Judgment:
Mohini Kapur's, J.
1. There appellant's petition for grant of a decree of divorce has been dismissed by the District Judge, Sikar by his Order dated 18th May, 1985 and against this, the appellant has preferred this appeal.
2. The facts leading to this case are that the appellant and the respondents were married on 6th March, 1975 and according to the appellant the respondent lived with him only up to 9th March, 1975 and even within this time the marriage could not be consummated on account of the refusal of the respondent. During this time, the respondent did not speak a word, but only gave signals any kept her face covered and it was lateron revealed that her voice was very hoarse and at the same time she could not speak properly. According to the appellant, the respondent thereafter did not come to his house. She came for a short time on account of the marriage of the appellant's brother and at that time also, she created a scene at his house. The appellant is living at Bombay in connection with his job and when he was suffering from jaundice the respondent did not come to attend him inspite of massage sent to her.
3. For all these reasons, the appellant suffered mentally and on these grounds claimed that divorce be granted to him.
4. It was alleged in the petition that the respondent levelled false allegations about demand of dowry and this was in order to harass the family of the appellant. The appellant further alleged that the respondent was not capable of becoming a mother and her nature was also very harsh and there could be no question of their living together.
5. The marriage has been accepted by the respondent but after the marriage she lived with her husband at village Bumanuas. The ornaments have been mentioned which are said to have given to the respondent by her father and according to her, they have been retained by the appellant. The respondent is some what heard of hearing and this fact was in the knowledge of her husband prior to the marriage. She lived with her in-laws for about one year and thereafter, she was beaten in order to bring more dowry. Thereafter, when she went to her father's house in the marriage of her sister, she was not called back and when she went to the house of the appellant but she was turned out. The respondent was ready to live with her husband but he has neglected to do so. hence, she filed an application for maintenance and this has led the appellant to file the petition for divorce. She dented that she was impotent and replied that she could not be blamed if the appellant could not make her conceive.
6. The learned Trial Court framed the following issue.
7. After recording evidence of the parties and hearing arguments, the issues were decided against the appellant and the petition was dismissed.
8. The learned Counsel for the appellant has contended that the petition for divorce was filed on ground of desertion and mental cruelty, on the ground of raising a false allegation about asking for dowry and not coming during illness. It is also contended that the continuance of marriage in the circumstances is not possible and it will be in the interest of justice if the decree for divorce is granted.
9. According to him, the respondent first refused to cohabit with him and thereafter deserted him and has not returned for more than three years and this is a fit ground for obtaining the divorce.
10. On behalf of the respondent it is contended that actually it is the appellant who has deserted the respondent as he himself has gone to Bombay and has never taken his wife with him and for years together she lived at the house of the in-laws. It is also argued that the divorce petition is a consequence of the maintenance petition filed by the respondent. It is argued that the appellant is not keeping the respondent because of some defects namely her speech is not clear and voice is hoarse and is hard of heaing and these grounds are not sufficient for not keeping a wife with him. These grounds can also not become the grounds for seeking divorce.
11. I have considered the contentions which have been raised on behalf of both the parties and it can be said that the main thing which is to be decided in this petition is that whether the appellant has deserted the respondent or it is vice-versa.
12. It is an admitted position that the respondent filed an application for grant of maintenance on 14th May, 1983 and in this petition, she raised the plea that the appellant has refused/neglected to maintain her. In this application it was mentioned that a demand of Rs. 30,000/- was made by the appellant and that when she had returned after the marriage of her sister, she was not allowed to stay at the house of the appellant and it was in reply to this application that the appellant pointed out defects of the respondents and claimed that she was impotent. Prior to this, the appellant did not choose to file a divorce petition. He failed the petition on 21.7.1983 after the maintenance application of the respondent had been filed.
13. The defence of the appellant pointing out defects in the respondent like hardship in hearing, hoarse voice and impaired speech is supported by the statement of P. W. 3 Suresh. He has admitted that the appellant had decided on the very day after his marriage that he could not keep Kamla as his wife. If this was so then it is strange that the appellant did not take any steps for divorce for eight years and made a move only when the respondent filed the application for maintenance. It is apparant that the appellant does not want to keep the respondent as his wife because he is hard of hearing and cannot speak properly. As far as the impotency of the respondent is concerned, none of the parties has dared to get her examined by a Doctor. The respondent claimed that she lived at the house of her in-laws for several years and appellant used to come them from Bombay but the appellant failed to take her to Bombay. She is hard of hearing, is established by the remarks made by the Presiding Officer at the time of recording her statement. N.A.W. 3 Maina Devi is sister of Kamla respondent and at the same time she is the aunt of the appellant. According to her, the appellant decided to leave the respondent after he started learning at Bombay. She has also stated that the respondent used to stay with her in-laws for long periods and the appellant used to come from Bombay. The witness examined by the respondent has stated that she stayed with her in-laws for several vears actually for 4-5 years in and total of ten years and she was now living with her parents.
14. From the evidence it can be said that both the sides have taken their view point and it has come out that due to certain defects in the respondents, namely hard of hearing.impaired speech, she was not liked by the appellant. The appellant was also a student at the time of his marriage but subsequently he had started earning at Bombay and is not prepared to adjust with a woman who has some defects. The appellant has never taken his wife to Bombay and she has been asked to stay at the house of the appellant's parents. If, on account of the defects of the respondent as pointed out by the appellant, he was not ready to live with her, or the respondent was impotent then the appellant would have filed a petition for divorce immediately after the marriage and not waited for 8 years before doing so.
15. The circumstances show that it cannot be said that the respondent has deserted the appellant, but it is the appellant who is not keeping her with him and he cannot complain that his wife has deserted him. During the talks of compromise also, the appellant refused to take the respondent to Bombay, No grounds of divorce as mentioned in the Hindu Marriage Act have been made out and mainly because in reply the respondent has introduced the theory of demand of dowry it cannot be said that this will be a ground to grant divorce to the appellant.
16. In my view, the appellant has not been able to show that the respondent has deserted him and the other reasons mentioned by him are not sufficient for grant of a decree of divorce.
17. The findings of the learned District Judge do not require any interference, and this appeal is dismissed with costs.