Sanjhi Ram vs Mohindro

Jawahar Lal Gupta, J.—The husband''s petition for divorce on the grounds of cruelty and desertion was rejected by the trial Court. His appeal having been dismissed by the learned Single Judge of this Court, he has filed the present Letters Patent Appeal. A few facts may be noticed.

The parties were married on September 22, 1974. On September 25, 1975, a daughter was born. On February 28, 1979, a son was born to the couple. The appellant filed a petition u/s 13 of the Hindu Marriage Act, 1955 for dissolution of marriage on a two-fold basis. He alleged that the wife had deserted him without any reasonable cause and that she had made false allegations against him and lodged an FIR on June 2, 1981 alleging that he had committed offences u/s 494 and 496 IPC, whereupon the appellant was proceeded against u/s 109 Cr. P.C. Levelling false allegations constitutes cruelty which entitles the husband to a decree of divorce. Both the pleas have been rejected by the trial Court. On appeal, the learned Single Judge found that even though the appellant had been acquitted, there was "ample material on the file to prove that he (the appellant) had illicit relation with . . . Madhu". It was further observed that "the appellant and the said Madhu were apprehended by the police at Pathankot .... It was not disputed even in this Court that the appellant along with the said Madhu was arrested u/s 109 Code of criminal Procedure and were bound down for three months and that no appeal was filed against the said order by the appellant". On this findings, the learned Judge came to the conclusion that no ground for the grant of divorce is made out. Accordingly, the appeal was dismissed.

Mr. A.P. Bhandari, learned counsel for the appellant, has contended that the allegation of bigamy having been found to be false, the charge of cruelty should be taken to have been proved. Still further, learned counsel submits that no finding of leading an adulterous life could have been recorded without impleading Madhu as a party. Learned counsel has further contended that the wife had condoned the appellant''s misdemeanour. The marriage has been irrevocably broken down. Thus a decree of divorce should be granted.

Mr. Gill, learned counsel for the respondent, had controverted, the claim made on behalf of the appellant.

After hearing the learned counsel for the parties and examining the file, we find no ground to interfere. It was the appellant who had approached the Court with the grievance that the wife had levelled false allegations against him. He had levelled the charge of cruelty against the wife. However, the concurrent finding by the two Courts is that the appellant was not innocent. He was having some relationship with Madhu. He was found with her in Pathankot and was arrested by the police. A definite finding that the appellant had illicit relations with Madhu has been recorded. In this situation, it cannot be said that the wife has levelled false and baseless allegations against the appellant or that she has no basis for withdrawing from the company of the appellant. The two grounds on which he had sought a decree of divorce having not been established, the Courts have rightly dismissed the petition.

Mr. Bhandari has contended that Madhu was a necessary party and in her absence no finding of any illicit relationship could have been recorded. Even this contention is misconceived. Admittedly, the petition had been filed by the appellant. He had the right to choose the parties. He had done so. The wife had undoubtedly claimed that the appellant was not leading a chaste life. However, she had not come to the Court to seek any relief. She cannot be accused of omitting to implead a necessary party. Still further the Courts have recorded the findings on the admitted facts. It has not been disputed by Mr. Bhandari that the appellant was apprehended alongwith Madhu at Pathankot. It has also not been suggested that they have any relationship or any other good reason for being found together. In this situation, the contention that Madhu was a necessary party is wholly untenable and is rejected. Equally untenable is the plea that the wife had condoned the appellant''s misconduct. She has not approached the Court with any grievance and has not sought any decree. The fact as to whether or not she has not condoned the appellant''s misconduct has no relevance in these proceedings. In fact, no such plea has been raised at any stage and it cannot be allowed to be raised at the present stage of Letters Patent Appeal. Learned counsel has not been able to refer to any finding which may even remotely suggest a conscious act of condonation.

Lastly, it has been submitted by the learned counsel for the appellant that the marriage has broken down irretrievably. Thus, a decree of divorce should be passed. We are unable to accept this contention at this stage. Firstly, no such plea was raised before the learned Single Judge. Secondly, learned counsel has categorically stated before us that he has not met the appellant for the last seven years. That being so, he is not aware of the latest position. Thirdly, it has been proved that the appellant having made allegations of cruelty against the respondent-wife, he has not been able to prove his case. It has been found as a fact that the appellant''s conduct was not up to the mark. Granting him a decree of divorce in this situation would be allowing him to take advantage of his own wrong. This is contrary to the basic principle as embodied in Section 23(1)(a) of the Hindu Marriage Act, 1955.

No other point has been raised.

In view of the above, there is no merit in this appeal. It is, consequently, dismissed. However, the parties are left to bear their own costs.