JUDGMENT 1. - Shri Harnarain has filed this appeal against the order of the learned Additional District Judge No. 2 Jodhpur dated October 12, 1981 by which his application for divorce against his wife Smt. Subhadra alias Chhoti under section 13(1) (ia) and (ib) of the Hindu Marriage Act was dismissed. The case of the appellant Harnarain was that the parties are Hindus by caste and their Marriage has taken place according to the Hindu customs on March 8, 1962 at Phalodi. Out of this wedlock a son was born to Smt. Subhadra on September 9, 1967 and another son was born to her in August, 1970, but unfortunately he did not survive. The parties lived together for sometime at Phalodi Jodhpur and Bombay but according to the appellant the Respondent Smt. Subhadra had been treating him with cruelty because she never gave him satisfaction in intercourse and avoided it that she had been suffering from T. B. but this fact was not disclosed to him at or before the time of the marriage but had come to his knowledge only in October, 1970, when she was admitted to the T. B. Hospital; that she had dirty habits, she did not wear clean clothes, did not have bath for many days, did not brush her teeth which gave foul smell, she did not entertain the appellants relations and friends who came to visit their house. She used to get up very late in the mourning. She used to ill-treat the appellant and his younger brother and on account of that the appellant's younger brother Dharamdutt became in same and that the respondent did not want to live with the appellant and used to stay at her father's house at Phalodi. The case of the appellant further was that they last resided together at Jodhpur from August, 1973 to October, 1973. Thereafter she again went away to her father's place and did not return to the appellant despite his requests and efforts to bring her back and thus she had asserted the appellant. He, therefore, wanted to decree of divorce on the ground of cruelty and desertion. The respondent Smt. Subhadra contested this petition. She denied all these allegations and alleged that she was always ready and willing to stay with the appellant as a dutyful wife. She had no dirty habits. He, therefore, wanted to decree of divorce on the ground of cruelty and desertion. The respondent Smt. Subhadra contested this petition. She denied all these allegations and alleged that she was always ready and willing to stay with the appellant as a dutyful wife. She had no dirty habits. She never ill-treated the appellant, his brother, his friends or his relations and she had been staying with the appellant whenever he wanted her to stay with him but it was the appellant who avoided keeping the respondent with him on one pretext or the other, sometimes by saying that he was carrying on his studies, some- times because he was short of accommodation etc. even after 1973 October, the respondent had not withdrawn from the society of the appellant but it was the appellant who had sent her away to her father's house at Phalodi. Still, she had been living with the appellant's father at Lodia for many years where her son was also living with her and studying there. It was only in 1979 that she want to stay with her father because he was seriously ill and on that occasion also she had gone with the permission of the appellant. On these pleadings the learned District Judge Jodhpur, with whom the case then was, framed three issues. Issue No. 1 related to cruelty, issue No. 2 related to desertion and issue No. 3 related to relief. The appellant examined six witnesses in support of his case and produced one letter Ex. 1 sent by his father-in-law to him. In rebuttal the respondent examined five witnesses and produced nine documents which were all letters written by the appellant to the respondent or her father. After hearing the parties the learned Additional District Judge No. 2 Jodhpur, to whom the case same to be transferred, dismissed the appellant's petition finding both the issues against him. It Is against this judgment and decree that the appellant has come up in appeal. 2. I have heard the learned Counsel for the parties and have gone through the record. 3. It Is against this judgment and decree that the appellant has come up in appeal. 2. I have heard the learned Counsel for the parties and have gone through the record. 3. It is urged by the learned counsel for the appellant that the learned Additional District Judge has not approached the case from the right angle and has instead of considering the effect of the evidence as a whole has divided the evidence into parts pertaining to the periods of the stay of the parties at Jodhpur, Phalodi and Bombay. According to the learned Counsel the evidence relating to the period when the parties remained at Bombay or Phalodi was only with a view to show the conduct, nature and habits of the respondent bearing upon the question of cruelty but the real matter to be taken into consideration was the cruelty exercised by the respondent at the time she stayed with the appellant at Jodhpur during the year 1973 and her behaviour thereafter.The learned counsel has divided the acts of cruelty of the Respondent in four arts. (a) That the respondent never took any interest in her marital obligation and did not enjoy, nor allowed the appellant to enjoy sexual inter-course and have satisfaction. (b) That her mode of living was dirty and undesirable. (c) that her behaviour and treatment with the appellant and his friends and relations was humiliating and insulting. (d) That she levelled false accusation against the appellant as having kept another woman as a wife. So far as the ground of desertion is concerned, he has urged that the respondent had withdrawn from the society of the appellant without any reasonable cause since October, 1973 and did not return to the appellant till March, 1980 when the petition for divorce was filed. 