Punjab-Haryana High Court
Mrs. Abha Gupta vs Rakesh Kumar Gupta on 26 September, 1994
Equivalent citations: I(1996)DMC71, (1995)109PLR453
JUDGMENT G.C. Garg, J.
1. This is wife's appeal which is directed against the judgment dated October 29, 1991 of the learned Additional District Judge, Faridabad. The learned Additional District Judge granted divorce on the petition filed by the husband under Section 13(1)(ia) of the Hindu Marriage Act (for short 'the Act') seeking dissolution of marriage by a decree of divorce. The husband at the time of his marriage was a practising Chartered Accountant at Faridabad and the wife was a Doctor in medicine. They were tied in the matrimonial bonds on February 11,1989 by solemnising the marriage according to Hindu rites at Kosi Kalan, district Mathura in Uttar Pradesh. The parties were pursuing their studies at Agra in the year 1984-85 where they became friendly and prior to their marriage, they had been exchanging letters with each other. Ultimately, they were married, as mentioned already, in February 11, 1989. Unfortunately, this marriage did not prove a success and within one and a half year of the marriage, the husband filed the present petition seeking divorce out of which this appeal has arisen. The broad allegations of cruelty on the strength of which marriage was sought to be dissolved by a decree of divorce may be noticed as under.
2. The husband alleged that the wife did not allow him to consummate the marriage right from day one till the date of filing the petition and whenever he desired to consummate the marriage, be that at Faridabad, Agra or Mussorie, the latter flatly refused to have an access to her person inspite of his pursuation that it was an essential aspect of married life. But all the times, the wife showed her repugnance and even on some occasions used abusive language, as a result the husband suffered mental agony and shock. She ultimately went to Russia in November, 1989 without the consent, permission or knowledge of the husband. It was also pleaded that he did not know her address in Russia as she did not correspond with him. It was thus pleaded by the husband that all the acts of the wife amounted to cruelty against him and he was entitled to seek dissolution of marriage by a decree of divorce. The allegations as levelled in the petition were stoutly denied by the appellant-wife by filing a lengthy written statement. She refuted almost all the vital allegations. It was pleaded by her that the parties to the marriage consummated the marriage at Faridabad and Agra where they stayed in hotels and the relationship of husband and wife continued between them without any interruption or displeasure on the part of either of the spouses. The allegation of mental agony or shock was thus denied. The wife asserted that the tenure of her studies in the USSR was of a short duration which was arranged with full knowledge and consent of her husband. She further stated in her written statement that it was wrong to say that there was any such conduct on her part which could inflict any sort of cruelty to her husband. She stated that she gave prior information of her visit to India to her husband. It was also denied that she did not visit the husband or his family members during her visits to India. Rather she pleaded that after her return from the USSR, her husband started maltreating her by threatening that he would get himself married again and desert her and ever since then her husband had not allowed her to stay with him. Besides denying the allegations taken in the petition, the wife specifically pleaded that her husband had openly declared that somehow or the other, he would get her divorced by means whatsoever at his command.
3. The husband filed replication controverting the allegations contained in the written statement and reiterating those taken in the petition. On the respective pleadings of the parties, the following issues were framed :
1. Whether the petitioner is entitled to a decree of divorce, on the grounds mentioned in the petition ? OPP
2. Whether the petition is not maintainable in the present form ? OPR
3. Whether no cause of action accrued to the petitioner ? OPR
4. Whether the petitioner has not come to the Court with clean hands ? OPR Additional issues:
4-A. Whether the Court at Faridabad has the territorial jurisdiction to try this petition ? OPP
5. Relief.
4. Issue No. 4-A was answered in favour of the husband and against the wife by observing that the parties to the marriage last resided together at Faridabad, hence the Court at Faridabad had the jurisdiction to try the petitioner. It was also observed that at the time of filing the petition, the husband was residing at Faridabad and the wife was away to USSR. Under issue No. 1 it was held that the wife was guilty of cruelty and the husband was entitled to seek dissolution of marriage by a decree of divorce on that ground.
