Smt. Nirmal Kaur vs Gurjit Singh Khanuja alias Satnam Singh

Prashant Kumar Mishra, J.—This first appeal u/s 28 of the Hindu Marriage Act has been preferred by the appellant/wife whose application for grant of divorce has been dismissed by the trial Court. Parties to the appeal were married on 20-1-1991. They have a son in the wedlock, who was born in September, 1992. Presently the son is residing with the appellant/wife.

In the application for divorce it was stated that after six months of marriage the husband started treating the wife with cruelty and was also assaulting her. He was making false allegations against the wife. As a result of cruel behaviour she started living with her parents at Ambikapur from the year 1995. She was sent to her marital home by her parents, but the husband''s behaviour did not change. The husband has deserted him after August, 1996. The application for divorce was presented on 19-11-2001.

The respondent/non-applicant denied the allegations made by the wife and stated that she has never treated her with cruelty. It was stated by him that the parents of the applicant/appellant are very rich, therefore, she always wants to reside in her parental house. According to the husband there was some misunderstanding between the husband and wife but he has never deserted the wife and he is still willing to lead his marital life and is also willing to keep the wife and son with him.

The trial Court found that the allegations made in the divorce application has not been proved and dismissed the application.

Counsel for the appellant has argued that cruelty has been proved and the application for divorce should have been allowed. He would submit that the marriage between the parties has irretrievably broken down and there is no chance of living together, therefore, a decree for divorce should have been allowed in the interest of justice.

On the other hand counsel for the respondent would submit that he is still willing to keep the wife and his son with him, therefore decree of divorce should not be granted.

In the trial Court the husband and wife appeared for reconciliation on 10-8-2002. The order sheet records that the appellant / wife stated that reconciliation is not possible. In the High Court also the parties were directed to make an effort for reconciliation. Both of them appeared on 15-3-2010. The order sheet records that the appellant does not want to live with the respondent. Thus, from the very beginning the husband is asserting that he is willing to keep the wife and his son with himself but wife is always refusing to live with him. It has been stated by the respondent that the family of the appellant/wife are very rich, therefore, she being more comfortable in her parental house is not coming to her marital home to lead her marital life. When these statements are read along with the findings recorded by the trial Court that neither the allegations of cruelty nor that of desertion has been proved, it appears that the appellant is not willing to reside and lead her matrimonial life. The trial Court has observed that the appellant has not stated the details of the cruelty in her application for grant of divorce. The allegations regarding ill treatment by husband on the ground that wife is suffering from leucoderma is not a part of the pleading in the application for divorce. Similarly the appellant has not examined any independent witness in support of the allegations of cruelty and ill treatment.

Counsel for the appellant has argued that the respondent has never made any effort to take her to the matrimonial home and to take care of son, therefore, his statement that he is still willing to keep them with him is artificial, however, in view of the denial by the appellant/wife before the trial Court as well as before this Court during reconciliation and the statement made by her that she does not want to live with the husband, it is established that it is the wife who is not willing to go to her matrimonial house and the husband cannot be blamed for their living separately.

Learned counsel for the appellant has relied on the judgment of the Supreme Court in the matter of Rishikesh Sharma Vs. Saroj Sharma, and Sanghamitra Ghosh Vs. Kajal Kumar Ghosh, to press for a decree of divorce on the ground of irretrievably breakdown of marriage.

In the matter of Sanghmitra Ghosh (supra) decree for divorce on the ground of irretrievable break down of marriage was granted on the facts that several Civil cases and criminal cases are pending between the parties and before the Supreme Court parties jointly moved a petition for grant of a decree of divorce by mutual consent. In the matter of Rishikesh Sharma (supra) also several litigations were pending between the parties. The Supreme Court passed to decree of divorce on the ground of irretrievable breakdown on the ground that the parties are living separately since 1981 till 2006 i.e. for a period of 25 years. The child born in the wedlock was also been given in marriage in that case. Thus, the facts of the present case are entirely different from the facts of the cases in the above referred two Supreme Court judgments and are not applicable in the case in hand.

In the matter of Savitri Pandey Vs. Prem Chandra Pandey, ) the following has been observed in paras 17 & 18 of the report:--

The marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive. The legislature, in its wisdom, despite observation of this Court has not thought it proper to provide for dissolution of the marriage on such averments. There may be cases where, on facts, it is found that as the marriage has become dead on account of contributory acts of commission and omission of the parties, no useful purpose would be served by keeping such marriage alive. The sanctity of marriage cannot be left at the whims of one of the annoying spouses. This Court in V. Bhagat Vs. Mrs. D. Bhagat, held that irretrievable breakdown of the marriage is not a ground by itself to dissolve it.

As already held, the appellant herself is trying to take advantage of her own wrong and in the circumstances of the case, the marriage between the parties cannot beheld to have become dead for invoking the jurisdiction of this Court under Article 142 of the Constitution for dissolving the marriage.

Keeping in view the observation made by the Supreme Court in the above mentioned judgment of Savitri Pandey Vs. Prem Chandra Pandey, and applying the same in the facts of the present case it is to be noticed that the husband has made statement that the wife is living more comfortable life in parental house, therefore, she is not willing to lead her matrimonial life with him. Allegations of cruelty and desertion made by the wife have not been found to be proved by the trial Court. There is no history of intense litigation between the parties. Even before the plea of irretrievable break down could have been considered, the wife started making statement during reconciliation that she does not want to live with her husband. Thus, in the facts of the present case the judgment of the Supreme Court in the matter of Savitri Pandey (supra) is squarely applicable and it is found that a decree for divorce on the ground of irretrievable break down of marriage cannot be granted in the present case as the same is not in itself a ground to dissolve the marriage.

The present appeal has no substance and it fails. It is accordingly dismissed.

A decree be drawn up accordingly.

No order as to costs.