this marriage We feel that it is the husband who is to be blamed for spoiling the marital relationship on account of his relationship with Ram Piari. We feel that his relationship with Ram Piari was unnatural and one not permitted by rules or custom. It was certainly not just a normal brother and sister relationship.
(24) While at the husband's acts and conduct we may sum up the same as under:
1. Immediately after marriage the wife had to stay with her parents on account of husband's insistence that she should first pass metric. 2. Thereafter the husband did not let her stay with him on the excuse of transferability of job and non-allotment of Govt. accommodation to him. 3. Even after allotment of Govt. accommodation to him in August, 1976, he did not call his wife and child to join him. This clearly shows that his earlier reasons of not letting his wife and child join him were mere excuses and leads support to a feeling that he did not want them to join him because that would be a hindrance in his 'freedom' (to put it mildly in the context of his relationship with Ram Piari who used to live and work in the same city and also used to stay with him even when he was all alone). 4. His obsession for Ram Piari since 1968. 5. His regular correspondence with Ram Piari and vice versa and his letters to his own wife chastising her for not being subservient to Ram Piari. 6. Ram Pyari's admitted regular visits to him at his residence and stay with him. 7. His visit to Agra with Ram Pyari and photographs with her sitting side by side in front of the Taj Mahal. 8. His own statement that his relations with his wife were normal till September, 1977. The moment she joined, trouble started, which makes it obvious that so long as the wife stayed away, she could be allowed to remain a wife. The moment she is brought to him, he is unable to tolerate her, which ultimately leads to his finding ways to get rid of her. 9. He left his wife and child abruptly in first week of October 1978 without bothering as to how they would survive all alone. Never inquiring about them thereafter. Not resting content with this, doing everything possible and within his control to make them homeless, by getting water and electricity disconnected and allotment of the house in his name cancelled. 10. In one of his letters Ex. R-17 tells his newly wedded wife that he can get another wife but not another sister like Ram Piari. 11. Makes false allegations against the wife that she tried to get him killed through her brothers on the Maha Shiv Ratri day. 12. Makes false allegations against his own father (a) demand of Rs. 25.000.00 ; (b) tried to kill him with the help of goondas (this is after filing of the petition). 13. Both parents have deposed against him and have used very strong language about his character. (He has tried to show that father was against him. But what about the mother ?) 14. No allegation against the wife's conduct, behavior or character or mannerism apart from that relating to her objection to bids relations with Ram Piari.
(25) We have already referred to certain important features of the oral and documentary evidence in the case. It may, however, be worthwhile to deal with the same at this stage.
(26) So far as the documentary evidence is concerned, it consists of certain letters written by the husband, the wife and Ram Pirai. Apart from this there are certain photographs on record. Some of them are that of the marriage, others are regarding trip to Agra which the husband admittedly made Along with Ram piari. There is a photograph showing Ram Piari tiring Rakhi on the wrist of the petitioner (husband). The same is Ex. RW2/PI. This Rakhi photograph was proved in the cross-examination of the father of the petitioner. The photograph appears to have been taken in a Studio, which makes us feel that the same was taken for a specific purpose, i.e. to show that the relationship between the petitioner and Ram Piari was that of brother and sister. Otherwise why should one try to create a record. As regards the photographs taken during the Agra trip, some of them show the petitioner and Ram piari sitting together and posing for the photographs in front of the Taj Mahal. These photographs have been admitted by the petitioner. They bear Ex. marks R-3 to R-11. Rest of the documentary evidence consists of letters. In this, the earliest in point of time is Ex. R-2, which is a note in the diary kept by the husband regarding his first meeting with Ram Piari in 1968. The note runs as follows:
'It was the fateful day of Saturday, dated 12.10.68 when sister Ram Piari Bhardwaj was introduced by Mr. MadanLal Bhardwaj at the Railway Station of Khera Kalan at 12.30 p.m.'
This note is a clear indication of the shape of things to follow. The said meeting according to the husband was a fateful day and it gave rise to a passionate relationship between the petitioner and Ram Piari.
