FAO No. M-285 of 2007 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.M. No. 42-M of 2007, C.M. No. 23321-CII of 2007, FAO No. M-285 of 2007 (O&M) Date of Decision : 3.8.2009 Smt. Veena Rani .......... Appellant Versus Som Parkash ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Gurcharan Dass, Advocate for the appellant. Mr. Karan Nanda, Advocate for the respondent. **** VINOD K. SHARMA, J. (ORAL) This appeal by respondent / wife is directed against the grant of decree of divorce on a petition filed under Section 13 of the Hindu Marriage Act. The respondent / husband filed a petition under Section 13 of the Hindu Marriage Act on the pleadings that the marriage between the parties was solemnized on 14.1.1987. After the marriage, the parties lived and cohabited together as husband and wife and out of this wedlock two children namely Navjyoti ( daughter ) and Abhishek ( son ) were born. The divorce was sought on the ground of desertion and cruelty. Issue of cruelty was not pressed, therefore, was decided against FAO No. M-285 of 2007 2 the respondent / husband. On issue No.2, in stead of recording the finding as to whether the appellant / wife had deserted the petitioner, the learned Matrimonial Court held it to be a case of broken marriage and passed a decree of divorce. The finding recorded by the learned Matrimonial Court reads as under :- “The marriage between the parties is not successful and since the very inception of the marriage, the marital relations between the parties are not smooth. The matrimonial dispute between the parties started within two years of their marriage and since the year 1989 the relations between the parties are at dagger drawn. The respondent wife is living separate from the petitioner husband. As per her own admission made during her cross- examination, RW3 Veena Rani, respondent has admitted that since the year 1994 she is residing in her parents house. She has admitted that since then the petitioner is not paying her any maintenance nor has cared for her. She has admitted that the parties are not on visiting terms with each other since the year 1994 and that she has never filed an application or petition u/s 9 of the Hindu Marriage Act for the restitution of conjugal rights. If this is the state of affairs between the parties, it can be safely concluded that there is no love or FAO No. M-285 of 2007 3 affection left between the parties. There is no warmth of matrimony in this case. It is a case of a dead lock between the husband and wife. The petitioner is not ready to carry on with his wife. The respondent wife is not interested in her rehabilitation and in returning to the matrimonial home. Both the parties have never filed any petition for the restitution of conjugal rights which shows that the marriage between the parties has totally broken down. The attitude of the husband and wife towards each other is indifferent and under these circumstances to insist or compel the parties to perpetuate the dead lock between the parties will not be justice to either of the parties. In a case Naveen Kohli versus, Neelu Kohli, 2006(2) Recent Civil Reports, 290 (Supreme Court ), the Hon'ble Supreme Court of India has held that where the marriage is proved to be an irretrievable broken down marriage, the divorce may be granted, although one of the parties did not want divorce. In that case, the parties were living separate from each other for the last 10 years and the Hon'ble Supreme Court of India held it to be a broken marriage. The facts of that case are similar to the facts of the present case. In the present case, the FAO No. M-285 of 2007 4 parties are living separate from each other for the last more than 14 years and there are no chances of their rehabilitation or residing together as husband and wife and, therefore, granting divorce in the present case would be fully justified.” The finding recorded by the learned Matrimonial Court is not sustainable in view of the law laid down by this Court in the case of Gurdeep Singh @ Tota Singh Vs. Jaspal Kaur, 2009(1) RCR (C)593 holding therein that irretrievable marriage is not a ground for divorce. It is also not in dispute that prior to the filing of the present petition respondent / husband had filed a petition for divorce which was dismissed by the Court of learned Addl. District Judge, Faridabad on 14.5.1997. The second petition was, therefore, not maintainable on the same allegations, in view of the law laid down by this Court in the case of Jagtar Singh Versus Kulwant Kaur alias Balwinder Kaur 2007(2) Recent Civil Reports 48 (P&H). The finding of the learned matrimonial Court that desertion stood proved merely because the parties were living separately also cannot be sustained as respondent / husband could not be permitted to take benefit of his own wrong. It is further the case of the appellant that the maintenance pendente lite fixed by this Court has not been completely paid by the FAO No. M-285 of 2007 5 respondent. Vide order dated 2.12.2008 the appellant was directed to bring a draft of Rs. 50,000/- (Rupees fifty thousand only ) in the name of the respondent, but only a sum of Rs. 10,000/- (Rupees ten thousand only ) was paid on 24.2.2009. Another sum of Rs. 10,000/- (Rupees ten thousand only ) was handed over in cash on 21.4.2009. Thereafter on May 21, 2009 another sum of Rs. 5,000/-(Rupees five thousand only ) was handed over in cash. The respondent / husband thereafter paid a sum of Rs. 5,000/- on 29.5.2009. The balance payment was not made. Vide order dated July 20, 2009 a specific direction was issued to the respondent to bring the balance maintenance amount due till date. The learned counsel appearing on behalf of the respondent, could not dispute that respondent has not paid the total maintenance amount till date. It may also be noticed that in this Court the appellant / wife had shown her willingness to join the company of the appellant, whereas it was the respondent / husband who refused to take her. For non-payment of maintenance amount, defence of the respondent / husband is liable to be struck off. “Ordered accordingly.” In view of the fact that the defence of the respondent / husband has been struck of by this Court, this appeal is allowed, the judgment and decree passed by the learned Matrimonial Court is set aside and the petition filed by the respondent / husband under Section 13 of the Hindu Marriage FAO No. M-285 of 2007 6 Act is ordered to be dismissed, but with no order as to costs. However, this shall not bar the appellant / wife to execute the order of maintenance, in accordance with law, if so advised. 3.8.2009 ( VINOD K. SHARMA ) 'sp' JUDGE