JUDGMENT 1. - Instant civil miscellaneous appeal has been filed under Section 28 of the Hindu Marriage Act, 1955 against judgment dated 06.11.1999 passed by the District Judge, Sriganganagar, whereby, the application filed by the appellant under Section 13 the Hindu Marriage Act, 1955 for divorce was dismissed. 2. Brief facts of the case are that marriage of the appellant was solemnized with the respondent on 07.04.1984 and, out of said wedlock, two daughters and one son were born. The appellant filed an application under Sec 13 of the Hindu Marriage Act on 09.04.1992 before the District Judge, Sriganganagar, in which , it is pleaded that soon after the marriage behaviour of respondent wife towards appellant husband become harsh and cruel and she used to quarrel with the appellant and his parents. The respondent always cast unnecessary doubts upon the behaviour of the appellant and made false allegations that appellant is having physical relations with other women including wives of his friends and other family members of his known families. In the application, it is submitted that she instigated husband of one Smt. Indubala to file a case of abduction , in which, the police not only tortured him but also took forcibly some photographs with Indubala, therefore, from the facts, it is clear that respondent committed cruelty upon the appellant. 3. In the application, it is specifically mentioned that respondent is not residing with the applicant for last two and a half years and inspite of repeated requests she refused to live in the company of the appellant. As per the applicant -appellant, on the one hand the respondent was not willing to reside with the applicant and, on the other hand, she filed an application for interim maintenance. That application was pending when the divorce petition was filed. 4. In the divorce petition filed by the applicant-appellant, the respondent wife filed her reply and refuted all the allegations. In her reply, the respondent submitted that she never committed any quarrelsome behaviour with the applicant and his parents and specifically pleaded that applicant developed illicit relations with one Indubala and inspite of repeated requests he refused to break company with Indubala, therefore, in the compelling circumstances she is residing with her parents. 5. In her reply, the respondent submitted that she never committed any quarrelsome behaviour with the applicant and his parents and specifically pleaded that applicant developed illicit relations with one Indubala and inspite of repeated requests he refused to break company with Indubala, therefore, in the compelling circumstances she is residing with her parents. 5. It is also mentioned in the reply to the application that FIR 4 was filed by the husband of Indubala at Police Station Pratap Nagar, Jodhpur for committing offence of abduction and, in the investigation, Indubala was recovered from Chak 2-E, Chhoti Tehsil (District Sriganganagar). The parents of the applicant-appellant publicised a news item in "Prataop Kesari" on 25.02.1990 that their son Budha Ram is having relations with women of easy virtue, therefore, his family is having no relationship with him. The appellant was working at Jodhpur, therefore, the respondent wife and her parents went to Jodhpur with police. At that time, the appellant said that he may be excused for his action and made prayer for his rescue. At that time, one bag was also handed over to the father of the respondent and, upon opening the said bag on 11.02.1990, certain documents were found in the bag which were certificate issued by Arya Samaj for marriage of the appellant with Indubala and some photos were also there in the bag showing that marriage was also solemnized with Indubala. It is also replied that in the statement before the Court at Jodhpur Indubala herself gave statement that she went with the appellant and will live with appellant and will not go to her husband's house. Since then, till today, they have been living at Jodhpur whereas she is living at Sriganganagar with her three minor children. 6. In the reply, it was also brought to the notice of the Court that another complaint was filed under Section 494, Indian Penal Code by the respondent for solemnizing second marriage during the subsistence of the first marriage, in which, bailable warrants have been issued by the competent Court. 7. . While narrating the above facts, it is submitted before the trial Court that allegations levelled by the applicant-appellant in the application are totally untenable and far from truth. 7. . While narrating the above facts, it is submitted before the trial Court that allegations levelled by the applicant-appellant in the application are totally untenable and far from truth. No cruelty has been committed by the respondent wife and, in fact, the applicant himself is living in adultery with Indubala and not maintaining three minor children and his wife, therefore it was prayed that the divorce petition may be dismissed. 8. After filing reply, learned trial Court framed the following two issues: 1- D;k vukosfndk us vkosnd ds lkFk ;kfpdk esa of.kZr rF;ksauqlkj dzwjrkiw.k O;ogkj fd;k gSa ,oa bl dkj.k vkonsd fookg foPNsn dh fMdzh ikus dk vf/kdkjh gS\ 1 ( , ) D;k vizkFkhZ;k us izkFkhZ dks ;kfpdk is'k djus ls lok nks lky igys ls ifjR;kx dj j[kk gSA izkFkhZ bl vk/kkj ij fookg foPNsn djus dk vf/kdkjh gS\ 2- vuqrks"k\ 9. Thereafter, both the parties were granted opportunity to lead their evidence. In support of the application filed by the appellant, statements of appellant-applicant himself as A.W.