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2000 DIGILAW 1068 (PNJ)

Surjit Singh v. Gurdev Kaur

2000-09-06

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - Shri Surjit Singh son of Shri Jhaggar Singh son of Shri Saun Singh, appellant, is an old man of 70 years and this fact I am quoting from the proceedings dated 27.10.1999 recorded by the learned President of the Lok Adalat, and he has filed the present FAO No. 104-M/93 which has been directed against the judgment and decree dated 30.1.1993 passed by the Court of Additional District Judge, Ludhiana who dismissed the petition of the petitioner, now appellant, under Section 13 of the Hindu Marriage Act against his wife Smt. Gurdev Kaur. 2. Before I incorporate the pleadings of the parties in the subsequent portion of this judgment, I may stated that the main petition under Section 13 of the Hindu Marriage Act was filed in the year 1991. Meaning thereby, at that time, Shri Surjit Singh should be about 60 years. 3. The case set up by the petitioner-appellant against his wife in the trial Court was that the marriage between the parties was solemnised 45 years ago before the institution of the petition in village Bhagli Kalan, Tehsil Samrala, District Ludhiana, by way of Anand Karaj cermeony. After the marriage the parties resided as husband and wife at village Chak Sarai, Tehsil Samrala, District Ludhiana. They co-habited with each other and out of his wedlock a female child by the name of Daljit Kaur was born. Unfortunately, she died on 24.9.1979. According to the petitioner he owned land in village Chak Sarai and he also purchased land in Muzaffarnagar (U.P.). The parties even went to U.P. to manage and look after the land. However, the respondent, Gurdev Kaur, used to come to village Chak Sarai frequently and she used to reside there all alone for 20 or 25 days at a stretch. After the death of his daughter on 24.9.1979, the petitioner went to U.P. but respondent did not join his company and she started residing at village Chak Sarai all alone. So much so the petitioner executed a Will in favour of his brothers shortly after the death of his daughter. It is alleged by the petitioner that his wife Smt. Gurdev Kaur developed illicit relations with his brother Mohinder Singh. The petitioner asked the respondent to accompany him to U.P. and she refused to do so. So much so the petitioner executed a Will in favour of his brothers shortly after the death of his daughter. It is alleged by the petitioner that his wife Smt. Gurdev Kaur developed illicit relations with his brother Mohinder Singh. The petitioner asked the respondent to accompany him to U.P. and she refused to do so. On 16.11.1979, the petitioner returned from U.P. and reached his house in village Chak Sarai at about 5/6 A.M. At that time the door of the house was closed but it was not bolted from inside. The petitioner opened the door and went inside the house. To his utter surprise he saw his wife Smt. Gurdev Kaur lying on a bed with his brother Mohinder Singh in a compromising position. It provided great provocation to the petitioner. He caught hold of Mohinder Singh and grappled with him. The Shri of Shri Mohinder Singh was torn. In the meantime, Gurdev Kaur, respondent, attacked the petitioner with a naked Kirpan and aimed blow on his head. In order to save himself the petitioner left Mohinder Singh and warded off the blow on his left hand and also snatched the Kirpan from the respondent. Thereafter, respondent picked up a Ghotna. The petitioner apprehended danger to his life at the hands of the respondent and under great and sudden provocation and in order to defend himself, he caused some injuries to Gurdev Kaur in self-defence. The petitioner then went to Police Station on the same day and narrated the incident to the police. Shri Avtar Singh, cousin brother of Gurdev Kaur had a great influence in the locality. He prevailed upon the police to involve the petitioner in a false case. The police did not record the report of the petitioner. Rather, he was detained for a day in the police-station and his arrest was fictitiously shown on 17.11.1979 under Section 307 I.P.C. The petitioner suffered serious injury on his person and he asked the police to get him medically examined on 16.11.1979 itself but the police did not accept the request of the petitioner. Rather the petitioner was medically examined on 17.11.1979. Due to that enmity, Mohinder Singh and his son Baldev Singh appeared as witnesses against the petitioner. Thereafter, the petitioner cancelled the earlier Will and executed a fresh Will in favour of his brothers and this time he excluded Shri Mohinder Singh. Rather the petitioner was medically examined on 17.11.1979. Due to that enmity, Mohinder Singh and his son Baldev Singh appeared as witnesses against the petitioner. Thereafter, the petitioner cancelled the earlier Will and executed a fresh Will in favour of his brothers and this time he excluded Shri Mohinder Singh. Both Mohinder Singh and Baldev Singh have since expired. It is further pleaded by the petitioner that he was tried in the criminal case by the Court of Additional District