Vijay Kumar Sabharwal vs Neelam Devi

Rekha Mittal, J.—The present appeal lays challenge to the judgment and decree dated 12.4.2007 passed by the Additional District Judge, Chandigarh, whereby the petition filed by Vijay Kumar Sabharwal, appellant, for dissolution of marriage of parties by a decree of divorce u/s 13 of the Hindu Marriage Act, 4955 (hereinafter referred to as "HMA"), has been dismissed. The marriage of the parties was performed on 20.11.1989 at village Nurpur Bedi, District Ropar. A son namely, Deval was born out of this wedlock on 7.9.1990. A petition u/s 13 of the HMA was filed by the appellant which was dismissed on 9.4.2001. As per averments set out by the appellant, the respondent is guilty of subjecting him to cruelty and deserting him without any reasonable cause. He has levelled allegations that the respondent-wife had been staying in the matrimonial home for a few days in a month and most of the time stayed in her parental house at Nurpur Bedi, as she was working as a teacher in a Government school at Takhatgarh. She did not seek her transfer to a place near Chandigarh as promised before marriage. She created scenes and quarrels on petty matters, insulted and abused the appellant and his parents. The respondent refused to cook food and did not attend to her domestic duties and insisted upon a separate residence but the appellant could not accede to her demand being the only son of his old parents and on account of financial constraints. The respondent caused a lot of tension for the family due to which the aged father of the appellant suffered heart problem. The respondent did not attend the last rites of her father-in-law and did not bother to visit the appellant when he remained admitted in PGI and operated upon for piles in December, 1992. She did not allow the appellant to meet their child and instigated the child against him. She left the matrimonial home in January, 1993 and did not return.

The respondent in reply, controverted the allegations levelled against her. She challenged the maintainability of the petition as an earlier petition filed by the appellant on the same set of allegations was dismissed vide judgment dated 9.4.2001. She has averred that the appellant and his family members used to misbehave with her without any reason, and though she was always ready and willing to live with the appellant and tried to persuade him to rehabilitate her in her matrimonial home but the appellant turned down her request. The appellant never cared for minor son of the parties or the respondent. She was forced to stay away from the matrimonial home and cannot be blamed for the wrongs committed by the appellant himself.

The appellant filed replication reiterating his averments of the petition and controverted the plea raised by the respondent.

The controversy between the parties led to framing of following issues by the learned trial Court:-

Whether the petitioner is entitled to a decree of divorce on the ground of cruelty and desertion? OPP

Whether the petition is barred under Order 2 Rule 2 CPC? OPR

Relief.

The parties were permitted to lead evidence in support of their respective pleas.

After hearing counsel for the parties and perusing the record, the trial Court returned finding on both the issues against the appellant and as a consequence dismissed the petition with costs.

Counsel for the appellant submits that in the earlier proceedings, appellant''s plea for divorce on the ground of desertion was rejected on the premise that the statutory period of two years of separate living had not elapsed before the initiation of the proceedings. The parties are living separately for the last two decades without any hope of reconciliation. It is argued with vehemence that as the marriage has irretrievably broken down, the appellant is entitled to get a decree of divorce. After the decision of the earlier petition in April, 2001, no steps were taken by the respondent to resume cohabitation till the filing of the present petition in November, 2004, which shows that the respondent has no interest in this matrimony. It is submitted that the respondent has made the life of the appellant hell and she is hell bent to torture, harass and frustrate him to its maximum. The respondent is guilty of depriving him of conjugal rights which has caused mental cruelty of such a great degree that is difficult to explain in words. The last submission made by counsel is that no useful purpose would be served by sustaining this matrimonial relationship.

Counsel for the respondent, on the other hand, submits that failing in his effort to get a decree of divorce in the earlier litigation, the present petition was filed by the appellant on the same set of allegations and, therefore, the trial Court has rightly held against the appellant. It is argued with vehemence that the appellant himself is the guilty spouse and he cannot be allowed to take advantage of his own wrong. The learned trial Court on a detailed appraisal of the matter in its entirety has rightly held that the appellant has failed to establish his plea that the respondent is guilty of cruelty or desertion or is entitled to get a decree of divorce.

