467 4 i FAON0M4130f2002 1 rr IN THE HIGH COURT OF PUNJAB AND CHANDIGARH FAO No Mall3 of2002 08M9 Date ofdecisionlrm22009 MahenderPal Appellant 1 Versus SarojDevi 0 C CORAM HONBLE MR JUSTICE VINOD K SHARMA C5 Present Mr RC GuptaAdvocate for theappellant Z Mr Ashwani Gaur Advocate for the VINOD K SHARMA Je I This is husbandsappealagainstthejudgmentand decreedated 08 2912002 passedby the leamed Additional District JudgePanipat dismissing the petitionfiled by the appellant under Section 13 of the 7 Z Hindu MarriageAct 1955 Ll The appellantsoughtdecree of divorce on the pleadingsthat themarriagebetweentheparties was solemnizedat Panipataccording to Hindu rites and ceremonies on 2211995 The marriagewas said to be simpleas nothingwas as dowry On 1181996 the left the societyof the appellant without any sufflcient cause and consent of the appellantand in spiteof having beenarranged shereAlsedtojointhesocietyofthe husband On 9 1998 the appellantfiled petitionfor dissolution of marriage on the groundofcrueltyand desertion which was contestedby therespondentThe pleaof crueltywas based on thepleadings that first . Anita 2012.08.30 11: 13 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 468 r FAO No Ma113 of2002 2 At wife of theappellant had died in the year old son The was also previouslymarried to one Sanjay Kumar Marriagebetweentherespondent and her previoushusbandwas dissolvedbydecreeofdivorce on 115994 The case set up by the appellant1S that frorn the very beginning the behaviourofthe with him and his parentswas 0 crue as she used to abuse the parentsof the appellant It is also a C I pleadedgroundfor divorce that was not takingcare of the C5 child bynot providing him food Other groundof crueltypleaded was that a false criminal case under Sections 4984061323 IPC was flled Z against the appellanthis old parentsand other familymembers and that r the respondent also flled a petitionunder Section 125 CrPC claiming rnaintenance a5 The case ofthe on the other hand is that it was the 7 appellantwho desertedher without reasonablecause andtreatedher with Z cruelty She admittedhavingfiled a case under Sections498J4061323 n IPC vide FIR No 285 at Police Station Chandni BaghPanipat The petitionwas in fact said to be a countereblasto the crhninal caseftled by the The allegations of torture for want of dowrywere also levelled The leamed Matrimonial Court did not acceptthe version of the appellantwith regardto the maltreatmentof the child on theground that at the time of marriagerespondentwas aware of the fact that appellant was havinga child of two years and that she had agreedto bringhim up therefore it could not be believedthat the respondent was not willingto keepthe child well . Anita 2012.08.30 11: 13 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 469 4 FAO NoMe1130f2002 4 The allegationthat the used to with theappellant and his parentswas also not believed as theappellant failed to examine his parentsin supportof theallegationsThe appellant had also failed to produceany neighbouror relative in supportof the case 1 r The Iearned Matrimonial Court held that the allegationof 0 respondent with regardto the demandof dowrystoodprovedfrom the 0 I report showingtheinjuriessufferedbytherespondent C5 The learned Court held that version givenby the respondent I was correct The learned Matrimonial Court therefore on appreciation Z of evidenceheld that it was the respondent who was treatedwith cruelty 111her matrimonial home on the demand of dowry and it was the I appellantwho was not willingto keepthe respondent with him The a5 learned Matrimonial Court came to the conclusion that the appellant a could not takebenefit ofhis own wrongsto seekdecreeofdivorce Z The learnedMatrimonial Court also did not acceptthe pleaof theappellantthat becausedivorce was grantedto the respondentbyher previoushusbandon the groundof crueltytherefore she was guiltyof crueltyto theappellant also The petitionfiled byappellant was dismissed Mr RlC Gupta leamed counsel appearing on behalf of the appellanthas challenged the impugned judgmentand decree on the groundthat the appellantwas treated with crueltyand the flnding recordedby the learned Matrimonial Court that it was the respondent who was treatedwith crueltyfor want of dowrycannot be sustained as in the criminal case registeredthe appellantand his familymembers . Anita 2012.08.30 11: 13 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 470 4 FAO No M413 of2002 k standacquitted