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Upendra Kumar vs Sangeet Alias Babli on 6 September, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Court No. – 49

Case :- SECOND APPEAL No. – 64 of 2013

Appellant :- Upendra Kumar

Respondent :- Sangeet Alias Babli

Counsel for Appellant :- M.K. Gupta,Pankaj Agarwal,Sandeep Saxena

Counsel for Respondent :- Divakar Rai Sharma

Hon’ble Siddhartha Varma,J.

This second appeal has been filed against the judgement and decree dated 23.11.2012 passed by the Additional District Judge Court No.1 Muzzaffar Nagar in Civil Appeal No. 52 of 2011. It has been prayed that after the judgement and decree dated 23.11.2012 is set aside, the judgement and decree dated 18.5.2011 passed by the Additional Civil Judge (S.D.) Court No. 3 Muzzaffar Nagar in Petition No. 872 of 2005 be restored.

A petition under Section 13 of the Hindu Marriage Act, 1955, was filed by the appellant Upendra Kumar, the husband. It was stated in the petition that after the appellant i.e. Upendra Kumar had got married to the respondent Smt. Sangeeta on 10.4.1994 the latter came to her husband’s house at Alavalpur, Mazra, where her two sons who were aged about 8 years and 6 years at the time of the filing of the petition were born. It was contended in the Divorce petition that there was no compatibility between the husband and the wife as their intellectual levels did not match. The wife, it was stated, did not like her husband and she always wanted to stay with her mother in Village – Johra. The wife, it was stated in the petition, never agreed with anything the husband desired to do. At the time of marriage, the husband was doing a private job in Delhi. For some time, he had also worked privately in Faridabad. It was stated that the wife never wanted stay in the rented accommodation where the husband was staying and she always wanted to stay with her mother at Johra. There were always fights between the two of them and the neighbours used to witness the fights. There were times when for days together the wife never used to prepare food for the plaintiff-husband and he had to cook for himself.

It has further been stated in the plaint that when in 1997, the plaintiff husband became a Junior Engineer in the Railways and was posted in Bhusawal, District – Jalgaon, Maharashtra then the defendant-wife stayed with him for a very short period of time and in September 1998 when she entered into a fight with him she came back to her Mayaka. When she did not come back to him, he filed an Application for the restitution of conjugal rights. However, with the intervention of some known and respected people of the area, namely, Sri Tilak Ram, Sri Veersain and Sri Ram Swaroop, a compromise was entered into and the couple began to live together. This, however, did not restore normalcy. When the husband came to know that the wife was all the time asking his friends as to whether if the husband died would she be getting a job in his place and when the plaintiff husband suspected the character of his wife things again reverted to the original state. The wife again left the house of her husband and went to her mother’s house.

It has still further been stated in the plaint that on 15.4.2004, the plaintiff-husband went to the maternal home of the wife but she refused to come along with him. On 1.5.2004, the plaintiff husband went back to Bhusawal. In the plaint, it has been stated, that on 18.7.2004 the defendant wife alongwith her brother Mintu and her two sons reached Bhusawal and left her two sons behind and came to her mother’s house. On 3.12.2004, the plaintiff-husband came back to Delhi and started living with his children over there. In the plaint he has narrated an incident which occurred on 31.8.2005 whereby according to him, he was criminally intimidated at the instance of his wife. With regard to this criminal intimidation, he had also got a complaint lodged at Thana – Nazafgarh. He further stated that on 8.9.2005 even his father was threatened.

However, the wife in reply to the petition for divorce filed by the husband/plaintiff had denied the allegations made therein. She also stated that she had filed an application under Section 9 of the Hindu Marriage Act being Suit No. 779 of 1999 for the restitution of conjugal rights. She denied the fact that she had left the children with the husband and stated that, in fact, he had taken away the children forcibly and had forsaken the wife i.e. the defendant. The defendant wife had also denied any kind of adulterous living and she had stated that only to malign her reputation, the plaintiff-husband was stating that she was living with other men. She has stated that no other person had been arrayed as a party in the Divorce Petition by name. The suit for divorce was decreed on 18.5.2011. However, the First Appeal which was filed by the wife (the respondent here) was allowed and the suit was dismissed. The point for determination before the First Appellate Court was as to whether the conduct of the wife could be termed as being cruel towards the husband and because of the cruelty was it not possible for the two to live together as husband and wife.

A perusal of the judgement of the First Appellate Court shows that while deciding the point which it had determined for decision, the Court also decided as to whether there was desertion from the side of the wife. It also appears that the First Appellate Court looked into the fact as to whether the wife was responsible for the irretrievable breakdown of the marriage. The First Appellate Court while deciding the Appeal found that there was no desertion from the side of the wife and it was also found that there was no cruelty from her side and, thereafter, allowed the first appeal.

The instant second appeal was initially admitted on 20.10.2016. On various occasions i.e. on 20.10.2016, and thereafter efforts were made for re-conciliation. When no re-conciliation appeared possible, this Court on 22.5.2019 framed two questions of law which are being reproduced here as under:-

I. Whether the allegations made in the plaint amount to cruelty?

II. Whether the acts alleged would mean desertion?

The further question of law which was argued by the parties, though was not formulated, was whether divorce could be granted on the ground of irretrievable breakdown of marriage because of the fact that the parties were not living together for a very long time.