(27) EX-R-13 is another note dated 17th May 1971 in the petitioner's diary recorded in his own hand wherein the following line is very significant. 'She feels that I will not be able to give affection, as now after Kiran comes.' (Kiran is respondent-wife). ' She in this statement is none else but Ram Piari. This statement further shows that in May 1971 itself, i.e. within a year of the marriage between the parties the husband shows his concern for the feelings of Ram Piari, that the marriage has become hindrance in her relationship with him and this will be particular so after the wife actually joined the husband. Immediately she became a hindrance for the husband and Ram Piari. As is clear from this statement Ram Piari had become quite possessive of this man and could not tolerate his affection being shared by someone else including his wife.
(28) EX. PyV.5/R-l is a letter dated 20th December 1970 written by Ram Piari and addressed as 'Pyare Bhai' (Dear brother). There is controversy between the parties as to whom this letter has been addressed by Ram Piari According to the wife, it is written to the ' petitioner, whereas according to the petitioner, this letter was written by Ram Piari to Madan Lal, a cousin of her's. The letter has been placed on record by the wife, meaning thereby that it must be lying with the petitioner. If it was addressed to Madan Lal why it was lying with the petitioner In this behalf it is also important to note why the petitioner should dissociate from this letter. The contents of the letter show the obsession of the writer for the addressee and the petitioner is obviously trying to dissociate himself from this letter so that the passionate language in which is written should not create doubts about his actual relationship with Ram Piari. 102
(29) Another important aspect on which this letter throws light is, that as early as in December 1970 the allegations regarding the character of Ram Piari were very much in existence and she was already worried about the same. This further shows that the wife was not the first person to harbour the feelings of suspicion about the relationship between the husband and Ram Piari. The next letter in point of time is dated 18th October 1971, Ex. R-14 from the petitioner husband to the wife. He admonishes the wife not to trouble him and promises to take her with him after getting a job. Then he goes on to instruct her not to write so many letters clearly show that the wife was making repeated efforts to join the company of her husband and to stay with him whereas the husband was avoiding to do so and was also rough on the wife for making such requests.
(30) EX. R-1 is a letter dated 19th July 1973 from the petitioner to his father-in-law telling him that unless the wife passes metriculation Examination, she will have to suffer. He says that she is not acceptable to him for this reason. How she does this is said to be none of his concern. There is a specific direction to the father-in-law not to send the wife till she passes the metriculation examination. He goes on to add that the wife was taking undue advantage of his decency and that she will have to suffer for her conduct. This is in July 1973. Till then the wife has had no opportunity to stay with the husband or to have the benefit of his company. This is his concern for his wife and this is his attitude towards his newly wedded wife. This takes us on to Ex. R-17 which is a letter dated 2nd August 1973 from the petitioner husband to his wife. This is the letter in which he says 'he can get a second wife but not such a sister who dies for him'. A husband writing this to his wife a couple of years after marriage and when the wife has hardly any chance to stay with the husband, would unnerve any woman, particularly a woman in the circumstances under which the wife was put in this case, having a one year old child and having been totally denied the company of her husband in bids letters to her. Further the contents of this letter are significant. The husband has told her 'sirf ab thoda sa bharosa hai to apni bahin per jiski turn bilkul bhi parvah nahim karti'. (Now only one whom I have faith is my sister, about whom you do not care at all). He also says in this letter that in spite of knowing his inclination towards Ram Piari, whom he calls as his sister, the wife did not care for her and when she did not care for Ram Piari, ho w could she expect that he would be alright with her. His words in this connection translated would mean 'how painful it is to find that you do not care for someone whom I love so much'. We feel that this letter goes a long way in indicating the relationship between the petitioner and Ram Pyari and the feelings that they bad for each other on the one hand and the attitude of the petitioner towards his wife on the other hand. This leads us to Ex. R-16 which is petitioner's letter to his younger brother dated 22.7.1976. This letter has been written in the context of the visit of petitioner's father to his residence at Hissar when he was posted there. In this letter the petitioner notes that his parents were thinking oF taking his wife to Hissar and leave her there to enable her to stay with the petitioner. On this, his reaction is 'what is the need to do this'; 'Yahan mera jaloos nikalne ki zaroorat nahin hai';, meaning 'do not ridicule me here', i.e. in Hissar. He admits his father's visit to Hissar and says whatever the father told his landlord at Hissar should not have been done. He refers to his father having told the landlord that his mother was sick and thereforee he should go and fetch his wife from her parent's house because the wife had refused to come Along with the father and had insist- ed that she will come only when her husband would go to fetch her. On this his reaction is 'as if I have always been bringing her'. In this letter he admits the visit of Ram Piari to his house at Hissar and her stay with him for 2/3 days. 103 This letter clearly shows that he was not prepared to keep his wife with him inspire of the fact that Ram Piari had stayed with him in the said house.