5. During the pendency of the appeal, the wife moved Civil Misc. No. 2111/ C.II of 1992 under Order 41, Rule 27 of the Code of Civil Procedure seeking permission to produce the record of the Central Bank of India, Krishna Nagar Branch, Mathura regarding the hiring of locker No. 148 alongwith the record of its operation and surrender. This Civil Misc. Application was moved to show that the parties last resided together at Mathura and, therefore, the Court at Faridabad had no jurisdiction to entertain the petition for divorce. Such an application was also moved before the Trial Court but the same was declined. Learned Counsel submitted that if the appellant had been permitted to produce additional evidence, she would have shown that the parties last resided together at Mathura and record of the bank would have established this fact. The contention has no merit. In the first instance, if the parties had last resided together at Mathura the appellant would know the address of Mathura and should have produced the same. The appellant has neither disclosed the address of Mathura in her application nor has she disclosed it during the course of arguments. It is thus clear that the application was moved only to delay the disposal of the dispute between the parties on its own merits. Even otherwise the appellant while appearing as her own witness as RW-1 clearly stated that after her internship was shifted from Agra to Mathura she used to go to Kosi Kalan practically everyday and in case it was not possible she used to stay with her uncle Shri Ramesh Chand Garg, Advocate at Mathura. It is thus clear that no purpose whatsoever would be served by granting the application or by summoning the record of the bank. Civil Misc. Application for production of additional evidence is consequently dismissed.
6. Learned Counsel for the appellant next contended that the Court at Faridabad lacked territorial jurisdiction to try the petition. Learned Counsel referred to Section 19 of the Hindu Marriage Act to contend that Faridabad was neither the place where marriage was solemnised nor the respondent was residing there at the time of presentation of the petition for divorce. Learned Counsel submitted that the parties did not establish a matrimonial home at Faridabad and they also did not last reside together at Faridabad. According to the learned Counsel for the appellant their casual stay for a day or two at Faridabad could not be taken to mean that the parties last resided together at Faridabad and such casual stay could not confer jurisdiction on the Court at Faridabad. Learned Counsel in support of his submission placed reliance upon Smt. Kalpana Devi v. Ranjit Kumar Choudhary and Anr., 1980 HLR 787. However, I am of the opinion that the contention has no merit. Clause (iii) of Section 19 of the Act confers jurisdiction on a Court where parties to the marriage last resided together. It was not the case of the appellant that they had established matrimonial home at a place other than Faridabad. Normally the residence of the husband is the place of matrimonial home unless shown otherwise. In this case, the husband is a practising Chartered Accountant at Faridabad and after the marriage the parties came to Faridabad and stayed there. The parents of the husband also held a reception for the newly weds at that place. The parties to the marriage did not take any other house on rent where they might have lived or had the intention to live or settle. Temporary stay for a day or two at Agra or elsewhere would not be taken to be the place where they last resided together, or established a matrimonial home. Address on the passport of the wife, Exhib it PX, is again that of Faridabad and the marriage, if at all, was consummated at Faridabad where they first stayed together after the marriage. Doctrine of permanence of residence, in the facts and circumstances of this case also applies to Faridabad and no other place because of professional obligations of the husband, especially when it was neither alleged nor shown that they ever resided together at any other place. The husband while appearing as PW1 as his own witness clearly stated that he was a qualified Chartered Accountant and was practising as such at Faridabad since 1984 and had established a good practice at that place and had become permanent resident of the town and that Shri R.K. Aggarwal was his partner in the profession and that he was maintaining his permanent residence at House No. 565, Sector 7-B, Faridabad and the office was also in the same house. The husband was not cross-examined on this aspect of the matter. Thus it has to be taken that the matrimonial home was at Faridabad and there was no change in the said address till at least the date of filing of the petition. Stay of the parties for a day or two at a place other than Faridabad did not and could not take away the jurisdiction of the Court at Faridabad.
