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2008 DIGILAW 1515 (PNJ)

Gurdeep Singh Alias Tota Singh v. Jaspal Kaur

2008-09-03

VINOD K.SHARMA

body2008
JUDGMENT Vinod K. Sharma, J. (Oral) - The appellant Gurdeep Singh has challenged the judgment and decree passed by the learned District Judge, Bathinda dismissing the petition under section 13 of the Hindu Marriage Act, 1955 (for short the Act) for dissolution of marriage. 2. The appellant sought the dissolution of the marriage which was solemnized in the month of July, 1989 on the plea that after the marriage the parties lived together as husband and wife and cohabited at village Mahi Nagpal, District Bathinda. From the said marriage son Gurpreet Singh was horn. It was claimed that the mother of the respondent wife has died and her lather Teja Singh married second time with one Karamjit Kaur. It is claimed that the relations between the appellant and respondent have not been cordial as the attitude of the respondent was harsh and objectionable. The appellant claimed that he and his family members were insulted on small matters. However, said matter used to he resolved peacefully and thus, the parties continued to live even at the cost of harassment and humiliation. 3. It is further the case of the appellant that at the instance of his parents, respondent demanded that they should live separately from the parents of the petitioner. Said demand being unreasonable was not accepted. The appellant claimed that it was moral duty of the respondent to look after his old parents. It is also the case of the appellant that thereafter a demand for transfer of land measuring 2-1/2/3 killas was made by the respondent and on his refusal her behavi on turned rude and she denied sex/cohabitation. It was claimed that it was on account of this that he suffered mental torture. It was also claimed that in the first week of August, 1995 respondent left the house of the petitioner along with her brother Makhan Singh after raising a dispute. It is also the case of the appellant that while going she has taken away all the gold ornaments. 4. It is further the case of the appellant that he filed a petition for restitution of con jugal rights in which the respondent wife did not accept the notice. It is also the case of the appellant that while going she has taken away all the gold ornaments. 4. It is further the case of the appellant that he filed a petition for restitution of con jugal rights in which the respondent wife did not accept the notice. It is the case of the appellant that on 7.11.1995 respondent and her parents made an application to Senior Superintendent of Police, Bathinda leveling serious allegations of harassment, maltreatment and dowry and on inquiry said allegations were found to be false. It was claimed that attitude of the respondent was found to be abnormal and she was got medically examined at Civil Hospital, Bathinda and it was found to be a case of mental retardation. It is the case of the appellant that after the medical report he came to know as to why the respondent was misbehaving with the petitioner. It is further the case of the appellant that in March, 1996 another application was given to Senior Superintendent of Police, Bathinda which was inquired into by the Lady Wing and the said report was also found to be false after appellant and his family members were harassed for about 15 days. It was also claimed that it was a case of broken marriage. 5. The petition filed by the appellant was contested by the respondent vile. It was claimed that it was the appellant who turned her out of the house along with minor son. It was claimed that the appellant cannot take benefit of his own wrong. It is also the case of the respondent that a sum of Rs. 5 lac was spent at the time of marriage and gifts including gold ornaments, Colour TV, fridge, Beddings, Almirah, furniture and cash were given. Minor son was said to have been taken away by the appellant forcibly on 24.3.1996 and remedy under the Guardian and Wards Act was availed for restoration of custody of the child. The factum of second marriage of the father of the respondent was also denied. The allegations of insult were also denied. It was claimed that it was the appellant who had maltreated the respondent on one pretext or the other. It was also denied that the respondent had asked for separate residence. It was also denied that the respondent had refused to have sex or cohabitation with the petitioner. The allegations of insult were also denied. It was claimed that it was the appellant who had maltreated the respondent on one pretext or the other. It was also denied that the respondent had asked for separate residence. It was also denied that the respondent had refused to have sex or cohabitation with the petitioner. Respondent claimed that she had been given beating on number of occasions and was turned out of the house. It was claimed that even at the time of pRegulation ncy she was forced to live under sub-standard condititons. It was claimed that it was the appellant who gave beating to the respondent and turned her out of house. 6. She also denied having received a notice of petition under section 9 of the Hindu Marriage Act. It is also the case of the respondent that a compromise was entered into between the parties on 22.3.1996 wherein the appellant promised to take the respondent along with minor son but he did not turn up. It is further the case of the respondent that due to the threat of the appellant the respondent and her family members sought protection from Deputy Inspector General of Police, Faridkot. 7. On the pleadings of the parties the Following issues were framed hy, the learned trial court : 1. Whether the behaviour of the respondent towards the petitioner had been cruel and is source of mental torture OPP 2. Whether the respondent is mentally retarded? If so, its effect ? OPP 3. Whether the petition is not maintainable in the present form ? OPR 4. Whether the petitioner has turned out the respondent from the matrimonial home alone, with minor son without sufficient cause ? If so, its effect ? OPR 5. Relief. 8. In support of his case appellant examined Dr. Anil Goyal. MO. AW 1 and himself appeared as AW 2. Evidence of the appellant was ordered to he closed on 27.4.1999. Respondent examined Dr. Jaswant Singh RW1, Tej Singh RW 2 and herself appeared in the witness boa as RW 3. 