-l, Bhani Ram, A.W.-2, Munshi Ram, A.W.-3, Harsukh Lai, A.W.-4 and Sheodutt Ram, A.W.-5 were recorded. In support of her reply, respondent wife examined herself as NAW-1. Certain documents including marriage certificate Ex.-l were produced as exhibits. 10. Learned trial Court after recording oral evidence of both the sides and considering the documents placed on record finally rejected the application filed by the applicant-appellant for divorce vide impugned judgment dated 06.11.1999. In the judgment, it is held that the applicant failed to prove the allegation of cruelty and desertion, therefore, he is not entitled to decree of divorce. 11. Learned counsel appearing on behalf of the appellant vehemently argued that two important grounds were raised before the District Judge for the purpose of seeking divorce. First, with regard to cruelty and, second with regard to desertion and both these grounds were proved by leading cogent evidence; but, the learned trial Court committed serious error while rejecting the plea of the appellant. All the witnesses produced by the appellant to prove his case categorically stated that behaviour of respondent towards the applicant and his parents was quarrelsome. All the witnesses produced by the appellant to prove his case categorically stated that behaviour of respondent towards the applicant and his parents was quarrelsome. It is also stated that non-applicant unnecessarily raised doubts upon the character of the appellant and they have not seen Indubala residing as wife of the appellant but the learned trial Judge did not appreciate the evidence and wrongly came to the conclusion that out of the said wedlock three issues were born, therefore, it cannot be said that the behaviour of the non-applicant was quarrelsome. As per learned counsel for the appellant, birth of children is not proved to substantiate the finding of the learned trial Court that there was no cruel behaviour on the part of the respondent. If the husband and wife are living together and one spouse is behaving cruelly with the other, then, also physical relationship persists, therefore, the finding o the learned trial Court is erroneous. 12. Learned counsel for the appellant further argued that the trial Court has disbelieved the evidence of the appellant-applicant only on the ground that none of the witnesses gave detail of cruel behaviour, so also, no witness stated anything about time and place with regard to misbehaviour of the non-applicant with the appellant and his family members, therefore cannot be said that allegation of cruelty is proved. But, in fact, this finding is totally erroneous because there is no justification to give specific instances. Only question was to be examined that behaviour of the respondent was quarrelsome. Therefore, the finding with regard to not proving the cruelty is perverse. 13. With regard to issue No.2 framed on the question of desertion, it is argued by learned counsel for the appellant that the issue was proved by leading cogent evidence but the learned trial Court accepted the respondent's plea that she is residing separately because the applicant is living with another woman Indubala. Said finding is erroneous because the witnesses stated that respondent is residing separately, therefore, learned trial Court committed gross error while not accepting that appellant has proved the ground of desertion. 14. In addition to the above arguments, learned counsel for the appellant invited my attention towards that fact that both appellant and respondent are residing separately since 1999 and, now, it is not possible for them to live together. 14. In addition to the above arguments, learned counsel for the appellant invited my attention towards that fact that both appellant and respondent are residing separately since 1999 and, now, it is not possible for them to live together. Learned counsel for the appellant invited my attention towards judgment of Hon'ble Supreme Court reported in AIR 2006 SC 1675 , Navin Kohli v. Neelu Kohali , in which, the Supreme Court has held that once marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact and it would be harmful to society and injurious to the interest of the parties. Further, it has been held that where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie, by refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact. 15. Learned counsel for the appellant submits that in the case of Navin Kohli v. Neelu Kohli , it has been held that if number of cases filed by the complainant-respondent then it can be presumed that the appellant was subjected to serious traumatic experience which can safely be termed a cruelty coming under the purview of Section 13 (l)(a) of the Act, therefore, Hon'ble Supreme Court granted decree for divorce. In this case also, not only application under Section 494, Indian Penal Code was filed by the respondent but application for maintenance under Section 125, Criminal Procedure Code was also filed and the department terminated his services on the ground that he was convicted for offence under Section 494, Indian Penal Code, in which, appeal is pending. In this view of the matter, it is argued that while taking pragmatic approach, divorce decree may be granted in favour of the appellant while quashing the judgment impugned which is in the interest of both the parties. In this view of the matter, it is argued that while taking pragmatic approach, divorce decree may be granted in favour of the appellant while