JUDGMENT - Smt. RANJANA DESAI, J.:---This appeal is directed against the Judgment and Order dated 4th February, 1993, passed by the Family Court No. III at Pune in Petition No. A-503 of 1993. The petition was filed by Sou. Lalita Jawahar Shah against her husband Shri Jawahar Ramanlal Shah under section 9 of the Hindu Marriage Act, 1955, for restitution of conjugal rights. The husband Jawahar Ramanlal Shah prayed for divorce by filing a counter claim on the ground of cruelty and desertion. By the impugned judgment and order the Family Court allowed the wife's petition for restitution of conjugal rights and dismissed the counter claim of the husband for divorce. For the sake of convenience the wife and the husband are hereinafter referred to as the petitioner and respondent respectively according to their original status. 2.Shortly stated the facts on the basis of which the petition came to be filed are as under : (a) Admittedly the marriage between Lalita Shah and Jawahar Shah took place on 29th April, 1980, according to Hindu Vedic Rites. It is the case of the petitioner that after the marriage she started residing with the respondent at Lonand. The couple has two children, a daughter by name Sheetal and a son by name Tejas. After some time the petitioner and the respondent came to reside at Pune because the respondent was serving in Pune. At the instance of her in-laws the respondent used to illtreat the petitioner. The petitioner used to plead and request the respondent not to illtreat her but the respondent paid no heed to her requests. (b) In the year 1987, the respondent, his brothers and parents quarrelled with her and told her that the respondent was to get married again. They beat her and drove her out of the house. The petitioner had to take shelter at her brother's house. Thereafter the petitioner made several efforts to go to the respondent but he did not allow her to stay with him. She went to the respondent's house with her brother but the respondent's parents clearly told her that they wanted the respondent to have a second marriage. The petitioner was not allowed to stay there. The respondent who was present there left the house. She again went to the respondent's house along with her children. She went to the respondent's house with her brother but the respondent's parents clearly told her that they wanted the respondent to have a second marriage. The petitioner was not allowed to stay there. The respondent who was present there left the house. She again went to the respondent's house along with her children. The respondent told her that he did not have his own house and therefore, the petitioner had to return to her parent's house. According to the petitioner since 1987, she was residing with her parents. (c) Ultimately on 19th January, 1989, she sent a notice through her Advocate for restitution of conjugal rights and for maintenance for herself and her two children. The respondent did not send any reply. He did not come to take her back nor did he provide maintenance for her. According to her the respondent had without reasonable excuse withdrawn himself from her society and, therefore, she prayed for restitution of conjugal rights and maintenance. She stated that she was always ready and willing to cohabit with the respondent. It is the respondent who had deserted her without any reasonable excuse. (d) In the meantime on 30th October, 1996, the case was sent to the Counsellor. The respondent filed his written statement on 18th January, 1991. He denied that he ever drove the petitioner and the children out of the house. According to him from 1st July, 1984, the petitioner left his house at the instigation of her brother Nemchand Shah. The main reason of her leaving the respondent is the poor financial condition of the respondent as compared to her brother. The petitioner was not used to poverty. The respondent made efforts to bring back the petitioner through relatives and friends. However, they were insulted and sent back. He denied that he wanted to marry again. According to him he had sent a reply to the petitioner's notice and requested her to come back but she refused to come back. (e) The respondent further stated that though the petitioner had all along behaved in an arrogant and callous manner having regard to the fact that she was his wife and because the two children should not suffer the respondent was willing to forget the past and take her and the children back provided she satisfies the Court that under no circumstances she will go to her brother. According to the respondent he sought transfer to Barshi thinking that if they stayed at Barshi there would be a change in the atmosphere and they would lead a happy life. However, the petitioner stated that she did not want to stay away from her brother. She declined to stay in separate room at Dhankawadi. The respondent contended that the petitioner made his life miserable. He even lost his job in B.U. Bhandari Company. Now he is working as a commission agent of his friend Oswal. He has to support his old parents and as such he was unable to pay money to the petitioner. He prayed that as he was prepared to maintain the petitioner and the children the Court should pass appropriate and just orders. (f) On 2nd February, 1991, the Counsellor submitted his report that amicable settlement was not possible. However, on 6th June, 1991 a compromise