IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (HMA) No. 70 of 2005 Reserved on: 7.7.2009 Date of decision: 15.7.2009 Sandeep Thakur ……………Appellant Versus Smt. Pushpa Rani ……………Respondent Coram The Hon’ble Mr. Justice V.K. Ahuja, J. Whether approved for reporting?1No For the appellant : Ms. Shilpa Sood and Mr. Atul Jhingan, Advocates. For the respondent : M/s. Jeevesh Sharma and Inderjit Narwal, Advocates. V.K. Ahuja, J. This is an appeal filed by the appellant against the judgment passed by learned Additional District Judge, Fast Track Court, Solan, dated 15.11.2004, vide which the petition filed by the appellant, under Section 13 (1) (ia) and (1b) of Hindu Marriage Act, for dissolution of marriage on the grounds of desertion and cruelty was dismissed. 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 Briefly stated the facts of the case are that the appellant (hereinafter also referred to as the petitioner) filed petition under Section 13 of the Hindu Marriage Act for grant of decree of divorce. The petitioner alleged that the marriage in between the parties was solemnized on 10.6.1992, as per Hindu rites and ceremonies. The parties lived thereafter as husband and wife and a daughter was born out of the said wedlock, who was of the age of two and half years at the time of filing of petition in the year 2002. The petitioner alleged that the parties lived together as husband and wife cordially for 5-6 years. Thereafter, the respondent started pressurizing the petitioner to live separately from his widowed mother. It was also alleged that since the respondent was a permanent government employee, while the petitioner was an employee in a private courier service and was earning less than the respondent, therefore, the respondent started abusing the petitioner in the presence of his relatives and friends. He also alleged that the respondent refused to cook meals for him and the respondent has deserted the 3 petitioner since February 2000. Hence, the petition filed by the petitioner on the ground of desertion and cruelty. In reply, the respondent admitted the factum of marriage, birth of a child, but denied the remaining allegations. She pleaded that the petitioner intends to marry one Reena Parmar and as such, the present petition has been filed by the petitioner in connivance with his mother to obtain divorce and marry the said Reena Parmar. It was also alleged that the petitioner was in the habit of coming late and was seen several time on scooter with Reena Parmar. She pleaded that she never deserted the petitioner who has left the house out of his own accord. On the pleadings of the parties, the following issues were framed by the learned trial Court:- 1. Whether the petitioner is entitled to a decree for divorce on the grounds of cruelty and desertion as alleged?...........OPP 2. Relief. Parties led their evidence and learned trial Court decided issue No. 1 against the petitioner and in favour of the respondent and consequently dismissed the petition filed by the petitioner. 4 I have heard the learned counsel for the parties and have examined the record of the case. The submissions made by the learned counsel for the appellant were that the grounds of cruelty and desertion stand proved. It was also submitted that the respondent had levelled false allegations of the petitioner having relations with one Reena Parmar which amounts to cruelty. Thus, it was submitted that since the parties are living apart since 2001 and there are no chances of reconciliation, the petition filed for grant of divorce should be allowed. To support of the above contentions, learned counsel for the appellant has relied upon the following decisions:- The decision in G.V.N. Kameswara Rao v. G. Jabilli, AIR 2002 Supreme Court 576 shows that the petitioner-husband was working in USA. He alleged that attitude of wife was not cordial and cooperative causing him mental cruelty. Wife returning back to India. She prevented the petitioner to enter his house when he came to persuade her to return. She also filed criminal 5 complaint against petitioner and his mother. It was held that the husband was entitled for the divorce. The decision in Shyam Lala v. Subash Chand, Latest HLJ 2007 (HP) 1137 shows that the term desertion was discussed and it was observed that the factum of desertion and intention of the respondent to break the matrimonial tie permanently stands established by the long conduct of the respondent to live separately without any just and reasonable cause. It was also observed that the relation of husband with a woman amounts to cruelty. The decision in A. Jayachandra v. Aneel Kaur, AIR 2005 Supreme Court 534 shows that the term ‘cruelty’ has been discussed when it is used in relation to human conduct or human behaviour. The facts of the case were that the respondent wife asked husband to do certain things casting doubt on reputation, character and fidelity of her husband. It was held that it amounts to cruelty. Keeping in view the facts of the case their Lordships observed that there was irretrievable breaking of marriage though not a ground for dissolution of marriage, hence divorce was granted. 