quashing the judgment impugned which is in the interest of both the parties. It is further submitted that whatever amount shal be fixed by this Court the appellant will pay. 16. Per contra, learned counsel appearing on behalf of the respondent wife submits that the appellant is not entitled for any relief. Application has been filed on two grounds, first, on the ground of cruelty and, second, on the ground of desertion; but, as per finding of the learned trial Court appellant failed to prove both grounds. With regard to allegation of cruelty, learned trial Court has held that respondent-non-applicant is living separately with her two daughters and one son after the appellant developed relations with another woman Indubala and for last many years the appellant has neglected his wife and children. The appellant was also convicted under Section 494, Indian Penal Code. So also, it is brought to the notice of the Court that till today the appellant is living with Indubala, therefore, the finding of learned trial Court with regard to the fact that respondent has been compelled by circumstances created b the appellant to live separately. In his view of the matter, the allegation of cruelty and desertion were rightly rejected by the trial Court, therefore, no interference is required in this case. 17. With regard to judgment of the Hon'ble Supreme Court relied upon by learned counsel for the appellant in the case of Navin Kohli (supra), it is submitted that facts of the reported case are entirely different than the facts of the present case. It is true that Hon'ble Apex Court has held that no useful purpose will be served in denying divorce decree if parties are living separately for more than ten years and large number of criminal and civil proceedings were initiated by the respondent against the appellant; but, in this case, it is admitted position of fact that after marriage in the year 1984, till 1989, no complaint or voice was raised against the respondent. In the year 1990, when appellant's relations with Indubala came to the knowledge of the respondent then, in the interest of minor children, she refused to live with the appellant and made several requests to leave Indubala but the appellant refused to do so, therefore, there was no option left for the respondent than to live separately with her minor children. It is also one of the important facts which was not in existence in the case of Navin Kohli that upon complaint filed under Section 494, Indian Penal Code the appellant was convicted by the trial Court and said judgment was upheld by the appellate Court. In this view of the matter, conduct of the appellant does not give any premium to him to seek divorce. Therefore, the judgment relied upon by learned counsel for the appellant is not applicable in the facts of the present case. 18. After hearing both the parties, I have considered the evidence and finding of the learned trial Court. The appellant examined five witnesses in support of his application and, in the application, a specific allegation was levelled by him that behaviour of the respondent was quarrelsome with his parents also; but, parents of the appellant were not produced as witnesses in the case. Further, it is not disputed by the appellant that, a news item was published by the father of the appellant that he has no relation with his son (appellant) because he is having illicit relations with woman of easy virtue. If these facts are not in dispute, and the fact that conviction of the appellant under Section 494, Indian Penal Code was upheld by the appellate Court, against which, revision petition is pending before this Court, then, it can be said that no prudent wife having three children can live with person who is living in adultery, therefore, the finding of the trial Court with regard to discrediting the evidence of the appellant requires no interference. 19. 19. During the course of arguments, learned counsel for the appellant accepted that photos are there but those photos were taken under the influence of police, therefore, learned trial Court ought to have considered this aspect the matter; but, in my opinion, the confiction under Section 494, Indian Penal Code has been made against the appellant by the trial Court and upheld by the appellate Court, then, it can be said that there is no substance in the argument of learned counsel for the appellant that finding of learned trial Court is perverse or illegal. 20. Contention of learned counsel for the appellant that findings are contrary to the evidence is not acceptable because none of the witnesses, stated before the Court that on what date or at what place behaviour of the respondent was quarrelsome. Vague and general allegations were levelled whereas betraying his allegations the appellant himself is living with another woman Indubala and FIR was filed against him, in which, appellant was arrested a Indubala was recovered from his village which clearly reveals that finding of learned trial Court is based upon sound reasons for the purpose of adjudicating both the issues. In this view of the matter, arguments raised by learned counsel for the appellant are hereby rejected. 21. With regard to judgment of Hon'ble Supreme Court, reported in AIR 2006 SC 1675 , Navin Kohli v. Neelu Kohli , in that case, Hon'ble Supreme Court made recommendation to the Union of India for amendment in the Hindu Marriage Act, 1955 and in para 94 and 95 it has been observed as follows : "94. In our considered view, looking to the peculiar facts of the case, the High Court was not justified in setting aside the order of the trial Court. In our opinion, wisdom lies in accepting the pragmatic reality of life and take a decision which would ultimately be conducive in the interest of both the parties. 