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2005 DIGILAW 560 (PNJ)

Sant Ram v. Kamlesh

2005-05-04

KIRAN ANAND LALL

body2005
Judgment Kiran Anand Lall, J. 1. The husband-appellant filed a petition under Section 13 of the Hindu Marriage Act (to be referred as "the Act") on 23.7.1999 seeking dissolution of his marriage with the wife-respondent, through a decree of divorce, on the ground of desertion. The trial Court having dismissed the same, he has come up in appeal, to this Court. 2. Marriage of the parties was solemnised on 24.11.1993, at Ferozepur, according to Hindu rites and ceremonies. Thereafter, they lived and cohabited together as husband and wife, till 5.1.1995. As per the case of the appellant, the respondent could not adjust in the joint family. She used to pick up quarrels on petty matters and would go to her parental house, very frequently. She had also been pressuring the appellant to live at her parents house, at Ferozepur. The brother of the appellant had died, leaving behind wife and children, and the respondent did not want that appellant should look after or maintain them. 3. Earlier, the appellant had filed a petition under Section 13 of the Act, on the ground of cruelty, on 2.3.1995, but that was dismissed by the Court of Additional District Judge, Ferozepur, on 23.4.1999, holding that the ground of cruelty was not proved. He, thereafter, took a panchayat to her house, on 16.5.1999, for bringing her to the matrimonial house. But, she refused to accompany him, and instead, described him as impo-tent.He, then, filed this petition on 12.6.1999, on the ground that the respondent had deserted her, without any sufficient cause, for a continuous period of two years immediately preceding the filing of this petition. It was pleaded that his ground had become available to him, after the dismissal of earlier petition. 4. The case of the respondent is that the appellant had, in fact, earlier filed two divorce petitions. One was dismissed as withdrawn and the other was dismissed on merits. Plea of res judicata was taken up and so was that of estoppel. It was denied that the respondent had deserted the appellant, without any sufficient cause, for a continuous period of two years immediately preceding the filing of this petition. According to the respondent, she had always been ready and willing to live with him. She further pleaded that she had always been co-operating with the appellant in looking after and maintaining the wife and the children of his deceased brother. According to the respondent, she had always been ready and willing to live with him. She further pleaded that she had always been co-operating with the appellant in looking after and maintaining the wife and the children of his deceased brother. 5. Trial Court framed the following issues, arising out of the pleadings of the parties:- 1. Whether the respondent deserted the petitioner without any sufficient cause for continuous period not less than two years immediately preceeding the presentation of the petition? OPA 2. Whether the petition is hit by the principle of res judicata? OPR 3. Whether the petitioner is estopped from filing the petition by his own act and conduct? OPR 4. Relief. 6. After conclusion of trial, the petition was dismissed by the trial Court. The appellant, then, came up, in appeal, to this Court. 7. I have heard arguments addressed by both sides and have also carefully gone through the evidence on record. 8. The consistent stand of the respondent in the written reply and also while appearing as RW-1 had been that she had been and is still ready and willing to reside with the appellant as his wife. She further clarified (as RW-1) that she was sent to her parental house (in the year 1995), by the appellant, after being told that he was going to De-hradun, and on return, he would bring her back. But when he did not come to take her back, she reached her matrimonial house, on her own, but found the same locked. Such was the extent of her eagerness or willingness to join him. On the other hand, the testimony of the appellant (as PW-1) reveals that he, in fact, does not want to continue the relationship of husband and wife with her, as he (as PW-1) stated, in so many words, that,"now I am not ready to keep the respondent at any cost". Not only this he admitted that even in his testimony recorded in the earlier divorce petition, on 24.2.1998, he had stated that he was not ready to keep the respondent as his wife. Such type of his stance towards her, clearly shows that it is, in fact, he who is guilty of having deserted the respondent without any sufficient cause. Not only this he admitted that even in his testimony recorded in the earlier divorce petition, on 24.2.1998, he had stated that he was not ready to keep the respondent as his wife. Such type of his stance towards her, clearly shows that it is, in fact, he who is guilty of having deserted the respondent without any sufficient cause. It appears that after he failed to get divorce in the earlier petition, on the ground of cruelty, he tried to achieve his object by seeking the same relief on a different ground viz. desertion. But, in view of the above discussed facts, nothing wrong can be found with the finding of the learned trial Court that it is he who does not want to continue the matrimonial relationship with the respondent, and the latter cannot be said to have deserted him, without any sufficient cause. He cannot make use of his own wrong. Learned trial Court had, therefore, correctly answered the finding on issue No.l against him. 9. Besides, it is the admitted position that this is third divorce petition, filed by the appellant. First petition was withdrawn by him, while the second was dismissed, on merits. The grounds of the first petition are not available on record. But, in the second petition, divorce was sought on the ground of cruelty, only. That being so, the present petition would not be hit by the principle of res judicata as, in it, divorce has been sought on a different ground viz. desertion, which is claimed to have become available after the dismissal of the second petition. The finding of the trial Court on issue No. 2 is, therefore, set aside. 10. The finding of the trial Court on issue No. 3 is also liable to be set aside as not a single fact or circumstance which may be said to operate as estoppel against the appellant, was either referred to in the judgment or pointed out during arguments. Accordingly, the finding on issue No. 3 is also set aside. 11. As a result of finding of the learned trial Court on issue No. 1 having been upheld by this Court, there is no merit in the appeal, and the same shall stand dismissed, leaving parties to bear their own costs.