(31) This leaves us with an undated letter Et. R-15, which is written by the petitioner husband to his father in which he apologises to his father for his mistakes and asks him for being excused for the same. He further tells bids father that the misunderstanding that he harbours in his mind about bids relationship with Ram Piari is incorrect and that he does not have any illicit relationship with her. The contents of this letter suggest that this must have been written prior to September, 1977. The only significant feature of this letter is that the allegations regarding the illicit relationship between the petitioner and Ram Pyari were very much in existence when this letter was written. From this entire documentary evidence it clearly emerges that the petitioner husband had a 'very warm and close relationship, to say the least, with Ram Piari for which he was prepared to neglect his wife and daughter and to keep his wife away from him. He used to admonish his wife and tell her that he could get another wife not a sister like Ram Piari. It is also established that he was always trying to find excuses to avoid the wife staying with him as the stay of his wife with him would be a hindrance in his pursuing his relationship with Ram Piari. To our mid this deary establishes that the relationship between the petitioner and Ram Piari was not natural and not one permitted by the society and the wife was fully justified in harbouring a belief about the illicit relationship between her husband, i.e. the petitioner and Ram Piari. The wife was fully justified in doing what she did and her conduct cannot be called blameworthy in the circumstances.
(32) EX. PWI/I and Ex. PW2/P2 are the complaints to the Chief Minister of Haryana by the wife and the petitioner's father. In her complaint the wife has alleged against her husband :
(a) Though the husband had insisted that his wife should pass metriculation examination even after the marriage, he had not taken steps to get his own se'en year old daughter admitted to any private or govt. school; (b) The husband was residing in the North End Road bungalow with Ram Piari with whom he had illicit relations. When the family came to know of this, in order to get rid of Ram Piari the wife was brought to stay in the said house. This was interference in their (husband and Ram Piari) staying together. thereforee, the wife was threatened. (e) The husband by using his influence and position got water and electricity in the said house disconnected. (d) The husband had stopped staying in the house and he had not cared for her daily needs. In these circumstances death seemed to be the only solution.
(33) On the basis of this complaint, the wife has been held to be guilty of cruelty. The view that we have taken of this matter does not justify a finding of cruelty against the wife on account of this letter. She has been driven to the wall. She has explained in her statement that the letter was written in desperation and as a last effort to save the marriage and make the husband behave.
(34) So far as the oral evidence is concerned, nothing significant emerges from it. However, we intend to briefly refer, to the same at this stage. The petitioner has appeared as PW1 and supported his case. He has stated that 104 Ram Piari used to visit his house even before his marriage. She appears in the photographs taken at the time of his marriage. He admits having left the matrimonial home in the first week of October, 1978 and thereafter he says he started residing in the Shiv Mandir near the river Yamuna. He further admits having requested the Haryana Government for cancellation of allotment in bids favor of the North End bungalow on 3rd November, 1978 vide exhibit P-3 which was followed by reminders exhibit P-5 and P-6. In pursuance thereof, the cancellation of allotment of the house took place on 3rd March, 1979. The letters exhibit P-3 to P-6 show the petitioner's anxiety to get the allotment of the house where the wife and his child were staying cancelled expeditiously so that they are thrown on the road and in the process they may return to the village so that he could continue his activities freely and without any hinderance from his wife. This shows the animus on his part. The fear of losing the roof on her head and the continuous harassment from the side of the husband inasmuch as he got the water and electricity connections disconnected and also left the wife and child without any means of sustenance must have impelled the wife to write to the Chief Minister of Haryana on 30th January, 1978. When the husband was going to such lengths to harm the wife and his own child and in the background of the suspicion which not only the wife but the petitioner's entire family harboured about his relationship with Ram Piari, the Wife's letter to the Chief Minister cannot be said to be without justification. The petitioner has admitted in