Sarojnei Saksena, J.
1. The appellant-husband has filed this appeal under Section 28 of the Hindu Marriage Act, 1955 (in short 'the Act') against the wife-respondent, as his petition filed under Section 13(1)(ia)(ib) of the Act was dismissed by the Trial Court, vide judgment dated 13.3.1991.
2. The petitioner-appellant's case in the lower Court was that he was married to the respondent on 7.12.1974 at Pundri. She gave birth to two sons in 1975 and 1976 respectively. Both the children are residing with the respondent at Pundri where she is employed as a teacher. He is employed in Cement Factory and is posted at Charkhi Dadri. The respondent lived with him upto 8.7.1976. During her stay in the matrimonial home she treated him with cruelty. She used to stay with him at Charkhi Dadri intermittently during vacations, holidays or by taking leave. She was never respective to him. She made his life a hell and gave him mental strain and frustration as she refused to perform her matrimonial obligations. While leaving the matrimonial home on 8.7.1976 she has taken away all her jewellery and cash of Rs. 1000/- with an intention to permanently severe the matrimonial tie. He made several attempt to bring her back but every attempt proved abortive. He filed a petition for restitution of conjugal rights, which was dismissed on 20.8.1977 for want of territorial jurisdiction. Thereafter, as she declined to join him he filed a petition for divorce which was decreed on 6.1.1979 but respondent's appeal in the High Court was allowed vide order dated 16.11.1980 and his petition as dismissed. Even after the dismissal of the petition he made efforts to bring her back but she declined. Thus, she has treated him with cruelty and has deserted him. On both these counts he prays for a decree of divorce.
3. The respondent-wife in her reply admitted the factum of marriage and birth of both the sons and that she is a J.B.T. teacher at Pundri and he is employed in a Cement Factory at Dadri. According to her, she and her husband lived together till 15.4.1990. They lived at Pundri in a rented house. He is a man of bad habits, he always demanded money from her. Her parents purchased a plot in her name. He wanted to get that plot transferred in his name. As she declined, he felt annoyed. She was always ready and willing to live with the appellant but he only wants to take divorce on one pretext or the other so that he can contract second marriage to fetch good dowry. The territorial jurisdiction of the Court was also challenged. She denied that she even treated him with cruelty or she has left the matrimonial home in 1976. Earlier also he filed a petition for divorce on these very grounds. Hence, this petition is not maintainable on those very grounds as they are barred by the principle of res judicata. The appellant is the defaulting party. He cannot take advantage of his own wrong. After the dismissal of the petition they compromised their dispute and started living together at Pundri where they resided together till March, 1990. On account of death of petitioner's father, they had gone to Hissar and on 15th April, 1990 he beat her severely and turned her out of the house, since then she is living in her parental home.
4. Parties adduced oral and documentary evidence in support of their allegations. The Trial Court on minutely scanning the evidence on record came to the conclusion that the appellant-husband has failed to prove both the grounds of desertion and cruelty.
5. The respondents learned Counsel raised a preliminary point about the maintainability of the appeal. Relying on Shakuntala Devi Jain v. Kuntal Kumari and Others, A.I.R. 1969S.C.575, he contended that since with the memo of appeal the appellant has not filed certified copies of judgment and decree, the appeal is incompetent and on this count alone it is liable to be dismissed.
6. The appellant's learned Counsel referred to CM. No. 4494-CII and contended that on 11.4.1991 appellant has filed this petition under Section 151 C.P.C. praying that filing of the certified copies of the judgment and decree be dispensed with. Till today, this miscellaneous petition is not decided. Hence, this ground is not available to the respondent.
7. Under Order 41, Rule 1 C.P.C, the Appellate Court is empowered to dispense with the filing of the copy of the judgment but it has no power to dispense with the filing of the copy of the decree as is held by a Full Bench of the Apex Court in Shakuntala Devi Jain's case (supra). Even if the petition is allowed today, it can be allowed only with regard to the filing of the certified copy of the judgment and not with regard to the filing of the certified copy of the decree. In view thereof, this petition is partly allowed and the filing of the certified copy of the judgment is dispensed with but as till today the appellant has not taken care to file the certified copy of the decree. I find that the appeal is incompetent and on this count alone the appeal is liable to be dismissed.
