IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (HMA) No.387 of 2003. Reserved on: 19.12.2008. Date of decision: 31.12.2008. Sat Pal … Appellant Versus Harjit Kaur … Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr.Suneet Goel, Advocate. For the Respondent : Mr.N.K.Thakur, Advocate. Kuldip Singh, Judge. The husband has come in appeal against the judgment, decree dated 5.12.2002 passed by learned District Judge, Una dismissing the petition of the husband for dissolution of marriage by a decree of divorce on the grounds of cruelty and that the wife has not joined the company of the husband despite decree of restitution of conjugal rights. 2. The facts of the case, in brief, are that appellant on 22.6.1998 filed a petition for granting a decree of divorce against respondent on the grounds that she did not join his Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… company despite decree of restitution of conjugal rights and she has treated him with cruelty. It has been pleaded that the marriage between the parties took place on 18.11.1990 and a son was born to the parties from the wedlock on 2.2.1992 who is living with respondent. The respondent deserted the appellant, who filed a petition under Section 9 of the Hindu Marriage Act, 1955 (for short ‘the Act’) which was allowed on 23.3.1994 and a decree of restitution of conjugal rights was passed, but respondent did not join the company of appellant, he filed a divorce petition against respondent which was compromised and withdrawn on 26.3.1996. 3. On the basis of compromise, the respondent joined the company of appellant and started living at Oel where she lived for about three months. On the pressure put by respondent, the appellant separated from his parents and started living at Village Bhungarni, Tehsil and District Hoshiarpur and started his medical practice there. On the demand of father-in-law of the respondent the appellant paid Rs.57,000 to him for sending his son to some foreign country. The respondent resided peacefully with appellant for about four months at village Bhungarni, thereafter she again started compelling appellant to shift to her parental village Hazara, Tehsil and District Jallandhar. The appellant …3… had shown his inability to shift to village Hazara thereupon the respondent started levelling false allegations of illicit relations of appellant with ladies of village Bhungarni. She defamed the appellant which adversely affected his medical practice. 4. The respondent having failed to shift the appellant to her parental village started pressurizing, insulting and humiliating the appellant through her cousin Balbir Singh, Dy.S.P. Punjab Police, Hoshiarpur. Balbir Singh used to call the appellant in the office of his colleague Sushil Kumar, Dy.S.P. (Rural), Hoshiarpur. Balbir Singh and Sushil Kumar humiliated the appellant and pressurized him to work as per the wishes of respondent and shift his medical practice to village Hazara. The appellant fed up with the humiliation returned back to village Oel in December, 1997 along with respondent and their son where they resided for three months. 5. In March, 1998 respondent compelled the appellant to visit village Hazara to meet her parents and brothers, where appellant found that respondent had concealed Rs.22,500 and entire jewellary of the appellant in her bag. On asking the reason why she has brought the amount and the jewellary, the respondent replied that she wanted to help her parents by paying Rs.22,500 and she …4… would keep the jewellary at her parents house in safe custody. The appellant objected to this conduct of respondent. The respondent called her father, mother, brother Rajinder Singh and sister Madhu who gave beatings to appellant and turned him out from their house at night. The respondent did not give the key of the room to appellant of village Oel. She asked the appellant to go out of her parental house. The appellant then came to village Oel. 6. The appellant thereafter met Sarpanch of village Hazara along with Mohinder Kaur, Member, Zila Parishad, Kapurthala but respondent and her parents refused to talk to them. Thereafter, respondent and her parents filed a false complaint at Mahila Police Station, Patel Chowk, Jallandhar where the appellant was called on 7.4.1998. The respondent and her parents started demanding Rs.10 lacs from the appellant and threatened to file divorce petition against the appellant. SHO, Mahila Police Station, also directed the appellant to accept the demand of the respondent and her parents otherwise police would involve the appellant and his other family members in a case under Section 498-A IPC. The appellant was called at Mahila Police Station seven times till the filing of the petition. On these grounds, the appellant filed the divorce petition on the ground of physical and mental cruelty by the respondent, her parents and relatives. …5… 7. The petition was contested by respondent by filing reply in which preliminary objection of jurisdiction of the Court to try the petition was taken. On merits, it has been submitted that marriage between the parties took place at Jallandhar and the parties last resided at Bhungarni, Tehsil Hoshiarpur. It has been submitted that parties lived together at village Oel for some months and thereafter appellant turned out the respondent from matrimonial home after giving her beatings when she was pregnant. She was forced to take shelter at her parents’ house. The respondent denied the allegations of the appellant. The appellant had been demanding dowry and money from respondent right from the marriage. The respondent lived with appellant at village Oel after compromise dated 20.3.1996. Thereafter, appellant shifted to village Bhungarni due to dispute with his father. The respondent also lived at Bhungarni with appellant in the background of maltreatment by the family of appellant. The allegations attributed to Balbir Singh and Sushil Kumar, Police Officers, were also denied. She denied that appellant visited village Hazara in March 1998 or the appellant was turned out by respondent, as alleged. The complaint to Mahila Police Station was not denied. …6… 8. The appellant filed rejoinder to the reply of respondent and reiterated his stand. The learned District Judge framed the following issues:- (i) Whether the respondent has not joined the company of the petitioner despite decree of restitution of conjugal right dated 23.3.1994, as alleged? If so, its effect? OPP (ii) Whether the respondent treated the petitioner with cruelty as alleged and the petitioner is entitled to divorce on this ground? OPP (iii) Whether this Court has no jurisdiction to try this petition? OPR (iv) Relief. The Issue No.3 was not pressed before the learned District Judge. It was held that Issue No.1 has no bearing on the rights of the parties. The Issue No.2 was decided against the appellant and petition was dismissed on 5.12.2002, hence, this appeal. 