pursis, Exhibit 18 came to be filed which stated that on 30th June, 1991, the respondent will take the petitioner home from the Court. On 30th June, 1991, the Counsellor submitted his 2nd report stating that the parties had resolved their differences and that both were ready to stay together. (g) However, as agreed the respondent did not take the petitioner home. On the contrary on 19-8-1991, he amended his written statement. In order to appreciate the extent and significance of the amendment carried out by the respondent we may first reproduce the unamended para 6. It reads thus : "The applicant has expressed her desire to cohabit with the respondent. The respondent is prepared to forget her arrogant behaviour and take the petitioner and her children back only because applicant was his wife and he did not desire to have trouble for his children. However the applicant should give an undertaking to the Court that she will under no circumstances go to her brother." The respondent deleted the last sentence "However the applicant ............. go to her brother" and in its place added one paragraph. On account the amendment paragraph 6 read thus : "The applicant has expressed her desire to cohabit with the respondent. The respondent was prepared to forget her arrogant behaviour and take her and children back because the applicant was his wife and he did not desire to have trouble for his children. On account the amendment paragraph 6 read thus : "The applicant has expressed her desire to cohabit with the respondent. The respondent was prepared to forget her arrogant behaviour and take her and children back because the applicant was his wife and he did not desire to have trouble for his children. However the applicant has deserted the respondent in 1984 and the present application is filed in 1990. There is no bona fide intention in filing this application and the respondent is fully satisfied about the fact that the present application has been made with mala fide intention and with a view to torture the respondent. Under these circumstances the respondent is fully convinced that there will be repetition of quarrels and disputes. He, therefore, feels that instead of applicant and respondent becoming unhappy in their lives it is better to put an end to marital tie. The respondent is prepared to pay proper Court fee stamp for this prayer of divorce." The respondent effected amendment in the prayer clause also. Unamendment para 8(a) reads thus : "8. In the circumstances it is prayed : (a) the respondent is prepared to maintain the petitioner and the children and therefore, the Hon'ble Court should pass just and proper orders." By amendment he deleted the above prayer (a) and substituted the following prayer (a) in its place : "(a) It may be decreed that the marriage between the petitioner and respondent which had taken place on 29-4-1980, stands dissolved." (b) The petitioner filed her additional written statement and denied the counter claim made by the respondent. The parties led evidence. The respondent examined himself. He also examined one Vilas Jayantilal Shah his cousin and one Nagraj Pukhraj Oswal in support of his case. The petitioner examined herself and her brother Nemchand Shah. 3.With the help of the learned Counsel appearing for both sides we have gone through the pleadings and the evidence. 4.In his evidence the respondent has made out a case that after the marriage the petitioner behaved properly with him for about 4 to 6 months and she left the matrimonial home in 1984, at the instigation of her brother Nemchand Shah. The main cause of her desertion was the poor financial condition of the respondent. The respondent stated that he himself and his relatives and friends made several attempts for reconciliation. The main cause of her desertion was the poor financial condition of the respondent. The respondent stated that he himself and his relatives and friends made several attempts for reconciliation. When he went to the house of Nemchand Shah, he was given insulting treatment and the petitioner refused to come with him. He denied that he had threatened that he would marry again. He denied that he did not behave properly with the petitioner and drove her out of the house. According to him after he received the notice dated 19th January, 1989 he had written a letter to the petitioner requesting her to resume cohabitation with him. Because the petitioner behaved arrogantly with his parents he had to stay with her at Shukrawar Peth. The said premises admeasured about 200 sq. ft. and therefore, the petitioner was displeased. She was not ready to stay with him. She was used to luxuries which he could not provide on account of his poor financial condition and therefore, the petitioner used to taunt him. He stated that he suffered mental cruelty on account of this. He stated that the petitioner had no bona fide intention to resume cohabitation and, therefore, he had filed a counter claim for divorce. He further stated that he was in service in B.U. Bhandari Company and that one Prakash Shah was the Manager of his company. Because of the petitioner's attitude and mental tension he could not discharge his duties properly and he requested for a transfer to Barshi for which the petitioner was not willing as she wanted to stay in Pune. He stated that he was working as Commission agent with one Oswal and was getting Rs. 600/- to Rs. 700/- per month by way of commission. He was unable to provide separate maintenance to the petitioner and her children as he had to maintain his parents. 