R.P. Sethi, J.
1. Alleging cruelty and deserction the appellant herein filed an application under Section 13 of the Hindu Marriage Act for the dissolution of the marriage between the parties by a decree of divorce. The trial court dismissed the petition vide the order impugned in this appeal by holding that petition herein has completely failed to prove his case projected in the petition filed.
2. The facts of the present appeal are that the marriage between the parties was solemnized in the month of June, 1967 and out of wedlock one male child was born in the month of Nov. 1969. It was alleged by the husband-appellant that the conduct and behaviour of the respondent with him after the marriage was neither good nor proper or affectionate and she wanted money and monetary gains for her parents from him. The petitioner submitted that he was posted at Udhampur and had kept the respondent-wife at Sumelpur along with his parents where she is alleged to have mal-treated with the parents of the appellant. It is further alleged that respondent used to disobey whatever his parents used to tell her to do. She used to slip away from the house without the consent of his parents. The respondent-wife at times threatened the appellant and his parents. It was submitted that it was not possible for the parties to live together any more.
3. In the objections filed by the respondent it was submitted that her conduct towards the petitioner and all his family members was extremely cordial, affectionate and good. Even though the petitioner had not shown much affection for her and had exhibited an indifferent attitude towards respondent, she as a pious Hindu lady served the petitioner and his parents in the best possible manner and showered all her love and affection on the petitioner. The respondent continued to live in the house of the petitioner with the hope that he may improve his conduct and behaviour but all in vain. The respondent had denied of being cruel to the petitioner or having deserted him.
3A. On the pleadings of the parties the following issues were framed by the trial court : --
1. Whether the respondent has treated thepetitioner with cruelty? OPP
2. Whether the respondent has desertedthe petitioner for a period of more than twoyears? OPP
3. Relief.
The petitioner examined Hans Raj, Risal Singh and Gurdial as his witnesses and in rebuttal the respondent produced Ranja Ram, Pushpa Devi, Bishan Dass and Sardari Lal as her witnesses. Both the petitioner and the respondent also appeared in the Court as their witnesses.
4. I have heard the learned counsel for the parties and perused the record.
5. And the effort was made for reconciliation between the parties which failed.
6. After going through the statements of witnesses of the parties named hereinabove I have come to the conclusion that the petitioner failed to prove either the cruelty or desertion attributed to the respondent-wife in this case. No evidence worth any mention was produced by the petitioner to prove the issue regarding cruelty.
7. Mere abandoning the matrimonial house may not amount to desertion unless it is shown that the deserting spouse had intended permanent forsaking and abandonment of spouse by the other without that other's consent and without reasonable cause. Desertion is a total repudiation of the obligation of marriage and is not to withdrawal from a place but from a state of things. The person who actually withdraws from cohabitation is not necessarily the deserting the party. The offence of desertion is a course of conduct which exists independently of its duration and is a continuing offence. Pollock described it as.-
'Desertion is not a single act complete in itself and revocable by a single act of repentance. The act of departure from, the other spouse draws its significance from the purpose with which it is done as revealed by conductor other expressions of intentions. A mere temporary parting is equivocal unless and until its purpose and object is made plain.'
8. The Supreme Court in Bipin Chandra Shah v. Prabhavati, AIR 1957 SC 176 (at p. 184) defines the desertion as.-
'.....It is well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like any other matrimonial offence beyond all reasonable doubt Hence though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence unless its absence is accounted for to the satisfaction of the Court.'
It has been held by the English, Courts that though the parties may reside under the same roof yet there may be desertion by a party to the other. The crucial aspect to be seen as to what constitutes desertion is not walking out of a house but withdrawal from a home. A distinction must be made between a house and home. A house is built by hands, but a home is built by hearts. According to explanation under Sub-section (i) of Section 13 of the Act the expression 'desertion' means 'the desertion of the aggrieved by the other party without reasonable cause and without the consent or against the wish of such party and includes the wilful neglect of the party by the other party to the marriage. The party must prove that the other party has deserted the petitioner without his or her consent or against the wishes. In a petition filed to obtain a relief on the ground of desertion by the petitioner the factum of desertion has to be proved. Desertion within the meaning of the provisions of the Act does not imply only a separate residence and separate living. There must be determination to put an end to marital relations and to cohabitation permanently. It is well settled principle of law as recognized by the Hindu Marriage Act that no party can be allowed to take advantage of his/her own wrong. En the instant case a perusal of the statement of the appellant would show that the respondent-wife is only alleged to have left the house and went to the house of her parents but he has not slated anywhere that she had left his company with the intention of permanently forsaking his company or that she withdraw from his society which would amount to desertion within the meaning of Section 13 of the Hindu Marriage Act. It also does not come out from the record that the appellant had made any efforts to bring his wife back to his matrimonial fold for the rehabilitation of conjugal relationship or that the wife had ever refused to come, live and reside with him under his roof and protection. The appellant having failed to prove the precondition of desertion as stated hereinabove was rightly held not entitled to the grant of the relief under the provisions of the Hindu Marriage Act.
