JUDGMENT 1. - Heard the learned counsel for the appellant. None appeared for the respondent. 2. This appeal is directed against the judgment and decree dated 2.8.96 passed by the District Judge, Churu in Civil Misc. Case No. 188/93 (86/91), Deen Dayal v. Smt. Usha Rani . By the aforesaid judgment, the petition filed by the appellant Deen Dayal under Section 13 of the Hindu Marriage Act was dismissed. 3. A perusal of the record of the lower court shows that the appellant (petitioner) Deen Dayal filed a petition under Section 13 of the Hindu Marriage Act in the court of District Judge, Churu. According to the averments made in the petition, the marriage of the appellant with the respondent-non-petitioner Smt. Usha Rani was celebrated on 6.12.1976 in accordance with the Hindu rites at Taranagar. After marriage, the respondent-non-petitioner lived with the appellant for five years. During this period she gave birth to three children. Out of three children, one son aged 10 years is alive and he is living at Bikaner with the respondent-non-petitioner. The appellant-petitioner's case as set up in the petition under Section 13 of the Hindu Marriage Act is that in 1983, about either years before the filing of the petition, the respondent-non-petitioner went to her parents' house at Bikaner. He took away with her, her ornaments and her son aged 10 years. The appellant-petitioner thereafter tried his best to bring back the respondent-non-petitioner but he failed. It is also stated in the petition that the respondent non- petitioner Smt. Usha Rani, is in Government employment and she is working as a teacher in Government Primary School, Nokha. It is alleged in the petition that the respondent-non-petitioner has treated the appellant-petitioner with cruelty by not living with him and that the period of desertion which is necessary for a decree for divorce is also complete. 4. In her written statement, the respondent-non-petitioner admitted her marriage and further admitted that she gave birth to three children, out of whom one son aged 10 years is alive. It is admitted by her that she is in Government employment and is working on the post of teacher. 4. In her written statement, the respondent-non-petitioner admitted her marriage and further admitted that she gave birth to three children, out of whom one son aged 10 years is alive. It is admitted by her that she is in Government employment and is working on the post of teacher. According to her written statement, the respondent-non-petitioner, served in the capacity of teacher wherever she was posted and this was done with the consent of the appellant-petitioner and she used to perform her conjugal duties as wife as and when it was possible during the holidays. In the written statement, respondent-non-petitioner further alleged that in June, 1986, the petitioner turned her out after giving her a beating and also refused to perform his conjugal obligations towards her. She denied that she brought with her, her ornaments at the time she was turned out of the house by the appellant-petitioner. The allegations of cruelty as made in the petition were denied by the respondent-non-petitioner. In the additional pleas, it was further alleged that when the petitioner refused to keep the non-petitioner with him, the non-petitioner filed a petition under Section 9 of the Hindu Marriage Act in the court of District Judge, Bikaner. That petition was dismissed and an appeal against the order passed by the District Judge is pending in the High Court. In the additional pleas, it is also alleged by the respondent-non-petitioner that the appellant-petitioner maltreated her because she did not bring such dowry as he expected, It is also alleged that at the time of first delivery, the petitioner sent her to her father's house and did not look after her and her first child. As a result, her first child who was a son died. When the occasion for second delivery came, the petitioner again sent her to her father's house and at Bikaner respondent non-petitioner delivered second son at P.B.M. Hospital. The information about delivery of second son was communicated to the petitioner. He went to Bikaner but did not spend anything on the respondent non-petitioner and her son. As a result, the second son also died. When the occasion for delivery of third son came, the respondent- non-petitioner refused to go to her parents' house and delivered the third son at her in law' house. He went to Bikaner but did not spend anything on the respondent non-petitioner and her son. As a result, the second son also died. When the occasion for delivery of third