7. Reference may also be made to Section 21 of the Code of Civil Procedure in that behalf. It provided that no objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where the issues are settled on or before such settlement and unless there has been a consequent failure of justice. In the present case, the first two conditions are satisfied. The third condition regarding failure of justice, however, is not satisfied. Learned Counsel for the appellant could not refer to any fact on record that the wife did not have a fair trial at Faridabad and as consequence thereof there was a failure of justice. The appellant has led full evidence on the merits of the controversy between the parties. There is no failure of justice to the appellant against whom a decree has been granted by the Court at Faridabad. It will on the contrary be total unjust and occasion a failure of justice to the husband in case the objection as to jurisdiction is upheld at this stage. As already noticed, no prejudice whatsoever has been shown to have occasioned to the wife regarding fair trial at Faridabad. No other place where the parties had last resided together had been indicated by the wife either in the written statement, in her statement in Court or even during the course of arguments. In the absence of any finding of failure of justice, decree passed by thfe Court below cannot be set aside by accepting the contention of the wife that the Court at Faridabad lacked jurisdiction. Support for this view can be had from R.S.D.V. Finance Co. Pvt. Ltd. v. Shree Vallabh Glass Works Ltd., (1993) 2 Supreme Court 130, Koopilan Uneen's daughter Pathumma and Ors. v. Koopilan Uneen's Son Kuntalan Kutty dead by L.Rs. and Ors., A.l.R. 1981 S.C. 1683 and Suraj Bhan and Ors. v. Hans Raj and Ors., 1983 Current Law Journal 16.
8. In the absence of special circumstances, the husband acting bona fide is entitled to determine the locus of matrimonial home. In this case as already noticed, the husband has settled at Faridabad and has a permanent residence there. Even after the marriage, the husband alongwith the appellant-wife came to Faridabad where they stayed for some days. It is not a case where the parties to the marriage last resided at a place other than Faridabad. They did not take any other premises at any place on rent or otherwise with the intention to reside there permanently or for a sufficiently long time. It is difficult to comprehend that Clause
(iii) of Section 19 of the Act is not applicable to the facts of this case at all. It is not even the case of the appellant. Thus, in the circumstances, it can safely be concluded that the parties to the marriage last resided at Faridabad. The appellant cannot draw any support from Smt. Kalpana Devi's case (supra).
9. Clause (iv) of Section 19 of the Act further provides that the petition under this Act shall be presented to District Courts within local limits of whose ordinary civil jurisdiction the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which the Act extends. In this case, the appellant left India for USSR on November 4,1989 and finally came back to India on August 18,1990 though her visa was valid upto December 20, 1990. The petition for divorce was filed on August 17,1990.
10. In the aforesaid situation, I am of the opinion that the objection of the appellant as to the place of suing has no merit and it was rightly held by the learned Additional District Judge that the Court at Faridabad had jurisdiction to try the petition.
11. Before proceeding further, it is necessary to notice still another contention of the learned Counsel for the appellant. According to he learned Counsel, in order to succeed on the ground of cruelty, it was necessary to prove that the wife had persistently or repeatedly treated the husband with cruelty as to cause a reasonable apprehension that it was harmful for him to live with her. The contention was raised on the premises that marriage between the parties was solemnised at Kosi Kalan in district Mathura of Uttar Pradesh. Hence, the cruelty as defined by the Uttar Pradesh Act XIII of 1962 [The Hindu Marriage (Uttar Pradesh Sanshodhan) Adhiniyam, 1962] shall prevail. The contention in my view has no merit. Prior to the enforcement of the Marriage Laws (Amendment) Act, 1976 cruelty was not a ground for seeking divorce under Section 13 of the Act. A spouse was entitled to obtain a decree for judicial separation under Section 10 of the Act after proving that the petitioner had been treated with cruelty as to cause a reasonable apprehension in his mind and that it would be harmful or injurious to live with the other party. The Legislature of Uttar Pradesh vide U.P. Act XIII of 1962, which Act had not been reserved for the consideration of the President of India, added Clause (i-a) after Clause (i) of Sub-section (1) of Section 13 of the Hindu Marriage Act to provide cruelty as another ground for seeking divorce. The amendment enabled a spouse to obtain divorce if the complaining spouse had been persistently or repeatedly treated by the other spouse with such cruelty as to cause a reasonable apprehension that it will be harmful or injurious to live with the other. The Parliament by Central Act No. 68 of 1976 has amended Section 13 of the Act and has provided an occasion to a spouse to obtain divorce by proving that he/she had been treated with cruelty by the other party. Marriage and divorce is a subject on the concurrent list at Entry No. V of the VII Schedule to the Constitution of India. Thus, in view of the provisions made in Article 254 of the Constitution of India, the amendment made by the Parliament shall prevail over the provisions made by the State Legislature. A spouse is thus, entitled to seek divorce by simply proving that he/she has been treated with cruelty and it is not necessary for the said spouse to prove anything more, the U.P. Act having been impliedly repealed by the Central Act in terms of the provisions of Article 254 of the Constitution of India.