9. Learned Matrimonial Court came to the conclusion that the allegations levelled by the appellant were not corroborated by any evidence on record. Thus, the Matrimonial court came to the conclusion that the appellant ailed to substantiate the allegations regarding insult of the appellant or his parents. 9. Learned Matrimonial Court came to the conclusion that the allegations levelled by the appellant were not corroborated by any evidence on record. Thus, the Matrimonial court came to the conclusion that the appellant ailed to substantiate the allegations regarding insult of the appellant or his parents. The allegations that cohabitation was being denied to the appellant was disbelieved as son was born to the parties. 10. It was also noticed that the statement made by the respondent that she was performing her conjugal duties remained unchallenged in the cross- examination. The allegations of filing false complaints were also disbelieved as no evidence was brought on record in support of these allegations. Consequently, issue No. 1 was decided against the appellant. On issue No. 2 learned trial court considered the medical evidence led on record and came to the conclusion that it was a case of mild mental retardation and the respondent was capable to discharge the duties as she was not suffering from any moderate or severe or profound mental retardation. Thus, the plea of the appellant that the respondent was mentally retarded woman did not find favour with the court. Issues Nos. 3 and 4 were not pressed. Consequently, the petition filed by the petitioner was dismissed. Mr. G.S. Bawa, learned counsel appearing on behalf of the appellant contended that it is a case of broken marriage as the respondent has refused to settle the matter with the appellant during the pendency of this petition. Learned counsel for the appellant contented that as the parties are living separately since the year I995, there is loss of mutual trust in each other. It is also the contention of the learned counsel for the appellant that efforts made for reconciliation between the parties also yielded no result and therefore decree of divorce be granted to the husband appellant by accepting this appeal. 11. In support of this contention reliance was placed on the Division Bench judgment of this court in the case of Gurnam Singh v. Smt. Satwant Kaur, (2007-2) PLR 669, wherein this court was pleased to hold as under : "4. On the other hand, learned counsel for the appellant also cited the judgment of the Honble Supreme Court titled as Durga Prasanna Tripathy v. Arundhati Tripathy, AIR 2005 SC 3297. On the other hand, learned counsel for the appellant also cited the judgment of the Honble Supreme Court titled as Durga Prasanna Tripathy v. Arundhati Tripathy, AIR 2005 SC 3297. In the said judgment Honble the Supreme Court in somewhat similar circumstances has held as under : "29. The facts and circumstances in the above three cases disclose that reunion is impossible. Our case on hand is one such. It is not in dispute that the appellant and the respondent are living away for the last 14 years. It is also true that a good part of the lives of both the parties has been consumed in this litigation. As observed by this Court, the end is not in sight. The assertion of the wife through her learned counsel at the time of hearing appears to be impractical. It is also a matter of record that dislike for each other was burning hot. 30. Before parting with this case, we think it necessary to say the Following : Marriages are made in heaven. Both parties have crossed the point of no return. A workable solution is certainly not possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. We, therefore, have no other option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce. The family Court has directed the appellant to pay a sum of Rs. 50,000/- towards permanent alimony to the respondent and pursuance to such direction the appellant had deposited the amount by way of bank draft. Considering the status of parties and the economic condition of the appellant who is facing criminal prosecution and out of job and also considering the status of the wife who is employed. We feel that a further sum of Rs. 1 lakh by way of permanent alimony would meet the ends of justice. This shall be paid by the appellant within 3 months from today by an account payee demand draft drawn in favour of the respondent-Arundhati Tripathy and the dissolution shall come into effect when the demand draft is drawn and furnished to the respondent." 4. 1 lakh by way of permanent alimony would meet the ends of justice. This shall be paid by the appellant within 3 months from today by an account payee demand draft drawn in favour of the respondent-Arundhati Tripathy and the dissolution shall come into effect when the demand draft is drawn and furnished to the respondent." 4. The District Judge has very righty observed in its order that it is almost an admitted act between the parties that since 1984, the respondent is living separate from the petitioner and there appears no chance for reconciliation between them and living together as husband and wife. The parties has lost mutual trust in each other. In such circumstances, in case, the petitioner is compelled to live with the respondent, taking the view from a broad human angle on the facts of the case, it will he nothing short of virtual hell on each for the petitioner. 5. We have also been told that at every stage before the trial court before the learned Single Judge efforts have been made for reconciliation between the parties, which have yielded no result." 12. Learned counsel for the appellant also placed reliance on the judgment of Honble Supreme Court in the case of Sanghamitra Ghosh v. Kajal Kumar Ghosh, 2007(1) RAJ 551 : (2007-4) PLR 76, wherein Honble Supreme Court has been pleased to lay down as under : "18. In the instant case, we are fully convinced that the marriage between the parties has irretrievably broken down because of incompatibility of temperament. In fact there has been total disappearance of emotional substratum in the marriage. The matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, therefore, the public interest and interest of all concerned lies in the recognition of the act and to declare defunct dejure what is already defunct defacto as observed in Naveen Kohlis case (supra)." 