Punjab-Haryana High Court
Kulwinder Kaur vs Jagdish Singh on 8 March, 2001
Equivalent citations: II(2001)DMC514
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. Kulwinder Kaur and her two children Ramandeep Kaur and Hardip Singh have filed the present appeal and it has been directed against the judg-
ment and decree dated 22.1.2000 passed by the learned Additional District Judge, Rupnagar, who allowed the petition under Section 13 of the Hindu Marriage Act filed by Jagdish Singh, husband of Kulwinder Kaur on the ground of desertion and cruelty. I may also make a mention here, first, that in the trial Court, the children were not made parties to the proceedings, but this ap-peal has been fifed on their behalf through their mother Kulwinder Kaur. Perhaps for the reason that since they are the children to the parties of marriage, they are likely to be affected by the judgment and decree. Be that as it may, 1 am of the opinion that Ramandeep Kaur and Hardip Singh have no locus standi to file the present appeal.
2. It may also be mentioned here that Jagdish Singh filed apetition under Section 13 of the Hindu Marriage Act against his wife Kulwinder Kaur on the ground of desertion and cruelty and on the ground that she was seen in the company of Tarsem Lal-respondent No. 2 many times. Therefore, it should be inferred that Kulwinder Kaur was living in adultery with Tarsem Lal who was impleaded as respondent No. 2 in the trial Court. The trial Court decided issue No. 1 against the husband and issues Nos. 2 and 3 were decided in his favour. Resultantly, decree of divorce was granted on the ground of desertion and cruelty.
3. The brief facts of the case are that respondent-Jagdish Singh was married to Kulwinder Kaur on 7.6.1987 by way of Anand Karaj ceremony at village Rattangarh, Tehsil and District Rupnagar. After the marriage, the parties lived happily and they cohabited with each other and out of this wed-lock, 2 children were born, namely, Ramandeep Kaur and Hardip Singh.
4. Respondent-Jagdish Singh suffered a fracture on his leg and he was confined to bed. It is alleged by him that when he was confined to bed, appellant-Kulwin-der Kaur did not care for him. She used to leavehim by making lame excuses that her children were not feeling well and sometimes she used to allege that she has to visit her parental house at Mohalt. In fact, appellant-Kulwinder Kaur used to move with respondent No. 2-Tarsem Lal in a car/taxi freely. She was living in adultery with respondent No. 2 and finally she left the matrimonial home in July, 1993. It is also the case of the respondent-Jagdish Singh that appellant-Kulwinder Kaur never prepared any meals for him when he was confined to bed, rather she used to condemn him by saying that he was illiterate and of middle standard whereas she is a matriculate. Appellant-Kulwinder Kaur moved an application before the Morinda Police and as a result of that, respondent-Jagdish Singh was arrested in the month of April, 1993. The respondent-Jagdish Singh was kept in police station and was misbehaved by the police at the instance of appellant-Kulwinder Kaur. After leaving the house in the month of July, 1993, appellant-Kulwinder Kaur did not join the company of the respondent-Jagdish Singh. Respondent-Jagdish Singh has not condoned the acts of cruelty on the part of appellant-Kulwindej Kaur. So much so that appellant-Kulwinder Kaur filed a petition under Section 125 of the Code of Criminal Procedure in the Court of Chief Judicial Magistrate, Rupnagar, and that petition is pending. On these allegations, the respondent-Jagdish Singh had sought a decree of divorce against the appellant-Kulwinder Kaur by adding Tarsem Lal as respondent No. 2.