his statement that the wife ultimately vacated the house on 26th March, 1979 and its possession was handed over to the Haryana Government on 31st March, 1979. To link up his wife with the Maha Shivratri Day incident, he has stated that the wife knew that he used to perform puja in the temple in question on Shivratri Day and thereforee, that day was chosen for the alleged attack on him through her brothers. This statement on the face of it is absurd. The wife had joined him admittedly in September, 1977 and the Maha Shivratri Day incident is of 25th February, 1979. thereforee, there could be no such long standing practice of which the wife was supposed to be having knowledge. Before September, 1977, the wife had never stayed with him. Secondly, why should such a day be chosen for .such an act when there is bound to be abigcrowdatthetemple. Thirdly, if he started staying at the temple after he left the house in the first week of October, 1978, it is impossible to imagine that the wife would not be knowing about this. It follows from this that if the wife knew about his residence at the Shiv Mandir, such an act could have been performed on any quieter day. The allegations made by the husband against the wife are a bundle of lies. In this connection, it is worth pointing out the fact noticed by us in the beginning of this judgment that the parties come from orthodox Hindu Brahmin families and for such people it is difficult to expect that a wife would ever try to get her husband killed. In any case, the learned Single Judge has held that there is nothing to connect the wife with this incident even if the same did occur, as alleged by the petitioner. On the contrary, the wife's version of this incident seems to be more plausible and natural. The father seeing his son with Ram Piari in the temple on such an occassion in the background of the fact that he already harboured a suspicion about the relationship of his son with Ram Piari must have enraged him and after the altercation which is stated to have taken place between the two he must have slapped his son. In order to save his father it seems, he did not name him in the F.I.R. and turned against the brothers of his wife. In this connection, it is worth noting that in the cross-examination, the petitioner admitted that he did not get himself medically examined after the alleged assault. If the assault on him was as serious as it has been made out to be, the least he could have done was get himself medically examined. This totally belies the petitioner. allegation about the attack on him at the instance of the wife on the Maha Shivratri Day.
(35) The petitioner has tried to explain his father's annoyance with him by alleging that his father had demanded a loan of Rs. 25,000.00 from him which he could not pay and thereforee, the father turned against him. This again appears to be a totally false and baseless allegation. The alleged demand was in the year 1977 whereas the relations between the father and the son were strained since much before. The petitioner has further admitted in his cross- examination that he did not go to the 4, North End Road house after he left the same in the first week of October, 1978. He has also admitted that his daughter was 5 years old when she came to Delhi to stay with him and that he did not get her admitted to any school in Delhi. This shows that he was not only indifferent towards his wife but was so towards his daugther also. The petitioner has gone to the extent of saying that his father tried to murder him in January 1982 with the help of 8 to 10 persons and that his father was carrying a pistol with him for that purpose. If one has a pistol, one does not need 8 to 10 persons to help one kill somebody.
(36) In his cross-examination, he has admitted his trip to Agra with Ram Piari and the photographs of their visit to Agra. He has further admitted having never taken his wife to Agra. He has admitted that there was uneasiness in his relations with his parents even prior to September, 1977. Further he has admitted that his real sisters are not even sending Rakhis to him on the 'Raksha Bandhan Day'. It is also indirectly admitted that he never cared to provide for the maintenance of his wife and daughter after he left the house in first week of October, 1978. His denial about the visits of Ram Pyari to the North End Road house during September 1977 to October, 1978 is contrary to his own case pleaded in the petition for divorce. This and some other statement pointed out hereinbefore show that he is a liar.
(37) The statement of PW2 is formal and of no consequence.
(38) PW3 is the pujari of the Shiv Temple where the petitioner allegedly stayed after he left the North End Road house. He has totally supported the petitioner. He appears to us to be unreliable witness and his statement does not deserve any mention.
(39) Similarly, the statement of PW4 needs no comment.
