FAO No.M-393 of 2013 (O&M) {1} IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.M-393 of 2013 (O&M) Date of decision:
05. 02.2014 Ajit Singh .....Appellant Versus Sukhwant Kaur .....Respondent CORAM: HON'BLE MR. JUSTICE S.S. SARON HON'BLE MS. JUSTICE NAVITA SINGH Present: Mr. H.S. Baath, Advocate, for the appellant NAVITA SINGH, J.
1. On the last date of hearing, learned counsel for the appellant had taken time for filing the copy of order, whereby the petition of the respondent under Section 125 Code of Criminal Procedure (`Cr.P.C.' for short) was dismissed. Today, learned counsel for the appellant submits that he does not wish to place on record copy of the order of dismissal of petition filed by the respondent-wife under Section 125 Cr.P.C., as the same was dismissed in default.
2. The present appeal has been filed by appellant-husband against the judgment and decree dated 11.9.2013, whereby the petition filed under Section 13 of the Hindu Marriage Act (hereinafter called the Act) by the appellant was dismissed.
3. The marriage between the parties was solemnized on 6.5.1984 according to Sikh rites at Mohali. Four children were born out of the wedlock. The husband filed the petition on the ground of cruelty and desertion. He had Singh Ishwar 2014.02.11 04:33 I attest to the accuracy of this order High Court Chandigarh FAO No.M-393 of 2013 (O&M) {2} earlier filed a petition under Section 9 of the Act, which was dismissed in default. The respondent had claimed maintenance by filing a petition under Section 125 Cr.P.C. The respondent left the matrimonial home on 16.10.1998. Earlier also, a petition for divorce was filed by the appellant, which was dismissed on the ground that he had failed to prove cruelty and desertion. In that, respondent had admitted that the parties were living separately since 2002. Despite dismissal of the petition, the respondent did not join the company of the appellant.
4. The respondent denied the allegations of the appellant and stated that the petition was a counter blast to a complaint filed by her under Sections 18 to 22 of the Protection of Women from Domestic Violence Act, 2005.
5. The trial Court framed the following issues: - 1. Whether the respondent has treated the petitioner (now appellant) with cruelty as alleged?. If so, its effect?. OPP2 Whether the respondent has deserted the petitioner (now appellant) without any sufficient cause for the last more than two years before filing the petition?. If so, its effect?. OPP3 Whether petition is not maintainable?.OPR4 Relief.
6. Learned counsel for the appellant argued that he had been deserted by the respondent and she had also treated him with cruelty but the trial Court wrongly held that it was the appellant who had been misbehaving with the respondent and was not providing maintenance to his children. The learned counsel for the appellant also argued that the wife involved the husband on the criminal side and that was cruelty in itself. Learned trial Court, however, rightly observed that it was the husband who was misbehaving with the respondent-wife, which compelled her to take action against him. The compromises Ex.R1 and Ex.R2 were referred to in the judgment according to Singh Ishwar 2014.02.11 04:33 I attest to the accuracy of this order High Court Chandigarh FAO No.M-393 of 2013 (O&M) {3} which the appellant had admitted his fault and had given assurance that he would not beat his children and will behave properly with his wife. Learned counsel for the appellant admitted that there was no proof to the contrary on the part of the appellant. Even otherwise, marriage took place in 1984 and it has also come on record that the appellant retired from service on 31.5.1993. If he retired at the age of 58 years, he would be completing 79 years in May 2014. Learned counsel for the appellant stated that the latter had retired at a lesser age. Even if it be taken that he retired at the age of 55 years, though there is no such proof, he will be 76 in May 2014. Learned counsel for the appellant agrees that getting divorce at this age will be practically meaningless.
7. Learned counsel for the appellant failed to satisfy us as to how a second petition for divorce was maintainable when the first one filed by him on the same ground stood dismissed and he filed no appeal against the decree. The trial Court rightly held that no new ground regarding cruelty and/or desertion was made out giving any right to the appellant to file another petition for divorce. The appeal is liable to be dismissed on this ground also.
8. There is no merit in the appeal. The same is dismissed. (S.S. SARON) (NAVITA SINGH) JUDGE JUDGE0502.2014 ishwar Whether to be referred to reporter: Yes Singh Ishwar 2014.02.11 04:33 I attest to the accuracy of this order High Court Chandigarh