IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (HMA) No.444 of 2003. Reserved on: 03.06.2008. Date of decision: June 05, 2008. Narain Singh … Appellant Versus Krishna Devi … Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? Yes1 For the Appellant : Mr Romesh Verma, Advocate. For the Respondent : Mr Navlesh Verma, Advocate. Kuldip Singh, Judge. The appellant was petitioner, who filed petition against respondent under Section 13 of the Hindu Marriage Act, 1955 (for short ‘the Act’) for dissolution of marriage which was dismissed by the learned District Judge, Solan, hence, the petitioner husband has come in appeal against the judgment, decree dated 9.5.2003 passed in H.M.Petition No.47-S/3 of 2001. 2. The facts, in brief, are that appellant filed a petition under Section 13 of the Act for dissolution of marriage which was solemnized by him with respondent on 4.5.1992. The grievance of Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… the appellant, projected by him in the petition, is that parties lived together for brief time at village Sai, Tehsil Arki. The appellant was working at Shimla in I.B. and the respondent was working as JBT Teacher in Government Primary School, Surajpur (Piplughat). In January 1996 appellant was transferred to Chandigarh and respondent was also transferred to Government Primary School, Balera. The respondent stayed at village Sai till January 1997 with the family of the appellant. It has been alleged that during this period her conduct with her in-laws was rough and dominating. She used to insult the parents of the appellant and also the appellant. She levelled allegations against appellant for having adulterous relations with women at Chandigarh. She refused to discharge her matrimonial relations and also deprived the appellant physical access to her. She adopted hostile attitude and cruel behaviour towards appellant and left matrimonial home. She threatened to take drastic steps in case she was compelled to return to matrimonial home. The appellant and his father tried their best to persuade appellant to continue matrimonial tie but the respondent had brought the cohabitation to a permanent break for the last about five years. It has also been stated that the appellant had earlier filed petition under Section 13 of the Act against the respondent but due to some mistake that petition was dismissed in default. On these facts, the appellant filed divorce petition against respondent on the grounds of cruelty and desertion. 3. The petition was contested by respondent wherein she took preliminary objections of maintainability, res-judicata. She …3… denied the case put forward by appellant. She has submitted that she resided in her matrimonial home at village Sai till she was posted in Government Primary School, Balera. She has taken the plea that she was ready and willing to live with the appellant along with his family. She denied the allegation that she was disrespectful to her in- laws and the appellant. She has submitted that her father and close relations approached the appellant and his parents and requested them to keep the respondent properly but appellant told her father and other relations that he was not interested to continue with the respondent. She was neglected and appellant refused to revive the matrimonial tie. In June 2001 she visited appellant at Chandigarh but she was turned out without any reasonable cause. She has alleged that appellant has deserted her. The learned District Judge dismissed the petition on 9.5.2003, hence, husband has come in appeal. 4. I have heard Mr.Romesh Verma, learned counsel for the appellant, Mr.Navlesh Verma, learned counsel for the respondent and gone through the record. On behalf of the appellant, it has been submitted that the evidence has not been properly appreciated by learned Court below. The appellant has proved cruelty as well as desertion in the present case. There is irretrievable breakdown of the marriage and, therefore, no purpose would be served by keeping the matrimonial tie and on this ground also, it has been submitted, the appellant is entitled to dissolution of marriage. The learned counsel for the respondent has supported the impugned judgment, decree. …4… He has also submitted that the petition filed by the appellant is not in accordance with the rules, vague allegations have been levelled in the petition whereas the requirement of the rules is that the allegations of cruelty and desertion should be specific. He has submitted that appellant has miserably failed to prove cruelty and desertion on the part of the respondent. The appellant cannot be permitted to take shelter of irretrievable breakdown of the marriage and to seek divorce on this ground when he himself is to be blamed for keeping distance from the respondent. He has also submitted that appellant had earlier filed divorce petition against the respondent on the same grounds which was dismissed in default on 5.6.2001, hence another petition for divorce on the same grounds is not maintainable. 