P.C. Agrawal, J.
1. By impugned judgment and decree the Trial Court dismissed the petition for divorce under Section 13 of the Hindu Marriage Act, 1955 ('Act' for short) by the husband against the Hindu wife and allowed counter claim for recovery of Stridhan of the respondent wife from the appellant/husband.
2. Parties were married on 5-5-92 and cohabited in Gwalior. They had Ku. Puja, born in December, 1993 as an offspring.
3. As per petition, the respondent/wife treated the appellant and his mother with cruelty. She used to abuse and beat the mother and even the appellant. In December, 1992 she brought a pesticide and threatened to commit suicide in case the mother of appellant was not shifted out of the house. Several times the respondent would lock the house and go somewhere to return only at 10 or 11 PM in night. She would not be available at home at time of his return from work. On asking she would abuse him and say that he has no right to check her. In May, 1994, the brother of respondent had taken her with him without consent of the appellant. She had taken with her, her own ornaments, clothes and even the ornaments of the mother of the appellant. When the appellant went to her parents house, the mother and brother of respondent fought with him, assaulted him and threatened to kill him. The appellant with his relative Manohar Lal tried twice to bring back the respondent but was unsuccessful. Her mother and brother proposed that the appellant would have to live there as a Gharjamai at Ranipur. The appellant had come to know that the respondent had some illicit relations with someone and thus she was not ready to come back to her marital home. Hence, the petition.
4. The respondent has denied all such allegations. She has claimed that in her marriage, a fridge, a Bajaj Super Scooter, a Sofa-set, double-bed, Cooler, gold ornaments of 3 tolas, Rs. 40,000/- in cash and other domestic utensils etc. were gifted. However, after their marriage, appellant started demanding Hero Honda, Colour TV and Rs. 50,000/- more as dowry and on non-fulfilment of such a demand he started neglecting the respondent. The claim of the appellant that the respondent treated him or his mother cruelly is denied. According to her, all such allegations are false. She never brought pesticide neither threatened to commit suicide nor insisted for shifting the mother of the appellant somewhere else. On other hand, the appellant himself had tried to push her neck and was saved by the neighbours. Appellant has illicit relations with one of his office colleagues named Ikka and wanted to marry with her. His mother had also supported him. The allegation that the respondent used to lock the house and go somewhere and abuse the appellant or his mother and that the brother of respondent had taken her away with her ornaments or ornaments of the mother are denied. In the year 1996, the appellant himself had taken respondent to her parent's house on the pretext that her mother was sick and left her there and had returned back to Gwalior. When the respondent and her mother came to Gwalior. The appellant locked the house and would not let them enter. The appellant had never attempted to bring her back. He never went with Manohar Lal to her parent's house. Appellant himself had left the respondent at her parent's house and is not ready to take her back. He has kept her Stridhan which she is entitled to get back. She has claimed Rs. 2000/- per month as maintenance allowance. She has counter-claimed return of her Stridhan.
5. Trial Court did not find proved any ground for divorce. She held that the appellant himself was to blame and was guilty of cruelty and adultery. Thus, no decree for divorce was given. However, counter-claim for return of Stridhan was allowed.
6. The appellant had pleaded specific acts of the respondent to prove his allegation of cruelty against the respondent. I proceed to examine each of them one by one.
7. Firstly, according to him, the respondent ill-treated her mother-in-law and told that the old woman should not live with them. On intervention of the appellant, the respondent threw the washing rod on the appellant. As per appellant brother and mother of the respondent were called but they refused to intervene. Saraswati (R.W. 1), her mother Beni (R.W. 5) and her brother Manoharlal (R.W. 4) - the respondent herself have denied the allegation. The appellant did not examine his mother Kalpana Devi, who admittedly lived with him. From non-appearance of Kalpana Devi in witness-box, such an allegation is clearly not proved. She was a very material witness. Please see Dipak Natkar v. Smt. Dipali Natkar (AIR 1992 MP 278) wherefrom non-examination of mother of husband such allegations were not held proved.
8. Secondly, appellant claimed that the respondent brought pesticide in the house and on asking told him that she would commit suicide in case the appellant does not evict the old woman from the house. Whereupon appellant threw the pesticide in the gutter and called the mother and brother of the respondent, who tried to pacify the respondent, but she was adamant. The respondent Saraswati (P.W. 1), her mother Smt. Beni (P.W. 5) and brother Manoharlal (P.W. 4) had denied the allegations. The appellant did not examine his mother. Thus certainly, the Trial Court has not erred in disbelieving his solitary statement on this count.