Judge, Ludhiana who accepted his version. Thereafter, respondent Gurdev Kaur got the petitioner falsely challaned thrice is the security proceedings under Sections 107/151 Cr. P.C. and every time the petitioner was discharged in those proceedings. The respondent unnecessarily dragged the petitioner in a number of civil litigation because she was unlawfully retaining the possession of land in village Chak Sarai. The respondent and her brothers often threatened the petitioner that they would kill him as and when they get the opportunity to do so. Petitioner further pleaded that respondent not only indulged in act of adultery with Mohinder Singh but she also treated the petitioner with worst type of cruelty. Respondent has deserted the petitioner since November 1979. She had gone to village Bagli Kalan and never returned thereafter. With these allegations, the petitioner has prayed for the dissolution of the marriage. 4. Respondent filed the written-statement and denied the allegations. Respondent admitted the fact that petitioner owned land in village Chak Sarai and he had also purchased about 19 acres of land in District Muzaffarnagar. Also it was admitted by the respondent that their daughter died in the year 1979. It was also stated by the respondent that after the death of her daughter, respondent was not allowed to go to U.P. and she was completely deserted. She was compelled to live with her brothers and their family members in village Bagli. She denied the allegation of the petitioner that she developed illicit relations with Mohinder Singh. According to her, no incident as alleged by the petitioner took place on 16.11.1979. Respondent further alleged that as a matter of fact the petitioner had tried to kill her and caused serious injuries. She got the case registered against the petitioner under Sections 307/324 IPC and petitioner was convicted by the Court of Additional District Judge, Ludhiana under Sections 307/324 IPC. Respondent further alleged that as a matter of fact the petitioner had tried to kill her and caused serious injuries. She got the case registered against the petitioner under Sections 307/324 IPC and petitioner was convicted by the Court of Additional District Judge, Ludhiana under Sections 307/324 IPC. The security proceedings were also initiated against the petitioner on one occasion as there was imminent danger to the public peace. The discharge of the petitioner was on technical ground and not on merit. The petitioner wanted that respondent should starve to death and he wanted to contract a second marriage as the only daughter born to the respondent had died. On the application dated 19.10.1979, of the respondent, Gram Panchayat summoned the parties on 4.11.1979. Petitioner delivered the possession of about 15 bighas of land and residential house to the respondent in recognition of her pre-existing right of maintenance and he voluntarily made a statement to this effect. After few months, the petitioner threatened to take the possession from her as a result of that she had to file a civil suit for permanent injection against the petitioner. The petitioner admitted the execution of the writing dated 4.11.1979 before the panchayat in his written statement, but pleaded that the same was not acted upon. The petitioner mortgaged the said land without possession with his brother Bant Singh on 4.3.1980. The litigation with regard to these properties started and respondent was within her right to protect her interest. Even if, she has to stand up against the high-handedness of her earring husband. Respondent categorically denied the allegations that she was living in adultery or that she ever treated the petitioner with cruelty or that she deserted him since November, 1979. With this broad defence the respondent prayed for the dismissal of the petition. 5. The learned trial Court framed the following issues for the disposal of the petition : 1. Whether the respondent has treated the petitioner with cruelty as alleged ? OPP 2. Whether the respondent has deserted the petitioner for more than two years immediately (before) presentation of the petition ? OPP 3. Whether the respondent has been living in adultery ? 4. Relief. 6. The petitioner appeared as his own witness as PW1, in support of his case and he also placed on record documents Exs. A.1, A.2, A.3, A.4 and Ex. A-5. OPP 3. Whether the respondent has been living in adultery ? 4. Relief. 