son came, the respondent- non-petitioner refused to go to her parents' house and delivered the third son at her in law' house. It is alleged that the petitioner tried to burn the respondent-non petitioner by pouring kerosene oil on her and when the respondent-non petitioner sent information about this incident to her parents, she was given a severe beating and was also turned out of the house and in a destitute condition she went to her parents' house. In the additional plea it was also alleged that the appellant- petitioner has celebrated his second marriage with Guddi daughter of Bhagawan Ram resident of Nethua and Guddi has given birth to two sons and the appellant-petitioner has, by this act, committed bigamy. 5. The learned District Judge framed as many as six issues, which are : " 1- D;k vizkfFkZ;k izkFkhZ dks LosPN;k ls NksM+dj vius ekWa&cki ds ikl jg jgh gS rFkk mlus izkFkhZ ls foyxko dj j[kk gS] bl dkj.k izkFkhZ fookg foPNsn djkus dk vf/kdkjh gS\ & izkFkhZ 2- D;k izkFkh ds lkFk vizkfFkZ;k dk O;ogkj dzwjrkiwoZd gSA bl dkj.k izkFkhZ mlls fookg foPNsn djkus dk vf/kdkjh gS\ &izkFkhZ 3- D;k izkFkhZ dk vkosnu i= vizkfFkZ;k ds tokc ds en 13 o 18 ds vuqlkj pyus ;ksX; ugha gS\ & vizkfFkZ;k 4- D;k izkFkhZ Lo;a dk O;ogkj vizkfFkZ;k ds izfr dzwjrkiwoZd jgk gSA bl dkj.k og dksbZ vuqrks"k ugha ik ldrk gS\ & vizkfFkZ;k 4&, D;k izkFkh nhun;ky ds fookg&foPNsn ;kfpdk lafLFkr djus ds i'pkr~ o bl ;kfpdk dh vUoh{kk ds nkSjku voS/k :i ls Jherh xqM~Mh iq=h Jh Hkxokujke tkfr czkgkz.k fuoklh usBqvk rglhy o ftyk pw: ls fookg dj fy;k o ftlds uqRQs nks iq= mRiUu gq;sA bl izdkj ;kph cgq&fookg dk nks"kh gS o ;g ;kfpdk [kkfjt djus ;ksX; gS\ & vizkfFkZ;k 5- vuqrks"kA " 6. The appellant-petitioner Deen Dayal (A.W. 1) examined himself and produced Sriniwas Sharma (A.W. 2), Chhagan Lal (A.W. 3) and Mohan Lal (A.W. 4) in support of his allegation. The non-petitioner Srnt. Usha Rani (N.A.W. 1) examined herself and produced Krishna Kumar Sharma (N.A.W. 2) and Ram Prakash Sharma (N.A.W. 3) to support her case. Gajanand (A.W. 5) was examined by are petitioner in rebuttal. 7. The non-petitioner Srnt. Usha Rani (N.A.W. 1) examined herself and produced Krishna Kumar Sharma (N.A.W. 2) and Ram Prakash Sharma (N.A.W. 3) to support her case. Gajanand (A.W. 5) was examined by are petitioner in rebuttal. 7. The learned District and Sessions Judge, Churu decided issue Nos. 1 and 2 against the appellant-petitioner. Issue Nos 3, 4 and 5 were decided against the respondent-non-petitioner. On the basis of the decision on issue Nos. 1 and 2, the petition for divorce was dismissed. Both the parties were directed to bear their own costs. 8. The learned counsel for the appellant has submitted that the learned trial Judge has committed grave error in deciding issue Nos. 1 and 2 against the appellant-petitioner and, therefore, the appeal deserves to be allowed. On the other hand, the learned counsel for the respondent has supported the impugned judgment and prayed for the dismissal of the appeal. Issue No. 1 is regarding desertion and issue No. 2 is regarding cruelty. 9. I have carefully considered the evidence produced by both the parties. The petitioner Deen Dayal (A.W. 1) has stated on oath that his marriage was celebrated on 6.12.1976 and from the date of marriage to the year 1983, the non-petitioner used to visit him and during this period, the to non-petitioner gave birth to three children, out of whom one son aged 13 rears is alive and since 1983, she has not come to his house and is presently posted at Nokha where she is working as a teacher. It is further stated by Deen Dayal (A.W. 1) that the non-petitioner lives at Bikaner with her parents and in spite of his repeated efforts she refused to accompany to his house. It also stated by him that during the period, the non-petitioner lived with him up to 1983, used to quarrel and was not desirous to live with him. In cross-examination it is stated by Deen Dayal that marriage was celebrated at Bikaner and, at that time, the non-petitioner was posted at Himmatnagar where she was serving as a teacher in a school. In cross-examination it is stated by Deen Dayal that marriage was celebrated at Bikaner and, at that time, the non-petitioner was posted at Himmatnagar where she was serving as a teacher in a school. It is also admitted by him that the non-petitioner has filed a petition under Section 9 of the Hindu Marriage Act but the same had been dismissed and that he had filed a petition for divorce, during the pendency of the petition filed by the non-petitioner under Section 9 of the Hindu Marriage Act. It is denied by him in the cross-examination that when he was examined in the court during the hearing of the petition filed by the non-petitioner under Section 9 of the Hindu Marriage Act, he had stated on oath that non-petitioner was not living with him since 1981. It is admitted by him that he is not prepared to keep the non-petitioner with him. He has denied the suggestion that he had asked the non-petitioner to give up the service. 