4. Before dealing with the grounds of cruelty and desertion the learned counsel brought to my notice a few authorities bearing upon the matters to be takea into consideration in matrimonial case. These authorities lay down general principles and therefore instead of dealing with each authority in detail it would be sufficient if a short reference is made to them. 4. Before dealing with the grounds of cruelty and desertion the learned counsel brought to my notice a few authorities bearing upon the matters to be takea into consideration in matrimonial case. These authorities lay down general principles and therefore instead of dealing with each authority in detail it would be sufficient if a short reference is made to them. Dastane v. Dastane, A.I.R. 1975 S. C. 1534 dealing with section 23 of the Hindu Marriage Act lays down that in matrimonial cases the standard of proof required is not that of a criminal case and the matters need not be established beyond doubt. Preponderence of evidence is enough to satisfy the court. It further laid down that the matter is to be considered from the point of view of the parties before the Court and not in respect of an ideal husband or an ideal wife. In Bhanwari v. Bhanwaria & Anr. (1980 Weekly Law notes (unreported cases 476) it was laid down that cruelty means apprehension of harm or injury to health, reputation or working career of one of the spouses. Then in Krishna Rani v. Clunilal (1982 AIR. Raj. 30) the conduct of a wife in insulting her husband in presence of his friends and her nagging habit was taken to be cruelty against the husband. In Mohinder Kaur v. Bhag Ram, AIR 1979 P & H 71 the act of the husband levelling false allegation of second marriage by the wife was taken to be cruelty on his part. In Srikant v. Anuradha, A.I.R. 1980 Karnataka 8 dissatisfaction in sex on account of the little interest shown by one of the spouses was taken to be cruelty and it was further observed that the interest of that spouse is not material. Now, there cannot by any quarrel with the proposition laid down by these authorities. What we have to see is whether the learned District Judge was wrong in holding that the petitioner before him had failed to establish cruelty against his wife. 5. As rightly stated by the counsel for the appellant the material period for consideration in this case is the period when the couple lived at Jodhpur. The appellant had led evidence to show that his wife did not live properly in his house. She had dirty habits. She wore dirty clothes did not brush her teeth. 5. As rightly stated by the counsel for the appellant the material period for consideration in this case is the period when the couple lived at Jodhpur. The appellant had led evidence to show that his wife did not live properly in his house. She had dirty habits. She wore dirty clothes did not brush her teeth. She used to come out of the house wearing a petticoat only. When his friends and relations came to visit him she did not attend to them, refused to entertain them with tea, etc. and when the appellant asked her to offer tea, etc. to them she used to say that she was not their servant. In this connection the learned counsel referred to the statements of the appellant Harnarain PW1. Radha Kishan P. W. 3 a cousin of the appellant, Ram Kishan and Rakesh Kakkar P. W. 4 and 5 friends of the appellant. and Dharmdutt P. W. 7 brother of the appellant. There is no doubt that these witnesses have deposed to the alleged behaviour of the respondent as alleged by the appellant but the learned District Judge after properly assessing their evidence has come to the conclusion that these witnesses ate exaggerating things and their statements do not appear to be reliable in this respect. Having gone through the statements of these witnesses. I do not see any reason to take a different view. As a matter of fact, the evidence of these witnesses including the petition himself is rendered unreliable and unreliable on account of the petitioner himself as disclosed by a few letters written by him to the respondent and her father. It may he recounted that the parties last lived together at Jodhpur in the year 1973, may be from June 1973 to October 1973, as alleged by the appellant or from August, 1973 to October, 1973 as alleged by the respondent. It is admitted that the respondent had been suffering from T. B and had earlier been hospitalised. Being in such ill- health if the respondent acted in a manner which may not have been appreciated by the appellant or is relations it cannot be said that such behaviour of the respondent amounted to cruelty. On the other hand the petitioner could not have expected her to serve and entertain him relation. Being in such ill- health if the respondent acted in a manner which may not have been appreciated by the appellant or is relations it cannot be said that such behaviour of the respondent amounted to cruelty. On the other hand the petitioner could not have expected her to serve and entertain