Arun Dev Sharma vs Sunita Kumari

J.V. Gupta, J.—This appeal is directed against the judgment and decree of the District Judge, Hissar, dated June 10, 1986, whereby the petition u/s 13 of the Hindu Marriage Act, (hereinafter called the Act), for divorce filed on behalf of the husband Arun Dev Sharma, was dismissed.

The marriage between the parties was solemnised on November 19, 1986. Earlier also, the husband had filed petition No. 166-M of 1983, u/s 13 of the Act, which was dismissed on April 3, 1984, vide copy of the judgment Exhibit P. 1. The present petition was filed on September 11, 1985, on the allegations that the wife had been avoiding the company of the appellant, the husband, since April 20, 1982. The desertion on her part caused him great mental agony and pain He fully realised that she was not willing to perform her duties as s wife to him and his family as she was more in love with her job and her parents as shown from her attitude and conduct towards him. He tried to bring her round through the panchayat, but all her efforts failed Thus, he sought the dissolution of his marriage with her by a decree of divorce on the grounds of cruelty and desertion. In the written statement, it was pleaded that the petition for divorce was not maintainable as a similar petition on the same grounds was dismissed on April 3, 1984. It was also alleged that the wife had come to join the society of the husband on September 28, 1982, but she was driven out of the house on September 29, 1982, and was not permitted to take her ornaments and clothes etc. On merits, it was maintained that though cohabitation was not resumed after September 29, 1982, yet the husband had made false allegations1 against her in addition to the allegations contained in the previous divorce petition She bemoaned that as she was unable to meet the demands of money made from her by her husband''s mother, in his presence, had gone to the extent of holding out threat to her that in case she dared to visit her house in future, her life would be in danger. In the earlier petition, the husband had made unfounded allegations of unchasity against her which were held to be false in the previous petition. According to her, she had come to join her husband on May 14, 1982, but on that day, he left the house and slept at his friend''s house only with the object to avoid the sharing of the bed with her. It was due to the callous behaviour of the husband that she had left for her parents'' house on May 25, 1982 A plea was also taken that the petition was unnecessarily delayed. On the pleadings of the parties, the trial Court framed the following issues:-

Whether the respondent has deserted the petitioner for a period of more than two years preceding the date of presentation of the petition?

Whether the petitioner has treated the respondent with cruelty?

Whether the petition is barred by res judicata in view of the earlier decision in HMA No. 166 of 1983 decided op 3 4.1984?

Whether the filing of the petition has been unnecessarily delayed?

5 Whether the respondent is entitled to the return of the articles given to her by her parents in dowry, in case of acceptance of the petition?

Relief.

Issues Nos. 1 to 4 were discussed together. It was held that the husband had failed to prove both the grounds of cruelty and desertion levelled by him against the respondent No. new incident having happened between the parties after the dismissal of the previous divorce petition, the instant petition was held as barred by res judicata. As a result of these findings the divorce petition was dismissed.

Efforts were made for reconciliation even at the stage of motion hearing in this Court, but they did not prove successful. By this Court again efforts were made for reconciliation between the parties, but it appears, the husband is not ready to take his wife with him.

No meaningful argument could be raised on behalf of the appellant-husband to challenge the findings of the learned District Judge. The only argument raised is that since the marriage between the parties had become irretrievable, the proper course is to grant a decree of divorce. In support of the contention, reliance was placed on Smt. Saroj Rani v. Sudarshan Kumar Chadha 1984 Hindu L.R. 713.

After hearing the learned counsel for the parties. I do not find any merit in this appeal.

In Smt Saroj Rani''s case (supra), the question for determination before the Supreme Court was, whether the husband could seek, divorce on the basis of the decree for restitution of conjugal rights, which was passed at the instance of the wife against the husband? An argument was raised before the Supreme Court that the expression taking advantage of his or her own wrong" in clause (a) of sub-section (1) of section 23, must be construed in such a manner as would not make the Indian wives suffer at the bands of cunning and dishonest husbands This argument was repelled by the Supreme Court with the observations:-

First even if there is any scope for accepting this broad argument, it has no factual application to this case and secondly if that is so then it requires a legislation to that effect. We are, therefore unable to accept the contention of counsel for the appellant that the conduct of the husband sought to be urged against him could possibly come within the expression his own wrong in section 23(1)(a) of the Act so as to disentitle him to a decree for divorce to which he is otherwise entitled to as held by the Courts below.

after making these observations the Supreme Court also observed,-

Further more we reach this conclusion without any mental compunction because it is evident that for whatever be the reasons this marriage has broken down and the parties can no longer live together as husband and wife, if such is the situation it is better to close the chapter.

It were these observations of the Supreme Court which the learned counsel for the appellant-husband stressed upon for the grant of a decree for divorce in his favour.

In the present case, the earlier petition filed by the husband for the grant of the decree for divorce on the basis of cruelty was dismissed on April 3. 1984, vide copy of the judgment Exhibit P.1. The subsequent application filed on September 11, 1985, is liable to be dismissed on this ground alone. In the earlier petition, the husband has made false allegations of unchastity against the wife. From the evidence, it appears that it is the conduct of the husband which is responsible for desertion, if any, on the part of his wife. In these circumstances, the husband cannot be allowed to take advantage of his own wrong.

Consequently, this appeal fails and is dismissed with costs.