5. Notice of the petition filed under Section 13 of the Hindu Marriage Act was given to the respondents. Respondent No. 2-Tarsem Lal did not contest the petition. Appellant-Kulwinder Kaur, however, contested the petition. She admitted the factum of marriage with respondent-Jagdish Singh and also the fact that she gave birth to two children out of that wedlock. She denied that she developed illicit relations with Tarsem Lal-respondent No. 2. She denied that allegations of respondent No. 1-Jagdish Singh as malicious and defamatory in order to create a false ground for divorce. According to appellant- Kulwinder Kaur, she was sin-'cere to the respondent-Jagdish Singh. She never used to leave his house. She never ignored him. Respondent-Jagdish Singh had gone to some foreign country and earned good amount of money. He used to reside in the house of his father and used to cultivate the land but some of his clever relatives persuaded him to start the business of property dealer. Then he purchased a plot and built House No. 927, Phase-11, SAS Nagar, Mohali. Some other plots at different places were also purchased by him and the relatives also started instigating him against his wife Kulwinder Kaur-the present appellant. They also started enjoying in the consumption of liquor and started visit ing his house. The appellant-Kulwinder Kaur objected to it and requested him not to bring such drunkard people to the house and waste the money. Therefore, at the instigation of these persons, the behaviour of the respondent-Jagdish Singh became cruel towards the appellant-Kulwinder Kaur arid he fell into bad company and even the amount of one FDR was withdrawn by him which had not even matured, under the forged signatures of the appellant-Kulwinder Kaur and ultimately he expelled the appellant-Kulwinder Kaur from his house in the beginning of 1993. A Panchayat consisting of Kultar Singh, Baldev Singh, Jamail Singli and Amrik Singh and others went to the respondent-Jagdish Singh's house to persuade him for rehabilitation but he declined and demanded fridge and scooter. Seeing no alternative, the appellant-Kulwinder Kaur had to file a petition under Section 125 of the Code of Criminal Procedure on 20.5.1993 which is still pending in the court of Chief Judicial Magistrate, Ropar.
6. The respondent-Jagdish Singh filed a rejoinder in which he reiterated his allegations mentioned in the written statement of appellant-Kulwinder Kaur and from the pleadings of the parties, the learned trial Court framed the following issues for the disposal of the petition :-
" 1. Whether the respondent is living in adultery with respondent No. 2 and some ofher persons ? OPP
2. Whether the respondent No. 1 has treated the peti-
tioner with cruelty ? OPP
3. Whether the respondent No. 1 has deserted the petitioner since July, 1993 ?OPP
4. Relief."
7. Parties led evidence in support of their case and on the conclusion of the proceedings, it was observed by the trial Court that the petitioner has not been able to prove that respondent has committed sexual intercourse with any other person. It was also held by the trial Court that the petitioner has failed to prove that respondent was living in adultery with respondent No. 2 or with somebody else. Resultantly, issue No. 1 was decided against the petitioner. Issues Nos. 2 and 3 were decided against respondent No. 1 and in favour of the petitioner. As a result of that, a decree of divorce was passed in faovur of the petitioner and the marriage of the parties was dissolved vide judgment dated 22.1.2000. Aggrieved by the said judgment, the present appeal has been filed by the wife.
8. I have heard Mr. Munishwar Puri, learned Counsel for the appellants and Mrs. Nirmaljit Kaur, learned Counsel for the respondents and with their assistance I have gone through the record of the case.
9. Before I deal with the submissions raised by the learned Counsel for the parties, it would be appropriate for me to mention paras 7 and 8 of the trial Court in order to appreciate whether the reasoning given by the trial Court is correct or otherwise :-
"7. Before starting discussion, I would like !o point out at the very outset that during the proceedings efforts for reconciliation were made by my learned predecessor as well as in the Lok Adalat and even thereafter but reconciliation could not be achieved due to diametrically opposite views held by the parties.