5. PW-1 Narain Singh has stated that in January 1996 he was transferred to Chandigarh and his wife started living with his family at village Sai. She stayed there for about four months and then she started living with her relations. She ill treated his parents during her stay with them. In 1996 in his absence she left matrimonial home after quarrelling with his family. In December, 1997 he, his father and Kunt Ram, Ward Member, approached the parents of respondent but they refused to send the respondent with him. In October 2000, he, his father and uncle Roshan Lal etc. again went to the house of his in- laws but respondent abused them and refused to join his company. The respondent has kept no relations with him since 1996. Thus, except for mentioning year and at some places month and year, the …5… appellant has not given any specific instance of the ill treatment given by the respondent to him and his family. 6. PW-2 Jeeva Nand is the father of appellant. He has also given general statement without disclosing specific instances of ill treatment given by respondent to him and his son. PW-3 Kunt Ram has stated that in the year 1996 he had not seen the parties together at village Sai whereas it is the case of the appellant that at least for about four months the respondent lived with his parents at village Sai, thus, PW-3 has been contradicted by appellant himself. PW-3 Kunt Ram has stated that in December 1997 he went to the house of the parents of respondent and the respondent refused to join the company of the appellant but no allegation was made against the appellant by them. It is not understandable when respondent and her parents made no allegation against the appellant then why the respondent should refuse to join the company of the appellant. Therefore, statement of PW-3 Kunt Ram that respondent refused to join the company of appellant in that meeting is not believable. PW-4 Shonka Ram has stated that in October 2000 he went to the house of the parents of the respondent along with others but on request made by them to respondent to join the company of the appellant she refused. She did not level any allegation against the appellant. PW-1 Narain Singh and PW-2 Jeeva Nand have stated that in October 2000 Shonka Ram accompanied them and in his presence respondent abused them as well as the family members of the appellant but both of them have been contradicted by PW-4 Shonka Ram when he has …6… stated that respondent did not make any allegation against the appellant nor in his statement he has stated that she abused appellant and his family members. PW-6 Shankar in his statement has not supported the appellant regarding the ill treatment given by respondent when appellant and others went to the house of parents of the respondent. 7. RW-1 Smt.Krishna Devi in cross examination has admitted the suggestion that on the transfer of her husband to Chandigarh she stayed with him. She has also admitted that after her posting at Balera she started living with her in-laws at village Sai. She has denied that she ill treated the appellant and his family. She denied that she lived with her in-laws for four months only after the transfer of her husband to Chandigarh. In her examination-in-chief, given by way of affidavit Ext.R-1 the respondent has specifically stated that she is ready and willing to live with her husband. In Ext.R- 1 she has stated that she wants to live with her husband but he is not ready to keep her. RW-2 Kanhaiya Ram is the father of respondent and he has supported the case of his daughter in general. 8. In Savitri Pandey versus Prem Chandra Pandey, (2002) 2 SCC 73, it has been held that cruelty has not been defined under Section 13(1) (i-a) of the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other …7… and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Cruelty, therefore, postulates a treatment of the petitioner of such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. The appellant, however, in the present case has not led evidence of the nature so as to bring the conduct of the respondent which can be termed as cruelty. The evidence led by the appellant is of general nature and from that evidence it does not emerge that the respondent has treated the appellant with cruelty. Hence, appellant has failed to prove that respondent has treated him with cruelty. 9. The marriage can be dissolved on the ground of desertion if factum of separation and intention to bring cohabitation permanently to an end, namely, animus desrendi are proved by the aggrieved spouse. The appellant has led some evidence that respondent is living separately for some time. But living separately in itself does not amount to desertion. The spouse may be living separately due to requirement of job. Separate living of the spouse should be without reasonable cause and at the same time it should …8… not be attributable to the conduct of the spouse who has filed petition for divorce. It has come on record that both the appellant and respondent are in service. The appellant is in Central service and the respondent is in State service. In these circumstances, during service career of the parties, it is not possible for them to live together for all times to come. The respondent has specifically stated in her evidence that she is ready and willing to live with appellant. This shows that the respondent has every intention to live with the appellant and to continue matrimonial tie. Therefore, it cannot be said that the respondent has intention to bring cohabitation permanently to an end. On the basis of material on record, the appellant has failed to prove desertion in the present case. 10. The learned counsel for the respondent has relied Parvati versus Shiv Ram and