5.In the cross-examination the respondent admitted that he did not send any money to the petitioner and her children even after the receipt of the notice dated 19th January, 1989. About the so-called letter which according to him he had sent he stated that he had no evidence except his bare words to establish that he had sent it to the petitioner. About the so-called letter which according to him he had sent he stated that he had no evidence except his bare words to establish that he had sent it to the petitioner. He accepted that before the Counsellor on 6th June, 1991, settlement terms were reduced into writing and 30th June, 1991, was fixed as a date to take petitioner with him for resumption of cohabitation. He had to postpone the date for taking the petitioner with him for want of premises. He stated that on 6th June, 1991, he had decided to arrange for premises for residence by 30th June, 1991. But he stated that at present he was not willing to take the petitioner with him even if she was ready to come with him from the Court. The tenor of his evidence indicates that according to him it was Nemchand Shah, the brother of the petitioner who was responsible for the petitioner's arrogant behaviour. He also stated that even if the petitioner on oath states that she will not visit her brother till her death he was not prepared to take her back. He stated that he had married Lalita against his wish. In the cross-examination he made a categorical statement that he has claimed divorce because after the settlement the petitioner and her brother Nemchand Shah started telling people as to how he had surrendered to them. He further stated that except this there is no other reason for him to ask for divorce. 6.The respondent also examined Vilas Shah in support of his case that there were some efforts made for reconciliation. Vilas Shah stated that he alongwith some other persons went to the house of Nemchand Shah. Nemchand Shah told them that they were not ready to send the petitioner to the house of the respondent. When he was told that the respondent was to purchase a flat, Nemchand told him that he will consider whether to send the petitioner or not. The respondent has also examined Nagraj Oswal. Nagraj Oswal has been examined to show that the respondent works as commission agent and he gets approximately Rs. 500/- to Rs. 700/- per month by way of commission. 7.The petitioner examined herself. She stated that after marriage she started residing with respondent at Lonand. They had one daughter by name Sheetal and a son by name Tejas. Nagraj Oswal has been examined to show that the respondent works as commission agent and he gets approximately Rs. 500/- to Rs. 700/- per month by way of commission. 7.The petitioner examined herself. She stated that after marriage she started residing with respondent at Lonand. They had one daughter by name Sheetal and a son by name Tejas. After some days they came to reside at Pune. She has stated that her in-laws also came to Pune to reside with her. According to her members of the respondent's family illtreated her. The respondent threatened her that he would have a second marriage. She was beaten and driven out of the house in 1987. She had no option but to go to her brother's house to stay. After this incident she made several efforts to go to the respondent but the respondent did not allow her to resume cohabitation. First time she went with her brother but the respondents parents did not allow her to stay in the house. The second time she went along with her children. The respondent told her that he had no place of his own and therefore she had to go back to her parent's house. Since 1987, therefore, she was residing with her parents. Ultimately on 19th January, 1989, she sent a notice to the respondent to which the respondent did not send any reply. She has also referred to the compromise talks between herself and the respondent. She stated that the compromise took place and the respondent agreed to take her back but the respondent did not take her back. She expressed her willingness to cohabit with the respondent. She denied that she was working in Morya Patpedhi Sanstha and that she was getting 3% by way of commission and she was earning Rs. 1500/- per month. The petitioner also examined her brother Nemchand Shah. He has supported the petitioner in material particulars. 8.After perusing the evidence the learned Judge of the Family Court held that the petitioner had proved that the respondent had withdrawn himself from her society without any reasonable cause and that he had treated her with cruelty. The learned Judge, therefore, held that the petitioner is entitled to get decree of restitution of conjugal rights. 