8. These issues under discussion have been taken up together for discussion, since the ground of cruelty and desertion have intermingled facts. It is admitted by both the parties in Ihe pleadings weil as in the evidence that they lived happily till August, 1992. Italso admitted that in August, 1992, petitioner met with an accident and his leg was fractured and he was confined to bed. It was from August, 1992, thai the relations between the parties are alleged to have strained and the allegations made in the petition have cropped up. The allegations of the petitioner are that when he was confined to bed, respondent No. 1 didnot care for him and also did not look after him. She started leaving the house on the pretext of visiting the parental house at Mohali and that children are not feeling well. She was moving freely with Tarsem Lal respondent No. 2 in his car/taxi at Khamanon, Mohali, Ludhiana and other places and developed illicit relations with him. It is further alleged that respondent No. 1 did not serve him meals. It has come in evidence of Jagdish Singh-petitioner that he was completely cured after 8 months which means that he was cured in the month of April, 1993 whereas according to the respondent, she was turned out in the beginning of the year 1993. Further, it is admitted that application for maintenance was filed against the petitioner by the respondent No. 20.5-1993 meaning thereby that dispute arose prior to May, 1993, which further means that during the last days of healing of the petitioner, relations between the parties deteriorated and resulted in the dispute. Respondent has made counter allegations in the reply saying that the petitioner has earned good money from the foreign country and that he started the business of property dealer on Ihe instigation of his relatives and started wasting money and started drinking liquor and used to bring drunkards in his house. He also started beating the respondent. I find that allegations are contrary to the stand of the respondent that relations between the parties remained cordial upto August, 1992. It is not specifically alleged in the reply that these happenings took place prior to August, 1992. Rather the assertion of the petitioner in admitted that relations between the parties remained cordial upto August, 1992, meaning thereby these allegations related to August, 1992 period, whereas the petitioner was confined to bed due to fracture of his leg. It is not possible that he was handling property dealing business and bringing drunkards to his house. Thereafter, it is to be scrutinized as to what spoiled the relations between Ihe parties when the petitioner was confined to bed in August, 1992. It is also not possible that when the petitioner is confined to bed and started to have earned good money and purchases some plots at Mohali, then he will demand fridge and scooter. In order to prove his assertion, the petitioner has examined Haqikat Singh, PW1, Mohan Singh, PW2 and himself entered the witness box as PW3. Haqikat Singh has stated that when the petitioner was confined to bed and he came to village, respondent No. 1 did not care for the petitioner. She used to leave the house on the ground that children are not feeling well or that she has !o visit her parental house, she used to go with Tarsem Lal in car and she had been seen at Khamanon, Mohali and other places including Ludhiana. In cross- examination, Haqikat Singh admitted that Tarsem Lal also belongs to his village. He is married and having many children. He stated that he never informed mother, father, wife or any family member of Tarsem Lal about his relations with Kulwinder Kaur. The wife of Tarsem Lal never protested against the relations of Tarsem Lal with respondent. Mohan Singh PW2 also made similar allegations. Petitioner also stated that respondent was seen moving in the company of Tarsem Lal in the taxi at Khamanon, Samrala and Chandi-
arh and she was living in adultery with Tarsem Lal. He further stated that respondent remained in his house upto August, 1993. She filed a com-
plaint against him in the police station, Morinda, where he was humiliated by the police. He further stated that ultimately respondent left her house with her belongings in July, 1993. Some of the allegalions made by the respondent have already been discussed above and have been found to be not believeable. In the reply, respondent has stated that the Panchayat consisting Kul-tar Singh, Baldev Singh, Jarnail Singh and Amrik Singh went to the petitioner and requested him to rehabilitate. Out of these persons, she examined Jamail Singh RW2. She also examined Bikram Singh RW3. It further comes out in the evidence that there are allegations that brother of the respondent also played some part in calling the petitioner to the police station, Morinda.