12. Reverting to the grounds of divorce, it can safely be said that the husband sought divorce on the ground of cruelty, mental and not physical. No hard and fast rules have either been laid down nor can be so done for holding one spouse to be guilty of cruelty qua the other. It necessarily will depend on the facts of each case. Norms of society, social obligations, bindings and education of parties will certainly be relevant factors for coming to the conclusion if the husband has been able to prove mental cruelty in this case so as to enable him to seem divorce on the ground of mental cruelty. In V. Bhagat v. Mrs. D. Bhagat, [1994(1) All India Hindu Law Reporter 74 (S.C.) = I (1993) DMC 435 (SC)], it was observed by the Apex Court as under :
"Mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflict upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties over living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations regard must also be had to the context in which they were made."
13. Adverting to the facts of this case, it may be seen that the husband sought divorce on the ground of mental cruelty and to prove mental cruelty, he has broadly alleged two facts, one that the appellant did not allow him to consummate the marriage and as and when he tried to persuade her to see reason, she would pick up quarrel and start abusing. The second allegation is that she went to the USSR on November 4, 1989 without his consent, knowledge and without informing him.
14. Learned Counsel for the appellant vehemently contended that the husband miserably failed to prove that the appellant refused to cohabit with the respondent and thereby did not allow the marriage to be consummated. Learned Counsel submitted that if the allegation had been true, relations between the two could not remain cordial. Learned Counsel referred to letters Exhibit R. 5 dated February 20, 1989, Exhibit R.8 dated March 2, 1989, Exhibits R. 6 and R. 37 dated May 14,1989, Exhibit R.7 dated July 17,1989, Exhibit R. 9 dated August 7,1989 and Exhibit R. 10 dated October 16,1989 to highlight that there was not even a slightest indication in any of the letters, which were admittedly written by the husband, to the wife that the wife at any time had declined to cohabit or was repugnant to the idea of cohabitation and did not allow the husband to consummate the marriage. According to the learned Counsel, no evidence has come on the record to prove this allegation except the statement of the husband which has been controverted by the appellant. Learned Counsel pointed out that all these letters are full of love and affection towards the wife. He further submitted that the appellant went to the USSR for higher studies and she sought admission there with the consent and full knowledge of the husband. He went on argue that even the passport of the appellant was not issued by the respondent. Letter Exhibit R. 35 dated December 28,1988 was referred to in that behalf.
15. In order to appreciate the contentions raised, it is necessary to broadly notice the evidence led in the case. Rakesh Gupta, respondent herein while appearing as P.W. 1 as his own witness brought out the sequence of events pointing out that the appellant did not allow him to consummate the marriage and pushed him aside by stating that she had no interest in sex and she was only interested to attain the highest degree in medicine and that the consummation of marriage would be an obstacle in her way to achieve the professional qualifications. He also stated that the appellant on the other occasions did not allow him to indulge in sex by saying that her profession did not allow her to indulge in sex and thereby giving birth to the children and she married only to have the status of a married woman. He went on to state that he came to know in November, 1989 that the appellant had left for USSR without his consent and knowledge. He came to know of this through his relations at Kosi Kalan and that she did not inform him or any other member of his family about her plan or of her address of USSR. He came to know on September 18,1990 itself that she had come back from USSR. He further went on to state that even after coming back from USSR she did not even once come to reside with him or his parents or any other family member. He stated that the marriage between the parties had not been consummated and he suffered a lot of mental agony on that account and this has ruined has professional career as a Chartered Accountant. The appellant while cross-examining the respondent- husband had not been able to shatter his testimony made in the examination-in- chief.