6. The petitioner appeared as his own witness as PW1, in support of his case and he also placed on record documents Exs. A.1, A.2, A.3, A.4 and Ex. A-5. A.1 is the judgment of leaned Additional Sessions Judge, Ludhiana, who, convicted the petitioner Shri Surjit Singh for the offence under Section 308 IPC. Ex. A.2 is the order of sentence. Ex. A.3 is the certified copy of the judgment of the High Court dated 17.8.1982 vide which the Honble High Court while dismissing the appeal of the appellant imposed a fine of Rs. 3,000/- and modified the judgment and order of the trial Court. Ex. A.4 is the certified copy of the judgment of Additional Sessions Judge, Ludhiana, passed in Civil Appeal filed by Smt. Gurdev Kaur against her husband Surjit Singh and Bant Singh. Through this judgment, the judgment of the trial Court was modified and the suit of the plaintiff Smt. Gurdev Kaur was decreed for permanent injunction and defendants namely Surjit Singh and Bant Singh who are real brothers, were restrained from interfering in the possession of the plaintiff Smt. Gurdev Kaur over the land in dispute. Ex. A.5 is the copy of the judgment of the Court of Additional District Judge, Ludhiana vide which it was observed that the suit of Shri Surjit Singh for possession stands dismissed. However, he is granted a decree for permanent injunction against Smt. Gurdev Kaur who is permanently restrained from transferring, alienating, creating a charge, or otherwise effecting transfer of possession of the suit land through lease, exchange, gift, sale, by creating a charge, or security on it. 7. In rebuttal, the respondent Smt. Gurdev Kaur appeared as RW1. On the conclusion of the trial the learned trial Court decided all the issued against the petitioner and finally vide impugned judgment and decree dated 30.1.1993 the petition under Section 13 of the Hindu Marriage Act, was dismissed. In this manner, the present appeal has been filed by Shri Surjit Singh. 8. I have heard Shri A.K. Chopra, learned counsel appearing on behalf of the appellant and Shri Jagmohan Singh Chaudhary, Sr. Advocate, appearing on behalf of the respondent and with their assistance have gone through the record of this case. 9. In this manner, the present appeal has been filed by Shri Surjit Singh. 8. I have heard Shri A.K. Chopra, learned counsel appearing on behalf of the appellant and Shri Jagmohan Singh Chaudhary, Sr. Advocate, appearing on behalf of the respondent and with their assistance have gone through the record of this case. 9. Before I deal with the submissions raised by the learned counsel for the parties, it will be useful for me if I incorporate the operative portion i.e. paras No. 10 to 24 of the judgment of the trial Court vide which the trial Court dismissed the petition and decided issues No. 1 to 4 against the petitioner. Paras No. 10 to 24 of the judgment of the trial Court are reproduced as under :- "10. It is the admitted case of the parties that the marriage of the parties was solemnised about 45 years ago and they lived together as husband and wife and female child was born out of this wedlock but unfortunately that child had died in the year 1979. It is contended by the learned counsel for the petitioner that when the petitioner returned from U.P. on 16.11.1979 and he came back to his house at village Chak Sarai, he found that the respondent was living in adultery with his brother Mohinder Singh. The petitioner tried to grapple with said Mohinder Singh but the respondent attacked him with a "Ghotna". That when the petitioner went to the police-station to lodge a report against the respondent, rather the petitioner was detained illegally in the police station for one day and was falsely implicated in a criminal case under Section 307 Indian Penal Code on 17.11.1979. The petitioner faced criminal trial but was ultimately convicted under Section 308 of the Indian Penal Code. It is further contended that the petitioner was proceeded against under Sections 107/151 Code of Criminal Procedure thrice at the instance of the respondent and that the petitioner has also been involved in civil litigation at the instance of the respondent and that it amounts to cruelty on the part of the respondent towards the petitioner. 11. It is further contended that the petitioner was proceeded against under Sections 107/151 Code of Criminal Procedure thrice at the instance of the respondent and that the petitioner has also been involved in civil litigation at the instance of the respondent and that it amounts to cruelty on the part of the respondent towards the petitioner. 11. This fact is not disputed that the petitioner Shri Surjit Singh was prosecuted for an offence under Section 307 Indian Penal Code in case FIR No. 104 dated 16.11.1979, Police-Station Samrala but he was convicted for an offence under Section 308 Indian Penal Code by the learned Additional Sessions Judge, Ludhiana, vide his judgment dated 15.5.1980, certified copy of which is Ex.A.1. The petitioner was ordered to undergo R.I. for a period of two years and fine of Rs. 500/- and in default of payment of fine to further undergo R.I. for two months, vide order dated 16.5.1980, copy of which is Ex. A.2. Upon an appeal preferred by Shri Surjit Singh petitioner, the petitioner was sentenced to the payment of total fine of Rs. 3,000/- in lieu of the sentence of imprisonment awarded to him and out of the fine if recovered a sum of Rs. 2,500/- was ordered to be paid as compensation of Smt. Gurdev Kaur, vide judgment dated 17.8.1982, certified copy of which is Ex. A-3. Ex. A-4 and A-5 are the copies of judgments between the parties regarding the civil litigation between them. 12. The learned counsel for the respondent has cited 1987(2) PLR 149 Chander Mohan v. Smt. Neelam Kumari alias Urmil Kumari wherein it was held as under :- "Held that as regards getting a first information report registered under Sections 498-A and 406 of the Indian Penal Code in view of the latest judgment of the Supreme Court, the wife is well within her rights to do so if the husband does not return the dowry. It cannot be said that it will amount to metal cruelty to the husband to give a cause to him to seek divorce." 