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2009 DIGILAW 40 (PNJ)

Mukesh Kundu v. Anita And Another -

2009-01-08

S.D.ANAND

body2009
Judgment S.D.Anand, J. 1. Mutual mistrust and acrimony, as between the appellant - husband and the respondent - wife, is too evident from the pleadings of the parties and also their self-serving statements, none of which is otherwise corroborated by any evidence of relevant and independent character. 2. The marriage of the appellant and respondent no. 1 (hereinafter referred to as the husband and wife respectively) was solemnized in the month of May, 1988. Their inter-se relationship was far from easy from the very beginning. The husband had a grievance that the wife had been acting in a cruel and harsh manner from the inception of the marriage and that she was also a woman of easy virtue. In spite of the all out endeavours made by the husband, the wife did not improve her conduct under the above items of behaviour. The husband, who was employed (on ad-hoc basis) as a Supervisor in the Indian Tourism Development Corporation and was posted at Delhi, shifted to Delhi itself and started residing in a rented accommodation belonging to one Dharam Pal Mann. However, even there, the wife did not mend her behaviour. In fact, she developed an illicit relationship with respondent no. 2 (hereinafter referred to as the paramour). She became pRegulation nt with a child from the lions of the paramour. The child was aborted in the month of October 1992, without the consent of the appellant - husband. The husband brought the facts to the notice of his parents-in-law but they took it lightly and things did not improve. It was thereafter that the wife went over to reside at her natal house and she had been there for the past about eight months prior to the date of filing of the petition. The husband applied for the dissolution of marriage on plea of mental cruelty. 3. The wife denied having ever mal-treated the husband. She also denied having been a woman of easy virtue. The allegations pertaining to her illicit relations with the paramour were also denied. It was pleaded that, on the other hand, it was the appellant who had developed illicit relations with one Mst. Murti of Khera Kalan Village. Whenever the wife would protest, the husband would belabour her. The further allegation is that the husband resigned his job in the month of January 1993 and shifted to a rented accommodation at Sonepat. It was pleaded that, on the other hand, it was the appellant who had developed illicit relations with one Mst. Murti of Khera Kalan Village. Whenever the wife would protest, the husband would belabour her. The further allegation is that the husband resigned his job in the month of January 1993 and shifted to a rented accommodation at Sonepat. There too, he developed an illicit relationship with one Mst. Seema who was residing nearby. The infatuation between the husband and Mst. Seema was to that extent that they announced the intention to marry each other. That inclination of theirs was resented by the wife who was belaboured and turned out of the matrimonial house in the month of June 1993. She was pRegulation nt at that point of time. The further allegation in the context is that the husband has already married Mst. Seema aforementioned and they are residing at Village Rathdhana. 4. The paramour did not enter appearance in spite of the effecting of substituted service (by publication of a court notice in a newspaper). The learned Trial Court framed the following issues :- "1) Whether respondent No. 1 treated the petitioner with cruelty ? OPP 2) Whether respondent No. 1 after the solemnization of her marriage had voluntary sexual intercourse with respondent No. 2 ? OPP 3) Relief." 5. The husband and also the wife entered the witness box, as own witnesses. The evidence of the appellant - husband was closed under the orders of the Trial Court vide order dated 29.02.1996. 6. The learned Trial Court, on an appraisal of the material obtaining on the file, non-suited the husband who is in appeal against the impugned adjudication. 7. I have been through the Appellate and also the Trial Court records. In spite of the fact that both the parties are noticed to have been represented by their respective learned counsel, none turned up to assist this Court. 8. The grievances of the husband can be culled out from the grounds of appeal as under :- (a) The record indicates that the parties have no liking for each other and there is no possibility whatsoever of reconciliation between them. 8. The grievances of the husband can be culled out from the grounds of appeal as under :- (a) The record indicates that the parties have no liking for each other and there is no possibility whatsoever of reconciliation between them. In that view of things, "it is the duty of the court to dissolve the marriage and allow the party lead their lives afresh." (b) The learned Trial Court denied an opportunity of hearing to the husband by not ordering the summoning of the witnesses whose names had been indicated by the appellant in the list of witnesses. 