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2003 DIGILAW 604 (PNJ)

Raj Kishan v. Sudesh

2003-04-28

AMAR DUTT

body2003
JUDGMENT Amar Dutt, J. - Raj Kishan has filed this appeal to challenge the judgment and decree passed by the Additional District Judge, Kurukshetra on 3.5.1995 dismissing his petition under Section 13 fo the Hindu Marriage Act, 1955 (in short "the 1955 Act") for the grant of decree for divorce against the respondent. 2. Raj Kishan got married with Sudesh on 8.3.1980 at Panipat. The parties lived together as husband and wife at Kirmach i.e. the village of the petitioner at Thanesar upto April, 1980. When the respondent was taken away by her father on the pretext that her mother was ill, on 9.8.1983 Raj Kishan had moved an application under Section 13 of the 1955 Act, which he got dismissed in default on 8.10.1983. Another application moved by him under the same Section was withdrawn by him on 8.1.1986. the respondent, on the other hand, had got registered an F.I.R. under Sections 405, 406 and 498-A I.P.C. on 8.1.1986 against the appellant. In this F.I.R., the parents of the appellant remained in judicial custody for few days before they were enlarged on bail by the Sessions Judge, Karnal. The appellant himself had been granted anticipatory bail by this Court. Thereafter, he filed another petition under Section 13 of the 1955 Act on 9.3.1990, which was dismissed on merits by the Additional District Judge, Kurukshetra on 22.11.1990. In this petition, divorce has been sought on the ground of cruelty and desertion. The appeal against that order was dismissed by this Court. The FIR filed against the appellant and the members of his family was ended in the acquittal of the accused. In these circumstances, Raj Kishan has moved this petition taking grounds identical to the ones taken by him in the petition for divorce, which was disposed of by the Additional District Judge, Kurukshetra on 22.11.1990. In addition to this, he has asserted that after the acquittal of the appellant and members of his family, the respondent has been threatening the appellant and his parents in the presence of his brother and Om Parkash Lambardar of villages Barwa to involve them in another case. The respondent has also been using filthy language against the appellant and the members of his family and when respondent had visited Chakrawarti Mohalla where the appellant resides she had used filthy language and abused and defamed the appellant by making false allegations. The respondent has also been using filthy language against the appellant and the members of his family and when respondent had visited Chakrawarti Mohalla where the appellant resides she had used filthy language and abused and defamed the appellant by making false allegations. Consequently, he feels humiliated and harassed and has filed the petition for divorce. In addition to cruelty as already urged, he has asserted that the respondent had denied him cohabitation since May, 1994. 3. In the written statement, the claim of the appellant was denied and it is alleged that an amount of Rs. 30,000/- had been spent on the dowry by the respondents father at the time of marriage. It is also alleged that the appellant used to harass the respondent for bringing inadequate dowry and when she demanded her Stri Dhan, the same has not been handed over and, therefore, she had rightly lodged an F.I.R. with the police. Objections were also raised regarding maintainability of the petition on account of dismissal of the earlier litigation that had been initiated by the appellant against her. 4. After filing of replication, from the pleadings of the parties, the following issues were framed :- 1. Whether the respondent is guilty for desertion and cruelty ? OPP 2. If issue No. 1 is proved whether the petitioner is entitled to a decree of divorce ? OPP 3. Whether the petition is not maintainable in the present form and the same is without cause of action ? OPR 4. Whether the petitioner is estopped by his own act and conduct from filing the present petition ? OPR 5. Relief. 5. The trial Court after perusing the evidence that had been led before it decided issues No. 1 and 2 against the appellant. Issue No. 3 was decided against the respondent. While disposing of issue No. 4, the trial Court relied upon the judgment given by the Additional District Judge, Kurukshetra on 22.11.1990 Ex. R3 and decided the same in favour of the respondent. The result was that the petition was dismissed. Hence, this appeal. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. The appellant seeks to challenge the findings only in relation to issues No. 1 and 2. R3 and decided the same in favour of the respondent. The result was that the petition was dismissed. Hence, this appeal. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. The appellant seeks to challenge the findings only in relation to issues No. 1 and 2. His case is that the wife has been treating him with cruelty on account of the fact that she had lodged a wrong F.I.R. against him and his parents under Sections 405, 406 and 498-A I.P.C. as has been proved by the fact that the case against the appellant has been dismissed and all the persons accused therein acquitted of the charges framed against them. He further submitted that even after acquittal, respondent had visited the residence of the appellant in Chakrawarti Mohalla and used filthy language against him and his parents. She had also filed a petition under Section 125 Criminal Procedure Code and on account of these proceedings, he has been on such acute mental stress that he has not been able to have sex with her since May 1994. During the trial, not only was the judgment of acquittal placed on the record, but also brought on record was the judgment on the matrimonial side between the husband and the respondent that the Additional District Judge, Kurukshetra had decided on 22.11.1990 and dismissed the contention that the appellant husband was being treated with cruelty by his wife. The post judgment scenario too is of little assistance to the case of the appellant as there is no material on the record to show that the respondent had left the appellant with a view to bring cohabitation permanently to an end. The proof of animus deserendi is absent in this case nor is there any material on the record, from which it can be inferred that the appellant had been treated after 22.11.1990 with cruelty by his wife. As a matter of fact, the proceedings before the permanent Lok Adalat show that after having offered to take the respondent back into the matrimonial home the appellant had not taken any steps to adhere to the undertaking given before the Lok Adalat. As a matter of fact, the proceedings before the permanent Lok Adalat show that after having offered to take the respondent back into the matrimonial home the appellant had not taken any steps to adhere to the undertaking given before the Lok Adalat. The appellant is clearly not interested in permitting the respondent to return to the matrimonial home and in these circumstances, it would not lie in his mouth to complain about the respondent having left the same with a view to bring cohabitation permanently to an end. The findings in relation to issues No. 1 and 2 have consequently, to be affirmed. 8. No other point had been urged before me. For the reasons recorded above, the appeal fails and is dismissed. Appeal dismissed.