13. It cannot be said that it will amount to metal cruelty to the husband to give a cause to him to seek divorce." 13. The learned counsel for the respondent has also cited AIR 1986 Punjab and Haryana 383 Shyam Lata v. Suresh Kumar, wherein it was held as under :- "Hindu Marriage Act (25 of 1995), Section 13 - Criminal Procedure Code (2 of 1974), Sections 107 and 151 - Petition by husband for divorce on ground of cruelty by wife on wifes complaint - Proceedings under Sections 107 and 151 initiated against husband and his relatives - Proceedings dropped subsequently for want for prosecution - Institution of said proceedings does not amount to cruelty, justifying grant of divorce." 14. I have considered the respective contentions and have gone through the law laid down in the aforesaid authorities and I am of the view that the registration of a case, under Section 307 of the Indian Penal Code against the petitioner at the instance of the respondent for causing injuries to the respondent and his subsequent conviction, under Section 308 Indian Penal Code, does not entitle the petitioner to seek divorce on the ground of cruelty. It was the legal right of the respondent to prosecute the petitioner for causing injuries to her and if the petitioner was tried and convicted for that offence, it does not provide any ground to the petitioner to seek a decree of divorce on the ground of cruelty. Similarly, the pendency of civil litigation between the parties is not sufficient to hold that the respondent has treated the petitioner with cruelty. To my mind, there is no other evidence on the file to establish that the respondent has treated the petitioner with cruelty. Hence, this issue is decided against the petitioner. Issue No. 2. 15. The contention of the learned counsel for the petitioner is that the respondent had deserted the petitioner in November 1979 and had gone to village Bagli Kalan and never returned to the matrimonial home thereafter. On the other hand the contention of the learned counsel for the respondent is that it is the petitioner, who has deserted her for such a long time without any reasonable cause. He has, therefore, contended that the petitioner is not entitled to decree of divorce on the ground of desertion, as he cannot be allowed to take advantage of his own wrong. He has, therefore, contended that the petitioner is not entitled to decree of divorce on the ground of desertion, as he cannot be allowed to take advantage of his own wrong. 16. The learned counsel for the respondent has further contended that there is no satisfactory explanation for filing this petition after the lapse of about 12 years from the date of alleged separation. It is pleaded in para No. 12 of the petition that there has not been any unnecessary or improper delay in filing of this petition. However, according to the allegations of the petitioner, the respondent deserted the petitioner in November, 1979 but the petitioner remained silent for a period of about 12 years and filed the present petition in the month of September, 1991. There appears to be unnecessary delay of about 12 years in filing this petition which has not been satisfactorily explained. 17. According to the provisions of Section 23(1)(d) of the Hindu Marriage Act, petitioner is required to satisfy the Court that there has not been any unnecessary or improper delay in instituting the proceedings under this Act. In my opinion, the delay of about 12 years in instituting the present petition has not at all been explained and as such, this Court is not satisfied, that there has not been any unnecessary or improper delay in instituting the proceedings under this Act. 18. The evidence adduced by the parties is consistent that they have been living separately since November, 1979 but there is no evidence on the file to establish that it is the respondent, who has deserted the petitioner since November, 1979 without any reasonable excuse. 19. In view of the aforesaid discussion and taking into consideration the totality of circumstances, I am of the opinion that since the petitioner has not explained to the satisfaction of the Court as to what prevented him from not presenting the present petition for such a long time, so the petitioner cannot be allowed to take advantage of his own wrong and cannot be permitted to seek divorce on the ground of desertion. The evidence rather discloses that it is the petitioner, who has withdrawn from the society of the respondent without any sufficient reasons. Hence this issue is decided against the petitioner. Issue No. 3. 20. The evidence rather discloses that it is the petitioner, who has withdrawn from the society of the respondent without any sufficient reasons. Hence this issue is decided against the petitioner. Issue No. 3. 