13. In order to see whether there are chances of reconciliation or not or that it was case of broken marriage the parties were directed to be present in court on 3.9.2008. 14. Respondent made an unconditional offer to accompany the appellant even from the court. However, it is the appellant who refused to take her with her with him. In order to see whether there are chances of reconciliation or not or that it was case of broken marriage the parties were directed to be present in court on 3.9.2008. 14. Respondent made an unconditional offer to accompany the appellant even from the court. However, it is the appellant who refused to take her with her with him. Thus, the authorities relied upon by the appellant can be of no help to him as it is the settled law that a party cannot take the benefit of its own wrong. 15. Once the respondent had unconditionally agreed to accompany the appellant and it is the petitioner who refused to take her it cannot be said by the appellant to be a case of irretrievable marriage. 16. Mr. Parminder Singh, learned counsel for the respondent contended that the respondent had always been willing to accompany the appellant and it is the appellant who has refused to take her and has filed a false case which he failed to prove before the matrimonial court. Learned counsel for the respondent also contended that as the appellant conveyed his final decision for putting end to matrimonial ties by refusing to take her back he is estopped from alleging cruelty nor he is entitled to take advantage of his wrong. 17. Learned counsel for the respondent also contended that mere delay on account of pending divorce proceedings cannot give right to a party to say that marriage between the parties has irretrievably broken down. Learned counsel for the respondent also argued that divorce under section 13 of the Act cannot be granted on the ground of irretrievable marriage. In support of this contention he placed reliance on the judgment of this court in the case of Usha Rani v. Sham Lal, 2008(1) RCR(Civil) 386, wherein this Court has been pleased to lay down as under: "11. Learned Counsel for the respondent, however, relied upon Samar Ghosh v. Jaya Ghosh, 2007 (2) RAJ 177 (SC) to contend that decree of divorce could he validly granted by the Court on the ground, that the marriage between the parties had irretrievably broken. A perusal of the facts of the aforesaid authority, shows that the same are clearly distinguishable, from the facts of the present case. A perusal of the facts of the aforesaid authority, shows that the same are clearly distinguishable, from the facts of the present case. A perusal of the facts of the said authority reveals that sterilization operation was undergone by one of the spouse without the knowledge of other spouse; the wife had got herself aborted without medical reason or without the consent of her husband; the parties were not having physical relations, without physical incapacity or valid reason, the wife had unilaterally decided not to have child; the wife sustained reprehensive conduct, and studied neglect towards the husband; it was proved that the wife used to abuse and humiliate the husband; the sustained unjustified conduct affected physical and mental health of the husband; there was frequent rudeness, indifference and neglect and the actions of the wife was aimed at to derive sadistic pleasure. Not only this, both the parties were IAS officers, and had been living separately, for the last 16 years, without any interaction. It was in these circumstances, that the Apex Court came to the conclusion, that the wife caused cruelty to the husband, to such an extent, as was sufficient to grant a decree of divorce. Additionally, the fact that the parties had been residing separately for the last 16 years, was also taken into consideration, for the grant of decree of divorce. The facts of the aforesaid authority being distinguishable, from the facts of the present case, no help can be drawn, by the counsel for the respondent husband therefrom." 18. Learned counsel for the respondent also placed reliance on the judgment of this court in the case of Amarjit Kaur v. Gursewak Singh, 2008(2) RCR(Civil) 642, wherein this court was pleased to lay down as under :- "14. Without much justification the trial Court has observed that there is no chance of the couple living together as husband and wife and it is better that this marriage be dissolved. In a way the trial Court has termed this marriage to be irretrievably broken down. The trial Court was required to inform itself that such a ground is not available under the Act for dissolving a marriage. In a way the trial Court has termed this marriage to be irretrievably broken down. The trial Court was required to inform itself that such a ground is not available under the Act for dissolving a marriage. The Court was to appreciate that it is only ground of cruelty and desertion which was to be adjudicated by it while deciding the petition instead of observing that this marriage has not worked or is not likely to work. This line of reasoning by the Court can not be appreciated, and can not be sustained to uphold the decree of divorce granted in this case. Having regard to the totality of the facts and circumstances, I am the considered opinion that the respondent-husband has failed to establish the allegation of cruelty or desertion on the part of wife which could have earned the husband a decree of divorce as granted by the Court. The judgment impugned in appeal, as such, can not be sustained and the same is set aside. The appeal is accordingly allowed." On consideration of the matter, I find no force in the contentions raised by the learned counsel for the appellant. 19. The appellant has completely failed to prove the allegations of cruelty before the matrimonial court and therefore, the petition filed by the appellant was rightly dismissed. 20. As regards the claim of the appellant that he is entitled to divorce on account of the fact that it is an irretrievable marriage also cannot he accepted as it is not a ground for grant of divorce under section 13 of the Act. Even otherwise, in the present case the respondent had shown her eagerness to join the appellant unconditionally when she appeared in court. It is the appellant who refused to take her and thus, he cannot take the benefit of his own wrong to claim that the marriage has irretrievably broken down to claim the decree of divorce. No merit. Dismissed. Appeal dismissed.