him relation. Then before or after this period the appellant never complained of any improper behaviour or improper mode of living of the respondent. On the other hand. from the letters written by him from time to time it appears that the appellant had absolutely no complaint against the respondent. It would be proper if a brief reference is made to some of these letters. These letters are Ex. A3 to Ex. A.9 and refer to a period between December 1965 to May, 1972. Then there is also a letter Ex. A 1 dated Sept. 8, 1965 which was written by the appellant to the respondent after he had received letter Ex. No. 1 from the respondent's father dated August 20, 1979. The first letter dated December 20, 1965 written by the appellant to the respondent from Jodhpur whose that the relations between the parties were very affectionate and cordial. The appellant had apologised for not writing to the respondent in reply to her letter. He also called himself blames for his own conduct. He also expressed his inability to visit her during the December holidays. The matter does not rest here. He admits having received monetary help from her father and had also asked her for some loan. Such things could not have been possible if the relations between the parties had not been affectionate or cordial. 6. The second letter Ex. 3 is dated August 11, 1966 written by the appellant to the respondent in which also he expressed love and affection for the respondent and made a complaint against his own parents. He also stated that he wanted to come to Phalodi to see her but had to cancel that idea because he feared that if he went there his father would insist on asking the respondent to leave the school and if the appellant asked her to do so he would not feel good and if he does not do then also he would be embarassed. He also stated that he had been constantly remembering her and wanted to come to her whenever it was possible. The letter contains some concealed expressions about sex. The third letter is Ex. A 2 dated November 22, 1967 written by the appellant to his father-in-law. This refers to some monetary advances made by the father-in-law to the appellant and asking for some further advance assuring him that the same would be repaid. This also shows that that relations not only between the petitioner and the non-petitioner, but with the respondent's father also were quit cordial. Then comes the letter dated December 31, 1970 Ex. A 4. This is a letter written by the appellant to the respondent from Bombay to her Phalodi address. This refers to the respondent's illness and the appellant has stated that he was deeply moved to have seen her in the hospital. He was also apologetic on account of the fact that according to him the respondent had come to Bombay to serve him but unfortunately she herself had been taken ill. Then he also refers to his stringent financial position, and states that he could not give her any money at Bombay although he had questioned her if she need any money. Then he refers to the fact that on December 22, 1970 he had come to Phalodi to meet her but she could not come to his place. He complained that if she was not able to come and had intimated this to the appellant he himself would have gone to her father's place and stayed there. The letter also refers to a number of other reasons why the couple could not be able to live together for example his inability to get a room etc. Then he shows his concern that their son Parkash should be left at Lodia where the parents of the appellant lived because according to him he was not getting proper diet etc. with the respondent at her father's house and was not being properly looked after. Then the next letter is Ex. A5 dated Jan. 8,1971, against written by the appellant to the respondent from Bombay to her at Phalodi address. Here again he has complained against the circumstances why they could not live together despite their wish. with the respondent at her father's house and was not being properly looked after. Then the next letter is Ex. A5 dated Jan. 8,1971, against written by the appellant to the respondent from Bombay to her at Phalodi address. Here again he has complained against the circumstances why they could not live together despite their wish. The appellant felt sorry that he could not call her and also stated that it was not possible for him to live without her. The next letter is Ex. A6 dated January 19, 1971 written the appellant to the respondent from Bombay to Phalodi expressing his inability to obtain a house unless she was able to give him some loan. Thereafter by letter Ex. A7 dated March 13, 1972 the appellant wrote to the respondent that she had asked for some money and he intended to send the same but it could not be possible for him to do so because he was already under debt. He also stated that he would be coming to take her within 15 to 25 days. He also requested her to advance to him some money and requested her to implore her father to help him in that difficulty. The last letter in this sequence is Ex. A.9 dated May 19, 1972. In this letter also the appellant stated various reasons of his not being able to keep the respondent with him for example she was not keeping well, that he was in debts and that if he kept her with him people would say that the husband and wife were making marry at the costs of others. He also stated that he was also expecting his transfer. Be blamed all this to his Stars. Thus