6 The decision in Satish Sitole v. Ganga, AIR 2008 Supreme Court 3093 shows that the parties lived separately for 14 years making acrimonious allegations against each other. Petitioner husband had failed to prove cruelty and desertion. However, it was observed that the attempts of reconciliation proved futile. Therefore, continuance of such marriage would itself amount to cruelty. In view of the facts of that case their Lordships granted decree of divorce with adequate provision of alimony while exercising their powers under Article 142. On the other hand learned counsel for the respondent has supported the findings recorded by the learned trial court for the reasons given therein. Coming to the findings of the learned trial Court in regard to the allegations made of cruelty, the learned trial Court had discussed all these allegations and the evidence in this regard. The first allegation was that the respondent was pressurizing the petitioner to live separately from his mother. The learned trial Court has referred to the testimony of the petitioner and after referring to the testimony of his mother who admitted 7 that both parties had agreed to live separately, the trial Court had rightly concluded that this allegation was not proved. Coming to the second allegation that the respondent used to taunt the petitioner and his mother for the low income of the petitioner. To substantiate this allegation the petitioner had examined himself as well as PW3 Bablesh Kumar who stated about the visit made by him to the house of the parties. The learned trial Court had referred to his testimony and rightly concluded that he was not a reliable witness since he states that he visited the parties in the end of the year 2001 but the evidence shows that the parties had not been living together since July 2001. The other reasons have also been given by the learned trial Court in disbelieving him that he states that a separate house was taken across the road, though the evidence of the petitioner and PW2, his mother, shows that a separate house was taken in the same building. There was no other witness examined or any other instance of cruelty in this regard proved by the petitioner which allegations were denied by the respondent in her statement. There was no specific suggestion to the respondent in regard to such type of 8 cruelty meted-out by her and it was only suggested in regard to the presence of PW3 Bablesh Kumar and there were no suggestions of disrespecting the petitioner in presence of any other relatives. This allegation was also not substantiated and rightly the learned trial Court held that this does not stand proved. This fact cannot be ignored as has come up in the testimony of respondent that when she married the petitioner she herself was employed in a government service, while petitioner was studying and was not earning anything. It has come up in evidence that subsequently he joined some courier service and it has admitted by him that he was getting less income than the respondent. However, the evidence does not establish that the respondent had been disrespecting the petitioner in presence of the friends and relatives due to the fact that she was earning more than the petitioner. The plea taken that the respondent had refused to cook food for petitioner or wash his clothes, this has to be decided by both the parties as to how they solve this problem. However, the learned trial Court after referring to the 9 evidence had rightly held that this plea does not substantiated. In regard to the allegation of having known some Reena Parmar, whom the petitioner wants to remarry after divorce respondent had never levelled any allegation of any illicit relations in between the petitioner and said Reena Parmar. She has simply stated that the petitioner had been seen moving on the scooter with Reena Parmar to whom he wants to marry after divorce with the respondent. These allegations are not such amounting to cruelty and they do not level any charge of illicit relations with said woman. It may be that the petitioner was willing to re-marry with the said lady and making such allegation of proposed marriage do not lead to cruelty. Petitioner denied that he knows any such woman, though the respondent was supported by the testimony of RW2 Kirti Nath but this does not prove that false allegations of illicit relationship were levelled by the respondent and this is not a ground to hold that the respondent had treated the petitioner with cruelty. In regard to the plea of desertion there is evidence to this fact that the parties are living apart since July 2001 but 10 there is nothing to show that the respondent had deserted the petitioner, rather evidence shows that the petitioner had stopped living in the house in which he was living earlier alongwith the respondent. Thus, learned trial Court had rightly concluded that the petitioner had failed to prove the ground of cruelty and desertion. However, since the parties are living apart it cannot be taken as a ground to grant the decree of divorce that the marriage has irretrievably broken down once this was not a ground taken by the petitioner at the time of filing of the petition. Once the petitioner has failed to prove both the grounds, no decree of divorce in the facts and circumstances of the case can be granted in favour of the appellant. The parties are living apart since July 2001 and the present petition was filed in October 2002 and therefore, it is clear that at the time of filing of petition the parties were not living separately for the last two years, as provided under Section 13 (1) (1b) of the Hindu Marriage Act and therefore, the ground of desertion was not available to the petitioner. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the 11 appellant, which is dismissed alongwith the costs including lawyers’ fee assessed at Rs. 2000/-. Memo of cost be prepared. (V.K. Ahuja), 15th July, 2009 Judge. (vs)