9. Insofar as the former item of grievance is concerned, it does not have the sanction of the provisions of the Hindu Marriage Act (hereinafter referred to as the Act). There is nothing at all in the Act to indicate that a Hindu Marriage can be dissolved just because reconciliation between the parties is evidently impossible and they have mutual disliking of the worst order. It is, thus, not open to the husband to urge for dissolution of marriage just on account of the fact that his differences with his wife are irreconcilable. 10. The other item of grievance indicated in the grounds of appeal is misconceived. It may be noticed, in the context, that first time the case came to be fixed for 7.8.1995 for recording of husbands evidence. There is nothing in the interim order dated 7.8.1995 to indicate that any evidence on behalf of the husband was present. The matter was adjourned to 7.9.1995. Same was the position on that date and also the date (12.10.1995) fixed thereafter. On 4.1.1996, the counsel representing the husband informed the Court during the pre-lunch period that his witnesses were present but that he would examine them after about half hour as he was busy arguing a bail matter in the Court of Learned Sessions Judge, Sonepat. He did not enter appearance thereafter and instead deputed his clerk to inform the Court that the witnesses were not actually present and that the husband, who had himself gone over to call the witnesses, had not turned up. (The learned Trial Court recorded a statement of that Clerk to that effect which appears at page 79 of the Trial Court record). In spite thereof, the learned Trial Court adjourned the matter to 8.2.1996 subject to the payment of costs. (The learned Trial Court recorded a statement of that Clerk to that effect which appears at page 79 of the Trial Court record). In spite thereof, the learned Trial Court adjourned the matter to 8.2.1996 subject to the payment of costs. It was made clear that the husband shall produce evidence on his own responsibility. It too was indicated that in case of a default in the relevant behalf, the evidence of the husband shall be closed under order 17 Rule 3 C.P.C. On 08.02.1996, the costs of adjournment were paid but further adjournment for production of evidence was requested. As that request was not opposed on behalf of the wife, the matter was adjourned to 29.02.1996. It was that on date that the husband entered the witness box, as his own witness, but requested yet another adjournment for producing his evidence. The request was resisted on behalf of the wife. The Court declined it by noticing that it was the husband who had not been able to produce the evidence in spite of number of opportunities given for the purpose aforementioned. It cannot, thus, be said, with any justification, that just opportunity to adduce evidence had been denied to the husband. 11. Insofar as the merits of the case are concerned, it may be noticed that the own statement of the husband does not deserve to be relied upon. In the course of the petition, there was a precise allegation that the wife had conceived from the lions of the paramour and that she had undergone an abortion at Aggarwal Nursing Home at Narela, without the consent of the husband. The best evidence in the relevant behalf could be the examination of the medical personnel at Aggarwal Nursing Home, Narela, who had conducted the alleged abortion. The husband is not indicated by the record to have taken any steps whatsoever to summon any medical personnel from Aggarwal Nursing Home. In the absence thereof, the self-serving statement made by the appellant to the above effect cannot be relied upon. In fact, the husband does not appear to be, at all, keen to resume cohabitation with his wife. As PW1, he testified that ever since the latter left the former, he did not try to bring her back to the matrimonial house. In fact, the husband does not appear to be, at all, keen to resume cohabitation with his wife. As PW1, he testified that ever since the latter left the former, he did not try to bring her back to the matrimonial house. In the normal course of things, if a husband has an estrangement with his wife but he wants reconciliation, he would be expected to go over to his in-laws or to bring in respectables of the locality or relations for bringing in reconciliation. There is not even an averment that he ever brought in the common friends/relations/Panchayat into picture to persuade the wife to resume cohabitation. He also did not file a plea for restitution of conjugal rights against the wife. It is, thus, apparent that the finding recording by the learned Trial Judge does not merit any interference. That finding is relatable to the material obtaining on the file. I do not find anything illegal or perverse in the manner of appreciation of evidence at the hands of the learned Trial Judge. The appeal is denuded of merit and is ordered to be dismissed.