Smt. Raj Bala vs Gajinder Singh and Others

J.V. Gupta, J.—This appeal filed on behalf of the wife is directed against the decree of judicial separation granted by the District Judge, Narnaul, dated January 7, 1987 in a divorce petition filed by the husband Gajender Singh.

The marriage between the parties was solemnised on June 18, 1978. A child (male issue) was born out of the wedlock on July 18, 1984. The parties separated in February, 1986 The husband filed the divorce petition on May 3, 1986 alleging that since January, 1984, there had been an abnormal change in the attitude of the wife who misbehaved with him, ignored him in all domestic matters and developed a habit of lavish-spending She used to go out without an intimation to him and without his consent or that of the members of his family. When she was asked to refrain from it, she picked up quarrel. The wife had been meeting one Om Parkash, Respondent No. 2. who was a Chamar by caste whereas the husband was a Yadav. It was further alleged that in February, 1986, she left for her parental village in her absence. Thus, according to the husband, she has voluntarily withdrawn herself from the society of her husband and hence he sought a decree of divorce on this ground.

In the written statement, it was pleaded that the allegations made against her were baseless and cooked up with a malice in mind because the husband wanted to get rid of her and also to extract money from her parents. She alleged that her parents had given a huge dowry at the time of marriage and had also presented handsome gifts at the time of birth of a child to her. She further alleged that the husband is a vagabond, a haibtual drunkard and threatened her that he would marry a girl of his choice with whom he had earlier relations. He and his parents have been putting every day demands to her parents. They had actually treated her with cruelty. In fact see was never allowed to move out of the house. She denied her intimacy with Respondent No 2 as alleged and pleaded that it was a cooked up story. She further alleged that she herself apprehended danger to her life at the hands of her husband. In spite of all this, she stated that she was prepared to live with her husband.

On the pleadings of the parties, the trial Court framed the following issues:

Whether the Respondent has been cruel to the Petitioner as alleged ? O. P. P.

Whether the Respondent has been cruel to the Respondent as alleged ? O. P. R.

Relief.

After discussing the entire evidence, the learned District Judge found that "from the above evidence of the parties, I am of the opinion that although the Respondent had levelled allegations which she has not been able to establish against her husband, she had evidently been maltreated by the Petitioner and his parents for the sake of money. It has also come on the record that the Petitioner had also levelled false allegations against the character of the Respondent wife, besides other allegations of maltreatment by her which also amount to cruelty. In such circumstances, it appears to me that both the parties have committed cruelty against each other and I decide the two issues accordingly". After giving the said finding, the learned District Judge noticed that the wife was still prepared to live with the husband So, on her part she was ready to exonerate the Petitioner of the cruelty prepetrated by him. The parties have also a son, who is at present with his mother. Thus, according to the learned District Judge, there is a possibility that with the passage of time better sense may prevail upon them and they may come to terms. Therefore instead of granting a decree of divorce to the husband, he granted a decree of judicial separation to them.

The learned Counsel for the wife (Appellant) submitted that after having come to the conclusion that husband had also levelled false allegations against the character of his wife besides other allegations of maltreatment by her, he was not entitled even to the decree of judicial separation. It was further argued that when allegations were made by the wife in her written statement, the husband never made any grievance in the replication filed by him. Moreover, when she appeared in the witness box, she did not utter anything against her husband regarding the allegations made by her in the written statement. According to the learned Counsel, the allegations in the written statement were made because of the allegations made by the husband against her in his petition for divorce In any case, when the wife stated that she was prepared to go and live with her husband, the allegations, if any, will stand exonerated. Thus argued the learned Counsel in view of the evidence on the record no decree could be passed for judicial separation either In support of his contention, he referred to Pushpa Rani Vs. Krishan Lal, On the other hand, the learned Counsel for the husband-Respondent submitted that in view of the. allegations made by the wife, he should be allowed to amend his petition as to claim divorce on the basis of said allegations which amount to cruelty. Admittedly, no application for amendment of the petition as such was ever filed either in the trial Court or in this Court. An oral request was made in this behalf. In support of this contention for seeking amendment, he cited Gian Chand v. Smt Shakuntla Devi 1986 (1) Cri. L. J. 155.

I have heard the learned Counsel for the parties and have also gone through the relevant evidence on the record. As a matter of fact, none of the counsel challenged the finding of the trial Court as reproduced above. The question of allowing amendment to the husband at this stage did not arise nor a case has been made out for the same. The allegations in the written statement were made by the wife because of the allegations made by the husband in his petition for divorce. In these circumstances, the said allegations made by her could not amount to cruelty as to claim a decree for divorce or that of judicial separation. Moreover, decree of judicial separation could be granted u/s 13-A of the Hindu Marriage Act if the Court considers it just having regard to the circumstances of the case. But after having come to the conclusion that the husband himself had levelled false allegations against the character of his wife besides other allegations of maltreatment by her, he was not entitled to any relief in view of the provisions of Section 23 of the Hindu Marriage Act. Moreover, as regards the allegations made by the wife against her husband, the same stood condoned when she offered that she was still prepared to live with the husband, as observed by the learned District Judge himself. It was held in Smt. Pushpa Rani''s case (supra) that where false charges of adultery are made by the wife, but the husband not stating that they caused him mental anguish and the said false charges were made in retaliation to false charges made by the husband against her, it did not constitute cruelty so as to entitle him to a decree of divorce. The husband was not entitled even to the decree of judicial separation on the facta and circumstances of the case.

Consequent, this appeal succeeds, the decree of the trial Court is set aside and the petition for divorce is dismissed with no order as to costs.