M.L. Joshi vs Nirmala Joshi
2007 Latest Caselaw 663 Del

JUDGMENT

S. Muralidhar, J.

1. This appeal is directed against the judgment and order dated 1.7.1992 passed by the learned Additional District Judge (Delhi), Delhi dismissing the appellant's HMA No. 522/1987 seeking divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 ('Act') on the ground of cruelty by the respondent.

2. The appellant and the respondent were married on 7.2.1985. It was alleged by the appellant that after a short honeymoon at Shimla from 11.2.85 to 17.2.85, the parties started living at Nauroji Nagar in the house of elder brother of the appellant. It is stated that the respondent started misbehaving and spat on the father of the appellant and threw her slippers on the appellant's mother in the presence of relatives and friends.

3. The appellant contended that he was compelled to live in the house of the respondent's mother and that this caused him mental cruelty. Four other major allegations of cruelty made by the appellant against the respondent were that after the birth of child on 16.3.1986, the respondent used to taunt the appellant that the child was not his. She used to beat him when they were living in the rented accommodation at Vishnu Garden. Thirdly on 6.6.1987, the respondent accompanied by her mother visited the appellant's office and openly threatened, insulted and abused him in the presence of his colleagues and senior officers. On 26.7.1987, the respondent visited the appellant's house at Noida and abused and threatened him in public.

4. On behalf of the appellant five witnesses including himself and his mother were examined. The respondent examined herself and some other witnesses. The trial Court after examining the evidence, came to the conclusion that the appellant had failed to prove the case of cruelty and therefore declined to grant divorce on that ground. The trial Court also declined to exercise powers under Section 23(1)(a) of the Act to grant any relief to the appellant.

5. The learned Counsel for the appellant reiterates the grounds urged before the trial Court and submits that the evidence on record does indicate that the respondent treated the appellant with cruelty. He submits that the rejection of the evidence of PW1 by the trial Court only on the ground that it was not corroborated by independent witnesses was erroneous. As regards the instance in the office of the appellant on 26.7.1987, learned Counsel submits that the evidence of the peon PW4 is sufficient to prove the case of the appellant. Finally it is submitted that the parties lived separately for nearly about 20 years and no useful purpose will be served in preserving the marriage. Relying on the judgment of the Hon'ble Supreme Court in A. Jaychandra v. Aneel Kaur ; Navin Kohli v. Neelu Kohli , and that of this Court in Mukesh Gupta v. Kaveeta (FAO No. 455/1999 decided on 13.12.2004) and Pinki Jain v. Sanjay Jain : FAO No. 67/2000 decided on 31.1.2005), learned Counsel submits that in the instant case also this Court should grant divorce on the ground of irretrievable breakdown of marriage.

6. In reply, Counsel for the respondent points out that apart from appellant himself, no witness testified to the incidents of throwing slippers and spitting on the father-in-law. Even the incident that is alleged to have taken place in the office was not proved by the appellant. In the circumstances, he submits that the trial Court was justified in concluding that the appellant had failed to prove the case of cruelty by the respondent. As regards the plea of the appellant regarding irretrievable breakdown of marriage, learned Counsel for the respondent states that merely because the parties have lived separately for a number of years cannot result in an irretrievable breakdown particularly where, as in the instant case, the respondent is still willing to live with the appellant as his wife. He submits that the respondent has not made any claim for maintenance and has brought up the only child herself with the hope that she can resume living the appellant one day.

7. On considering the submissions of the Counsel and examining the records of the case, this Court finds that there is no infirmity whatsoever in the analysis and the conclusion reached by the trial Court. The finding of the trial Court that the allegations of misbehavior of the respondent with the father-in-law and the mother-in-law soon after returning from honeymoon has not been proved and is unassailable. In the first place, the father in law himself has not been examined. Secondly, although the mother of the appellant was examined as a witness, she did not speak of any such incident.

8. As regards the appellant's contention that he was compelled to live in the house of the respondent's mother, the deposition of the witness indicates to the contrary. As regards the trial Court has rightly found the parties lived in a separate residence at Vishnu Garden Extension, that accommodation had to be vacated only because the appellant had a quarrel with the landlord. The evidence of PW5 supports this. Prior to living in Vishnu Garden for a period of about 6 months, parties lived in the house of the appellant's parents. It is, therefore, clear that the parties lived in various places and were not always residing with the mother of the respondent. The evidence on RW2 and RW4 also supports this conclusion. Therefore, the trial Court was right in concluding that the appellant had failed to establish cruelty on the ground that he was compelled to live in the house of respondent's mother.

9. As regards the incident of 6.6.1987, no single witness was examined apart from a peon in the office. The evidence of this peon has rightly been termed as inconsistent and exaggerated by the trial Court. Even as regards the incident of 26.9.1987 when the respondent is alleged to have insulted the appellant "in public", no cogent evidence of any independent witness has been adduced by the appellant. In the circumstances, the trial Court was justified in concluding that the appellant has miserably failed to prove the case of cruelty against the respondent.

10. Turning to the plea of irretrievable breakdown of marriage, it has been observed by the Hon'ble Supreme Court in Sham Sunder Kohli v. Sushma Kohli , that such a plea should not lightly be entertained at the instance of a party who is himself guilty of causing the breakdown in the marriage. In the instant case, the version of the appellant of the incidents that have taken place have not been believed by the trial Court. This Court also concurs with that finding. Moreover, the respondent here has always expressed willingness to live with the appellant. Even before this Court, the Counsel for respondent reiterated this. In the circumstances, it would not be only erroneous but also unjust for this Court to conclude that there is an irretrievable breakdown of marriage warranting grant of divorce on that ground. The decision cited by the appellant turned on their own facts and those facts led the Courts in those cases to come to the conclusion that no useful purpose would be served in preserving the marriage. The facts in the instant case do not permit this Court to come to such a conclusion. Accordingly, the Court cannot accede to the request of the appellant that the marriage should be dissolved on the ground of irretrievable breakdown of marriage.

11. For all the above reasons, there is no merit in the appeal and it is dismissed as such with no orders as to costs.