another, 1988 (2) Sim.L.C.204, wherein after noticing the rules, it has been held that petitioner in that case had not pleaded any of the grounds for decree of divorce contemplated by Section 13(1)(i-a) and (i-b) and, therefore, any amount of evidence would not help the petitioner for getting a decree of divorce. Before proceeding further, it is necessary to take note of the Hindu Marriage and Divorce (Himachal Pradesh) Rules, 1982 (for short ‘the rules’). As per clause (iii) of Rule 5 in the case of desertion, the date and circumstances in which it began is to be pleaded in the petition, similarly as per clause (iv) of Rule 5 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 …9… manner condoned such acts of the respondent are to be pleaded in the petition. The perusal of petition, filed by appellant, would show that he has taken the plea of cruelty and desertion simultaneously in the petition. The case of the appellant is that respondent has treated him with cruelty and has also deserted him, therefore, he is entitled to divorce. The appellant in Para-4 of the petition has pleaded generally that during the stay of the respondent with the family of the appellant the conduct of the respondent with the family members of the appellant was very rough, she gave them insultive and abusive treatment and even appellant was not spared. She failed to discharge her matrimonial obligations. This caused immense pain and injury to the appellant. The appellant in Para-5 of the petition has pleaded that after staying for about four months in the house of appellant in village Sai, the respondent left the matrimonial house without any cause and declared that she had put to an end her matrimonial relationship with the appellant. The appellant has then pleaded that when efforts were made to bring back the respondent but she declined to revive the matrimonial relationship. In Para-7 of the petition the appellant has pleaded that respondent left matrimonial house of the appellant in 1996 and has deserted the appellant. He has also stated in the petition that earlier divorce petition was filed by him on the same grounds but that petition was dismissed in default on 5.6.2001. It has been vaguely stated in the petition that after filing the petition the respondent has not joined the society of the appellant. In the present case also, the appellant has not pleaded desertion and …10… cruelty grounds of divorce contemplated under clauses (i-a) and (i-b) of sub-section (1) of Section 13 of the Act in accordance with requirement of rule 5 of the aforesaid Rules. The pleadings on the point of cruelty and desertion of the appellant are absolutely vague and, therefore, no amount of evidence led by the appellant is of any help to him. 11. The appellant has admitted in the petition itself that he earlier filed divorce petition against the respondent on the same grounds which petition was dismissed in default on 5.6.2001. In Gurcharan Singh versus Mukhtiar Kaur, 2002(1) PLR 596, it has been held that when the allegations of cruelty and desertion are same in the earlier petition which was dismissed in default a fresh petition on the same grounds is barred. Therefore, the present petition filed by the appellant on the same grounds is not maintainable. 12. The learned counsel for the appellant has submitted that the marriage between the parties has irretrievably broken down and on this ground the appellant is entitled to decree of divorce. He has relied on Samar Ghosh versus Jaya Ghosh, (2007) 4 SCC 511. In this judgment, the Apex Court in Para-102 of the judgment, after noticing various factors, along with the circumstance that the parties were living separately for more than 16 ½ years, a conclusion was drawn that the matrimonial bond between the parties has ruptured beyond repair because of mental cruelty caused by the respondent. In Shyam Sunder Kohli versus Sushma Kohli alias Satya Devi, (2004) 7 SCC 747, the Supreme Court has held that marriage could …11… not be dissolved on the ground of irretrievable breakdown when the wife was forced to leave the matrimonial home. In the present case also, the wife has offered to live with the appellant but appellant has created circumstances to the wife to live separately, therefore, appellant cannot take benefit of his own fault to seek divorce on the ground of irretrievable breakdown of the marriage. In A.Jayachandra versus Aneel Kaur, AIR 2005 SC 534, the Supreme Court has held that it is true that irretrievable breaking of marriage is not one of the statutory grounds on which Court can direct dissolution of marriage but the Supreme Court with a view to do complete justice and shorten the agony of the parties engaged in long drawn legal battle, directed in those cases dissolution of marriage. The Supreme Court under Article 142 of the Constitution has all powers to pass such order as is necessary for doing complete justice in any case. Therefore, aforesaid judgments of Supreme Court, in the facts of the present case, are of no help to the appellant. The learned District Judge has appreciated the material on record properly. The appellant has failed to make out any case for interference of the impugned judgment and decree. 13. No other point was urged. 14. The result of the above discussion is that the appeal fails and is accordingly dismissed. No costs. June 05, 2008(soni) ( Kuldip Singh ) Judge.