8. So far as the merits of the case are concerned, I find no plausible reason to disagree with the conclusion arrived at by the Trial Court. The appellant has taken only two grounds for obtaining divorce - cruelty and desertion. About cruelty the only allegation is that her behaviour towards him was not good. She treated him with cruelty by deserting him and depriving him of all the pleasure of marital life. This second limb of alleged cruelty is the other side of the coin of alleged desertion. According to the appellant, the respondent has deserted him from 8.7.1976. On this date she left the matrimonial home after taking her jewellery and cash. He has examined himself and Ram Singh to prove these allegations. Appellant himself has stated that respondent's behaviour towards him was not good. He has not further enumerated this allegation nor has given details thereof. In the earlier petition also, this very plea of cruelty was taken by him but he lost that case in the High Court. According to him she left the matrimonial home on 8.7.1987. Thereafter, he went many a time to bring her back but she always declined. His father expired on 1.4.1989. Even at that time the respondent did not come to his residence but on this point he is belied by his own witness Ram Singh who has categorically stated in the examination-in-chief that the respondent had been coming to Charkhi Dadri till 1989 and further by Gian Chand PW-3 who has admitted in cross-examination that on 15.4.1989 he attended the last rites ceremony of appellant's father and at that time respondent was present in his house at Hissar.
9. Further the appellant has admitted that he was written letters Exhibits R-1 to R-4 but in further cross-examination he has chosen to deny the authorship of letter Ex. R-2. The reason is obvious because this letter is dated 25.2.1989. This letter is addressed to Parvati Ji and it was sent through an Advocate. The respondent's name appear in the address. The tenor of the letter also reveals that it is written by the appellant to the respondent. He has further admitted that from 1979 to 1990 he had been to Pundri 20 times and each time he stayed with her for about 10 days. According to the appellant the wife has constructed a house at Pundri. He has contributed financially in the construction of this house. He joined his service in C.C.I, in 1984.
10. The respondent has testified that after the judgment of the High Court they buried their hatchet and started living together at Dadri. Then the appellant passed his matriculation and intermediate examinations and thereafter he got service in the factory. In 1988 she started constructing a house. The plot was given to her by her father. Her husband wanted that she should give the money of that plot to him but she declined. She is categoric that she and her husband resided together upto 24.4.1989. She also went to matrimonial home on the death of her father-in-law. The ceremony was to be performed on 15.5.1989. The appellant beat her and turned out of the matrimonial home, because he was demanding money from her. The appellant could not assign any reason for her not joining him though she has given a specific reason why she is not going back to the matrimonial home. She is a J.B.T. teacher at Pundri. It is also an admitted fact that she was in service when she was married to the appellant. The appellant has admitted that after marriage she used to come to reside with him during holidays, vacations and by taking leave. He also used to go to reside with her at Pundri and on 20 occasions he lived with her for 10 days each time. From his letters Exs. R-l to R-4 also it is evident that they were joining each other either at Pundri or at Charkhi Dadri and were leading happy marital life. A bare reading of those letters reveals that the alleged allegation of cruelty is far from truth. If her behaviour would not have been good or if she would have treated him with cruelty the language and tenor of these letters would have been different and the appellant would not have gone to Pundri so many times and would not have resided with her for a couple of days each time. His oral evidence on the point of cruelty is proved to be unworthy of credence by documentary evidence. Hence, I find that the appellant has utterly failed to prove the alleged ground of cruelty for seeking divorce.
11. During argument the appellant's Counsel contended that the respondent has behaved cruelly by filing a false complaint against the appellant under Sections 406 and 498-A I.P.C. at Kaithal but he had to admit that complaint is still pending. Hence, it cannot be said the complaint is false. Further, a wife is entitled to safeguard her interest and to fight for her rights if she is maltreated or turned out of the matrimonial home by the husband without any just and reasonable cause.
12. So far as the ground of desertion is concerned, he has filed this petition on 4.6.1990 while it is proved from the above oral and documentary evidence that till February/April, 1989, they were living together for a certain period either at Dadri or at Pundri. Not only that they were joining each other for the sake of joining but they were discharging their matrimonial obligations and were living happy married life as is evident from letter Ex. R-2 as well as from the oral evidence adduced by the parties. The appellant's witnesses have admitted that till April, 1989, the respondent was coming to the matrimonial home. According to her after 15.4.1989, she was beaten and turned out of the matrimonial home. This evidence disproves both the essential parameters of the grounds of desertion. Neither the factum of desertion nor the element of animus-deserendi are proved by the appellant. Further on this count as stated above, the petition is premature.
13. The learned Counsel for the appellant lastly contended that since the marriage is irretrievably broken, decree of divorce is the only just remedy for the parties to relieve them of this continuous agony of hanging tie of marital life around their neck when emotionally the wed-lock has become a dead-lock. In view of the above findings even this plea is not available to the appellant.
14. In view of the above discussion, the appeal being meritless is hereby dismissed with costs.