Vijay Pal vs Sunita & Anr.
2014 Latest Caselaw 5043 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                Judgment Reserved on: September 30, 2014
                               Judgment Pronounced on: October 10, 2014

+     FAO 24/1998 & C.M.APPLNS.6142/11, 20318/13, 16133/14 &
      Crl.M.A.7295/14

      VIJAY PAL                                         .....Appellant
                            Through:   Mr.Venkataraman T.R. and Mr.
                                       Rahat Bansal, Advocates

                   versus

      SUNITA & ANR.                                     ....Respondents

Through: Mr. Vikas Sharma, Advocate

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

% JUDGMENT

1. Vide impugned judgment of 15th December, 1997 appellant's petition for divorce on the ground of cruelty and adultery stands dismissed while holding that appellant in the earlier petition for divorce i.e. HMA case No.165/1996 instituted on 2nd April, 1996 had not taken the ground of adultery and so, the ground of adultery is not available to appellant. Regarding appellant not substantiating the allegation of cruelty, the findings returned in the impugned judgment are as under: -

"The petitioner has sought the dissolution of marriage between himself and the respondent no.1 on the ground of cruelty and has referred to certain incidents of cruelty committed by the respondent no.1 against him. Both the

parties have tried to make improvements in their respective cases by introducing new facts, during the course of their examination-in-chief and material contradictions appear in the pleadings and evidence of both the parties. In the earlier petition the date of notice was mentioned by the petitioner as 21/11/95 but in the present case the date of said notice is alleged to be as 26/11/95 while in the cross-examination of the petitioner he has alleged the date of the said notice to be 26/12/95. The petitioner has introduced the allegations of removal of Rs.15000/- by the respondent no.1 after breaking opening the lock of the trunk of the petitioner, while this allegation was not a part of the earlier divorce petition filed by the petitioner against the respondent no.1. Even the incident of beatings dt. 8/4/96 was not a part of the earlier petition which has been introduced by the petitioner in the present case. On the one hand the petitioner alleges that the respondent no.1 was in the habit of frequently visiting her parental home while on the other hand the petitioner alleges that the respondent no.1 is living with the respondent no.2 in the Moujpur. On the one hand the petitioner alleges that in the year 1991 he was studying and was not interested in having a child and the respondent no.1 became pregnant by not taking precaution while in para 9 of the petition it is alleged that the petitioner was using condom at the time of consummation of marriage but he was surprised when the

respondent no.1 told him in Sept., 1991 that she had conceived a child.

The petitioner even admitted in his cross-examination that he does not know about the contents of the petition and the affidavits and that he had signed the same under the impression that whatever he had intimated to his Advocate the same must have been pleaded in the petition. The petitioner even admitted in his cross-examination that the 17 facts as referred in his cross-examination did not form the part of the petition. Moreover, there are material contradictions in the statement of the petitioner as PW1 and his brother as PW4. On the one hand the allegation of removal of Rs.15,000/- by the respondent no.1 from the trunk of the petitioner after breaking opening the lock of the trunk was not a part of the earlier petition and had been introduced in the present petition and on the other hand there is material contradiction in the statement of the petitioner and his brother PW4 in this respect. The petitioner did not refer to the presence of any neighbourer at the time of giving beating to him by the respondent no.1 and her parental relatives while PW4 alleges the presence of the neighbourers Rohtash and Rajkali. Even the said neighbourers and mother of the petitioner have not been produced by the petitioner in support of his allegation of having been beaten by the respondent no.1 and her parental relatives. Moreover, the petitioner did not prefer to lodge

any report with the police about the incidents of beating given to him by the respondent no.1 and her parental relatives. This fact also casts doubt about the genuineness of the allegations of cruelty levelled by the petitioner against the respondent no.1. It has been held by our own High Court in case Smt. Ranjana Saxena Vs. Sh. Prakash Saxena reported in 1999 (I) D.M.C. 317 Delhi that the decree of divorce cannot be granted merely because of the counter allegations. The same is the position in the present case. Both the parties have failed to lead any cogent/independent evidence in support of their rival contentions except for the counter allegations of cruelty made by them against each other. Applying the touch stone of preponderance of probabilities to the totality of the circumstances in this case, I am constrained to observe that the petitioner has miserably failed to prove on record that the respondent no.1 has treated him with cruelty. Accordingly this issue is also decided against the petitioner and in favour of the respondents."

