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2000 DIGILAW 400 (PNJ)

Amrik Singh v. Nirmal Kumari

2000-04-09

HEMANT GUPTA

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Judgment Hemant Gupta, J. 1. The appellant is aggrieved against the judgment and decree passed by the learned Additional District Judge, whereby his petition under Section 13 of the Hindu Marriage Act for dissolution of the marriage by a decree of divorce was dismissed. 2. The marriage between the parties to the petition was solemnised on 11.12.1981 at Hoshiarpur according to Sikh rites. The parties are Government employees. The appellant is working in the Food and Supplies Department, whereas the respondent is working in the Treasury Office at Hoshiarpur. The appellant has sought a divorce on the ground that the respondent was living at village Ajjowal where the appellant was visiting on week ends but she was not willing to stay with the appellant at the place of his posting. The respondent did not agree to his request either to resign from service or to get herself transferred to Garhshankar. Whenever, the appellant visited his house in the village, the wife expressed a desire to separate from her in laws. Ultimately, the parties took a rented house at Bahadurpur Hoshiarpur and stayed for about 6 months. However, the respondent in the absence of the appellant left the house and started living with her parents. It is alleged by the appellant that he has taken respectable to the house of the respondent and on his persuasion in the year 1989, the respondent joined the appellant and the parties started living in a rented house at Guru Nanak Nagar, Hoshiapur. However, subsequently, the wife again left his house and joined the company of her parents. The appellant purchased a house at Sutehri road, Hoshiapur as per the wishes of the wife. The respondent lived in that house for about one week and again came back to her parents house alongwith the children and also took all the dowry articles in June, 1991. The respondent on one pretext or the other had been living in the company of her parents as they have got no son to look after them. 3. In August, 1994 the appellant filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. The said petition was dismissed on 10.2.1974 vide judgment Ex.R1. The respondent on one pretext or the other had been living in the company of her parents as they have got no son to look after them. 3. In August, 1994 the appellant filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. The said petition was dismissed on 10.2.1974 vide judgment Ex.R1. The appellant made efforts to bring the respondent in June, 1997 but she refused to do so and therefore, he has filed the petition for dissolution of marriage on the ground of desertion and cruelty. 4. Wife controverted the allegations by filing a written statement and stated that at the time of marriage, the husband was residing at village Ajjowal where he has got landed property as well. Earlier petition for restitution of conjugal rights was dismissed by the court of Additional District Judge, Hoshiarpur. It was submitted that the respondent had been working in Treasury Office at Hoshiarpur even before her marriage and that the appellant has been visiting village Ajjowal by passing through Hoshiarpur but he did not come in the house of the respondent to see the respondent and her children in a rented house in Mohalla Bahadurpur as well as in Mohalla Guru Nanak Nagar, Hoshiarpur. The petitioner used to beat the respondent off and on. She tolerated the harassment with a hope that after the birth of the children, the petitioner would mend himself but the petitioner has not mended himself. She never asked the appellant to leave the company of his parents. The appellant has himself taken one house on rent firstly at Bahadurpur and then in Guru Nanak Nagar, Hoshiarpur. She was turned out of the house 9 years ago with three children and in three bare clothes. Subsequently, she got her children admitted at Hoshiarpur, The appellant is not paying any expenses for the children. She the filed a petition under Section 125 of the Code of Criminal Procedure in the year 1994. The husband then started making payment of maintenance at the rate of Rs. 800/- per month. It was alleged that she is spending Rs. 3500/- per month on the maintenance education and other expenses of the children. She the filed a petition under Section 125 of the Code of Criminal Procedure in the year 1994. The husband then started making payment of maintenance at the rate of Rs. 800/- per month. It was alleged that she is spending Rs. 3500/- per month on the maintenance education and other expenses of the children. The appellant is playing in the hands of his brothers, and their wives and they do not want to rehabilitate the respondent and her children in greed to grab the money of the husband. Wife denied that any panchayat was taken by the appellant. 5. In support of his allegations, the appellant has appeared as PW2 and produced Bishan Singh PW1. On the other hand, respondent appeared as RW1 and produced Hari Singh as PW2. Learned trial court dismissed the petition holding that the appellant has failed to prove that the wife has deserted the appellant without any reasonable cause. It has been so held in the proceedings under Section 9 of the Hindu Marriage Act on 10.2.1997, The learned trial court found that the wife did not treat the appellant with cruelty. Rather it was found that the appellant is treating her with cruelty by not taking the wife and three children back to home at Hoshiarpur. 6. As mentioned above, the appellant has filed a petition, under Section 9 of the Hindu Marriage Act in August, 1994 for restitution of conjugal rights. The said petition was dismissed on 10.2.1977, wherein it was held that the appellant has in fact treated the respondent with cruelty and that the appellant has failed to prove that the respondent has deserted the appellant without any reasonable cause. The appellant has now sought dissolution of marriage by filing the petition in December, 1997. It is alleged that the wife deserted the appellant in June, 1991. The allegations claiming desertion has already been considered by the court of learned Additional District Judge in the proceedings under Section 9 of the Hindu Marriage Act. Such proceedings have become final. The appellant has now sought dissolution of marriage by filing the petition in December, 1997. It is alleged that the wife deserted the appellant in June, 1991. The allegations claiming desertion has already been considered by the court of learned Additional District Judge in the proceedings under Section 9 of the Hindu Marriage Act. Such proceedings have become final. It is not open to the appellant to allege that the wile has deserted the appellant without any reasonable cause and in view of the finding given by the learned Additional District Judge, in the proceedings under Section 9 of the Hindu Marriage Act, it is not open to the appellant to seek dissolution of marriage on the ground of desertion after the dismissal of the petition. It was open to the appellant to claim dissolution of marriage at the time of the filing of petition under Section 9 of the Act. Having failed to claim such relief in previous instituted proceedings under Section 9 of the Act, the present petition would be barred in view of provisions of Order 2 Rule 2 of the Code of Civil Procedure as well. The appellant cannot be allowed to probate and reprobate. He cannot be allowed to say that he wants restitution of conjugal rights and on failure to claim such a decree, that their marriage be dissolved. 7. The respondent has appeared as RW1 and supported the averments made in the written statement. She has stated that the appellant is having a house near Sessions Chowk, Hoshiarpur and one room of the said house was vacant. The appellant disputed that the house was not vacant. A Local Commissioner was appointed in the proceedings under Section 9 of the Hindu Marriage Act and it was found that one room was available in which the respondent could easily be accommodated. She stated that she is prepared to go to the house of the appellant if he keeps her at his house at Sutehri Road, Hoshiarpur but the appellant did not prepare to keep the respondent. 8. Keeping in view the respective contentions of the parties as discussed by the learned Additional District Judge, findings recorded by the trial court are possible findings in law. 8. Keeping in view the respective contentions of the parties as discussed by the learned Additional District Judge, findings recorded by the trial court are possible findings in law. There is no material illegality or irregularity so as to take different view on the basis of appreciation of evidence, particularly keeping in view the fact that the petition of the appellant under Section 9 of the Hindu Marriage Act was dismissed on 10.2.1997. Consequently, no case for interference in the present appeal is made out. The appear is, therefore, dismissed.