We have heard counsel for the parties, perused the pleadings, evidence adduced and judgment of the learned trial Court.

Indisputably, the marriage of the parties was solemnized on 20.11.1989 at Nurpur Bedi, District Ropar. A son was born out of this wedlock on 7.9.1990. The appellant is an employee of Central Excise Department and the respondent is a teacher in a Government School. The appellant filed a petition on 7.10.1996 praying for dissolution of marriage of the parties on the grounds of cruelty and desertion. The petition was dismissed by the Additional District Judge, Chandigarh on 9.4.2001. There is no dispute that after October 1996, the parties have not resided together. Whatever allegations have been levelled by the appellant with regard to misconduct of the respondent, the same were existing at the time of institution of the earlier petition. Counsel for the appellant has been fair enough to concede that all these allegations with regard to conduct and behavior of the respondent incorporated in the present petition were the subject matter of scrutiny and adjudication in the earlier litigation which culminated in the judgment and decree dated 9.4.2001. The decision by the Court of Additional District Judge dismissing the petition of the appellant on 9.4.2001 has attained finality as the appellant did not prefer any appeal against the said decision. As the earlier petition on the very same allegations, complaining against the conduct of the respondent and branding her to be a guilty spouse for causing cruelty to the husband has been dismissed, the appellant cannot be heard to say that he is entitled to get a decree of divorce on the very same set of allegations. If any such plea of the appellant is accepted, it would open a pandora''s box and a plethora of petitions would be filed again for seeking the same relief. The legislature has in its wisdom framed the rule of ''res judicata'' in order to discourage such like litigants and to attach finality to the proceedings once decided by a Court of law.

An argument that the petition on the ground of desertion is maintainable as the earlier petition on this ground was rejected for want of expiry of statutory period of two years, is misconceived and merits rejection. A perusal of the judgment dated 9.4.2001 (Ex. R-2) would reveal that as per the plea of the appellant, the parties were living separately since January, 1993. Even in the present proceedings, the appellant has asserted that the respondent left the matrimonial home in January, 1993. The earlier petition was filed by the appellant in October, 1996, more than three years of separate living of the parties. It is a different matter that the Court did not accept the plea of the appellant that the parties are living separately since January, 1993 and accepted the plea of the respondent that they are living separately since July, 1995. The appellant cannot be permitted to retract from his clear and categoric admission that they are living separately since January, 1993 and he prayed for a decree of divorce on the ground of desertion after the expiry of the statutory period of two years. This apart, the appellant appeared in the witness box to establish his claim. He has tendered into evidence his affidavit in chief examination which in fact is a reproduction of averments of the petition. During his cross examination, recorded on 14.12.2005, he has deposed that "I am not ready to take the respondent with me and settle her along with the minor child in the matrimonial home but I am ready to keep my child with me." This statement of the appellant makes it manifest that the appellant himself is not interested to live with his wife. We stand fortified from the fact that the earlier petition was filed in 1996 which was eventually decided in 2001. Three years thereafter, the present petition has been filed on the same set of allegations seeking divorce on the grounds of cruelty and desertion. The appellant cannot be allowed to take advantage of his own wrong to get a matrimonial relief. He has admitted that he never sent any maintenance for the upbringing or education of their child. The appellant who is shying away from his marital obligations has been rightly denied the relief of a decree of divorce. The respondent in her statement on oath has categorically and candidly stated before the Court that she is still ready and willing to live with her husband. The son of the parties also appeared in the witness box and stated on oath that the appellant refused to meet him. The learned trial Court on a correct appraisal of evidence on record and settled legal position has returned findings against the appellant. There is no error much less illegality in the findings recorded by the learned trial Court as would call for interference. In view of what has been discussed hereinabove, the appeal sans merits and the same is accordingly dismissed with costs of Rs. 10,000/-.