(40) PW5 is Ram Piari. She has stated that she never spent a night at the petitioner's house. This is contrary to the petitioner's admission in his letter exhibit R-16 that Ram Piari stayed with him for 2/3 days at Hissar. She has further stated that she helped the petitioner financially during the petitioner's studies as the petitioner's father did not have enough income and he could not afford to finance the petitioner's education at Delhi. She has stated that the letter exhibit PW5/R I was written by her 40 her cousin, Madan Lal, and not to the petitioner. However, the fact remains that the said letter was in petitioner's possession and has been produced by bids wife and has not come from the alleged addressee, Madan Lal, nor Madan Lal has been examined. In cross- examination regarding this letter, she has failed to explain as to what was the occasion for her to write that letter to Madan Lal. She has also admitted her trip to Agra Along with the petitioner. In one respect she has gone further than even the petitioner himself when she says 'on enquiry from the petitioner, I was told that his wife was not being sent to him and he used to feel lot of difficulties even about the meals'. The petitioner has neither in the petition nor in his statement as PW1 ever made such a grieviance. On the contrary, he has all along tried to justify his not calling the wife to join him no account of accommodation problems.
(41) This brings us to the oral evidence led on behalf of the respondent- wife. The same consist of Rw 1, Kesar, a cousins of the petitioner, Rw 2, Rattan Singh; father of the petitioner, Rw 3, respondent-wife, Rw 4, Kamla Devi, mother of the petitioner and Rw 5, Mana Ram, real brother of the respondent. Out of this, the evidence of Rw 2, Rw 3 and Rw 4 alone needs to be referred to.
(42) Rw 2, the father of the petitioner has deposed that he financed the entire education of his son, i.e. the petitioner. He is positive in his statement that he never stood for any Assembly elections nor he ever demanded a sum of Rs. 25,000.00 from the petitioner. He refers to his visit to Hissar to the petitioner's house where he came to know about Ram Piari having stayed with the petitioner in the said house and being described by the petitioner as bids wife. This, according to him, was told to him by the landlady of the house. He has further stated that they belong to an orthodox hindu family in which his son's wife does not even directly talk to him and maintains a 'Purdah' (veil). He has admitted his visit to the Shiv Temple near river Yamuna on the Maha Sivratri Day in February 1979 and stated that on seeing the petitioner with Ram Piari there, he abused the petitioner and also slapped him. He has further added that thereafter the petitioner suddenly left his wife and daughter alone in the North End bungalow. That he was financially supporting them because the petitioner did not make any provision for even the daily needs of his wife and and child. The father has stated that the bone of contention between the parties and one responsibl
(43) Rw 4 is the mother oF the petitioner and she has deposed that in September 1977, when she came to the petitioner's house at Delhi Along with the petitioner's wife and daughter, she met Ram Piari at the house. Immediately, a quarrel took place. She has stated that the respondent-wife was a nice girl belonging to a very good family while regarding her son she says that 'he is a 'Goonda' (bad element) and 'Badmash' (bad character)'. She has further stated that the petitioner did not attend the marriages of his younger brother and sister. She has also stated that she .never saw Ram Piari t icing 'rakhi' on the petitioner's wrist. It is significant to note that both the parents of the petitioner have chosen to call him a person of bad character. About the father, the petitioner has stated that he was annoyed with him but there is nothing said about the mother. Why should the mother use such language and describe her own son in such a manner It is because of her belief in the illicit relationship between the petitioner and Ram Pyari.