8.After perusing the evidence the learned Judge of the Family Court held that the petitioner had proved that the respondent had withdrawn himself from her society without any reasonable cause and that he had treated her with cruelty. The learned Judge, therefore, held that the petitioner is entitled to get decree of restitution of conjugal rights. As far as counter claim of the respondent for divorce is concerned, the learned Judge held that the respondent had failed to prove that the petitioner deserted him without any reasonable cause and treated him with cruelty. The learned Judge, therefore rejected the respondent's prayer for the decree of divorce. The learned Judge directed the respondent to pay Rs. 300/- per month to the petitioner till he resumes cohabitation. The said judgment and order is impugned in the appeal at hand. 9.Mr. Katikar, the learned Counsel appearing to the appellant (org. respondent) petitioner has submitted that the evidence of the respondent and his witnesses clearly indicates that it was the petitioner who had deserted the respondent without reasonable cause. The petitioner did not want to stay with the respondent because he is poor. The petitioner caused mental cruelty to the respondent. The respondent also lost his job. Mr. Katikar contended that the evidence of the respondent and Vilas clearly establishes that the respondent has made all possible efforts to bring back the petitioner but at the instigation of her brother, the petitioner refused to go back to the respondent. He urged that in the circumstances, the respondent was entitled to a decree of divorce. 10.As against this Mr. Rairkar, learned Counsel for the respondent (org. petitioner) urged that the impugned judgment and decree does not call for any interference. He stated that it is evident from the petitioners' evidence that the respondent had driven out the petitioner. She was illtreated by the respondent and members of his family. The fact that the respondent did not even reply to the notice speaks volumes. He did not provide maintenance for her and the children and he made a categorical statement that he was not prepared to take her home. The evidence of the respondent and his witnesses has no ring of truth and deserves to be discarded. He therefore, submitted that the impugned judgment and decree deserves to be confirmed. 11.We may first deal with the case of the respondent. The evidence of the respondent and his witnesses has no ring of truth and deserves to be discarded. He therefore, submitted that the impugned judgment and decree deserves to be confirmed. 11.We may first deal with the case of the respondent. In his written statement the respondent has made a feeble attempt to make out a case of cruelty and desertion by the petitioner, which, in our opinion the respondent has not been able to prove. As stated above, as per the compromise pursis filed on 6th June, 1991, the respondent was to take the petitioner home by 30th June, 1991. He postponed the date to 30th June, 1991 from 6th June, 1991 because according to him he wanted to make arrangement for accommodation. Instead of taking the petitioner home, he amended the written statement. Earlier he had stated that he was prepared to forget the arrogant behaviour and take back the petitioner and her children only because the petitioner was his wife and he did not desire to have trouble for his children. However, the petitioner should give an undertaking to the Court that she will under no circumstances go to her brother. By amendment he deleted the last sentence and added that he was prepared to forget the arrogant behaviour of the petitioner and take her and the children back only because she was his wife and he did not desire to have trouble for his children. He further added that the petitioner had deserted him in 1984 and the present application was filed in 1990. There was no bona fide intention in filing the application and he was fully satisfied about the fact that the present application has been made with mala fide intention and with a view to torture the respondent. Under these circumstances he was fully convinced that there will be repetition of quarrels and dispute and, therefore, it is better to put an end to marital tie. 12.He also amended the prayer clause. Earlier he has prayed that "respondent is prepared to maintain the petitioner and the children and, therefore, the Hon'ble Court should pass just and proper orders." He deleted this prayer and substituted it by a new prayer to the effect that it may be decreed that the marriage between the petitioner and the respondent stands dissolved. We have already narrated under what circumstances the amendment was carried out. We have already narrated under what circumstances the amendment was carried out. The prayer for divorce was first time made by way of amendment after the attempt at conciliation failed. In the cross-examination he has stated that. " I have claimed divorce because after the settlement, the petitioner Lalita and her brother Nemchand Shah started telling the persons as to how I surrendered to them and how I was mended. Except this there is no other reason that made me claim divorce." He has therefore, made it clear that what prompted him to obtain divorce was the fact that after the settlement the petitioner and her brother started boasting as to how the respondent had surrendered to them. This sequence of events indicate that the ground of cruelty and desertion if there was any has been specifically given up by the respondent in his evidence. He has in categorical terms stated that except the boastful utterances of the respondent and her brother after the settlement was arrived at he had no other reason to pray for divorce. We are, therefore, of the opinion that assuming that the respondent had successfully taken up the ground of cruelty and desertion he had given up the same in his evidence. We