20. According to the evidence of the petitioner himself, when he returned from U.P. on 16.11.1979 he discovered that this wife Gurdev Kaur was having illicit relations with his brother Mohinder Singh. In his cross- examination, he stated that he had come to know about the illicit relations of the respondent with Mohinder Singh only on the day when the found them in compromising position. After coming to know about the illicit relations he never asked the respondent to accompany him to U.P. nor she ever refused to do so. 21. Section 23(1)(b) lays down that where the ground of the petition is, the ground specified in clause (i) of sub-section (1) of Section 13, the petitioner is required to satisfy the Court that he has not, in any manner, been accessory to or connived at or condoned the act or acts complained of. In the present case the petitioner has levelled categorical allegations against the respondent of having voluntarily sexual intercourse with his brother but the petitioner has not pleaded the requirement of law as contained in Section 23(1)(b) of the Act nor he has adduced any evidence to show that he has not condoned the act or acts complained of. 22. Section 23(1)(b) of the Act lays down in fact the condonation of adultery is an absolute bar to grant of any relief by way of judicial separation under Section 10 or by way of divorce under Section 13(1)(a) of the Act. The Court has no discretion in the matter and if it is satisfied that the petitioner has in any manner condoned the act or acts of adultery the petition has to be dismissed. 23. In the instant case there is neither any pleading nor any evidence to the effect that the petitioner has not in any manner condoned the act and acts of adultery and as such, the petitioner is not entitled to the grant of decree of divorce on the ground of living in adultery. Hence, this issue is decided against the petitioner. 24. Hence, this issue is decided against the petitioner. 24. In the final analysis and in view of my findings on issues No. 1, 2, and 3, I do not find any merit in this petitioner and same is hereby dismissed, leaving the parties to bear their own costs. Counsels fee is assessed at Rs. 600/-. Decree-sheet be prepared." 10. The learned counsel for the petitioner Shri A.K. Chopra, submitted that it is proved on the record that respondent Smt. Gurdev Kaur became a lady of unchaste character as she was found indulging in sexual intercourse with her brother-in-law i.e. the brother of the appellant. The appellant-petitioner found Smt. Gurdev Kaur in a compromising position on 16.11.1979 and she was taken unawares when the petitioner returned to village from U.P. at about 5 or 6 A.M. on 16.11.1979. He further submitted that after 16.11.1979, respondent Smt. Gurdev Kaur, never joined his company, meaning thereby, she had deserted the petitioner-appellant. So much so respondent involved the petitioner in false criminal case in which the stand of the appellant was founded by the trial Court as well as by the first appellate Court and the Criminal Court observed that the stand of the petitioner that he saw the respondent in a compromising position with Shri Mohinder Singh on 16.11.1979 has been accepted and this act on the part of the respondent is the grievous act of cruelty. Apart from that, the petitioner was involved in the criminal case. He was further involved in the security proceedings. Respondent had been filing the litigation against him. The petitioner has never condoned the act of cruelty or act of sexual intercourse allegedly committed on the part of the respondent and in these circumstances, the lower Court has gone wrong in dismissing the petition of the petitioner-appellant. Shri Chopra further submitted that it is proved from the statement of Smt. Gurdev Kaur herself that the petitioner categorically refused the request of the respondent when she wanted to join the company of the petitioner and this act and conduct of the petitioner itself suggests that he had never condoned the acts of respondent. It was also submitted on behalf of the appellant that the marriage between the parties has broken irretrievably and there are no chances of compromise. It was also submitted on behalf of the appellant that the marriage between the parties has broken irretrievably and there are no chances of compromise. The petitioner who is an old man of 70 years, does not want to rehabilitate the respondent at any cost because of her own act and conduct and, therefore, the High Court should interfere and dissolve this marriage on the principle of broken marriage. 