Learned counsel for the appellant submitted that the defendant wife was not staying with the plaintiff-appellant ever since May, 2004, and, therefore, there was no chance of them living together as husband and wife. He reiterated the various grounds which he had taken in the plaint for divorce. He also took the Court through the various evidence which could make the Court believe that the wife i.e. the defendant had forsaken the plaintiff and, therefore, there was a desertion. He also submitted that acts which were committed by the wife, the defendant, amounted to cruelty. He still further submitted that her staying with other men amounted to adulterous living. Therefore, he prayed that ths second appeal be allowed. The judgement and decree of the first appellate court be set aside and the decree of divorce as was passed by the Trial Court be restored.

Learned counsel relied upon the testimony of the plaintiff-appellant and one Sri Virendra Singh to substantiate his case.

Learned counsel for the appellant also relied upon certain decisions, namely, 2008 (7) SCC 734 : (SectionStatish Sitole vs. Ganga (Smt.), 2013 (5) SCC 226 : (SectionK. Srinivas Rao vs. D.A. Deepa), 2009 (5) ADJ 516 (DB) : (SectionMamta Dubey vs. Rajesh Dubey), 2009 (6) ADJ 189 : (SectionSandhya Singh vs. Major Sandeep Singh) and submitted that separate living for a very long time amounted to an irretrievable break down of marriage and a decree of divorce be granted.

Learned counsel for the plaintiff-appellant also submitted that divorce could be granted if there was only a single act of cruelty and relied upon 2010 (4) SCC 339 : (SectionManisha Tyagi vs. Deepak Kumar), 2012 (10) ADJ 619 (DB) : ( Arti Pandey vs. Vishnu Kant Tiwari), AIR 2010 Punjab and Haryana 72 : (SectionRattan Singh vs. Manjit Kaur).

Learned counsel for the respondent Sri Diwarkar Rai Sharma, in reply, however, submitted that the First Appellate Court had after looking into the evidence as was available on record had definitely come to a conclusion that there was no desertion from the side of the defendant wife and, in fact, had arrived at a definite conclusion that it was the plaintiff-husband who had managed things in such a manner that the separation of the two had resulted.

Learned counsel for the respondent took the Court through the various evidence and also the judgement of the First Appellate Court and stated that so far as any adulterous living was concerned, no finding could be arrived at as per the Hindu Marriage and Divorce Rules, 1956, as no name had been provided of anyone with whom the wife might have tried to live an adulterous life. In fact, the learned counsel of the respondent-wife drew the attention of the Court to the various findings which had been arrived at by the First Appellate Court and tried to convince the Court that the abandoning of the children, the fighting between husband and the wife and the criminal intimidation from the side of the wife were a figment of the imagination of the husband. Learned counsel also drew the attention of the Court to the evidence led by the wife regard to the case she had filed for the restitution of conjugal right. He also drew the attention of the Court to the application which the wife had filed for custody of the children.

In the end learned counsel for the respondents vehemently argued that when the husband himself was responsible for the irretrievable breakdown of the marriage then he could not seek divorce on that ground. Learned counsel for the respondent relied upon 2006 (1) AWC 183 : SectionRam Babu Babeley vs. Smt. Sandhya, and stated that the appellant-plaintiff could not take advantage of his own fault and say that the marriage had irretrievably brokendown and that a decree of divorce be granted. Learned counsel relying upon 2009 (7) JT 5 : SectionVishnu Dutt Sharma vs. Manju Sharma argued that irretrievable breakdown was not a ground provided in Section 13 of the Hindu Marriage Act, 1955.

The counsel for the respondents relied upon the maxim of law ‘NULLUS COMMODUM CAPERE POTEST DE INJURIA SUA PROPRIA’ and submitted that no man can take advantage of his own wrong. He submitted that the husband who had filed the petition himself, as per the evidence on record and as per the findings arrived at by the First Appellate Court, was responsible for the breakdown in the marriage. Learned counsel, therefore, submitted that the findings of fact as had been arrived at by the First Appellate Court could not be interfered with and the Second Appeal may be dismissed as such. He submitted that the substantial questions of law as were framed could not be called substantial questions of law which arose in this case and the findings were crystal clear in the judgement of the First Appellate Court. Regarding the question that separation would amount to irretrievable break down of marriage, learned counsel for the respondents submitted that the husband himself was responsible for the separation of the husband and the wife and this ground was not available to the appellant-plaintiff.

Having heard the learned counsel for the appellant and the learned counsel for the respondents, this Court is of the view that the findings as have been arrived at by the First Appellate Court had definitely found that there was not even an iota of evidence to show that the wife was responsible for any desertion or cruelty. From the findings as have been arrived at by the First Appellate Court it is clear that the plaintiff himself was responsible for the separate living of the husband and the wife and, therefore, irretrievable breakdown of marriage had occurred because of the plaintiff/husband himself. He himself was responsible for the breakdown and therefore could not take advantage of his own wrong. The principle enunciated in the maxim ‘NULLUS COMMODUM CAPERE POTEST wholly applies in this case. The plaintiff-appellant could not take advantage of his own wrong.

Under such circumstances, the appeal is dismissed. The substantial questions of law as were framed by this Court need not any further be answered.

Order Date :-6.9.2019

praveen.

(Siddhartha Varma,J.)

 

 

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