Punjab-Haryana High Court
Sushil Kumar vs Smt. Pushpa Rani on 10 December, 2013
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
FAO No.M-272 of 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.M-272 of 2009
Date of decision: 10.12.2013
Sushil Kumar
..... Appellant
VERSUS
Smt. Pushpa Rani
..... Respondent
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE MAHAVIR S. CHAUHAN
Present: Mr. Divya Sarup, Advocate
for the appellant.
Mr. Anurag Jain, Advocate
for the respondent.
*******
MAHAVIR S. CHAUHAN, J.
This is husband's first appeal against judgment and decree dated 1.9.2008 passed by the Court of learned Additional District Judge, Hisar (hereinafter referred to as trial Court) dismissing Petition No.14 - HMA of 2006 brought by the appellant under Section 13 of the Hindu Marriage Act, 1955 as amended by Marriage laws (Amendment) Act 1976 (hereinafter referred to as the Act).
Petitioner had approached the trial Court on the averments that he was married to the respondent on 4.12.1980 as per Hindu rites and ceremonies; after marriage, parties to the marriage lived and cohabited together as Mohan Brij 2013.12.18 10:45 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-272 of 2009 -2- husband and wife at Hisar; out of the wedlock a son (named Rajat) was born on 3.9.1981; the respondent is a quarrelsome and hot headed lady and would pick quarrels with him on trivialities; she would complain of lack of luxuries and compelled the petitioner to live separately from his parents but petitioner could not accede to her this demand; respondent withdrew from petitioner's society in March, 1983; efforts put in by the petitioner to bring the respondent back to the matrimonial fold proved futile; however, pursuant to the convening of a Panchayat, the respondent agreed to and started living with the petitioner but on February 7, 1984 was taken away by her brother on the pretext of marriage of her brother; the respondent then refused to return to the matrimonial home and filed a petition under Section 125 of Code of Criminal Procedure against the petitioner; with the intervention of the Court, respondent was sent to the matrimonial home where she lived with the petitioner for about a month but not without creating scenes in the house and even slapped petitioner's mother; she not only deserted the petitioner with an intention not to return to the matrimonial fold but also treated the petitioner shabily and levelled wild allegations against his character and morality including allegations of illicit relations of the petitioner with a colleague; petitioner filed a petition under Section 13 of the Act which was dismissed on 25.11.1988; he then filed another petition under Section 13 of the Act in the year 1990 but it was also dismissed on 4.12.1992; even an appeal filed by him was also dismissed on 11.7.2001; after dismissal of the appeal, he convened Panchayats in May, 2002 and November, 2002 but respondent refused to return to the matrimonial fold without any reasonable cause; and that marriage between the parties had broken down irretrievably as there were no chances of the re-union.
The respondent contested the petition by filing a written reply wherein she pleaded preliminary objections, inter alia, to dispute maintainability of the petition, cause of action, locus standi of the petitioner and while denying all the allegations constituting the petition, she stated that she was forced to file a Mohan Brij 2013.12.18 10:45 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-272 of 2009 -3- petition under Section 125 of the Code of Criminal Procedure as the appellant neglected her and refused to maintain her and her minor son; she joined company of the petitioner in October, 1987 but was given beatings and was kicked out of the matrimonial home and that she was still ready to return to the matrimonial fold, if the appellant kept her properly.
From the pleadings of the parties learned trial Court framed following issues:-
1. Whether the petitioner Sushil Kumar is entitled to a decree of divorce on the grounds mentioned in the petition? OPP.
2. Whether the petition is not maintainable in the present form?
OPR.
3. Whether the petitioner has no cause of action and locus- standi to file the present petition? OPR.
4. Whether the petitioner is estopped from filing the present petition by his own act and conduct? OPR.
5. Whether the petitioner has not come in the Court with clean hands? OPR.
6. Relief Both the sides adduced evidence in support of their respective pleas and were heard by the learned trial Court.
On hearing the parties and on appraisal of the evidence and pleadings available on record, learned trial Court answered issue No.1 against the appellant and issues No.2 to 5 against the respondent but vide judgment and decree dated 1.9.2008 dismissed appellant's petition leaving the parties to bear their own costs.