The contention of the learned counsel for the appellant therefore is that the appellantand his familymembers havingbeen implicated in the false criminal case for which theyhad to face trial 1S itself a groundfor grantof divorce on groundof cruelty m Ct The learned ounsel for the appellantalso referred to the 0 additional evidenceled before this Court byway of Ex Pa3 and Ex P4 C I to show that the allegationsof dowrylevelled by the respondent were C5 also false as the civil suit for recovery filed by her was ordered to be dismissed Z The appeal1S opposedby the learned counsel for the C byplacingreliance on thejudgment of this Court in Radha I Rani Vse Har Bhagwan200301PLR 487 wherein th Court was 08 pleasedto lay down that initiation of legal by wife to 7 enforce her rightscannot be termed an act of crueltymerelybecause Z allegations could not beprovedbeyonddoubt The reliance was also placedon the Honble Division Bench judgment ofthe Honble Andhra PradeshHighCourt in Chinmjeevi Vs SmteLavanya20041 RCR C0 280 wherein the Honble Division Bench of the Honble Andhra Pradesh HighCourt was pleasedto lay down that acquittal of the husbandand in4aws in criminal under Section 49844 IPC initiated by the wife On the groundthat failed to prove the case beyondreasonabledoubt cannot be treatedas instance to substantiatethepleaofcrueltyon which decreeof divorce could begranted On consideration I ftnd force in the contentionsraised by the . Anita 2012.08.30 11: 13 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 471 1 FAO No M413 of2002 learned counsel for the The criminal Court V acquitted the appellantand his familymembersby givingbenefit of doubt keepingln view the fact that the injuriessuffered by the respondent were simplein nature It is now well settled that thoughfalse prosecutionof the r husbandand his familymembers lSan act of crueltywhich entitledthe 0 husband to decree of divorce but at the same time mere filingof a C criminal case for redressalof the grievances cannotbe said to be an act C5 of cruelty It is also well settledthat the civil and criminal Courts are I requiredto decide cases on the basis of evidence on Z record The civil decrees on which reliance has been placedvide which the claim of the for recovery of amount of dowry 08 articlesstandsdismissed cannot be a groundfor grantof divorce 7 The learned Matrimonial Court has dismissed the suit by Z placingreliance on thejudgment in the criminal Court vide which the L1 appellantstood acquittedbygivingbenefit of doubt The civil Court decree therefore doesnot advancethe case ofthe appellant The leamed Matrimonial Court on appreciation of evidence recorded a positivefindingthat the appellanthad failed to prove the allegations of crueltyby not examininghis parentsor any other witness The criminal Court also acquitted the appellantby giving benefit of doubt but theallegations and standtakenbyrespondent stood provedbefore the leamed Matrimonial Court The findingswith regard to harassmentof for want of dowryare basedon appreciation . Anita 2012.08.30 11: 13 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 472 e 4 8 FAO No M13 of2002 7 bf evidence on recordof the case The Ondings of the cannot be said to be arbitraryor outcome of of evidence which may call for interferencebytheappellate Court No fault therefore can be found with the findingrecordedby the learnedMatrimonial Court holdingthatthe appellant failed to prove 1 theallegations ofcruelty 0 Learned counsel for the appellantplacedreliance on the 0 I of the Honble SupremeCourt in Naveen Kohli VseNeelu C5 Kohli 200694SupremeCourt Cases 558 and Romesh Chander Vs I Savi t 99512SupremeCourt Cases 7 to contend that break Z down of the marriagebetween the partiesis irretrievable which is a 2 sufficient groundto grantdecreeofdivorce in favour ofthe appellant This contention of the learned counsel also deserves to be 08 noticed to be rejected in view of thejudgmentof the Honble Supreme 7 Court in AnU Kumar Ja Vs Maya Ja 2004l RCR CMo 310 Z holdingthat the High Court cannot grantdivorce to the partieson the Qm groundof irretrievablebreak down of marriageas it is not one of the grounds on which divorce could be grantedunder Section 13 of the Hindu Marriage Act For the reasons stated findingno merit in the appealit 1S orderedto be dismissed but with no order as to costs 4 Vinod K Sharmal Judge X 1 RS 1 . Anita 2012.08.30 11: 13 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document