(44) Now we come to the statement of Rw 3 i.e. the respondent. She has deposed that up to September 1977 she stayed at the petitioner's house at Daulatabad, meaning the house of the petitioner's parents. From September 1977 to March 1979, she stayed at the North End Road bungalow at Delhi. She has stated that she was always willing for and keen to live with the petitioner wherever the was posted but the petitioner did not allow this on one pretext or the other. She has referred to the Hissar incident which took place with the father of the petitioner on his visit to his son at Hissar. She has referred to the petitioner's letter exhibit R 16 to his younger brother thwarting the move of petitioner's father to leave her and her daughter with the petitioner at Hissar. She says that because of the said letter of the petitioner, they ultimately decided not to go to Hissar. It is worth mentioning here that earlier the petitioner had been avoiding to let his wife stay with him on the ground that he did not have proper accommodation to stay but in Hissar he did have accommodation where on his own admission, (exhibit R 16) Ram Piari had stayed with him. The question arises why did he not call his wife and child to join him at Hissar There is no allegation whatsoever from his side against the wife prior to September 1977. On the contrary, he thwarted such a move on the part of his father. The wife has further stated that about the allotment of government accommodation to the petitioner, they came to know through petitioner's uncle, Pandit Shiv Charan. It was on discovering this fact that they decided to join the petitioner at Delhi. She has denied that the petitioner went to fetch her when she came to Delhi in September 1977. She has also stated about having met Ram Piari at petitioner's house when they first reached there in September 1977 which resulted in a quarrel. She says that the petitioner's behavior completely turned against her thereafter. She has further deposed that Ram Piari used to come to the house at North End Road and used to stay there till late in the evening i.e. up to 9 or 10 P.M. and thereafter on the pretext of seeing her off, the petitioner used to skip the night altogether i.e. the petititioner would not return home for the night. She has gone to the extent that the petitioner threatened to kill her. According to the wife, in the last week of September 1978, the petitioner gave her beating when she resisted Ram Piari in the presence of the petitioner. On this, she states that she wrote to her parents-in-law and called them. However, by the time they came to Delhi, the petitioner had already left the house in the first week of October, 1978, never to return thereafter. According to her, she had to leave the North End Road house in forced circumstances since there was no food, water or electricity. The husband very well knew that the wife and the child were staying in the house Along with the mother of the petitioner, still he got the water and electricity disconnected. Her Explanationn regarding her complaint to the Chief Minister of Haryana against the petitioner is 'so that he may keep me and the child with him'. She says that the petitioner did not attend the marriages of his brother and sister thereafter, which shows that he turned against his entire family for the sake of Ram Pyari. About the daughter, it has been stated by the wife that she asked the petitioner to get her admitted in some school but the petitioner did not bother to do so. She says that she did not know anything about the Shivratri Day incident and learnt about the same only afterwards from her mother-in-law. She has denied any knowledge about the alleged demand of Rs. 25.000.00 by the father oF the petitioner from the petitioner. According to the wife. Ram Piari is the sole cause of marital discord. She has denied the suggestion that her father-in-law ever tried to incite her against the petitioner. According to her, which is also supported by the father of the petitioner, she does not even talk directly to her father-in-law and likewise, the father-in-law talks to her only through her mother-in-law. She is categorical in staling that she was brought to Delhi in September 1977 by her parents-in-law and not by the petitioner. She says that the petitioner used to bring Ram Piari at home and she used to chastise him for this. She admits that Ram Piari never 108 stayed at night in that house. However, she states having seen the petitioner holding Ram Piari by her breast. She has denied the suggestion that her brothers gave a beating to the petitioner on the Maha Shivratri Day. The respondent has further stated that she was still prepared to live with the petitioner.
(45) From the above resume of the documentary and oral evidence on record and as already observed, we find that the wife's complaint to the Chief Minister vide her letter dated 30th January, 1^79, Ex. Public Witness I/I, was fully justified and the wife had every reason to write such a letter. The wife was justified in believing in the correctness of her allegations against her husband. We further hold that the petitioner is totally responsible for whatever has happened between the parties. We are unable to accept that the father of the petitioner is the villain of the piece. Why should the father ruin his son's marriage, specially when he has no complaint against her daughter-in-law, rather whom he supports and looks after in the absence of his son performing this obligation. In support of our conclusion, we particularly rely on the following acts of the petitioner-husband :
(1) Note in his diary regarding his first meeting with Ram Pyari (Ex. R-2) showing his instant infatuation for her. (2) Letters of the petitioner and Ram Pyari showing their mutual love and affection and admonition of his wife by the petitioner on account of Ram Pyari. These letters and Ex. R-13, R-14, R-17 & PW-5/R-1 have already been discussed hereinbefore. (3) Ex. R-1, R-14 and R-16 showing avoidance on the part of the petitioner to let his wife stay with him, together with the state- ment of wife that she always wanted to live with him but he was avoiding this on pretexts. (4) Even though the parties were staying separately till September, 1977, the presence of Ram Pyari in the petitioner's life was permeating all along and the petitioner wanted the wife to be subservient to her. A newly wedded wife being told by the husband that he can get another wife but not another sister like Ram Piari. Thwarting attempts on the part of his parents to leave the wife with him at Hissar. (5) Wife coming to know through Ex, R-16 that Ram Pyari stayed with the husband at Hissar. The petitioner not calling his wife to join him even after allotment and occupation of Govt. accommodation to him in August 1976.