It is admitted during the arguments that respondent has two brothers and three uncles. In fact, none of the brother or uncle came forward to support the case of the respondent. Jamail Singh RW2 stated that the respondent is her niece from collateral hood showing that he is a distant relation of respondent. It is strange that no close relation of the respondent came forward to support the respondent. Bikrarn Singh RW3 has stated that Kulwinder Kaur is grand daughter of his brother Kapoor Singh. In the presence of nearest relations, there is no reason why the distant relations were brought and why the nearer relations did not participate in the proceedings and did not depose in favour of the respondent. In the circumstances, one has to believe that something happened after August, 1992, and till April, 1993, when the petitioner remained confined to bed due to fracture of his leg which resulted in the bitter relations between the parties to the extent that respondent approached the Court of Chief Judicial Magistrate, Rupnagar, for maintenance in the May, 1993. According to the respondent, she was turned out in the beginning of the year 1993. If it is so then there must be strong reason why petitioner allegedly turned out the respondent when he himself was unable to move due to fracture of his leg. All these facts support the allegations of the petitioner that respondent was moving around with Tarsem Lal openly at different places which had annoyed the petitioner to the extent that petitioner was called to the police station and as per allegations, he was humiliated by the police at the instance of the respondent. Moving around with a person in suspicious manner is always viewed with suspicion in our society and this amounts to cruelty and also shows that respondent in place of caring for her injured husband, was moving around with Tarsem Lal respondent No. 2 and not looking after her husband. This also amounts to cruelty. The calling of husband in the police station and getting him humiliated by the hands of the police is also an act of cruelty. Leaving the petitioner when he was confined to bed with fracture is also an act of cruelty as well as desertion.
The factum that maintenance application was filed in May, 1993, goes to show that respondent had no intention of compromise and left the petitioner with a definite move not to come back. Normally, in our society, such hasty steps are not taken unless the party had made up his mind to take the things to one or the other side. The story of Panchayat approaching the petitioner is also not dependable and same is the allegations regarding demand of fridge and scooter. Petitioner has specifically named Tarsem Lal by name and alleged him to be the person with whom the respondent was moving around in suspicious manner when he was confined to bed. Therefore, I find that petitioner has proved that respondent treated him with cruelty after August, 1992, and also deserted him in the beginning of the year 1993. Therefore, both these grounds stand proved. Accordingly, issues Nos. 2 and 3 are decided in favour of the petitioner and against the respondent."
10. Mr. Munishwar Puri, learned Counsel for the appellants argued that the trial Court has not appreciated the evidence led by the parties in the right precept. Learned counsel for the appellants further submitted that the entire evidence with regard to cruelty is a hearsay and cannot be acted upon especially when the finding of the trial Court on issue No. 1 has gone against the husband. Mrs. Nirmaljeet Kaur, learned Counsel for the respondents however supported the reasons given by the trial Court and submitted the additional argument that since the parties are not in a position to reconcile their differences even after a lapse of 13 years when the marriage between the parties was performed, therefore, it should be inferred that marriage between the parties has broken irriterably and their differences is a good ground for divorce. Considering the rival contentions of the parties, I am of the considered view that the judgment of the learned trial Court cannot sustain in the eyes of law. This court, after going through the evidence has formulated an opinion that the husband has levelled irresponsible allegations of adultery to his wife just to get rid of her. Though the finding of the trial Court has gone against the husband but this would give the insight to him to reject the case of the husband on issues Nos. 2 and 3. Firstly, the husband tried to make out a case that the appellant-wife was moving about freely in the company of Tarsem Lal in a car/taxi and she was living in adultery with him. His case was that when he suffered fracture in August, 1992, and when he was confined to bed, the appellant-wife took the opportunity to leave the house in order to enjoy herself in the company of Tarsem Lal. This aspect of the case remained not proved because the averments of the husband were totally hearsay. He did not see the appellant-wife in the company of others. He simply relied upon a borrowed opinion which too was not accepted by the trial Court. The deciding of issue No. 1 against the husband itself suggests that the conduct of the husband was not upto the mark and he wanted to get rid of his wife on one excuse or the other. Now let us see whether cruelty or desertion has been proved on the part of the husband or not. In order to approach this aspect of the case, I will again revert to the pleadings of ihe husband. In short, his case as I understood is that when he was confined !o bed from August, 1992 onwards, he was not properly looked after by his wife, rather his wife used to ieave him in the house all alone in order to enjoy herself in the company of Tarsem Lal. The second ground is that the appellant-wife left the matrimonial home in the month of July, 1993, and thereafter, she never joined the company of the respondent-husband and this act on the part of the wife is an act of desertion. Now I would like to examine the evidence of the parties in this regard. Respondent-husband examined 3 witnesses, namely, Haqikat Singh, PW1, Mohan Singh, PW2 and himself as PW3. Jagdish Singh, PW3 stated that he suffered a fracture on his leg in the month of August, 1992, and was confined to bed. His wife-the present appellant did not care for him.
