L.P.A No. 106 of 2002 (O&M) ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH L.P.A No. 106 of 2002 (O&M) Date of decision : August 18, 2010 Sh. Daya Ram, ...... Appellant v. Smt. Bimla, ...... Respondent *** CORAM : HON'BLE MR. JUSTICE MUKUL MUDGAL, CHIEF JUSTICE HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. O.P.Goyal, Sr. Advocate with Ms. Kamaljeet Kaur, Advocate for the appellant. Mr. Jai Veer Yadav, Advocate for the respondent. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** MUKUL MUDGAL, CHIEF JUSTICE The appellant has challenged the order 16.8.2001 of the learned Single Judge reversing that of the trial Court and thereby dismissing the petition for divorce filed by the appellant. Brief facts are that marriage between the parties was solemnized on 2.5.1986 and a male child was born out of this wedlock. The appellant filed a petition under Section 13 of the Hindu Marriage Act on 10.6.1991 for dissolution of marriage by way of decree of divorce with L.P.A No. 106 of 2002 (O&M) ::2:: the allegations that soon after the marriage, the respondent used to leave the matrimonial home without his knowledge on many occasions and come back on her own. She ultimately left the company of the appellant on 17.2.1991 and started living with her parents. It was further pleaded that on 14.4.1991, some respectables from the appellant side tried to intervene but the respondent refused to join the company of the appellant. Thereafter, on 19.3.1992 the appellant moved an application for amendment of the petition to add a ground of cruelty which was allowed. The respondent contested the petition averring that in July, 1989 she was given beatings and thereafter on 26.1.1991 was turned out of the matrimonial home. The appellant also filed an application on 25.8.1992 stating that the respondent made false allegations in her application under Section 125 of the Cr.P.C to the effect that her mother-in-law forced her to adopt immoral ways and though her in-laws made a plan to kill her but on the asking of her mother- in-law, the respondent was turned out of the house. The appellant filed another application alleging that the respondent made some complaints. The respondent contested the said application by stating that she had to make complaints on account of harassment by her husband. The trial Court, after appreciating the evidence, held that the appellant was able to prove the allegations of cruelty and, therefore, granted a decree of divorce. The respondent filed an appeal before this Court against the judgment of the trial Court. The learned Single Judge noticed that the original allegations levelled by the appellant regarding desertion and cruelty were not considered at all by the trial Court who granted the divorce only on the ground that subsequently the respondent had made certain complaints L.P.A No. 106 of 2002 (O&M) ::3:: against the appellant which she could not prove; holding that the same amounted to cruelty. Learned counsel for the appellant has argued that there is a catena of judgments wherein false accusations have been held to be sufficient to constitute cruelty of such an order which would entitle the aggrieved party for divorce. He has further argued that the parties have now lived apart from the past 22 years and in any case the marriage has irretrievably broken down. As regards the first argument, it has to be kept in mind that the appellant has not been able to prove his original allegations and he is seeking to rely upon only the subsequent alleged acts of cruelty. The learned Single Judge has rightly concluded that the mere inability to prove the allegations made by the respondent would not ipso facto justify a conclusion that the said allegations were false. Apart from that, we are of the view that the unproved allegations of cruelty and desertion initially levelled by the appellant would put him in the same position as the respondent who may have made the allegations having been stung by the unfair and unjust allegations levelled against her by her husband. Furthermore, the determination of allegations and counter allegations by the parties are inexorably inter-linked. Consequently, mere consideration of the veracity of the allegations of the respondent without considering the legitimacy of the appellant's claim was not justified and the trial Court accordingly erred and the learned Single Judge rightly reversed the said judgment. To consider the plea of irretrievable break down of marriage between the parties, we requested Ms. Munisha Gandhi, Advocate of this Court to mediate between them to see if an amicable parting of ways could L.P.A No. 106 of 2002 (O&M) ::4:: be suggested. However, a settlement did not appear possible. In this view of the matter, upholding the order of the learned Single Judge, this appeal is dismissed with no order as to costs. As the main appeal has since been dismissed, all the pending civil miscellaneous applications, if any, also stand disposed of. ( MUKUL MUDGAL ) CHIEF JUSTICE ( AJAY TEWARI ) August 18, 2010. JUDGE `kk' L.P.A No. 106 of 2002 (O&M) ::5:: She has informed us that the respondent wanted a 50 yards plot in her parental village and some money to build a house thereon so that she may stay under her own roof. However, the appellant is adamant that he can not pay any thing more than Rs.2 lacs. She was willing to compromise on her demand but the appellant was obdurate. It is not disputed that the appellant is paying a sum of Rs.3,000/- per month as interim maintenance to the respondent. Even to secure this amount at today's interest rates would entail a deposit of Rs.4 lacs approximately. Since at the time of granting divorce permanent alimony has to be normally fixed (which would not easily be revised), in our opinion, atleast an amount of Rs.5 lacs would be payable by the appellant to the respondent. When we asked the parties we found that the attitude of the respondent was less stubborn.