(46) With this background the wife joins the husband at Delhi in September 1977. Immediately the trouble started between the couple and the cause of the trouble was wife's chastising him about his relationship with Ram Pyari, while according to the wife, the cause was his continued relationship with Ram Pyari. So Ram Pyari is the central figure. It Is quite unnatural to think that a wife who joins her husband after seven years of marriage and after having eagerly awaited for this occasion, would start behaving in a manner so as to ruin the marriage. The wife comes from an orthodox Brahmin family with a rural background. In spite of the raw deal that she got in her marriage, she preferred to stay with her husband's parents all along and waited for the fateful day when she would be able to join her husband Along with her infant child. In spite of total lack of her husband's love, affection, care and protection, she has 109 remained in the matrimonial home and does not want divorce even after what the husband has done to her and the child. The conduct of the husband, i.e. the petitioner after September, 1977 is equally condemnable. (6) Admittedly he left the wife and the daughter all alone in the first week of October, 1978 without making any arrangement for their daily needs; as if this was not enough, he makes persistent efforts and succeeds in getting the water and electricity in the house disconnected and also gets the allotment of the house itself cancelled so that the wife and the child are on the road; and she has never cared to find out about their where-abouts much less their well being thereafter. He has never looked after or provided for their daily needs. He has driven the wife to the wall. To her the complaint to the Chief Minister appears to be the last hope to save her marriage. She has written the letter in sheer desperation and in the firm belief of correctness of its contents. This act of her cannot be termed malafide.
(47) She possibly thought that through the intervention of the Chief Minister she could bring round her husband and we find nothing wrong in this. On the basis of the material on record, we find that the wife's allegations about existence of illicit relationship between her husband, i.e. the petitioner and Ram Pyari could not be said to be incorrect. The wife had every reason to believe in the existence of such a relationship between her husband and Ram Pyari. It is worth pointing out here that it is not the wife alone who believes in the existence of this relationship between her husband and Ram Pyari, it is the entire family of the husband which believes it to be so. That is why his entire family is against him. His own real sisters do not tie Rakhi on his wrist, he does not attended the marriages of his younger brother and sister. His parents have disposed against him in the strongest possible language. The entire family has condemned his links with this lady. Ram Pyari.
(48) In the view that we have taken of this matter, we find that no case of cruelty is made out against the wife either on account of her complaint to the Chief Minister or on account of the alleged Maha Shiv Ratri day incident.
(49) Mr. O.N. Vohra, learned counsel for the respondent in this appeal (husband) has vehemently tried to make out a case in favor of his client on the basis of certain alleged inconsistencies between the case pleaded on behalf of the wife in the written statement and the oral testimony led on her behalf. He has also tried to show that certain allegations being made on behalf of the wife against her husband (petitioner) and Ram Pyari have not been put to them when they appeared as witnesses. From these, the learned counsel wants up to hold that the wife's case is false. This argument does not carry weight for two reasons, (a) Assuming what the counsel says is correct, for purpose of Out findings we are not relying on those allegations of the wife against the husband or Ram Pyari on which learned counsel relies in support of his argument. As noticed above we are mainly relying for our conclusions on the petitioner's own conduct as spelled out from his own actions and admitted facts and documents which according to us justify wife's allegations of illicit relationship between the petitioner and Ram Pyari. (b) Like the absence of the concept of a reasonable man for purposes of examining the behavior and the conduct of the parties in matrimonial cases we feel there is another equally important constraint. In these cases the oral evidence cannot be tested/examined as per the strict rules of evidence. We feel that an overall view has to be taken on the basis of the entire evidence. The rule of evidence regarding failure to cross-examine a witness on a particular point and the consequences flowing there from or value to be attached to a statement made in examination-in-chief as against statement made in crossexamination cannot be allowed to hold the field in these type of cases. What is required is a general or an overall view of respective cases of the parties. Taking an overall view of the entire evidence led by the parties in this case we are inclined to hold that the husband totally neglected his wife and child for the sake of Ram Pyari and his obsession for Ram Pyari and togetherness with her led the wife to believe that he was having an illicit relationship with his wife. The reasons which impel us to this conclusion have already been detailed hereinafter. We find that the husband's conduct in this case is unpardonable.