11. On the contrary, learned counsel appearing on behalf of the respondent submitted that no incident of 16.11.1979 took place. It is totally a fiction and imaginary and is the child of the brain of the petitioner who wanted to enter into a second marriage after the death of his daughter which took place on 24.9.1979. In fact, on 16.11.1979, the petitioner caused injuries to the respondent and that was the reason the petitioner was involved in a case under Section 307 of the Indian Penal Code. He was convicted for the offence under Section 308. His appeal was dismissed. On 4.11.1979, the petitioner gave some land to the respondent in the presence of the Panchayat by way of settlement in recognition of her pre-existing right of maintenance. Later on the petitioner changed his mind. He wanted to contract a second marriage and when respondent opposed, she was given injuries by the petitioner-appellant. The conduct of the appellant is evident that he executed the Will in favour of his brothers by making no provision for the respondent in the Will by way of maintenance etc. and when the respondent opposed the desire of the petitioner-appellant for re-marriage, she was inflicted injuries. In the criminal case, brother of the petitioner and his nephew were witnesses. Mohinder Singh was the beneficiary of the Will and inspite of the fact that he was the beneficiary, he deposed against the petitioner and when the petitioner could not tolerate that his own real brother who became a witness against him, the petitioner started making false allegations against the respondent that she had indulged in sexual act with Shri Mohinder Singh who was a married person at the time of incident of sexual intercourse i.e. on 16.11.1979. After 6.11.1979, the petitioner did not make any effort for the rehabilitation of the respondent. He wanted to get rid of her by hook and crook. After 6.11.1979, the petitioner did not make any effort for the rehabilitation of the respondent. He wanted to get rid of her by hook and crook. When respondent approached the petitioner for rehabilitation, the latter did not want to acknowledge her. Since November, 1979, she has gone to the house of her parents. She is protecting her right through the litigation. The protection of her rights is not an act of cruelty. There is no finding of any Court of competent jurisdiction that respondent had indulged in any act of sexual intercourse. The judgments of the Criminal Court are not relevant, though these judgments can be looked into only for a limited aspect. The reasons for acquittal of Criminal Court are never to be looked into by the Civil Court. The petitioner-appellant cannot take the advantage of his own wrong. Rather, the respondent is subjected to cruelty when the petitioner-appellant has made false allegations against the character of the respondent. Otherwise also, this petition deserves to be dismissed by the act and conduct of the petitioner who filed this petition in the year 1991 and the acts of cruelty are of the year 1979. 12. After applying my mind to the real contentions of the parties, I am of the considered opinion that this appeal is totally devoid of any merit and deserves to be dismissed. 13. It is true that the parties are old. As I stated earlier, the petitioner-appellant is a man of 70 years at the moment. His wife must be younger by few years. Old age itself is no ground to dissolve the marriage of the parties. Rather, in the old age the interest of the wife should be protected more. At the fag end of her life, neither she can re-marry nor she can look after her interest properly. Somebody requires to be there to afford protection to an old woman. 14. The petitioner has sought divorce on three grounds - (i) that respondent has treated him with cruelty; (ii) that she has deserted him for a continuous period of not less than 2 years immediately preceding the presentation of the petition; and (iii) that respondent has voluntary sexual intercourse with any person other than her spouse. These three grounds are of Section 13 Sub- Section 1(i), (ia) and (ib) of the Hindu Marriage Act. 15. These three grounds are of Section 13 Sub- Section 1(i), (ia) and (ib) of the Hindu Marriage Act. 15. According to Section 23 of the Hindu Marriage Act, where the ground of divorce of the petitioner is in clause (i) of Sub-Section (1) of Section 13, in such a situation, the petitioner is bound to satisfy the Court that he has neither connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty, the petitioner has not in any manner condoned the cruelty. Under Clause (d) of Sub-Section (1) of Section 23, the petition under Section 13 of the Hindu Marriage Act is also liable to be dismissed if there is unnecessary or improper delay in instituting the proceedings. According to the petitioner, everything was going fine till September 1979. Unfortunately, the daughter of the party died on 24.4.1979. The bickering started according to the petitioner with effect from 16.11.1979 when the alleged unfortunate incident took place i.e. that the petitioner saw the respondent indulging in sexual intercourse with Shri Mohinder Singh. Is it so, what is the point for determination. This Court cannot lose sight of the fact that petitioner is a Jat Sikh. He had no male issue. The only female child died at the prime age. In such a station, the interest of the petitioner was to save his land both in U.P. and his parental village at Chak Sarai and his anxiety was that land should not go to his wife and she may not further part it away to her own family. This is the reason the petitioner executed a Will in favour of his brother immediately after the death of his daughter and before the alleged incident of 16.11.1979. There is nothing on the record that