F.A.O. No. M-55 of 2010 (1) In the High Court of Punjab & Haryana at Chandigarh. FAO No. M-55 of 2010 (O&M) Date of decision : 9.8.2010 Raghubir Singh .... Appellant vs Smt. Bhateri .... Respondent Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Sandeep Thakan, Advocate,for the appellant. Rajesh Bindal, J. The husband is in appeal against the judgment and decree dated 10.10.2009 passed the learned District Judge, Bhiwani, whereby he dismissed the petition of the appellant-husband filed under Section 13 of the Hindu Marriage Act for dissolution of marriage. Brief facts of the case are that the marriage of the parties was solemnised in March 1961, according to Hindu rites and ceremonies at village Rambas, Post Office Udda Maunthi, Tehsil Buhana (Khetri), District Jhunjhunu (Rajasthan). Out of the wedlock, five daughters were born. It was alleged that marriage of the daughters was performed by him and they are residing at their matrimonial homes. According to the appellant, the respondent wife is a hot tampered lady. She is under the influence of her brother. She does not like the appellant. She is living separately since November 1999. She is in habit of filing false complaints against the appellant. She had also tried to kill the appellant but every time she failed. It was also alleged that the wife treated him with cruelty. As she never returned back, the appellant filed petition under Section 13 of the Act before the court below for grant of a decree of divorce. Upon notice, the respondent wife filed written statement controverting the allegations made by the appellant and stated that the appellant had left her at her matrimonial home and he himself started living with his brothers separately and deserted her without any cause. She had herself arranged the marriage of her all the five daughters. When the appellant ignored her at every stage of life, finding no other option she filed suit titled as Smt. Bhateri etc. vs Raghuvir Singh and others, for declaration before the court of Additional Civil Judge (Senior Division) Charkhi Dadri against the appellant and his brother's sons, which was partly decreed on 21.12.2006. He had even tried to get ex-parte decree F.A.O. No. M-55 of 2010 (2) of divorce. It was averred in the written statement that she is still ready and willing to reside with the appellant if he takes back his land from his brother's sons. From the pleadings of the parties, the trial court framed the following issues:- 1. Whether the marriage between the parties to the petition is liable to be dissolved by way of decree of divorce on the grounds as alleged? OPP 2. Whether the petitioner has no locus standi or cause of action to file the present petition? OPR 3 Whether the petitioner is estopped to file present petition by his own act and conduct? OPR 4. Whether petitioner has not come to the court with clean hands, if so, to what effect?OPR 5. Whether the respondent is entitled to special cost under Section 35A of CPC?OPR 6. Relief. The learned trial court after considering the evidence led by the parties, dismissed the petition vide judgment and decree dated 10.10.2009. As the husband was not granted divorce, he has filed the present appeal. Heard learned counsel for the appellant and perused the paper-book. The grounds on the basis of which the appellant filed the petition are cruelty and desertion. The marriage of the parties took place in March 1961. Five daughters were born. The petition for dissolution of marriage was filed on 2.12.2004 i.e. after more than four decades. The respondent wife alleged that the appellant himself left her at the matrimonial home and started living separately with his brothers. When he started ignoring her and was not maintaining she was forced to file civil suit which was partly decreed. Meaning thereby that she had not deserted the appellant rather he had deserted the wife. The allegation of the appellant that he had performed the marriage of all the five daughters was also not proved by him. If he had performed the marriage of his daughters, he could easily prove the same by examining them in the court. But he failed to do so. The appellant could not prove his other allegation that the respondent wife wanted to kill him by giving poisonous substance in food/eatables items. He neither deposed about this fact nor proved the same on record by leading any medical evidence. When it is his own case that the respondent wife had left the matrimonial home in the year 1991 and started living separately, in that circumstances giving poison in the eatables is not possible. Rather it has come in F.A.O. No. M-55 of 2010 (3) the evidence that she had been left at the matrimonial home by the appellant without any source of living which shows that the appellant had deserted the wife and treated her with cruelty and it is not the wife as alleged by the appellant. What emerges from the material on record is that the divorce petition was filed in the year 2004 only when the wife asked for maintenance. Otherwise if the allegations made by the appellant are accepted to the extent that the wife had deserted him in the year 1999, there is no explanation for not approaching the court for 5 years as the divorce petition was filed in 2004 and there is no evidence that the appellant made any effort to bring the respondent wife back to the matrimonial relationship. In the light of above discussion, no case is made out to interfere in the judgment and decree of the court below. Resultantly, this appeal fails and the same is dismissed as such. 9.8.2010 (Rajesh Bindal) vs. Judge