16. PW 2 Murari Lal Gupta father of the respondent appeared as a witness and he supported the case of his son on all material points. He denied the suggestion that on the occasion of Dusshera, the parents of the appellant had not been informed about the matrimonial dispute between the parties. Further suggestion that it was only told that she should not go to USSR and no other talk took place about the marital relations of the parties on account of non-cooperation of the appellant and in not allowing the husband to have sexual relationship with her was denied. The further suggestion that he, witness or his wife did not talk to the appellant about marital relationship between the parties was also denied. The witness went on to state that his son had been telling him about marital problems orally. He, however, stated that neither he norany member of his family ever wrote any letter in that regard.
17. The appellant while appearing as her own witness as RW-1 stated that she stayed with her husband on about fifteen occasions and marriage was consummated and that she never refused to have sex with her husband. She further stated that after landing in the USSR she informed her husband about her address of the USSR on phone and wrote two/three letters during her entire stay in USSR but he did not respond. She was subjected to lengthy cross-examination. During the course of her cross-examination, she had to admit that she visited India on four occasions during the period of her stay in USSR and that she left the course in between and that she had written only one letter addressed jointly to her father-in-law and mother-in-law. She further stated that she did write letters from USSR to her friends, parents, brothers, sisters as also other relations and that all of them responded. The witness also stated that on one occasion of her visit from the USSR to India, she stayed in India for about a week and in between went to England where she stayed for about 10/15 days and that she had not informed about it either to her husband or in-laws. The appellant also stated that after her coming back from USSR and till she joined the All India Institute in New Delhi, she did not contact her husband and that even after joining at New Delhi she did not contact him till the date of her making the statement except during the reconciliation proceedings that took place in the Court. She had to admit that after her coming back from USSR she had not written any letter to her husband. She further admitted that she came to know of divorce petition in December, 1990 and till then she did not come to Faridabad to see her husband after coming from USSR in August, 1990.
18. Mr. S.C. Aggarwal, father of the appellant also appeared as a witness as RW 2 in support of the case of her daughter. He deposed that neither the husband of the appellant nor his parents ever told him or his wife about non-cooperation of the appellant in the matter of discharge of her matrimonial obligations. In cross- examination, the witness stated that to his knowledge, the appellant never stayed or resided at Faridabad at the house of her husband. He stated that after Diwali, 1989, the appellant did not reside with her husband. He, however, admitted that the appellant did not go to see her husband or stayed with him when she visited India during her studies in the USSR and he never enforced her to go and stay with her husband and he also never asked his son-in-law, respondent herein to take her with him.
19. In the context of the evidence noticed above, I am of the opinion that the contentions raised by the Counsel for the appellant have no merit. A perusal of letters referred to by the learned Counsel for the appellant goes to show that the contention has merit to the extent that no grouse was made by the husband regarding non-consummation of marriage or that the wife did not permit him to consummate the marriage at any point of time. It may also be noticed that according to the husband, the appellant-wife stayed with him, may be at Faridabad, Agra, Dehradun or Mussorie or elsewhere for only 6 to 8 days during the period February 11, 1989 to November 4,1989, when she left India for USSR. According to the appellant she stayed with the respondent at the aforesaid places for a day or two more than what had been alleged by the husband. In the situation, it is very difficult to record a firm finding, whether the marriage had been consummated or not. The circumstances however, lead one to believe that the allegation as levelled by the husband is correct, at least to the extent that the appellant was repugnant to the idea of sex. Love affair between the parties culminated into marriage, though an arranged one. The parties to the marriage, as already noticed, are highly educated. As a decent husband it seems to me that he kept all restraints in exposing himself or his wife to the relations about non- consummation of marriage or the appellant being averse to sex and showered all love and affection on her not only through letters as noticed above but even otherwise. On an earlier occasion, the parties to this litigation had appeared before this Court in Civil Misc. 1498/C.II of 1991 when an effort was made for reconciliation. The appellant had then flatly refused to join the husband and had stated that it was not possible for her to stay in the matrimonial home. The husband had at that time made a sincere effort to settle her in the matrimonial home. It may also be noticed that admittedly, the appellant went to USSR on November 4, 1989 for one year and she did not inform her husband about her departure and she left India without his knowledge, consent and permission. Letter Exhibit R. 36 dated September 26, 1989 written to the appellant by her mother-in-law clearly goes to show that the appellant had been requested not to go to the USSR. This clearly gives an indication that the husband and his mother were not at all interested in the visit of the appellant to the USSR. If relations between the parties were cordial as was sought to be argued by the learned Counsel for the appellant, there was no reason for the appellant to leave India for studying abroad without informing her husband of her proposed visit to the USSR. The appellant cannot take advantage of letter Exhibit R. 35 dated December 28,1988 as it was written much before the date of the marriage. Furthermore, the appellant stayed in USSR from November 4,1989 to August 18,1990 and during this period she visited India on three / four occasions. Admittedly, she did not visit her husband on any of these occasions and even did not inform him of his visit to India. She admitted while appearing as her own witness that she had been writing to her husband from USSR but brought nothing on the record to show that she had been so doing. The very fact that she did not visit her husband or informed him of her visit to India, clearly goes to show that she had not been writing to him during the period she stayed in the USSR. This inference is clear because she had not informed her husband about her departure from India to the USSR and it was kept a secret. During her visit to India she as per her own statement, visited certain relations but not the husband.