petitioner made any provision of maintenance etc. for his wife or any part of the land was bequeathed in favour of Smt. Gurdev Kaur. Every person has a certain desire for the protection of his or her rights. Since the petitioner had excluded her from the property from inheritance, the respondent made an application before the Panchayat and this complaint of the respondent was taken up by the Panchayat on 4.11.1979 and some area of the land was given to the respondent. Every person has a certain desire for the protection of his or her rights. Since the petitioner had excluded her from the property from inheritance, the respondent made an application before the Panchayat and this complaint of the respondent was taken up by the Panchayat on 4.11.1979 and some area of the land was given to the respondent. It is the own case of the petitioner that though the compromise took place before the Panchayat but it was never acted upon. Hence the dispute arose between the parties immediately after the death of the child and prior to 16.11.1979. Parties may lie but in this case it is not difficult for this Court to understand the starting point of bone of contention. The relations between the parties became strained when the petitioner started depriving the respondent from the property. The defence of Smt. Gurdev Kaur is probable that petitioner wanted to contract a second marriage. She objected to it and she was attacked and beaten and the incident was witnessed by the Shri Mohinder Singh and his son Shri Baldev Singh. Though it is the stand of the Panchayat that Shri Mohinder Singh was excluded from the subsequent Will of Shri Surjit Singh because the petitioner noticed that Shri Mohinder Singh was indulging in illegal and nefarious activities with his wife Smt. Gurdev Kaur but the reasons can be otherwise also because Shri Mohinder Singh and his son became witnesses against the petitioner in the criminal case. 16. Let us examine the conduct of the parties to find out whether there is any grain of truth in the case of the petitioner. Assuming for the sake of arguments that some incident took place on 16.11.1979 when the petitioner allegedly saw his wife in compromising position with Shri Mohinder Singh, what should be the normal conduct of a person specially a male person in a given situation. Would he not raise the hue and cry; would he not make a complaint to the Gram Panchayat; would he not complain to a respectable person; would he not contact to his own brothers that his so-called loyal wife has become disloyal ? There is no evidence to this effect. 17. On 16.11.1979 Smt. Gurdev Kaur suffered injury and according to the petitioner he also suffered injuries by Ghotna or by Kirpan. There is no evidence to this effect. 17. On 16.11.1979 Smt. Gurdev Kaur suffered injury and according to the petitioner he also suffered injuries by Ghotna or by Kirpan. The case set up by the petitioner-appellant is that he complained to the police but nobody was prepared to hear him. He was the victim of influence exercised by the opposite party and her brother. Did the petitioner file any criminal complaint against the respondent ? Did he serve any legal notice upon the respondent ? The answer is in the negative. All this gives rise to the irresistible conclusion that the allegation of the petitioner-appellant that he saw the respondent in a compromising position, is wrong. Not a single witness has been examined by the petitioner in the trial Court to corroborate his version directly or indirectly. Rather, the circumstances lead to this conclusion that petitioner wanted to get rid of the respondent who had a legitimate right to protect her interest. She could not take the things guaranteed and in these circumstances, the petitioner cannot take the advantage of his own wrong when he created a false story of alleged sexual act. 18. The learned counsel for the petitioner submitted that petitioner Shri Surjit Singh wanted to save his face from shame and that was the reason that he did not complain in the village etc. The submission is not acceptable to the Court. 19. Learned counsel for the appellant-petitioner then drew my attention to the judgment of the Honble High Court, passed in Cr. Appeal No. 322-SB of 1980, filed by Shri Surjit Singh petitioner-appellant, where it was stated as follows :- "After appreciation of the evidence led by the prosecution and also in defence the trial Court more or less accepted the defence version to be correct. It was accepted by the trial Court that hurts had been caused to Gurdev Kaur under a grave and sudden provocation. The appellant on the basis of his own statement cannot be exonerated from all guilt. The trial Court has not accepted that the hurts had been caused in exercise of the right of private defence and it is on the account that the appellant was convicted under Section 308 of the Indian Penal Code." 20. We all know that the judgment of the Criminal Court can only be looked into for limited purposes. The trial Court has not accepted that the hurts had been caused in exercise of the right of private defence and it is on the account that the appellant was