it is apparent that from October 1965 to May 1972 the relations between the parties were absolutely, normal and if they could not live together it was on account of certain unavoidable circumstances for which the respondent could not be held responsible. On the other hand it appears that the appellant himself was either not willing or was unable to keep the respondent with him.It is pertinent to note that during such a long period of seven years the appellant never raised any objection with regard to the behaviour of the respondent in any manner. On the other hand it appears that the appellant himself was either not willing or was unable to keep the respondent with him.It is pertinent to note that during such a long period of seven years the appellant never raised any objection with regard to the behaviour of the respondent in any manner. He never alleged that she used to wear dirty clothes or did not give satisfaction to the appellant in the sexual act or evaded it, or that she in any way misbehaved with the appellant or his friends and relations, the appellant has also not stated anything who abruptly in 1972 when the parties lived together at Jodhpur the respondent's behaviour or conduct became cruel or unbearable. Not only this after 1973 the appellant never wrote any letter to the respondent or her father complainting about such a behaviour of the respondent. The only letter which has been put on the record after May, 1972 is that of September, 1979 and that too was in respond to a letter written by the petitioner's father-in-law. It is pertinent to note that in this letter also the appellant never raised any objection regarding the improper cruel or indecent behaviour of the petitioner, except that he mentioned that she had been prepogating against the appellant. The appellant wrote to the respondent asking her to explain to whom she had been complaining against the appellant and own whose insistence or instigation she had been making such allegations. Therefore, from this letter also it clearly appears that till 1979 the appellant did not level any charge of cruelty or improper behaviour against the respondent except for the aforesaid propogenda against him. So far as this `propaganda' is concerned I shall deal with it a little letter in detail, but it may be stated here that allegations of adultory against the petitioner and this letter leaves no room for doubt that it was written by the appellant to the respondent asking her explanation with regard to this propaganda and if she could explain the same the appellant was prepared to call back. He wrote that he would intimate the programme after hearing from her. He wrote that he would intimate the programme after hearing from her. This further goes to show that the allegations that the respondent used to wear dirty clothes or came out wearing petticoat or refused to entertain the appellant friends and relations when they visited the appellant's place were not raised till 1979 and they have been raised for the first time when this application for divorce was submitted. The inevitable conclusion, therefore, is that these allegations are afterthought and have been manufactured merely in order to make out some grounds of divorce. Looked at from another point of view, even if for the sake of arguments it is held that behaviour of the non-petitioner was improper and she was guilty of some kind of cruelty towards the appellant, the appellant had condoned the same because unless he had condoned that behaviour he would not have written to the respondent in 1979 that the appellant would call her if she explained why she made a false propaganda against him. Further more, the dealy on the part of the appellant in filing this application of divorce also goes against him. There is absolutely no explanation why the appellant kept silent from 1973 to 1980. Section 23 of the Hindu Marriage Act lays down that if there his been unnecessary or improper delay in instituting the proceedings the court will not grant the relief. The explanation of the appellant that he was making effort to bring back the respondent is not only a lane excuse but goes against the very allegation of cruelty because if in fact the respondent had been guilty of cruelty as alleged by the appellant there was no question of his making efforts to bring her back and he need not have waited for such a long period in the expectation that the respondent will change her behaviour. The learned counsel laid much stress on the evidence of Dharmdatta brother of the appellant petitioner and has urged that it was the cruel behaviour of the respondent non-petitioner which led to his insanity. I am unable to accept this contention. There is no medical evidence to show that the course of Dharmadatta's insalty was ? In any case there was no reflexion in this respect in any of the letters. This brings me to the so called propaganda said to have been made by the respondent against the appellant. I am unable to accept this contention. There is no medical evidence to show that the course of Dharmadatta's insalty was ? In any case there was no reflexion in this respect in any of the letters. This brings me to the so called propaganda said to have been made by the respondent against the appellant. It is alleged by the appellant that the respondent had been telling people that the appellant had kept another woman as his wife and this is what has been referred to in the letter Ex: A. 1, but as a matter of fact, the appellant had not at all been able to establish that the respondent ever made such allegations. The only evidence in this respect is that of Naraindutt P. W. 6, but that statement is hardly believable. It is a bald statement saying that Subhadra had made a propaganda at Phalodi that Harnarian had kept some girl but he has not stated before whom this propaganda was made and how he come to know about it. It is not this case that Subhadra had told so to him and, therefore, this evidence is absolutely of no value. It is urged that Naraindutta has not been cross-examined in this respect and therefore his statement remains unshaken. Reliance has been placed on A.F.G. Carapiet v. A. Y Derderian ,A. I. R. 1961 Cal. 359 . What when the statement is of no value on the fact of it no cross-examination need have been directed against it and the absence cross-examination in these circumstances does not make the statement reliable. The authority relied upon by the learned counsel therefore of no application here. I am, therefore, clearly of the opinion that the learned District Judge was perfectly justified in holding that the appellant had failed to establish cruelty against the respondent. 7. Now coming to the question of desertion it may at once be stated that from the letter written by the appellant himself, which have been referred to above, it clearly appear that as a matter of fact it was the appellant who had not been calling the respondent and not trying to keep her with him. Up to 1972 the appellant had been putting forward one excuse or the other of his inability to keep the respondent with him. Up to 1972 the appellant had been putting forward one excuse or the other of his inability to keep the respondent with him. First he was carrying on his studies, Second that he was to in a position to get proper accommodation at Bombay and then probably the illness of the respondent. Now after 1973 the correspondence between the parties does not appear to have been continued for some time and this shows silence on the part of the appellant. The silence was broken for the first time by the father of the respondent by writing letter Ex. 1 on August 20, 1979 imploring the appellant to take the respondent with him. But even on the receipt of this letter the appellant did not bring the respondent back and he wrote Ex. A 1 in reply to this letter wherein he accused the respondent of making false accusations against him and told her that he would call her only when she explained, on what basis and at whose instance she made those false allegation. This was a more excuse as held above. Now this conduct of the parties go to show that the respondent was ready and willing to live with the appellant and her father had also been imploring the appellant to call her but it was the appellant who was not willing to do so. He does not, therefore, appear to have established that it was the respondent who had deserted him. On the other hand from the evidence of Subdhara and her son Parkash it appears that the respondent used to stay with the appellant's parents at Loria even after 1973. The respondent has not given a categorical rebuttal to this evidence and has only expressed his ignorance. On the other hand, his brother Dharmdutt has admitted that the respondent had been visiting the parents of the petitioner from time to time and stayed with them. It is also admitted that on all occasion when the respondent was sent for she did come to the petitioner's house for example on the occasion of the Yagyopavit of Parkash and at the time of the marriage of the appellant's sister. The appellant's parents are living but have not been produced to rebut the respondent's evidence. It is also admitted that on all occasion when the respondent was sent for she did come to the petitioner's house for example on the occasion of the Yagyopavit of Parkash and at the time of the marriage of the appellant's sister. The appellant's parents are living but have not been produced to rebut the respondent's evidence. In these circumstances it cannot be said that it was the respondent who had withdrawn from the society of the appellant without any reasonable excuse. The learned counsel for the appellant also urged that of the respondent is not filing an application for restitution of conjugal rights for such a long period gives rise to an inference that she did not want to resume the marital relations and had deserted the appellant. Reliance was placed on Sudarsan Singh v. Kuldip Kaur, 1976 HLR 72 and a decision of this Court in S B. Civil Misc. Appeal No, 84/80 Smt. Soken v. Dr. Sheoratin (decided on Novemver 24, 1940) . But in the circumstances of this case this contention cannot be accepted nor these authorities apply because as stated above the respondent had been visiting the petitioner-appellant whenever, he called her and even after 1973 she was living with the appellants parents till she was required to stay with her own father due to his illness. Again efforts were being made by her father to persuade the appellant to call her. In these circumstance she need not have moved application for restitution of conjugal rights. 8. The learned District Judge was therefore right in dismissing the appellant's petition for divorce. There is no force in this appeal and it is hereby dismissed. Looking to the circumstances of the case, I shall not make any order as to costs.Petition dismissed. *******