She did not serve any food to him. She did not give him the proper respect. She used to show that he was illiterate person and she is an educated lady. After that, one Tarsem Lal, in whose taxi he used to go, his wife developed relationship with him. Along with Tarsem Lal-respondent No. 2, she used to go to Khamano, Samrala and Chandigarh openly. Firstly, the husband had never seen the appellant-wife in the company of Tarsem Lal either at Khamano, Samrala or at Chandigarh because it is his own case that he was confined to bed. In these circumstances, it will be a guess work of the husband to say that the appellant-wife was living in adultery. In the petition, the husband has alleged that his wife lived with him upto July, 1993 but in the examination-in-chief, it has been admitted by him that his wife lived in the house upto April, 1993. In other words,'there is no difficulty on the part of this Court to hold that the case set up by the husband that the appellant-wife had left the house in the month cf July, 1993, is correct. The respondent-husband wanted to improve himself by saying that finally the appellant-wife left the house in the month of July, 1993. Be that as it may, let us take the worst that the appellant-wife allegedly left the house in July, 1993, the point for determination still would be whether the appellant-wife was turned out from the house or that she left the house in order to enjoy life with somebody else. The theory of July, 1993, does not stand to the test of scrutiny even for a moment because it is the case of the respondent-husband himself that in the month of May, 1993, the appellant-wife filed a petition under Section 125 of the Code of Criminal Procedure and claimed maintenance. It does not stand to reason that when the appellant-wife was still living in the house of the respondent-husband, she filed a petition under Section 125 of the Code of Criminal Procedure. On the contrary, it is established on record that the appellant-wife remained in the matrimonial home upto March, 1993 and therafter she was turned out. Being compelled under the circumstances, the appellant-wife was left with no other option but to claim maintenance under Section 125 of the Code of Criminal Procedure. The filing of the petition under Section 125 of the Code of Criminal Procedure, itself is not a ground of cruelty because it is the legitimate right of the wife to claim maintenance when she has allegedly deserted and neglected. Moreover, there is no finding so far by any court of Competent Jurisdiction that petition under Section 125 of the Code of Criminal Procedure is a frivolous or malicious or it was filed in order to cause mental agony or cruelty to the husband. With regard to the alleged cruelty that the appellant-wife never prepared food etc. for him, there is no iota of evidence to suggest that in the absence of the appellant- wife, who else was preparing meals for the husband. Not even a single relation has come in the witness box to say that he or she had been preparing the meals for him or that he was getting the food from the market for his survival. Further, let us see the conduct of the husband. Whether he made any effort to rehabilitate his wife or not. It has been admitted by the respondent-husband that he never paid any maintenance to his wife or children outside the Court. He has also stated that he had never seen the appellant- wife in a compromising position with Tarsem Lal. He further stated that none else had told that he had seen the appellant-wife in a compromising position with Tarsem Lal. The source of information is his brother, who allegedly stated him that he saw the appellant-wife roaming at Samrala. The brother has not come in the witness box to corroborate ihe allegations of the husband.
It has also been admitted by the respondent-husband that after July, 1993, he never went the house of the parents of the appellant-wife to bring her. In this view of the matter, I am not in a position to hold that the appellant- wife is guilty of desertion or that she treated the respondent-husband with cruelty.