convicted under Section 308 of the Indian Penal Code." 20. We all know that the judgment of the Criminal Court can only be looked into for limited purposes. Section 43 of the Indian Evidence Act lays down that judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provision of this Act. The judgments of the criminal Courts i.e. the trial Court as well as of the High Court do not fall within the category of Sections 40, 41 and 42 of the Indian Evidence Act. 21. In these circumstances, the observation of the criminal Court will not come to the rescue of the petitioner-appellant. Moreover, we all know that civil cases are decided on preponderance of evidence while the criminal cases are decided beyond reasonable doubt. There is not an iota of evidence that after 16.11.1979 the appellant made a single attempt for the rehabilitation of the respondent. Rather, the petitioner did not want to rehabilitate the respondent for the simple reason that on 16.11.1979 itself Smt. Gurdev Kaur was beaten. She was responsible for the conviction of the petitioner- appellant. Civil litigation continued. In such a situation, it cannot be said that Smt. Gurdev Kaur acted with cruelty or that she had deserted the petitioner-appellant. It may not be wrong on my part if I say that respondent was deserted. A false allegation was levelled against her that she has become unchaste and this is worst type of cruelty committed by a husband qua his wife when unfounded allegation of adultery is not proved. It is true that if a woman becomes unchaste it is a worst type of cruelty to the husband. Desertion itself is a cruelty. Though cruelty is an independent act but in this case the fault squarely lies with the appellant and not with the respondent. The appellant-petitioner cannot be allowed to take the advantage of the situation which he created himself. Desertion itself is a cruelty. Though cruelty is an independent act but in this case the fault squarely lies with the appellant and not with the respondent. The appellant-petitioner cannot be allowed to take the advantage of the situation which he created himself. It has been observed in 1997(3) PLR 553, Rupinder Kaur v. Gurjit Singh Sandhu, that a broken marriage itself is not a ground to dissolve the marriage. It is one of the circumstances which may weigh in the mind of the Court but Courts are also to see before adopting this principle the comparative mischief. In AIR 1993 Bombay 70 it was observed by the Honble D.B. of the Bombay High Court that divorce can be granted only on the grounds laid down in the Act and the Court is not free to create new ground. Irretrievable breakdown of marriage is no ground for divorce. It this case the parties are not young. They have no scope of re-marriage. The appellant only wants to take a vendetta against the respondent as to why she has started criminal proceedings against him and why she dragged him in the litigation. This is a circumstance which goes against the appellant and not against the respondent. If the respondent has been compelled to resort to the legal remedy it is not her fault. If the petitioner compels his wife to leave the matrimonial home, husband cannot get a divorce. In AIR 1989 Delhi 121 Ashok Kumar Bhatnagar v. Smt. Shabnam Bhatnagar, it was observed by the Division Bench that irretrievable breakdown of marriage is not a ground for divorce contemplated under the Hindu Marriage Act. The intention and modus operandi of the appellant in this case are writ large. Moreover, the alleged allegation of adultery is without any corroboration. In AIR 1980 Calcutta 370 Smt. Sulekha Bairagi v. Prof. Kamala Kanta Bairagi and another, the Honble Judges of the Calcutta High Court held that corroboration is necessary to the husbands bare statement. It was observed in para No. 8 of the cited judgment as follows : "Now, we shall deal with the question of alleged adultery because the husband has filed a cross-objection. Regarding this, we are getting only the uncorroborated testimony of P.W.1 Kamala Kanta. This is a serious allegation and Court will call for corroboration of the statement of the husband. Regarding this, we are getting only the uncorroborated testimony of P.W.1 Kamala Kanta. This is a serious allegation and Court will call for corroboration of the statement of the husband. The probabilities are against him because his evidence shows that the door though shut, was unbolted. His mother and five grown-up children were present in that house at that hour of the light. So, in the normal course, it cannot be believed that on the 13th September, 1970, at 10 P.M. Biswanath was actually committing sexual intercourse with her leaving the door unbolted. We, therefore, hold that this part of the petitioners allegation was not proved by clear and cogent evidence." 22. I have considered the evidence of this case and examined different angles of the judgment of the trial Court. I do not see any illegality or impropriety. The appellant has not been able to prove the issues onus of which was upon him. 23. Resultantly, I do not see any merit in this appeal and dismiss the same with no order as to costs. Appeal dismissed.