95. Consequently, we set aside the impugned judgment of the High Court and direct that the marriage between the parties should be dissolved according to the provisions of the Hindu Marriage Act, 1955. In the extraordinary facts and circumstances of the case, to resolve the problem in the interest of all concerned, while dissolving the marriage between the parties, we direct the appellant to pay Rs. In the extraordinary facts and circumstances of the case, to resolve the problem in the interest of all concerned, while dissolving the marriage between the parties, we direct the appellant to pay Rs. 25,00,000/-(Rupees Twenty five lacs) to the respondent towards permanent maintenance to be paid within eight weeks. This amount would include Rs. 5,00,000/-(Rupees five lacs with interest) deposited by the appellant on the direction of the Trial Court. The respondent would be at liberty to withdraw this amount with interest. Therefore, now the appellant would pay only Rs. 20,00,000/- (Rupees Twenty lacs ) to the respondent withing the stipulated period. In case the appellant fails to pay the amount indicated above within the stipulated period, the direction given by us would be of no avail and the appeal shall stand dismissed. In awarding permanent maintenance we have taken into consideration the financial standing of the appellant." 22. It is true that Hon'ble Supreme Court in the said judgment recommended the matter for amendment in the Hindu Marriage Act for incorporating irretrievable breakdown of marriage as a ground for the grant of divorce, I am in complete agreement with the proposition laid down by the Hon'ble Supreme Court and, in the present scenario, such opinion is required to be accepted if facts are not contrary to the facts of the case of Navin Kohli (supra) 23. Here, in the present case, much about the conduct of the appellant is required to be seen and the manner in which he has forced the separation upon the respondent. On the one hand, appellant made a prayer for divorce on the ground that there is no possibility to live together with the respondent wife and, on the other hand, as per evidence on record the appellant is already living with another woman since 1990 which is evident from the fact that he was convicted under Section 494, Indian Penal Code and said judgment was upheld by the appellate Court and both the judgments are under challenge in the revision petition pending before this Court. The person who is living married life with another woman since 1990 is not entitled to seek divorce on the ground that he is living separately for last more than ten years and there is no possibility to live with respondent wife. 24. The person who is living married life with another woman since 1990 is not entitled to seek divorce on the ground that he is living separately for last more than ten years and there is no possibility to live with respondent wife. 24. In the present case, the respondent wife maintaining three children born from the wedlock with appellant and performing her duty but the appellant is enjoying married life with another woman since 1990. Allowing this appeal and granting divorce decree in favour of the appellant in the present facts and circumstances will be premium to a person who has neglected his wife who is living with three minor children since 1990. In the opinion of the Court, agony of respondent cannot be assessed in money, therefore, contention of the appellant that he is ready to pay whatever amount is fixed for divorce cannot be accepted. 25. Parameters laid down by the Apex Court in the case of Navin Kohli (supra) are in fact for the welfare of the society but, at the time of considering such cases, the other facts are also required to be taken into consideration. In my opinion, the conduct of the appellant dis-entitles her taking advantage of the judgment of the Hon'ble Supreme Court rendered in Navin Kohli's case. The ratio of that judgment is applicable in the case where uncompromising spouses who are living separately but allegation of adultery is not levelled. Here, in this case, since 1990 the appellant has been enjoying married life with another woman leaving his wife and children in agony and dismay; and, appellant is claiming divorce under the adjudication made by Hon'ble Apex Court in Navin Kohli's case (supra), in my opinion, upon peculiar facts of this case, the appellant is not entitled for divorce decree. 26. In this matter, I have also applied my mind towards the condition of respondent wife who is woman of this country. As per Article 15 of the Constitution of India, she is weaker Section of the society and respondent wife is performing her all obligatory duties and raised voice as true woman when her husband disturbed her peace and neglected her like anything. Therefore, even though the respondent wife is living separately, it can be said that no efforts were made by the appellant to take her to his home and to give peaceful environment to her. Therefore, even though the respondent wife is living separately, it can be said that no efforts were made by the appellant to take her to his home and to give peaceful environment to her. In this view of the matter also, I see no reason to interfere in this matter. Hence, this miscellaneous appeal is dismissed.Appeal dismissed. *******