20. It is the admitted case of the appellant that she came to India on August 18,1990 and from that day till December 1990, she did not go to see her husband or wrote any letter to him or informed him of her arrival in India. She even did not tell her husband about her visit to England. This shows that she never wanted to come to the matrimonial home. Thus, the conduct of the appellant of going to USSR without informing her husband and against his wishes coupled with her subsequent conduct lead credence to the case of the respondent that the appellant did not allow him to consummate the marriage and in any case she was remiss in the discharge of matrimonial duties. She is more conscious of her career as a doctor. It is further obvious that she or her father made no effort whatsoever to settle her in the matrimonial home. This, in my view, gave a clear cause to the husband to seek divorce on the ground of cruelty.
21. Mental cruelty can only be adjudged by having regard to the facts of the case. It can only be perceived and not defined. It will depend on the facts of each case. Inaction or omission or series of such acts of a spouse may cause injury to the other spouse which may further cause mental agony amounting to mental cruelty. Sex is a binding force to keep two spouses together and the denial thereof by one spouse to the other would, in my view, effect mental health amounting to mental cruelty especially in a case where the parties are young and have recently married after a prolonged courtship. Reference in that behalf may be made to Preet Singh Bhullar v. Kamaljit Bhullar, 1990(2) All India Hindu Law Reporter 203 (SC).
22. Even if it be taken that the appellant was not remiss in the discharge of her matrimonial obligations, I am still of the view that the respondent husband was entitled to a decree of divorce on the ground of cruelty. The broad admitted facts as noticed from the evidence are that the appellant left for USSR on November 4, 1989 without knowledge, consent or permission of her husband. She did not write to him from USSR and did not bother to see him by visiting him or talking him on three/four occasions when she visited India while studying in the USSR. She did not even inform her husband about her visits to India. If there was no resentment or objection to her going abroad she would not have behave the way she has done. She even went to England during one of her visits to India. This, in my view, clearly gives a cause to the husband to seek divorce on the ground of cruelty. The acts of the appellant are such which would cause mental agony and torture to the husband amounting to cruelty. She finally came to .India on August 18,1990 and she came to know of the divorce petition only in December, 1990. Even during this period i.e., August 18, 1990 to December, 1990 she made no effort to contact her husband either by visiting him or otherwise. From her statement and the statement of her father, it is clear that she was not interested to see her husband even before the filing of the divorce petition as it had been mentioned to her during one of her visits to India that her husband was thinking of marrying again. Her conduct during the pendency of the divorce petition also leads me to believe that she is not interested to settle in the matrimonial home. There is a complete neglect on her part. It is abundantly clear from what has been discussed above that marriage between the parties has broken down irretrievably and there is no chance of their coming together or living together again. The inevitable conclusion therefore, is that the husband is entitled to a decree of divorce.
23. For what has been observed hereinbefore, this appeal fails and is hereby dismissed. However the parties are left to bear their own costs.