9. I have heard Mr.Suneet Goel, learned counsel for the appellant and Mr.N.K.Thakur, learned counsel for the respondent and gone through the record. Mr.Goel has submitted that learned District Judge has not properly appreciated the material on record. The cruelty of the respondent towards appellant has been proved. The parties …7… are not living together for the last many years. The marriage between the parties has broken down and in these circumstances no purpose would be served to keep the matrimonial tie intact. On the contrary, learned counsel for the respondent has submitted that the petition filed by the appellant is vague. The appellant cannot be permitted to take benefit of his own wrongs. He ill treated the respondent. The petition has not been filed in accordance with the rules. The learned District Judge has rightly appreciated the material on record and no fault can be found with the decision rendered by learned District Judge dismissing the petition. The learned counsel for the respondent has supported the impugned judgment, decree. 10. The Issue No.3 of the jurisdiction was not pressed before the learned District Judge, as noticed by him in the impugned judgment. The learned District Judge while deciding Issue No.1 has held that in view of the fact that after the restitution of the conjugal rights decree dated 23.3.1994, the husband filed divorce petition which was compromised on 26.3.1996. Thereafter, respondent lived with appellant for some time. In these circumstances, the learned District Judge has rightly held that the restitution of conjugal rights decree became meaningless. …8… 11. The appellant has pleaded that after the grant of restitution of conjugal rights decree dated 23.3.1994 in his favour he filed divorce petition against respondent which was compromised on 26.3.1996 and thereafter respondent joined his company. In these circumstances, the appellant has condoned the alleged acts of omissions and commissions of respondent prior to 26.3.1996. The alleged acts of omissions and commissions of respondent after 26.3.1996 and highlighted by learned counsel for the appellant can be culled out as follows:- (i) The respondent compelled the appellant to separate from his parents and he shifted to village Bhungarni and started medical practice; (ii) The father-in-law of respondent demanded money from the appellant for sending his son to foreign country; (iii) Respondent resided peacefully with appellant at Bhungarni for four months and then started compelling appellant to shift his medical practice to her parental village Hazara. The appellant refused and respondent started levelling false allegations of illicit relations of …9… appellant with the ladies of village Bhungarni; (iv) Respondent insulted and humiliated appellant with the help of his cousin Balbir Singh Dy.S.P. who in turn took the help of Sushil Kumar, Dy.S.P. and appellant was badly humiliated, insulted and threatened. On this appellant returned to village Oel in December 1997 along with respondent and their son where respondent stayed with appellant for about three months; (v) In March 1998 appellant went to parental house of respondent at village Hazara where he was beaten, humiliated by the father, mother, brother and sister of respondent, he was shunted out from the house for the reason the appellant simply asked the respondent why she has brought Rs.22,500 and his entire jewellary with her while visiting to her parents’ house; and (vi) Respondent and her parents lodged a complaint at Mahila Police Station, Jallandhar on 7.4.1998 and her parents started demanding Rs.10 lacs for withdrawing the complaint. …10… 12. The Rule 5 of the Hindu Marriage and Divorce (Himachal Pradesh) Rules, 1982 provides specific pleading of cruelty, relevant part of Rule 5 is as follows:- “5. Contents of the petition.- In addition to the particulars required to be given under Order VII, Rule 1 of the Code and Section 20 (1) of the Act, all petitions under Sections 9 to 14 of the Act shall state:- Xxx xxx xxx Xxx xxx xxx (g) the matrimonial offences charged or other grounds, upon which relief is sought, setting out with sufficient particularity, the time and place of the acts alleged, and other facts relied upon but not the evidence by which they are to be proved, e.g.: Xxx xxxx xxx xxxx (iv) In the case of cruelty, the specific acts of cruelty and the occasion when and the place where such acts were committed and that the petitioner has not in any manner condoned such acts of the respondent.” The appellant has alleged some incident of March 1998, which took place in the house of in-laws of appellant, when he and respondent visited them in March 1998, he has also given the date of lodging of complaint at Mahila Police …11… Station, Jallandhar on 7.4.1998. The appellant has not given specific dates of other incidents which he has alleged in the petition. The appellant has appeared as PW-5 and in his statement in the Court he has not given any specific date of lodging of the complaint at Mahila Police Station, Jallandhar. The allegations of appellant of putting pressure on him to separate from his parents are vague. In his own statement, the appellant has not elaborated the allegations against respondent for putting pressure on him for separating from his parents. The allegation of the appellant that father-in- law of the respondent demanded money from the appellant for sending his son to foreign country cannot be termed an act of cruelty on the part