Laxmi Narain vs Smt. Sunita

Jasbir Singh, J.—This appeal has been filed by the husband, whose application filed u/s 13(1)(ia)(ib) of the Hindu Marriage Act, 1955, seeking dissolution of his marriage with the Respondent, was dismissed on May 22, 2010.

Heard counsel for the parties.

As per facts on record, marriage of the appellant with the respondent was solemnised on February 21, 1992. The couple was blessed with a son on June 12, 1993. As per allegations of the appellant, due to strained relations, respondent left his house on September 22, 1994, and came back on March 5, 1995. At the time of her return, she was carrying a pregnancy and gave birth to a daughter on July 6, 1995. The appellant disowned the child and took a stand that she may have got the pregnancy from somebody else. It was further stated that the respondent is a hot tempered lady and soon after the marriage, she started treating the Petitioner with cruelty. She had fileed a complaint on March 3, 1995, against the appellant and his parents to the Senior Superintendent of Police, Gurgaon. On intervention of the police, she was taken back in the family on March 5, 1995. It is further case of the appellant that after re-joining the family, she again started quarreling with the appellant and his mother and again left the matrimonial house without his consent. She again filed a false complaint against the petitioner and his family members regarding demand of dowry. Again she came back and stayed with the family and finally left the matrimonial house on August 28, 2004. It was specific case of the appellant that the respondent had illicit relations with one Sanjay Kumar Arora and that on the first night of marriage, she did not permit him to have physical relations with her. It was further stated that on account of cruelty at the hands of the respondent, his health has deteriorated.

Upon notice, written-statement was filed by the respondent. It was stated by her therein that on account of concealment of material facts, no relief be granted to the appellant. She reiterated allegations of demand of dowry and cruelty to her at the hands of the appellant and his family members. Many instances of committing cruelty were mentioned in the written-statement stating that the appellant had been beating the respondent under the influence of liquor. Allegation of adultery was denied. The trial Court, on appraisal of pleadings of the parties, put them to trial. Both the parties led evidence and the Court below formulated the following points for its adjudication:

Whether the petitioner is entitled for the decree of divorce on the ground mentioned in the petition? OPP 2. Whether the petitioner is not entitled to decree of divorce on account of his own act and conduct? OPR

Taking note of the evidence on record and the arguments raised, the Court found that the appellant is not entitled to get decree of divorce as prayed. After discussing the parameters, on the basis of which alleged cruelty, in matrimonial matters, shall be deemed to have been proved, the Court below observed as under:

Therefore, applying the aforesaid settled position of law to the facts of the case in hand, the irresistible onclusion is that the instances pleaded by the petitioner are only that of normal wear and tear in the married life and there is no such instance of cruelty which could have created fear in the mind of the petitioner that it would not safe to live in the company of the respondent. Although the petitioner has levelled allegations of adultery against the respondent but the petitioner has not led any cogent and convincing evidence in this regard. The documents which have been placed on record as marked documents cannot be read into evidence because of their formal proof and production of the original in the court and no reliance can be placed on these documents. Mere filing of criminal case does not amount to cruelty. Moreover, as during the time of filing earlier complaint admittedly the matter was settled it amounts to condoning the acts of cruelty if any between the parties in view of the aforesaid settled position of law. The case law i.e. decision in Ranjit Kaur v. Jaswant Singh 2009(4) RCR 948 Renuka Verma v. Padam Verma 2009(4) RCR 502, P. Mohan Rao v. P. Vijayalaxmi 2009 (5) RCR (Civil) 526, P. Devaraj v. V. Geetha 2007(1) RCR 134 Gurnam Singh v. Smt. Satwant Kaur 2007(2) RCR 23 and Smt. Alka Dadhich v. Ajay Dadhich 2009(5) RCR 84 on which reliance has been placed on behalf of the petitioner is of no help to the petitioner. It appears that the divorce petition has been filed by the petitioner husband in order to create a defence in the criminal case filed by the respondent against him.

Further more the petition of the petitioner on the ground of desertion cannot be allowed because firstly the petitioner has failed to prove that the respondent had left the house of the petitioner without any lawful excuse secondly as per the petitioner himself the wife had left the house of the petitioner in the year 2004 and as the petitioner husband filed petition only in the year 2007 and he has not given any explanation of delay in filing the case on the ground of desertion. Divorce cannot be granted on this ground.

It is also settled law that to prove the allegations of adultery the husband is required to bring all material circumstances to prove that wife is the cause of separation and when the husband was tolerating wife for sufficient period it amounts to condonation of bad conduction of the wife and there is no scope to utilise such bad conduct to terminate marital tie. Reference in this regard can be made to a decision in Chandrawati v. Kailash Nath 1995(1) HLR 283. It is also worth mentioning here that as has been detailed out above, although the petitioner has examined the doctor PW2 who had conducted x-ray and ultra sound examination of the respondent but the petitioner has not examined gynaecologist i.e. Dr. Usha Lalla whom he had contacted at the first instance. Therefore, also the version of the petitioner that the second child was not out of their wedlock is not proved because the testimony of the doctor who was not specialised in gynaecology cannot be accepted. This is settled law by the Hon''ble apex Court in its decision in Baldev Raj Miglani Vs. Smt. Urmila Kumari, .

In view of the settled law and the evidence which has been led by the petitioner, the petitioner has miserably failed to prove the ground of cruelty and desertion on which he has sought dissolution of marriage with the respondent. He is not entitled to decree of divorce on the ground of cruelty and desertion. Therefore, this issue is decided against the petitioner.

It was proved on record that the allegation of adultery was false. When female child was born in the family, the appellant got some benefit from his employer by making reference to birth of the child. After the child was born on July 6, 1995, the parties lived together for a period of about 9 years. The Court below has rightly come to a conclusion that there may be some normal wear and tear in the family, however, the same is not a ground for divorce. The children are of 18 years and 16 years of age respectively. The appellant has failed to make out any case for grant of divorce. Nothing has been referred from the record to show that there was any misreading of evidence.

When this matter came up for hearing on February 15, 2011, the parties were sent to the Mediation Centre of this Court to probe chance of any compromise. However, the mediation efforts have failed. Even before this Court, counsel for the appellant stated that the appellant wants to get divorce on account of a fact that the parties are living separately for along time and on payment of compensation. We are of the view that the appellant cannot take any benefit of his own wrong as has been held by the Court below. No case is made out for interference. Dismissed.