9. Third allegation had been that the respondent used to lock the house and go somewhere and would not meet the appellant when he returned from his work and on enquiry would say that the appellant is nobody to interrogate her. On insisting the respondent used to abuse. Certainly, the mother of the appellant was admittedly living with the appellant and thus normally there was no question of locking the house. Had this allegation been truthful, the mother of the appellant should have certainly supported him. Non-examination of mother in Court is a clinching circumstance against the appellant. Thus, this allegation is also not proved.
10. Fourth allegation was that Ashok, the brother of respondent, had taken the respondent with him and taken Rs. 5,000/-, ornaments of the respondent and ornaments of her mother-in-law in his absence without his consent. In Para 7, he claimed that Durga Prasad had informed him when he had returned from his office duty. However, neither the mother of the appellant nor Durga Prasad has been examined in support of such statement. According to the appellant the next day, he went to Ranipur. In natal house of the respondent, where the mother and brother of respondent nagged him and assaulted him, the respondent threatened him to cause his death in case he comes again. Certainly, Saraswati (R.W. 1), her mother Beni (R.W. 5) and her brother Manoharlal (R.W. 4) have denied the allegations. Thus, the Court below has not erred in disbelieving the solitary statement of the appellant. It is noteworthy that none of the neighbours from Ranipur was examined to support such allegations.
11. Fifthly, the appellant did claim that he went with his brother-in-law, Manoharlal twice to Ranipur to bring back the respondent. On their first visit, the mother and brother of respondent told that the appellant has to live at Ranipur as a Gharjamai. According to him, the neighbours told them that the respondent had illicit relations with someone, and thus, she herself and her relatives do not want to send the respondent back to the appellant. According to him, these neighbours did not tell the name of the person with whom the respondent had illicit relations. According to him, having failed in second attempt, he gave two or three letters, which were not replied by the respondent. Saraswati (R.W. 1), her mother Beni (R.W. 5), her brother Manoharlal (R.W. 4), Sunil (R.W. 2) and Aunt Ramkunwar (R.W. 3) have all denied the allegations. The appellant did not examine his brother-in-law Manoharlal (R.W. 4) to support him these allegations. The appellant has service in Gwalior. Father-in-law of the appellant is not alive. Manoharlal (R.W. 4) has a small business of cloth. His younger brother is also in service. In these facts, the very idea compelling the appellant to leave the service in Gwalior and to reside at Ranipur is not natural. The brothers of respondent are not shown to be so affluent as to afford the appellant as a Gharjamai. No neighbour of respondent is examined to prove her illicit relations with anybody. Even their names are not given. Allegation seems to be completely in the air and rightly disbelieved by the Court below.
12. The appellant has submitted copies of reports (Ex. P-1), dated 11-5-1997 and (Ex. P-2), dated 18-5-1997 to Police, Gwalior. However, no crime has been registered thereupon. No one from police is examined to prove that the same were actually submitted to the police. Endorsement on both these copies are not above suspicion. Certainly, such reports are made much after the petition for divorce was filed. Certainly, they do not inspire any confidence.
13. The appellant has relied too much on Ex. D-2, which was used by him in cross-examination of Saraswati Bai (R. W. 1). She did not admit that it was written or signed by her. The appellant did not examine any witness to prove that the same was in the handwriting of the respondent. The respondent admits that Vishal is a nephew of her sister. It is noteworthy that there has been no pleading in the plaint that the respondent had any illicit connections with this Vishal. Even Murarilal (P.W. 1) had not uttered a word in his own statement. No question was put to Saraswati Bai (R.W. 1) on 9-4-1999, when she was examined and cross-examined at length. For the first time on 5-7-1999, this ruled paper was brought to the Court. There has been no suggestion to any of the witnesses of the respondent about this Ex. D-2 for any improper relations between the respondent and this Vishal. Certainly, the Court below has not been wrong in disbelieving this theory. It is noteworthy that during the arguments, the learned Advocate for appellant has withdrawn the allegation of adultery. It has been highly gracious for him. But this clearly shows that the appellant could go to any extent to get success.