2. The facts of this case already find mention in the afore-noted finding returned by the trial court. It needs no reiteration that parties had married on 30th October, 1990 and one boy and one girl were born to them and appellant's version depicting cruelty at the hands of the respondent revolves around the illicit relationship between first respondent and second respondent. As per appellant, in May, 1993, just a

day prior to engagement of second respondent with another woman, respondent-wife had tried to commit suicide as she wanted to live with respondent No.2 and again on 20th January, 1994, respondent-wife had tried to commit suicide when the appellant had asked for the return of cash and jewellery. It is the case of appellant that on 6 th May, 1994, respondent-wife had extended threats when appellant had asked her not to go to parental house in the night hours.

3. At the hearing of this appeal, it was contended by learned counsel for appellant that respondent-wife was having an affair with second respondent, who is his real brother, and on many occasions, respondent- wife and her relative had assaulted the appellant, who had lodged complaints with police. To assert that respondent-wife was having adulterous relations with appellant's brother i.e. respondent No.2, it was pointed out by learned counsel for appellant that notice issued to respondents at the same address was received by them on 8th June, 1996 which shows that respondent-wife was living in adultery with respondent No.2, who happens to be real brother of the appellant.

4. It was pointed out that there is independent deposition of a milk- vendor (PW-2), a neighbour (PW-3) and appellant's own brother (PW-4) which substantiates appellant's version of being treated with cruelty by respondent-wife and her relatives and the aforesaid evidence has been illegally ignored by the trial court. Respondent-wife's evidence regarding demand of dowry and turning her out of the matrimonial home on 26 th January, 1996 and of her residing with her parents, stands belied from the fact that both the respondents were served at the same address, which clearly shows that they were residing together and were having illicit

relations. Thus, it was contended on behalf of appellant that the trial court has ignored the evidence on record and so, impugned judgment deserves to be set aside and appellant be granted divorce.

5. To refute the case of appellant, it was vehemently contended by learned counsel for respondent that appellant had miserably failed to prove that he was treated with cruelty by respondent-wife and the findings returned against the appellant are duly borne out from the evidence on record. It was pointed out that the evidence led by appellant was beyond pleadings and so, it has been rightly discarded by trial court and there is no material irregularity or infirmity in the impugned judgment and so, this appeal deserves to be dismissed with costs.

6. Having heard learned counsel for the parties and upon scrutiny of the evidence on record and on perusal of the impugned judgment, I find that though appellant had withdrawn earlier petition for divorce on 2 nd April, 1996 with liberty to file fresh petition after properly verifying the petition, but it is pertinent to note that the ground of adultery was not taken in the earlier petition for divorce filed by appellant. The allegations of cruelty levelled in the present petition for divorce pertain to a period prior to filing of the earlier divorce petition and so, bar of Order 2 Rule 2 of CPC has been rightly invoked by trial court while non-suiting appellant/petitioner to seek divorce on the ground of adultery. Reliance placed by learned counsel for appellant upon decision in Kewal Singh v. Smt. Lajwanti (1980) 1 SCC 290 is misplaced as bar of Order 2 Rule 2 of CPC would not apply only when fresh suit is brought on the basis of a separate and a distinct cause of action. In the instant case, it is not the case of appellant that any separate or distinct cause of action was

available to him between the withdrawing of earlier petition for divorce and the filing of instant petition for divorce.

7. On the cruelty aspect, it is not necessary to reproduce the seventeen facts stated by appellant in his deposition before trial court (which had not formed the part of the petition for divorce) as appellant had clearly admitted in his evidence that he had not made any averment regarding the seventeen facts about which appellant has deposed. These seventeen facts adverted to by appellant in his deposition are crucial to determine as to whether appellant has been treated with cruelty or not. It needs no reiteration that evidence beyond pleadings cannot be looked into. Trial court has not committed any error of fact or law in dismissing appellant's petition for divorce.

8. In view of the aforesaid, finding no substance in this appeal, it is dismissed.

9. This appeal and the pending applications are accordingly disposed of.

(SUNIL GAUR) JUDGE OCTOBER 10, 2014 s