Punjab-Haryana High Court
Gurcharan Singh vs Mukhtiar Kaur on 18 July, 2001
Equivalent citations: I(2002)DMC747
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
JUDGMENT Adarsh Kumar Goel, J.
1. This appeal has been preferred against the judgment of the District Judge, Bathinda, dismissing the petition for divorce filed by the appellant-husband.
2. Marriage between the parties took place in July, 1970, and one daughter named Sukhwinder Kaur was born out of the wedlock who is living with the respondent-wife. Though the respondent-wife gave birth to 3 other children i.e. 2 sons, and one daughter but they died soon after the birth. The appellant-husband filed a petition in question on 31.10.1990 alleging that the respondent-wife was a quarrelsome lady and was not adjusting in the matrimonial home and finally deserted the appellant-husband 6 years before the filing of the petition. The respondent-wife contested the petition and stated that she was turned out of the house after being treated with cruelty by the appellant-husband. The trial Court dismissed the petition. Aggrieved thereby, the appellant-husband has filed this appeal.
3. After admission of the appeal the matter was referred to Lok Adalat under Section 20 of the Legal Services Authorities Act, 1987 but finding that there was no possibility of compromise, the Lok Adalat had referred the matter back for decision on merits.
The trial Court framed the following issues:-
1. Whether the respondent is guilty of cruelty towards the petitioner as alleged in paras 4 and 5 of the petition? OPD
2. Whether the respondent has not complied with the decree under Section 9 of the Hindu Marriage Act for a continuous period of more than 1 year? if so, its effect? OPP
3. Whether the respondent has deserted the petitioner for a continuous period of 2 years without any reasonable excuse? OPP
4. Whether the petition is not maintainable and the petitioner has no cause of action and locus standi? OPR
5. Whether the petition is barred by the principle of res judicata etc. as alleged in preliminary objection No. 3? OPR
6. Relief.
4. Under issue No. 5, the trial Court held that the petition was barred under Order XXIII Rule 1 Sub-rule (4) CPC and under Order IX Rule 9 CPC Exhibit R-l showed that the appellant-husband had earlier filed a petition under Section 13 of the Hindu Marriage Act on 24.2.1990 which was dismissed in default on 24.10.1990. In view of that, the appellant-husband was debarred from filing a fresh petition under order XXIII Rule 1 Sub-rule (4) and under Order IX Rule 9 CPC. Since the allegations of cruelty and desertion are the same as were made in the earlier petition, a fresh petition is barred under Order XXIII Rule 1 Sub-rule (4) and under Order IX Rule 9 CPC. Though the trial Court under issue No. 1 held the allegation of cruelty to be proved on the ground that the respondent-wife had levelled false allegations against the husband, the trial Court recorded finding of issue No. 2 in favour of the respondent-wife by holding that having regard to the facts of this case non compliance of decree of restitution of conjugal rights did not furnish a ground for divorce to the appellant-husband as he could take advantage of his own wrong. The plea of desertion was also rejected by the trial Court.
5. 1 am in agreement with the finding of the trial Court on issues Nos. 2,3,4 and 5 and also with the final conclusion that decree for divorce could not be granted in favour of the appellant-husband. I am however unable to agree with the trial Court on issue No. I. Though the result of this appeal is not affected by the finding of issue No. 1 being either way in view of the fact that the appeal is liable to be dismissed if the finding on issue No. 5 is upheld, I find that finding of the trial Court on issue No. 1 is liable to be reversed. In the facts of this case, where there are allegations and counter allegations, wife's allegations could not be taken in isolation and she could not be held to be guilty of cruelty on that ground. There is much to be desired in the conduct of both spouses but on that ground wife could not be held to be guilty of cruelty. 1 am, therefore, constrained to reverse the finding of the trial Court on issue No. I and I decide the said issue against the petitioner-appellant and in favour of the respondent-wife.
6. This appeal accordingly fails and is dismissed with no order as to costs.