9. The appellant has also failed to prove the cruelty alleged in the case as such is not entitled to the grant for divorce. Cruelty is not confined to physical cruelty but also includes mental cruelty. In the case of physical cruelty harm or injury inflicted is to the body directly and in the case of mental cruelty, the harm or injury caused is through the mind but nevertheless it is a harm or injury caused to the human body. The question of mental cruelty should be decided in the light of the. norms of marital ties of the particular section of the society to which the parties belong keeping in view their social values and the status of the parties. The cruelty may consist of various forms and it must be productive of an apprehension in the mind of the other spouse that it is dangerous to live with the erring party. Wilful and unjustifiable interference by one spouse in sphere of life of the other is one species of cruelly in the same way in which rough or domineering conduct or unnatural sexual practices or disgusting accusation of unchastity or adultery and some times even studied, unkind or persistent nagging can in a proper case be regarded as cruelty. In the instant case the appellant has not been in a position to establish the physical or mental cruelly attributed to the respondent wife. The trial Court, therefore, was justified in rejecting his prayer for the grant of a decree of divorce on this ground as well.
10. Mr. Wazir the learned counsel for the appellant has however submitted that as in fact the marriage between the parties has broken there will be no purpose for keeping the same alive particularly when the parties cannot live together despite dismissal of the petition. He has referred to a judgment of Rajasthan High Court reported in AIR 1978 Raj 140 (at p. 155) wherein was held that:
'Their marriage is now only an empty shell which should be destroyed with the maximum fairnessand minimum bitterness. I am satisfied that the marriage deserves to be dissolved. If they cannot bury the hatchet, let them bury the marriage and live again. Divorce, is no doubt not a cure for matrimonial happiness and may result in loneliness despair and hardship more to the child than to the spouse but the parties are young and fortunately belong to a community in which severance of marriage and remarriage are not uncommon events and may be able to find more agreeable parties.'
A perusal of the aforesaid judgment would show the Rajasthan High Court directed the dissolution of marriage primarily being moved by the fact that the parties in that case belonged to a community in which severance of marriage and re-marriage were not uncommon. In the instant case there is nothing on record to suggest that the parties were interested in re-marriage or that they belong to a community in which severance of marriage or re-marriage was common. It would be dangerous to compare the marriage with sheds or direct its destruction if the shell is found empty. If the parties to the marriage cannot bury the hatchet, they cannot be permitted to bury the marriage as observed by Rajasthan High Court which has completely ignored the historical growth of the institution of marriage, the family and the society.
11. The growth of the Institution of marriage is connected with the economic, social and political situations prevalent in the society at a given time. The present society is constituted of different units, the smallest being family. The foundation upon which the structure of the family rests is the institution of marriage which dates back to the time, the modern civilised world came into existence. Centuries of human experience have resulted in giving a social meaning to the term, marriage which originated from the loose sexual relations between man and woman.
12. The marriage legalises the sexual relations between man and woman in the society for the perpetuation of the race, permitting lawful indulgence in passions, to prevent licentiousness and for procreation of children. Unlike primitive age, the lower unit of the society are not based upon sex groups but its shape is determined by the family existing in the society. The Institution of marriage has travelled through three main stages of human development, that is, Savagery, Barbarism and Monogamy. Various philosphers of history including Bachofen, Morgan, J.F. McLomman, Lubbock, and Engles have traced the origin of the Institution of the Marriage from the original state of humanity when man and woman lived in a state of sexual promiscuity popularly known as 'hetaerism' and such promiscuity excluded certainty as regards paternity, the lineage, therefore could be reckoned only through the female line, that is according to mother right. The women, as mother's were the only definitely ascertainable parents of the younger generation and treated with a high degree of consideration and respect and the rule of women in that protective age is known as 'gynaecocracy'. The devolution to the marriage to the state of monogamy implied to the evolution of primeval religious injunction conferring right upon a man to have relations with a specified woman. The evolution was based upon the development in religious ideas, the social and economic growth in the society and a comparatively progressive outlook prevalent. The concept of marriage has differed from age to age and society to society which was determined on the basis of the socio-economic political system then prevalent. The duration of the urge of individual sex differs according to the individual, particularly among men and a defaction, cessation of affection or its displacement by a new passionate love by directing easy separation to the man, would amount to blessing the, erring spouse particularly husband as predominantly our society is influenced by male chauvinism. An attempt has to be made to keep the institution of Marriage intact as far as possible, for keeping the balance of good values in the society. The sanctity of the marriage and the acknowledged pious relationship between man and woman cannot be compared with shells or other objects. The structure of human society is based upon the historical evolution determined by various considerations prevalent at particular lime in the society. The Courts have to adopt an approach by which the smallest unit of the society is not easily destroyed, unless it is proved to have crumbled down under its own pressure. Hindu Marriage was considered, as a 'Sanskar' as conceived in Yajnavalkya Smriti as distinguishable from Christian and Muslim marriage which is a contract with some religious sanctity. The Hindu Marriage Act has brought revolutionary changes in the concept of the marriage which is no more,' once a marriage always a marriage' as the same can be dissolved by a decree of divorce or judicial scparalion if the existence of the circumstances provided under the Act are proved to be existing by the aggrieved party. It appears that the Rajasthan High Court while passing the judgment completely ignored the concept of the marriage being the foundalion of the institution of family which is the smallest unit in the society. Easy dissolution of marriage may result in crumbling down of the whole of the instilution of the family resulting in destruction of the society. With great respect I differ from the views of Rajasthan High Court as expressed in AIR 1978 Raj 140, Even if the marriage is held to be a shell, the same cannot be directed to be destroyed if empty unless it is full of explosives.
13. There is no merit in this appeal which is hereby dismissed with costs.