11. Now I would like to discuss the statement of Haqikat Singh, PW1, who is an old man of 62 years. Though this gentleman has stated that the appellant-wife did not care for the respondent-husband and that she used to leave the house on the ground that her children were not feeling well or that she used to visit the house of her parents, but there is no cogent source of information of this witness. Haqikat Singh even went to the extent by saying that appellant-wife used to go with Tarsem Lal in a car and she was often seen at Samrala with respondent No. 2-Tarsem Lal. As per this witness, the appellant-wife left the house in April, 1993. In cross-examination, it has been admitted by Haqikat Singh that respondent-husband never informed him regarding the bad activities of his wife. He also.admitted that he never informed the mother or father or any other relation's about his relations with the appellant-wife. The evidence on record farther shows that at one point of time, the parties were called in the police station. Even on that occasion, it was not the case of the respondent-husband that the appellant-wife was living in adultery with Tarsem Lal. The case of the respondent-husband was that the brother of the appellant-wife came to his house in order to kill him. Haqikat Singh admitted that "the police did not enquire into the allegations of illicit relations of the appellant-wife with respondent No.2-Tarsem Lal." In this view of the matter, I am in a position to hold that the allegations of bad character to the appellant-wife is a fiction and this story is to fall to the ground^ Haqikat Singh also admitted that he did not give in writing to any authority regarding the illicit relationship of the appellant-wife with respondent No. -2-Tarsem Lal. Haqikat Singh then came with the new story when he deposed.that he saw the appellant-wife in-the company of respondent No. 2-Tarsem Lal for the first time in Chandigarh when he had come to Chandigarh in the PGI where his son was ill. Thus the statement of Haqikat Singh does not inspire any confidence so as to believe the story of alleged cruelty. Statement of PW2 Mohan Singh also does not improve the case of the husband.
Rather, it demolishes the case of the husband. The case set up by the husband was that when he was confined to bed, his wife left his company. On the contrary, Mohan Singh admitted that when the leg of the respondent-husband was fractured, about 7 years back at that time, the appellant-wife was living with him in the village. He also admitted that he did not tell about the meetings of the appellant-wife to the father of the respondent-husband and he did not disclose this fact to any other person or any family member of the respondent-husband. He also was not in a position to tell about the type of the car in which the appellant-wife and respondent No. 2-Tarsem Lal were found roaming. Thus, the entire evidence which has been led by the respondent- husband to prove the fact of alleged desertion and cruelty is against the statement of the appellant-wife. She categorically stated that she did not have illicit relations with any person muchless with a person by the name of Tarsem Lal. According to her, the respondent-husband used to bring drunkards in the house and when she requested to him not to spoil the money and energy, he became annoyed. She has also stated that she had been looking after him when he was confined to bed. She was expelled from the house in the month of March, 1993, and as a result of that he had to file a petition under Section 125 of the Code of Criminal Procedure. It has also come in the statement of the appellant-wife that the respondent-husband met (made ?) a demand of scooter and Refrigerator. The respondent-husband never provided with any maintenance inspite of the fact that both the children were school going and she had been maintaining them. She also stated that she was willing and prepared to live with her husband as his faithful wife. In the cross- examination, she stated that the differences started from August, 1992. She denied the suggestion that she left the house of her husband in the month of July, 1993. She still treats her husband as a good person. The statement of the appellant-wife has been corroborated by RW1 who deposed that the appellant-wife was forcibly expelled by her husband after giving her beatings. It has also come in the statement of these witnesses that efforts for rehabilitation were made but the respondent-husband was not willing to rehabilitate the appellant-wife. Similar is the statement of the grandfather of the appellant-wife who stated about her character.
12. Now I deal with the aspect whether mere filing of the petition under Section 125 of the Code of Criminal Procedure by a wife against her husband would constitute a ground of cruelty and when the husband of a lady has been summoned in the police station even on the complaint made by the wife alone, per se is a ground of cruelty. The answer of the Court is in the negative. Every action has a reaction. If the husband deserts or turns out his wife from the house in the modem times, where the lady with two children would go ? She will definitely go to the house of her parents or brothers. Shewill look to the paternal side. Nobody will like to maintain the lady wifh two children for all times to come. Advice is always given to the wife to resort to the legal provisions. If she has exercised her rights under Section 125 of the Code of Criminal Procedure, she has not committed any sin. Similarly, even if she has made a complaint in the Panchayat or in the police station, and some legal action has been taken, that itself is no ground to come to the conclusion that this amounts to cruelty and unless it is established that the police has involved the husband or his relations in a false case without any basis. There is no evidence on record that the husband was arrested and was put behind the bars on a false complaint of the wife.