therefore, hold that the respondent is not entitled to a decree of divorce on the ground of cruelty and desertion as contended by him. 13.We may now turn to the case of the petitioner. The petitioner has given in detail the illtreatment meted out to her by the respondents and the members of his family. She has stated that she was threatened by the respondent that he would marry again. The respondent did not provide maintenance for the petitioner and the children. She made attempts to go back to the respondent. Once she went along with her brother. She again made an attempt by going to the respondent's house along with her two children. On both the occasions she was not allowed to resume cohabitation with the respondent. She stated that since 1987, she was forced to live with her parents and no attempt was made by the respondent during this period to bring her and the children home. She denied the allegation that it was at her brother's instance that she had deserted the respondent. She stated that since 1987, she was forced to live with her parents and no attempt was made by the respondent during this period to bring her and the children home. She denied the allegation that it was at her brother's instance that she had deserted the respondent. In fact it is because of the respondent's behaviour that she was forced to leave the house. We find the testimony of the petitioner credit worthy. She is consistent on the basic story of cruelty and desertion and is supported in material particulars by her brother Nemchand Shah. Nemchand Shah's evidence also inspires confidence. He has stated that the petitioner was residing with him since the year 1987 and the respondent never came to their house to take the petitioner home. He denied that Vilas Shah ever came to their house to take the petitioner back to the matrimonial home. We do not find any reason to disbelieve this witness merely because he is the brother of the petitioner. Besides it is clear from the evidence of the petitioner as well as respondent that the respondent made no provisions for the maintenance of the petitioner and the children and in fact even after the notice was sent he did not make provision for their maintenance. We are inclined to believe the petitioner when she says that he did not even reply to the notice. The respondent has stated that he sent her a reply but he is not able to substantiate this. There is no evidence except his bare words to show that he had sent a reply to her notice. Mr. Katikar the learned Counsel has led stress on the evidence of Vilas Shah and stated that evidence of the respondent's witness Vilas Shah shows that efforts were made to bring back the petitioner. We have carefully scrutinised the evidence of respondent's witness Vilas Shah. We however, find that the claim made by the respondent that efforts were made to bring back the petitioner and the children is a tall claim and it is not supported by evidence. It is significant to note that in pursuance to the compromise pursis which came to be filed the respondent was to take the petitioner home. However, he postponed it on the spacious ground that he could not make arrangement for accommodation. It is significant to note that in pursuance to the compromise pursis which came to be filed the respondent was to take the petitioner home. However, he postponed it on the spacious ground that he could not make arrangement for accommodation. In fact he has made a categorical statement in the Court that "even if the petitioner states that she will not visit her brother till her death, he will not take her back". He has also stated that he will not take the petitioner home even if she is prepared to come with him from the Court. Considering this we are of the opinion that the claim made by the respondent and his witness Vilas Shah that efforts were made to take the petitioner home are not genuine. All these factors lead to an irresistable conclusion that it was the respondent who had without reasonable excuse withdrawn himself from the society of the petitioner. It was he who drove out the petitioner and the children. We, therefore, concur with the trial Court on this aspect and confirm its finding to this effect. The petitioner is, therefore, entitled to the decree of restitution of conjugal rights. 14.The trial Court has granted maintenance of Rs. 300/- per month. We find no reason to interfere with that Order. We feel that the Order if at all, errs on lower side. 15.In the result the Family Court Appeal No. 72 of 1993 is dismissed and the judgment and decree of the Family Court at Pune, dated 4th February, 1993 in Petition No. A-503 of 1990 is hereby confirmed. 16.Our attention is also drawn to the Order of this Court, issuing notice of Contempt of Court against the respondent. It appears that the respondent was directed to deposit Rs. 10,000/- by Order dated 30th March, 1994. The respondent had not obeyed this direction of the High Court and, therefore, notice of Contempt of Court came to be issued. We are informed that the respondent has deposited the said amount in Court and thereafter he appears to have been regularly depositing the maintenance amount in Court as directed by the Court. We, therefore, discharge the contempt notice. 17.The petition (suo motu) Contempt No. 161 of 1994 is accordingly disposed of. 18.Issue of certified copy expedited. Appeal dismissed. *****