V.K. Agrawal, J.
This appeal is directed against the judgment and decree dated 31-1-98 in Civil Suit No. 34-A/96, by District Judge, Satna, allowing the respondent/ husband''s petition for dissolution of marriage and divorce.
Undisputably, the parties were married about 15 years prior to the filing of the divorce petition by the husband/respondent. Two daughters were born out of the said wedlock. The parties are now not residing together and the appellant/wife at present is living at Village Pindra with her father along with her daughters. On the report of the appellant/wife a criminal case for an offence punishable u/s 498A of the Indian Penal Code, was registered by Police Station, Uchehra and charge-sheet has been filed against the respondent/husband and others; in the Court of Judicial Magistrate, First Class, Nagod.
The respondent/husband filed a petition u/s 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ''Act'' for short), praying for a decree of dissolution of marriage and divorce alleging that the father and brother of appellant/wife used to pressurise the respondent/husband to secure his share in the family property after getting it partitioned and shift to Village Pindra, where father and brother of the appellant/wife reside. However, the respondent/husband was not inclined to accede to their demand as above. Hence, the appellant/wife along with her daughters left the matrimonial home in December, 1991 and started residing with her father at village Pindra against the wishes of the respondent/husband. The respondent/husband further averred that despite his efforts to bring back the appellant/wife with him, she did not come back and has thus deserted the respondent/husband for the last five years. It was also averred by the respondent/husband that the appellant/ wife lodged a false report against him on 22-5-1995 at Police Station, Uchehra, on account of which the respondent/husband, his father and uncle were arrested by the police on 25-5-1995. The respondent/husband averred that the appellant/wife is not performing her matrimonial obligations and has thus been treating him with cruelty. Therefore, the respondent/husband prayed for dissolution of marriage and decree of divorce.
The appellant/wife denied the allegations as above. According to her, the respondent/husband and his parents on account of her dark complexion used to taunt her and called her ''Kaluti''. They used to misbehave with her and torture her. They also used to demand gold ornaments. Since the father of the appellant/wife had no means to fulfil their demand, the respondent and his parents used to maltreat and beat the appellant/wife. The appellant further averred that on account of maltreatment as above, she was left with no option but to leave her matrimonial home, and to go with her father in December, 1994. It has further averred by the appellant/wife that the respondent/husband on 19-5-1995 had remarried Guddi daughter of Biharilal, resident of Village Kalpa. On learning about the second marriage of the respondent/husband the appellant/wife went to her matrimonial home; where her husband/respondent and his family members, maltreated and manhandled the appellant/wife and forced her to go back with her father. The appellant/wife thereupon lodged the report of the incident at Police Station, Uchehra. She prayed that divorce petition being founded on false grounds, be dismissed.
It was held by the learned Trial Court that the appellant/wife had not deserted the respondent/husband and that the appellant/wife was manhandled and forced to go away from her matrimonial home by the respondent and his family members on 22-5-1995. The learned Trial Court also held that the respondent/husband had married Guddi; from whom the respondent had also begotten a son. It was further held that the report lodged by the appellant/wife against the respondent/husband was not false. Accordingly, the Trial Court recorded a finding that the appellant/wife did not treat the respondent with cruelty. The learned Trial Court observed in para 14 of the impugned judgment that the respondent/husband is not entitled to a decree for divorce on the ground of''desertion'' and ''cruelty'' raised by him. However, it was further observed by the learned Trial Court in the same para, that it appears from the evidence of the appellant/wife, that the respondent/husband had married for the second time on 19-5-1995, and as there appears to be no chance of improvement in the strained relations of the parties, hence a decree for divorce u/s 13(1)(i) of the Hindu Marriage Act, 1955 (hereinafter referred to as ''Act'' for short) deserves to be granted.
The learned counsel for the appellant submitted that as the Trial Court held that grounds u/s 13(1) of the ''Act'' alleged by the husband/respondent were not established, therefore, decree for divorce could not have been granted in favour of the respondent/husband merely because the appellant/wife alleged and proved that second marriage was performed by the husband/respondent. It was submitted in the above context that the respondent/husband could not be permitted to take advantage of his own wrong viz. marrying for the second time.
As against this, the learned counsel for the respondent/husband, supported the impugned judgment and decree of divorce. It was urged that the respondent/husband was entitled to a decree of divorce as he had established grounds of desertion and cruelly by leading satisfactory evidence.
It is clear that the respondent in his petition sought dissolution of marriage on the grounds u/s 13(1)(i) (ia) and (ib) of the ''Act'', alleging desertion and cruelty by the appellant/wife. He could only succeed on proving both or at least one of the said grounds. It has therefore to be considered as to whether both or any of the above grounds stand established ?