of the respondent inasmuch as in the petition there is no allegation that father-in-law of the appellant demanded the amount at the instance of respondent. The appellant has also alleged that when respondent was living with him at Bhungarni she started compelling him to shift to her parental village Hazara and start medical practice at that place and when he refused then respondent started levelling false allegations against the appellant of illicit relations with the ladies of village Bhungarni. According to the appellant, this allegation defamed appellant which caused mental cruelty to him. …12… 13. PW-1 Piara Singh has stated that the entire village was aware of the allegations which were levelled by respondent against the appellant. This witness has even named a lady Googli with whom the appellant was having illicit relations. He has stated that appellant had left the village as he was defamed on account of his relations with Googli. The statement of PW-1 indicates that even the witness of the appellant has admitted that appellant had illicit relations with Googli and for that reason he left the village. In this context, it cannot be said that the allegation of relations of appellant with other ladies of village Bhungarni were without foundation. It is different that appellant has failed to prove that such allegations were levelled by respondent. In case the appellant was defamed on account of his illicit relations with some lady for that he is to blame himself not the respondent. 14. The appellant in his statement has stated that Balbir Singh cousin of respondent was posted as Dy.S.P. Punjab and at his instance the appellant was called in the office of Sushil Kumar, Dy.S.P. and in that office he used to abuse him by making him to stand throughout the day. He has not stated the date, month and the year when he was called in the office of Sushil Kumar, Dy.S.P. PW-1 Piara Singh has stated that cousin of respondent called appellant …13… through Sushil Kumar Dy.S.P. 2/3 times in the Police Station and the police people used to advise the appellant to maintain harmony. This witness has nowhere stated that Sushil Kumar used to abuse the appellant. Thus, the allegation of ill treatment by respondent at the hands of her cousin Balbir Singh Dy.S.P. and at his instance through Sushil Kumar, Dy.S.P. are not proved. 15. The appellant has also alleged that in March 1998 he was beaten, humiliated by the father, mother, brother and sister of respondent and he was turned out from the house and he came to village Oel. Thereafter, appellant met respondent and her parents at village Hazara along with Mohinder Kaur, Member, Zila Parishad, Kapurthala. In the petition, the appellant has pleaded that on the fateful date he was given beatings by the father, mother and brother Rajinder Singh and sister Madhu of the respondent. In his statement, he has not named any one but has stated that family members of the respondent gave him beatings. In his statement, he has stated that thereafter he approached Sarpanch of village Hazara along with Member Zila Parishad and other persons. The appellant has not examined Member, Zila Parishad, Kapurthala or Sarpanch village Hazara with whom he allegedly met the respondent and her parents after the incident of March 1998. The allegation of …14… alleged beating of appellant by respondent, her parents, brother and sister has not been proved. 16. The allegation of report with Mahila Police Station, Jallandhar appears to have some substance in it inasmuch as the appellant in his statement has admitted that the complaint lodged against him at Mahila Police Station, Jallandhar was with respect to the fact that he used to give beatings to the respondent and demanded money from her. The appellant has not proved that this allegation was without any foundation or it was baseless and was levelled only to humiliate the appellant. The filing of the complaint to the lawful authority by aggrieved wife having some semblance of truth cannot be said to be an act of cruelty unless it is proved that the complaint was lodged absolutely without foundation and only to harass and humiliate the husband. 17. It has come on record that the parties are living separately and a male child of the parties is residing with respondent. The appellant has very categorically stated in his statement he is not prepared to keep the respondent with him. The respondent is living with her parents at village Hazara. The appellant did not meet the child and met him only in the Court. This indicates the conduct of the appellant. The learned counsel for the appellant has …15… submitted that marriage between the parties has broken down and, therefore, it may be dissolved by a decree of divorce. He has submitted that no useful purpose will be served by keeping the matrimonial tie intact of a dead marriage. In support of this submission, he has relied upon A.Jayachandra versus Aneel Kaur, (2005) 2 SCC 22; Smt.Shyam Lata versus Subhash Chand, Latest HLJ 2007 (HP) 1137 and Samar Ghosh versus Jaya Ghosh, (2007) 4 SCC 511. The legal position in this context is clear that irretrievable break down of marriage is not a ground for divorce under the Act but it can be taken into consideration while deciding the petition in view of the facts proved on record. Simply because marriage has broken down is not a ground of divorce, what is to be seen is the party at fault. The defaulting party cannot take benefit of his / her own wrong by pleading that marriage between the parties has broken down and, therefore, on this ground alone decree of divorce be granted. In the present case, the respondent has proved that she is not at fault, rather the fault lies with the appellant. Therefore, marriage between the parties cannot be dissolved simply on the ground that marriage between them has broken down in absence of proof of other legal grounds for dissolution of marriage. The learned District …16… Judge has appreciated the material on record rightly and no ground for interference has been made out. 18. No other point has been urged. 19. The result of the above discussion, the appeal fails and is accordingly dismissed. No costs. December 31, 2008(soni) ( Kuldip Singh ) Judge.