Punjab-Haryana High CourtRajinder Singh vs Balbir Kaur on 20 January, 1993Equivalent citations: II(1993)DMC181JUDGMENT
 

Amarjeet Chaudhary, J.1. The appellant, hereinafter referred to as the petitioner, had filed a petition underSection 13of the Hindu Marriage Act, before the Matrimonial Court, Jalandhar which was dismissed on 31.7.1991.2.   Aggrieved against the judgment of the Matrimonial Court, the petitioner has preferred this appeal.3. The brief history of the case is that a marriage between the petitioner and the respondent was solemnised according to Sikh rites at village Barapind. The parties lived and cohabited as husband and wife for a month after the marriage and no child was born from their wedlock. In the aforesaid divorce petition, the petitioner had taken a plea that at the time of marriage, the respondent was serving as a Teacheress in the Govt. Primary School at Barapind, whereas the petitioner was serving as a Science Teacher in Government School at Lambra. On the very first night of the marriage, the petitioner discovered that the respondent was a lady of different temperament and had different view regarding the marriage. The petitioner asked the respondent to get herself transferred to village Ore or to any other school near the petitioner's place of posting, but she refused and insisted on living at village Barapind. According to the petitioner, the respondent used to pick up quarrel with him and left the matrimonial home with all the belongings. While leaving the house, she told that she would not return.4. The petitioner had tried his best to persuade the respondent to bring her back to the matrimonial house. Even a Panchayat was convened, but of no avail. As a last resort, the petitioner denounced the marriage on 19-5-1976 in accordance with the custom prevailing in Jat Hindus of Jalandhar District. The denouncement deed was accordingly executed by the petitioner and it was registered with the Sub-Registrar, Nawan Shahar on 20-5-1976. An intimation to the respondent was sent on 21-5-1976. On the receipt of a copy of the divorce deed, a Panchayat was convened at the instance of the respondent in which she had accepted the divorce in the presence of her father and brother. In view of this divorce deed, the petitioner was free to contract marriage with anybody as the respondent was released from the bonds of marriage. The petitioner had also sought legal opinion of one Advocate of the Supreme Court, who had opined that the divorce deed had full validity meaning thereby that the marriage between the parties stood dissolved. The petitioner thereafter contracted as second marriage with Promila on 3-5-1981.5. The respondent-wife filed a complaint underSection 494IPC read withSection 120BIPC against the petitioner, his father, mother, sister uncleand aunt in the Court of Judicial Magistrate, I Class, Phillaur, who convicted the petitioner and his father under Section 494 read withSection 109IPC and sentenced them to undergo rigorous imprisonment for one year and to pay a fine of Rs. 2000/- each. A revision petition against the conviction order of the petitioner and his father was pending in this High Court.6. Since the Judicial Magistrate I Class, Phillaur and the Appellate Court at Jalandhar held that the divorce had been unilaterally executed by the petitioner, which was not valid, petitioner filed a petition underSection 13of the Hindu Marriage Act for divorce on the grounds of cruelty and desertion.7. The respondent had taken certain preliminary objections before the Matrimonial Court to the effect that the petition filed by the petitioner seeking divorce was barred under the provisions of Order 23 Rule 1(3)C.P.C. as no fresh cause of action had arisen to the petitioner on 22.7.1982 on which date the earlier petition filed by the petitioner was dismissed. The plea taken by the respondent before the Matrimonial Court was that the petitioner had filed a Civil Suit No. 23 of 1984 for declaration to the effect that there was no relationship of husband and wife between the parties. On the strength of the alleged divorce deed dated 19.5.1976, the said suit was dismissed on 4.4.1984 and the appeal filed by the petitioner against this order was also dismissed by the Additional District Judge, Jalandhar.8. The respondent-wife had also taken a plea that the petitioner had contracted a second marriage with Smt. Promila, who had filed a petition underSection 11of the Hindu Marriage Act against the petitioner on the ground that the marriage between them was void. This petition was allowed by the Additional District Judge, Delhi on 27.11.1992 and the appeal was also dismissed by the Delhi High Court vide its order dated 1-3-1983 and the LPA was also dismissed by a Division Bench of Delhi High Court on 5-5-1985.9. On merits, it was pleaded by the respondent that the petitioner was a greedy person and she was not in a position in meet his demands and she was turned out from the house. The respondent had taken a categoric stand that the document for dissolution of marriage executed by the petitioner was a forged one and the said document was never registered. As such the petitioner was not entitled to any divorce.10. The learned Trial Court on the pleadings of the parties had framed the following issues :(1)   Whether respondent has treated the petitioner with cruelty as alleged ? OPP
 