14. On the other hand, the respondent has alleged that the appellant had been demanding Rs. 50,000/-, a Colour T.V. and Hero Honda vehicle in dowry and was victimizing the respondent to fulfil such demand. According to respondent, he used to even neglect his daughter. She has claimed that the appellant took her to Ranipur on pretext that her mother was sick and left her there. None had come to call her back from there. Illicit relations of appellant with one colleague Ikka have also been claimed. According to her, she had come with her mother Beni (R.W. 5) to Gwalior, but the appellant locked his house and pushed herself and her mother. These allegations are supported by her mother Beni (R.W. 5), brother Manoharlal (R.W. 4), aunt Ramkunwar (R.W. 3) and a cousin Sunil (R.W. 2). The Trial Court, who has recorded the evidence of these witnesses and seen their demeanors, has relied upon them. His view on appreciation and weight of oral evidence are valuable and have not to be lightly brushed aside. Mandate of Hon'ble Apex Court in this reference has to be kept in view, which is as follows :--
'The rule is that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which as established the Trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the Appellate Court should not interfere with the finding of the Trial Judge on a question of fact.'
Santosh Singh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179, in which Sarju Prasad Ramdeo Sahu v. Jwaleshwari Pratap Narayan (AIR 1951 SC 120) relied upon. The rule is so well settled that citation of more authorities is unnecessary.
15. Having failed to prove the ground for divorce, the learned Advocate has fallen back on the concept of irretrievable break down of the marriage and claimed a decree on that ground. According to him, the parties are living separately since 1996. They living under the same roof now is not possible, as according to him, was admitted by the respondent herself. In Para 10 of the petition under Section 125 of the Code of Criminal Procedure. However, it is well known that pleadings in any case are hand work of the Advocates. Some puffing is always done in them. They cannot be accepted on their face value. It has been argued that the respondent has counter-claimed only for return of her Stridhan and not for living peacefully with the appellant which betrays her intention. Certainly, the respondent has denied all the allegations of the appellant and had always been showing her willingness to live with the appellant. It has been claimed that the appellant had kept his daughter with him and got her admitted in a reputed Public School, but the respondent took back her custody by giving a writ of Habeas Corpus. Certainly, copy of order of Habeas Corpus has not been filed. There has been no evidence on record that the daughter was admitted to some reputed Public School to hold that the appellant has been a dutiful father. There has been nothing on record to show that handing over the girl child to the appellant would be in the welfare of the child.
16. Certainly, the concept of irretrievable marriage breakdown cannot be used as a magic formula to obtain a decree where grounds for divorce are not proved. Chetandas v. Kamla Devi, (2001) 4 SCC 250 = AIR 2001 SC 1709. Earlier case where the Apex Court granted a decree of divorce on this basis is widely different. Certainly in the case of Chandralekha Trivedi v. Dr. S.P. Trivedi, (1993) 4 SCC 232, clear proof of cruelty by the wife was there. The husband was also infidel to the wife. Both parties had been sailing in the same boat. In Romesh Chandra v. Savitri, (1995) 2 SCC 7, the Hon'ble Apex Court had passed the order considering the facts and circumstances of the case in exercise of power under Article 142 of the Constitution of India. Allegation against the husband was that of infidelity. The husband had expressed his remorse on his conduct. Saroj Rani v. Sudarshan Chaddha, (1984) 4 SCC 90, in which the husband has not obeyed the decree of restitution of conjugal rights obtained by his wife, which he had not objected and then had filed a petition of divorce under Section 13(1-A)(ii). On the plea that the husband was trying to take benefit of his own wrong, the Hon'ble Apex Court had taken a liberal view of the word 'wrong' used in Section 23(1)(a) of the Act to mean it some misconduct serious enough to justify denial of relief and had granted the decree. The present case is not impeccable to any of them. The husband has utterly failed to prove his ground of cruelty and has given up in this Court the ground of adultery which was wholly unfounded. Thus, the appellant is not entitled to any decree of divorce.
17. The Trial Court has ordered return of Stridhan to the respondent. Gift of articles in marriage is well proved from the statement of Saraswati (R.W. 1), Sunil (R.W. 2), Ramkunwar (R.W. 3), Manoharlal (R.W. 4) and Beni (R.W. 5). Bare denial of the appellant has not impressed the Trial Court. Certainly, the view of the Trial Court has not been erroneous. Thus, Stridhan of respondent should remain in her custody and usage.
18. Thus, the appeal has no force and is dismissed. The judgment and decree of Trial Court are hereby affirmed as they are.