10. Sriniwas Sharma (A.W. 2), has stated that the marriage of the parties took place in the year 1976 and, after marriage, the non-petitioner visited the petitioner's house rarely and after that she went away after a quarrel. It is further stated by him that the non-petitioner is posted at Nokha and is living with her parents at Bikaner and she does not want to live with the petitioner. In cross-examination he has stated that the quarrel did not take place in his presence and Deen Dayal had told him that the non-petitioner had gone away after a quarrel. The evidence of this witness does not appear to the based on personal knowledge and is of little value. 11. Chhagan Lal (A.W. 3) has also stated that after her marriage, the non-petitioner lived with Deen Dayal for about 10 years and for the last 10 to 12 years she is not living with the petitioner and is living at Bikaner with her parents. In cross-examination this witness admitted that he is maternal uncle of the petitioner. Regarding the quarrel between the petitioner and the nol-petitioner on 8.6.86, the witness expressed ignorance. The evidence of this witness, does not indicate the reason why the non-petitioner is living separately. In cross-examination this witness admitted that he is maternal uncle of the petitioner. Regarding the quarrel between the petitioner and the nol-petitioner on 8.6.86, the witness expressed ignorance. The evidence of this witness, does not indicate the reason why the non-petitioner is living separately. Therefore, the evidence of this witness, does not prove anything more than this that for the last 10 to 12 years, the parties to this case are living separately. 12. Mohan Lal (A.W. 4) has given a similar statement and stated that for the last 12 to 13 years, the non-petitioner has not come to Taranagar. In cross-examination this witness has admitted that he is maternal uncle of the petitioner and that he did not see the petitioner causing any beating to the non-petitioner. The evidence of this witness also does not indicate the reason why non-petitioner is living separately from the petitioner. 13. Smt. Usha Rani (N.A.W. 1) has stated that her marriage with Deen Dayal was celebrated in the year 1976 and right from the date of her marriage she was harassed by her husband and in laws for bringing dowry. It is also stated by her that she used to visit petitioner's house during holidays and that she delivered three children out of the wedlock. Her two children expired and one of them is alive. It is also stated by her that she was to harassed by her sister-in-law and her husband and even the letters sent by her parents were not delivered to her she was threatened that she would be burnt. It is also stated by her that for the first time she was given a beating by her mother-in-law on 4.6.1986 and when she wanted to lodge the First Information Report at the Police Station, her father-in-law and her husband persuaded her not to lodge the report at the Police Station. She was persuaded to return to her husband's house but on 8.6.1986, she was given beating by her husband and was turned out of the house. Consequently, she went to the temple to Lord Hanuman and, while she was sitting there, some persons gathered around her and she returned to her parents' house because there was no alternative. She was persuaded to return to her husband's house but on 8.6.1986, she was given beating by her husband and was turned out of the house. Consequently, she went to the temple to Lord Hanuman and, while she was sitting there, some persons gathered around her and she returned to her parents' house because there was no alternative. It is also stated by her that for long time she waited for her husband but he did not go to her and ultimately she was forced to go to the court and, while her case was pending before the Court, her husband instituted this suit for divorce. It is also stated by her that Ratan Lal, who is maternal uncle of her husband, told her that her husband had married another woman and when she tried to go to her husband, Ratan Lal did not allow her to enter in the house it is also stated by her that if him husband is prepared to keep her, she is still ready to go and live with him. In the