As aforesaid, judgment and decree dated 1.9.2008 are under challenge in this appeal, which the respondent is contesting.
We have heard learned counsel for the parties and have also Mohan Brij 2013.12.18 10:45 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-272 of 2009 -4- perused the record.
It is argued on behalf of the appellant that the respondent has not only treated him with cruelty but has left his society with an intention not to resume cohabitation with him for a period of more than two years immediately preceding presentation of the petition and that marriage between the parties has broken down irretrievably.
Per contra, on behalf of the respondent it is argued that the appellant has lost twice on the grounds of desertion and cruelty and irretrievable break down of marriage is not a ground for divorce under the Act.
Nothing more has been urged on either side.
On hearing the learned counsel for the parties and on appraisal of evidence available on record, we are satisfied that the appellant has no case, whatsoever, for dissolution of the marriage between the parties.
Marriage in Hindu society is treated as sanctum sanctorum and cannot be dissolved at the whim of a party. In fact a Hindu marriage can be dissolved only on proof of one or more of the grounds for dissolution of marriage as enumerated in Section 13 of the Act. It is seen that the allegations of cruelty contained in the petition are very vague and general in nature. No specific instances of cruelty of the respondent towards the appellant have been indicated. Similarly, the ground of desertion can be used to undo a matrimonial relationship only if the petitioner (appellant in the instant case) is able to prove to the satisfaction of the Court that the respondent has withdrawn from his/her society without reasonable cause with an intention not to resume cohabitation. Mere separation, howsoever long, is not sufficient for dissolution of a marriage. It is seen from the averments made in the written statement and from the deposition of the respondent as RW1 and that of Rajat son of the parties as RW2 that the respondent has throughout been ready and willing to return to the matrimonial fold provided she is treated nicely by the appellant. Respondent's intention to Mohan Brij 2013.12.18 10:45 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-272 of 2009 -5- return to the matrimonial fold is evident from the fact that she returned to the matrimonial home more than once at the intervention of the Panchayat and the Court but was forced out of the house by illtreatment meted out to her by the appellant. As noticed by the learned trial Court, RW2 Rajat, son of the parties to the appeal is the best witness to the goings on in the matrimonial home and he cannot be expected to take sides with either of the parties without sufficient cause as being son of the parties he is equally attached to the appellant and the respondent. However, a glance across his deposition as RW2 would reveal that it is respondent, who has been wronged about and vice versa is not true. The respondent while appearing as RW1 and Rajat as RW2 have stated in one voice that the respondent is still willing to return to the matrimonial fold.
Not only this appellant invoked the provisions of Section 13 of the Act, firstly by filing Petition No.4 of HMA of 1988 on the twin grounds of cruelty and desertion but it was dismissed vide judgment and decree dated 25.11.1988 passed by learned Additional District Judge, Hisar. He then filed Petition No.25-HMA of 1990 but this petition was also dismissed vide judgment and decree dated 4.12.1992 passed by the Additional District Judge, Hisar. Even FAO No.14-M of 1993 brought by the appellant to challenge the judgment and decree dated 4.12.1992 was dismissed by this Court vide judgment dated 11.7.2001. In the situation, the instant petition on the grounds of desertion and cruelty is not maintainable being barred by the res judicata.
Irretrievable break down of marriage is not a ground for divorce under Section 13 of the Act and that being so cannot be used to the benefit of the appellant, more so when evidence available on record indicates that the appellant himself is responsible for withdrawal of the respondent from the matrimonial fold as he has failed to maintain her and the minor child besides illtreating the respondent.
In view of all what has been discussed above, we find no Mohan Brij 2013.12.18 10:45 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-272 of 2009 -6- merit in the appeal and the same therefore fails and is dismissed with costs.
(SATISH KUMAR MITTAL) (MAHAVIR S. CHAUHAN)
JUDGE JUDGE
December 10, 2013
Brij
Mohan Brij
2013.12.18 10:45
I attest to the accuracy and
integrity of this document
Chandigarh