13. Faced with this difficulty, the learned Counsel for the respondent- husband relied upon Rajwali v. Inder-raj, AIR 1989(1) 261. In my opinion, this judgment is not applicable to the facts in hand. It is true that marriage between the parties was performed as back as in the year 1987 but this fact alone is not sufficient to grant divorce in favour of the husband. The husband cannot be allowed to take the advantage of his own wrong. He has turned out his wife on the basis of the unfounded suspicions. He has levelled false allegations without any responsibility. In this view of the matter, I am not in a position to accept the contention raised by the learned Counsel for the respondent that the marriage between the parties is a broken one. Reliance was also placed upon Shri Bidhan Chandra Sinlia v. Suit. SuslimitaSiiilia andanother, AIR 1986 DeIlii3S7. This judgment is also not applicable to the facts in hand. In the present case, the wife has not been proceeded exports. She has contested the petition under Section 13 of the Hindu Marriage Act tooth and nail and categorically denied that she was having unfair relations with respondent No. 2. The reliance placed upon by the learned Counsel for the respondent upon the decision Mrs. Suresh Bala v. Major Gurmo-Mnder S. Bala, New Delhi, AIR 1983 Delhi 230 is again not helpful to the learned Counsel for the respondent. In the cited case, the complaint of the wife was found to be false in the criminal Court and no evidence was led by the wife in support of her claim. Learned counsel for the respondent also relied upon Hem Charttler Misra v. Smt. Satya Misra, AIR 1988 NOC 37 Delhi. In the said case, there was no intention on the part of the wife to resume cohabitation with the husband but in ihe present case, the wife is inclined to live with the husband but it was the husband who did not want to accept his wife. On the contrary, learned Counsel for the appellant relied upon a judgment of Om Parkasli v. State of Haryana, 1997(2) RCR 150 in which it was observed that in order to constitute desertion and cruelty, the appellant has to prove not only the factum of desertion but also animus dzsandadi. It was also observed that when the allegations of the husband have not been corroborated, on those allegations, a decree for divorce cannot be granted. Exactly, in the present case also, there is no corroboration from the side of the husband. Nobody has produced the evidence to show that the wife had neglected the husband when he was confined to bed. In Rajan Vasant Re-vankar v. Shoblta Rajan Revankar, AlR 1995 Bombay 246 ilwas observed that the word cruelty has not been defined in the Hindu Marriage Act and the term "cruelty" contemplates the conduct of such a type that the petitioner cannot reasonably be expected to live with the respondent or that it has become impossible for the either spouse to live together. There is no truth on the allegations of the husband that his wife was taunting him by saying that she is more educated when the factum is that there is hardly difference of 1 or 2 classes between the education of both the spouses. It was observed in Armindet Kaur v. Col. Narlnder Slngh, 1993(1) PIR 215 that cruelty should be of such a type that it is not conducive for mental and physical health of any of the spouses to live together.
14. The trial Court has not rightly appreciated the evidence led by the parties on issues 2 and 3 and has committed an error by holding that respondent No. 1 ignored the petitioner when he was confined to bed. In the absence of any corroborative evidence, it is difficult for me to hold that respondent No. 1 deserted the matrimonial home with the intention to sever it for all times to come. Respondent has not treated the petitioner with such act of cruelty that it has become a hazard for the petitioner to live with her. The marriage has not irriterably broken. The petitioner cannot take the advantage of his own wrong. He has levelled irresponsible allegations against the wife and underthe garb of those misplaced suspicions, he turned out the respondent from the matrimonial home, therefore, I reverse the findings of the trial Court on issues Nos. 2 and 3.
15. Resultantly, this appeal is allowed. Decree and judgment of the trial Court is set aside and the petition under Section 13 of the Hindu Marriage Act filed by the husband is hereby dismissed. No order as to costs.
16. Appeal allowed.