It would appear from the pleadings of the husband/respondent''s petition, that his main plank for seeking divorce was desertion by the appellant/wife. Elaborating on the meaning and purport of ''desertion'', the Supreme Court in a recent decision in Savitri Pandey v. Prem Chandra Pandey (AIR2002 SCW 182) referred to its earlier decisions in
It may be noticed in the above context that the statement of Butti Bai (NAW 1) supported by the statements of her father Bhagwandas (NAW 2) and brother Badri Prasad (NAW 3), indicates that the respondent/husband married another woman Guddi, during the subsistence of his marriage with the appellant/wife. It also appears from birth certificate (Ex. D-1) that a son was also born, from the said second marriage. It is also noticed that the averments as above by the appellant/wife have not been controverted by the respondent/ husband in his pleading. In view of the above, the statements of the respondent/husband and his father denying the fact of second marriage cannot be accepted in preference to the oral and documentary evidence of the respondent/wife.
The appellant''s evidence also discloses that after learning about the second marriage by the respondent/husband, she went to her matrimonial home. However, she was maltreated and beaten by the respondent/husband and his relatives, and was thus forced to leave her matrimonial home. She therefore lodged report of the incident with Police, Uchehra. The evidence as above clearly establishes the defence of the appellant/wife that as the respondent/husband and his family members used to maltreat her, therefore she was forced to leave her matrimonial home. In the above circumstances, there was sufficient and reasonable cause for the appellant/wife to live separately from the respondent/husband. She could not be blamed for living with her father as she could not be expected to continue to live with the respondent/husband, in the foregoing circumstances. There was reasonable cause for the appellant/ wife to leave the matrimonial home, in view of maltreatment by the respondent/husband and his family members and he having married another woman. Therefore, the findings of the learned Trial Court that the ground of desertion by the appellant/wife is not established, is wholly justified.
It also appears that the respondent/husband has not led any reliable evidence to show that the appellant had treated him with cruelty. As she was beaten by the husband, she was justified in lodging the report with the police. The conduct as above of the wife cannot be termed as cruelty. In fact the evidence and circumstances of the case as discussed above indicate that the respondent/husband had been cruel to the appellant/wife.
Thus, the findings of the Trial Court that the respondent/husband has not been able to establish grounds of ''desertion'' and ''cruelty'', are fully justified and are affirmed.
Learned Trial Court was however of the view that since the evidence led by the appellant/wife indicates that the respondent/husband has remarried, therefore the marriage of the parties deserves to be dissolved on that ground. It was further observed by the Trial Court that the relationship of the parties is also not likely to improve even if a decree of restitution of conjugal rights and judicial separation was passed, hence decree for divorce was granted by it. Therefore the question that arises for consideration now is : as to whether the learned Trial Court even after holding that the respondent/husband had failed to establish the grounds for divorce as alleged by him, could still justifiably grant a decree for divorce in favour of the respondent/husband on the above basis ?
It may be noticed that decree for divorce can be granted only on one of the grounds enumerated in Section 13(1) of the ''Act''. Unless such a ground is properly pleaded and established by satisfactory evidence, a decree for divorce cannot be granted. As noticed earlier, the respondent/husband in the instant case failed to establish and prove both the grounds of ''desertion'' and ''cruelty'' set up by him on the basis of which he sought dissolution of marriage and decree for divorce. Since none of the grounds u/s 13 of the ''Act'' were established by the respondent/husband in his favour, he was not entitled to a decree for divorce, as prayed by him. In the above circumstances, the decree for divorce granted by the Trial Court in favour of the respondent/husband on the ground that the evidence of the appellant/wife establishes his marriage with another woman Guddi, would tantamount to the respondent/ husband taking advantage of his own wrong. He could not be permitted to do so.
It may be noticed that in Savitri Pandey''s case (supra), the Supreme Court has observed that in a proceeding under the ''Act'' the Court would decline to grant relief to the petitioner, if it is found that the petitioner was taking advantage of his own wrong or disability for the purposes of reliefs contemplated u/s 23(1) of the ''Act''.
The Trial Court also appears to be of the view that there were no chances of improvement in the relations of the parties. Therefore, it appears that the Trial Court was persuaded to grant decree of divorce, as according to it there was irretrievable break-down of marriage of the parties. However, the Trial Court was not justified in doing so.
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In view of the above, it is clear that the Trial Court committed a gross error in observing that since the evidence of the appellant/wife shows that the respondent/husband has married for the second time and since the relationship of the parties is not likely to improve, a decree of dissolution of marriage and divorce deserves to be granted. As the respondent/husband has failed to establish any of the grounds u/s 13(1) of the ''Act'' and as he cannot be permitted to take advantage of his own wrong, a decree for divorce in his favour could not be granted. The decree of divorce granted by the Trial Court therefore deserves to be set aside.
The appeal is therefore allowed. The impugned judgment and decree declaring marriage between the parties as dissolved, is set aside. The petition of the respondent/husband for divorce stands dismissed.