(50) Further the learned counsel for the husband has. argued that cruelty has to be decided from the state of mind of the victim and not from the point of view of the person making the allegations which allegedly amount to cruelty. For this he relies on Lajwanti Chandhok v.O.N.Chandhok 1981 Dmc 97: & Dastane v. Daslane, : [1975]3SCR967 . We accept the proposition of law laid down in these cases.
(51) However, it is conceded that the belief in the correctness/truth of the allegations will exonerates the spouse making such allegations as held in S. (Swayamprabha v. A.S. Chandrashekhar, Air Karnataka 295)'S. As noticed in the earlier part of this judgment, this principle has been spelled out by the learned single Judge in the impugned judgment itself and none of the parties has challenged the same. We are in respectful agreement with this and we add another case to the list which is a decision of this Court in L.P.A. No. 107 of 1985 (Mrs. Iris Paintal v. Dr. A.S. Paintal), decided by a Division Bench on 30th October 1987. This is the existing state of law, so far as we in this country are concerned. With the change in social values and the change in law in this connection taking place, a situation for fresh thinking on the subject may arise. However, at present we need not express any view on this, except noting that 'The jurisdiction in divorce involves the status of the parties and the public interest requires that the marriage shall not be set aside lightly...' S (Preston Jones v. Preston Jones 1951 AC 391'S. This is specially true of our society in which a divorcee man has little difficulty in entering into a fresh wedlock while a divorcee woman finds herself as a 'desolate lone voyager'. Divorce to a woman of the kind we are dealing with, means driving her to a life of veritable widowhood for the rest of her life with all the stigma attached. A further hardship which will result from a decree of divorce in the present case is for the daugther of the parties. She is now more than eighteen years of age (Born on 23 8.1972). She has grown up deprived of the care, love and affection of the farther. She is of a marriageable age. The stigma of being a divorcee on her mother with whom she has lived and grown, will stand in her way for her marriage.
(52) On the question of desertion, the learned single Judge, after referring to the doctrine of constructive desertion, has based his finding on the conduct of the wife which he held to be cruel to the husband. According to the learned single Judge, this conduct of the 'wife drove the husband out of the matrimonial home. It is no doubt true as a proposition of law that a spouse can create a situation whereby the other spouse is driven out of the matrimonial home. thereforee, it cannot always be said that the spouse leaving the house alone is the deserting spouse. This is what has been referred to as the doctrine of constructive desertion. As already held by us, the finding of the learned, single Judge on cruelty is not sustainable and, thereforee, , follows that the wife cannot be said to be cruel and responsible for driving the husband out of the matrimonial home. As a necessary corrollary it follows from this that there is no desertion on the part of the wife and the husband has not been driven out of the house on account of the wife's conduct or behavior.
(53) During the course of earlier discussion, we have shown that it is a case in which the husband is the guilty spouse from which it follows that by seeking divorce he is taking advantage of his own wrong In view of the provisions of Section 23 of the Hindu Marriage Act, for this reason also, the petitioner is not entitled to any relief. He is not entitled to a decree of divorce. In this case it is the husband who has totally neglected his wife and has been callous to her. It is the petitioner's wrong which led to respondent's complaint to the Chief Minister. It is tue petitioner who was trying to get rid of his wife while seeking divorce.
(54) We may also note here that irretrievable breakdown of marriage has not been recognised and has not been given a legal status under the Hindu Marriage Act so far. thereforee, we need not go into this. Even if the marriage of the parties in the present case has irretrievable broken down, divorce can not be granted for this reason. Brij Mohan-v. Santosh (1989) 2 Dmc 563. As a result of the above discussion, this appeal succeeds. We hold that neither of the grounds pleaded in the petition for divorce, i.e. cruelty and desertion, are made out. The petition for divorce moved by the petitioner husband (respondent in this appeal) is dismissed with costs throughout, which we quantify as Rs. 5000.00