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2003 DIGILAW 31 (PNJ)

Virender Singh @Birender Singh v. Suresh

2003-01-08

V.M.JAIN

body2003
JUDGMENT V.M. Jain, J. - This appeal has been filed by the husband against the judgment of the learned Additional District Judge whereby the divorce petition filed by the appellant-husband was dismissed by the learned trial Court. 2. The facts in brief are that the appellant-husband filed a petition under Section 13 of the Hindu Marriage Act against the respondent-wife, seeking dissolution of marriage by a decree of divorce on the ground of cruelty and desertion. It was alleged in the petition that the marriage between the parties had been solemnised on 12.5.1987 and that at the time of marriage, the appellant-husband was unemployed and later on he got employment in the Maruti Udyog Ltd., Gurgaon. it was alleged that after some months of marriage, the respondent-wife started spoiling the peaceful atmosphere of the matrimonial home, as she used to pick up quarrels with the appellant and other members of his family. It was alleged that she used to give filthy abuses to them and used to leave the matrimonial home at her own sweet will without the consent/permission of the appellant and used to live with her parents for long span of time. It was further alleged that she was a lady or ill-tamper and of quarrelsome nature besides being rude and obstinate. It was alleged that on 16.9.1992, the respondent-wife left the matrimonial home taking with her the clothes and Jewellery with the intention not to return. It was alleged that on 25.12.1992, the appellant had gone to her parents house to persuade the respondent to accompany him to the matrimonial home, but she refused. It was further alleged that in this manner, since 16.9.1992, the respondent-wife was living separately from the appellant without sufficient cause or excuse. It was further alleged that subsequent to 16.9.1992, there were various occasions which required the presence of the respondent in the matrimonial home, but she did not turn up. It was alleged that the respondent filed a petition under Section 125 Criminal Procedure Code on 16.4.1994 and a complaint under Section 106 I.P.C. was also filed which was sent to the police under Section 156(3) Criminal Procedure Code for investigation and report. It was alleged that the dowry articles were returned to the respondent on 6.5.1994 by the appellant in the presence of the panchayat. It was alleged that the dowry articles were returned to the respondent on 6.5.1994 by the appellant in the presence of the panchayat. It was alleged that the respondent had caused cruelty and desertion and as such a decree for divorce be granted in his favour. 3. In the written statement filed by the respondent, various allegations made by the appellant-husband were controverted and it was alleged that the appellant himself had harassed the respondent for demand of dowry and had treated her with cruelty and he could not be allowed to take the benefit of his own wrong. It was alleged that the appellant had demanded a motor cycle and cash and she was thrown out of the matrimonial home without any fault. It was alleged that after getting employment, the appellant-husband started treating the respondent with cruelty and the appellant made demand for dowry. It was alleged that he used to pick up quarrels and used to give her filthy abuses. It was denied that she had been leaving the matrimonial home or that her behaviour was rude and obstinate. It was denied that the respondent was living with her parents since 16.9.1992 without sufficient cause. On the other hand, it was alleged that she was thrown out of the matrimonial home. She admitted having filed a petition under Section 125 Criminal Procedure Code and having made a complaint under Section 406 I.P.C. However, it was denied that the dowry articles were returned to her. 4. After hearing both the sides and after perusing the records, the learned trial Court dismissed the divorce petition, holding that the petitioner had failed to prove the allegations of cruelty and desertion. Aggrieved against the same, the husband has relied the present appeal in this Court. 5. I have heard learned counsel for the parties and have gone through the records carefully. 6. Learned counsel for the appellant submitted before me that the learned trial Court erred in law in holding that the appellant-husband had failed to prove the allegation of cruelty and desertion against the respondent-wife. It was submitted that the respondent-wife had filed a complaint under Section 406 I.P.C. against the appellant-husband and the same was dismissed, which would show that false allegations were levelled against the appellant and would prove the allegations of cruelty against the respondent-wife. It was submitted that the respondent-wife had filed a complaint under Section 406 I.P.C. against the appellant-husband and the same was dismissed, which would show that false allegations were levelled against the appellant and would prove the allegations of cruelty against the respondent-wife. It was submitted that in the said criminal complaint, the appellant and his family members were arrested and later on, the complaint was dismissed. However, I find no force in this submission of the learned counsel for the appellant. It is no doubt true that the respondent-wife had filed a criminal complaint under Section 406 I.P.C. against the appellant and other members of his family. However, it has come on the record that the said complaint was sent to the police for investigation and report under Section 156(3) Criminal Procedure Code It has come in evidence that during the pendency of the said case, the dowry articles were returned. If for some reason, the said criminal complaint could not proceed further after the same was sent to the police for investigation and report under Section 156(3) Criminal Procedure Code and after the dowry articles were returned, in my opinion, it could not be said that the filing of the said criminal complaint and arrest of the appellant and his family members in the said criminal complaint had caused cruelty to the appellant even if the said complaint was subsequently dismissed. Filing of the complaint under Section 406 I.P.C. was necessitated because the appellant-husband and his other relatives had not returned the dowry articles to the respondent-wife. If during the pendency of the said case, the dowry articles were returned, it could not be said that the said criminal complaint was false or that the respondent had caused cruelty to the appellant-husband by filing the said criminal complaint. In my opinion, the appellant-husband cannot be allowed to urge that he was entitled to a decree of divorce on the ground of cruelty merely because the respondent-wife had filed a complaint against him and the other members of his family under Section 406 I.P.C. 7. With regard to desertion, learned counsel for the appellant submitted before me that since 16.9.1992, the parties are living separately and this would clearly prove that the respondent-wife had deserted the appellant without sufficient cause. However, I find no force in this submission as well of the learned counsel for the appellant. With regard to desertion, learned counsel for the appellant submitted before me that since 16.9.1992, the parties are living separately and this would clearly prove that the respondent-wife had deserted the appellant without sufficient cause. However, I find no force in this submission as well of the learned counsel for the appellant. Merely because the parties are living separately since 16.7.1992, would not be a ground for proving the allegation of desertion, nor would it be a ground for divorce especially when there is enough material on the record to show that the respondent is living separately from the appellant for sufficient cause. Desertion would be a ground for divorce only if the respondent is living separately from the appellant-husband without sufficient cause. In the present case, as referred to above, it has come on the record that the appellant-husband had thrown the respondent-wife out of the matrimonial home and for that reason, she is living separately from the matrimonial, name. Under these circumstances, in my opinion, it could not be said that the respondent-wife is living separately from the appellant-husband without sufficient cause. On the other hand, it has come on the record that the appellant-husband had treated the respondent with cruelty and this would be a sufficient ground for the respondent-wife to live separately from the appellant-husband. In my opinion, the learned trial Court, after considering the entire evidence led by the parties, had rightly found that the appellant-husband had failed to prove the allegation of cruelty and desertion which may entitle him to seek divorce. 8. In view of the above, while affirming the findings of the learned trial Court, I hold that the appellant-husband has failed to prove the allegation of cruelty and desertion against the respondent-wife. Resultantly, the appeal fails and is hereby dismissed. Appeal dismissed.