(2)   Whether the respondent has deserted the petitioner for continuous period of two years preceding the presentation of the divorce petition ? OPP
 

(3)   Whether the petition was barred underOrder 23 Rule 1 CPCas alleged ? OPD
 

(4)   Whether the present petition is barred underOrder 2 Rule 2 C.P.C. as alleged ? DPR
 

(5)   Whether there is undue delay in the filing of the petition, if so, its effect ? OPR
 

(6)   What is the effect of the previous suit filed by the petitioner against the respondent ?(7)   Relief.11. Learned Trial Court returned the finding on issue No. 1 against the petitioner and in favour of the respondent. Issues No. 3, 4 and 6 were decided against the respondent and in favour of the petitioner. Issue No. 5 was decided against the petitioner.12. Learned Counsel for the petitioner has argued that the respondent wife had deserted the petitioner and the petitioner is entitled to a decree of divorce. On the other hand Mr. Arun Jain, learned Counsel for the respondent wife has contended that the findings arrived at by the learned Matrimonial Court are based on evidence and as such no interference is called for.13. On the consideration of the matter, I am of the view that there is no merit in the submissions made by learned Counsel for the petitioner and the appeal deserves to be dismissed. A perusal of the paper book reveals that it is the petitioner who is to be blamed for the sorry state of affairs. The petitioner in a fraudulent manner got exectued a denouncement deed and subsequently contracted a second marriage with one Smt. Promila, who filed a petition underSections 5(1)and12(1)(c)of the Hindu Marriage Act and the same was allowed by the learned District Judge, Delhi. Even the appeal as well as Letter Patent Appeal filed by the petitioner before the Delhi High Court were also dismissed. Justice N.R. Goswami, while disposing of the appeal filed by the petitioner in Delhi High Court, observed as under :"There is yet another aspect of the case and that is, that the marriage between the parties was solemnised on 3rd May, 1981. In response to another matrimonial advertisement issued in the Sunday Tribune dated 5.7.1981, the appellant wrote to the father of that girl also giving same particulars which he had given to the respondent. That letter has also been produced by the respondent on record and has been admitted by the appellant. All these facts show that the appellant is treating the marriage as a profession and to deceive the innocent girls."On a complaint filed by the respondent-wife under Section 494 read withSection 120Bof the Indian Penal Code, the petitioner was convicted by the Judicial Magistrate 1st Class, Phillaur, Only thereafter the petitioner had filed a petition underSection 13of the Hindu Marriage Act, put of which the present appeal has arisen. The petitioner has miserably failed to prove the Charges of cruelty and desertion against the respondent. The evidence adduced by the petitioner is also not convincing and cogent.14. It is also seen that the petitioner did not make any effort to bring his wife back and he has not shown any regard towards the marriage, which is our society is considered to be sacred, it is well settled principle that one who seeks the protection of law, is to abide by the law but in the instant case the petitioner himself is at fault and tried to circumvent the law at every stage by fraudulently denouncing the marriage without obtaining any permission from the competent Court of jurisdiction and his conduct hardly requires any sympathy of the Court. No one can be allowed to take benefit of his own wrongs.15.   As a result, the petition is dismissed with Rs. 2000/- as costs.