cross-examination, she admitted that she is in service for the last 17 years and for the last 15 years she is posted at Nokha. It is admitted by her that the petition filed by her in the court (under Section 9 of the Hindu Marriage Act) had been dismissed and that she did not lodge any report about the demand of dowry by her husband and in-laws. 14. Krishna Kumar Sharma (N.A.W. 2) is the father of non-petitioner Smt. Usha Rani. He has stated that the non-petitioner entered in service in the year 1978 and she is posted at Nokha as a teacher and for the first ten years of the marriage, the petitioner and his parents did not care for the non-petitioner. It is also stated by him that the non-petitioner used to visit her husband's house during the vacation and that dowry was demanded from her and she was also give beatings. It is further stated by him that on 8.6.1986, the non-petitioner was turned out of her house by the petitioner and in spite of repeated efforts, the petitioner did not come to take the non-petitioner to his house. Consequently, a petition had to be filed at Court in Bikaner which was dismissed in January, 1993 and an appeal is pending before the High Court. Consequently, a petition had to be filed at Court in Bikaner which was dismissed in January, 1993 and an appeal is pending before the High Court. It is also stated by him that he had heard that Deen Dayal had married a second woman. 15. Ram Prakash Sharma (N.A.W. 3), is a resident of Bikaner. He has stated that the non:petitioner had told him that her husband had married a second woman and when he went to the Upper Primary School at Taranagar, the teacher known as Indoriyaji told him that the petitioner has married again and when he went to the house of Ratanlal, he saw his second wife and two children. In cross-examination this witness has stated that he did not talk to the woman who was present in the house of the petitioner nor the second marriage was celebrated in his presence. It is also stated by him that he did not seen the face of the second wife of the petitioner. In these circumstances, the evidence of this witness hardly inspires confidence. Gajanand (A.W. 5) was examined in rebuttal. He has stated that he has no idea whether the petitioner has married a second woman. The statement of this witness has no evidentiary value. 16. The burden to prove issue Nos. 1 and 2 was on the petitioner Deen Dayal. The witnesses examined by him to support his allegations, do not inspire any confidence. Therefore, the appellant-petitioner has to depend on his own statement. 17. After carefully considering the evidence of Deen Dayal, I am of the opinion that his statement is not sufficient to prove that the non-petitioner had deserted him or treated him with cruelty. It is pertinent to point out that according to the appellant-petitioner, he filed the suit for divorce after institution of the petition under Section 9 of the Hindu Marriage Act by the non-petitioner in the court at Bikaner. It shows that the divorce petition was filed by the petitioner, as an after thought. If the non-petitioner has in fact treated the petitioner with cruelty and deserted him, the petitioner could have filed the petition for divorce earlier than the filing of the petition under Section 9 of the Hindu Marriage Act by the non-petitioner. It shows that the divorce petition was filed by the petitioner, as an after thought. If the non-petitioner has in fact treated the petitioner with cruelty and deserted him, the petitioner could have filed the petition for divorce earlier than the filing of the petition under Section 9 of the Hindu Marriage Act by the non-petitioner. Apart from this, one statement of Deen Dayal (A.W. 1), in the facts and circumstances of the case, is not sufficient to come to conclusion that the non-petitioner deserted him or treated him with any amount of cruelty. The non-petitioner is serving as a teacher at Nokha and it is common knowledge, that she cannot go to the house of the petitioner, except on holidays or during leave. Therefore, the fact that she is staying away from the petitioner, is by itself, not suggestive of desertion by the non-petitioner. So far as the cruelty is concerned, there is no evidence worth the name to prove cruelty. 18. For above reasons, I am of the opinion that the learned District & Sessions Judge has not committed any illegality by deciding issue Nos. 1 and 2 against the appellant-petitioner. No other point has been stressed before this Court. 19. The appeal has no merit and it deserves to be dismissed and it hereby dismissed with costs.Appeal dismissed. *******