A spouse who is guilty of constructive desertion cannot claim judicial separation on the ground of desertion by the other spouse.

1. The circumstances giving rise to this appeal may be briefly stated as under:-

2. Tara Chand appellant was married to Shrimati Narain Devi respondent on February 28, 1960 at Bassi Pathana, and thereafter they had been living as husband and wife at different places, and had last resided as such, in the month of September, 1968, at Nangal Township. No issue was, however, born from their wedlock. On September 26, 1968, Kishan Chand-the father of the respondent, accompanied by his nephew-Nandu Ram, Chhinku Ram and Jumma Ram, visited the house of the appellant at Nangal and asked him to send the respondent with them to enable her to participate in the marriage of Nandu Ram, which was to be performed a few days later. He declined and told them that he would be sending her in the first week of the following month after receiving his salary. The said representation did not find favour with them, and on the night intervening between September 26 and 27, 1968, the respondent left his (the appellant s) house without his consent in the company of her father, and the aforesaid three persons. She had then carried away clothes and ornaments of the value of Rs. 8,000 with her. Thereafter, she did not return to his house. Therefore, on April 16, 1973, the appellant, with the said allegations, made a petition for judicial separation under Section 10 of the Hindu Marriage Act, 1955 (hereinafter called the Act), on the ground of desertion by the respondent for more than two years. The other ground of cruelty raised by him for obtaining judicial separation was based on the averment that the respondent had been insulting, abusing and had also been giving beatings to him. The said petition was resisted by the respondent. She admitted the factum of marriage, but controverted the other material allegations. Hence, the petition was tried on the following issues:

(1) Whether the respondent deserted the petitioner for the last more than two years? O.P.

(2) Whether the respondent treated the petitioner with such cruelty as to raise reasonable apprehension in his mind that it will be injurious for him to live with her? O. P.

(3) Relief.

The learned Senior Subordinate Judge who heard the petition, answered issues Nos. 1 and 2 in the negative and dismissed it with costs. Dissatisfied with the said result, Tara Chand came to this Court in appeal.

3. Mr. C.D. Dewan, the learned counsel for the appellant, challenged the judgment and decree recorded by the trial Court on law as well as on facts. He contended that the trial Court did not appreciate the evidence present on record rightly and its approach to law on the subject was incorrect. In my opinion, his contentions are not well founded. That the parties were married in the month of February 1960 and the respondent was taken by her father from the house of the appellant at Nangal in the month of September 1968 to enable her to participate in the marriage of her cousin-Nandu, and since then she had been living at the house of her parents are admitted facts. The deposition made by the appellant from the witness-box on August 17, 1974 is most damaging to his cause and discloses the following facts which are also deducible from the evidence and circumstances of the case:

(a) that there had been lack of cordiality between the parties from the very beginning of the marriage;

(b) that the appellant began to doubt the fidelity and character of the respondent after about six months of the marriage;

(c) that he did not love her;

(d) that in or about the year 1962, the respondent s father had taken her from the house of the appellant at Ambala;

(e) that sometime in the year 1963, the appellant, on making an application under Section 100, Code of Criminal Procedure, obtained search warrant against her, and it is said in the written statement that when the appellant had gone to the house of the parents of the respondent for executing the said search warrant her grandmother was lying dead and she was taken into c