Full Judgment Text
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CASE NO.:
Appeal (civil) 6409-6410 of 2004
PETITIONER:
Shyam Sunder Kohli
RESPONDENT:
Sushma Kohli @ Satya Devi
DATE OF JUDGMENT: 01/10/2004
BENCH:
S. N. Variava & H. K. Sema
JUDGMENT:
J U D G M E N T
(Arising out of S.L.P. (C) Nos.1948-1949 of 2003)
S. N. VARIAVA, J.
Special leave granted.
Heard parties.
These Appeals are against the Judgment dated 14th August,
2002 of the Delhi High Court. By this Judgment, two Letters Patent
Appeals have been disposed of.
Briefly stated the facts are as follows.
The Appellant and the Respondent were married on 18th
November, 1981. The Appellant claims that the Respondent left the
matrimonial home on 28th January, 1987. The Respondent denies this.
The Respondent claims that she was driven out of the matrimonial
home. She claims that she was always and even now is ready to stay
with the Appellant. On a question from Court, counsel for the
Appellant states that the Appellant is not willing to take back the
Respondent.
On 27th April, 1991, the Appellant filed a Divorce Petition on
grounds of cruelty and desertion. The Trial Court, after considering
the evidence of the parties and the material on record, held that the
Respondent had not proved cruelty or desertion and thus dismissed
the Petition.
The Appellant filed an Appeal under Section 28 of the Hindu
Marriage Act, 1955 in the Delhi High Court. The High Court also held
that the Appellant has not been able to prove cruelty. The Single
Judge of the High Court, however, held that the Respondent had
deserted the Appellant without sufficient cause and granted divorce on
that ground.
The Respondent filed L. P. A. No.593 of 2000 against the Order
granting divorce on the ground of desertion. The Appellant filed L. P.
A. No.82 of 2001 against that portion of the Order, wherein it has been
held that cruelty was not proved. Both these L. P. As. have been
disposed of by the impugned Judgment. The Division Bench has also
held that the Appellant has not been able to prove cruelty. It has
held, on an appreciation of evidence and material, that there was no
desertion by the Respondent. Thus, the Order of the First Appellate
Court has been set aside and the Petition has been dismissed.
We have heard the parties and gone through the material on
record. Very fairly, in view of concurrent finding of facts, by all the
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courts below, the ground of cruelty is not pressed. We find ourselves
in agreement with the finding of the Trial Court as well as observation
in the impugned Judgment that the Appellant has not been able to
prove that the Respondent had deserted him. The evidence on record
indicates that the Respondent had been forced to leave the
matrimonial home. We are in agreement with the findings that the
case of the Appellant, that he had made attempts to get her back,
cannot be believed.
An attempt was made to rely upon various documents in order
to show that the Respondent was holding herself out as the wife of one
Hari Shankar Sharma. However, we find that the documents had not
been referred to nor relied upon in the Petition. They had not been
disclosed by the Appellants. During the course of evidence on his
behalf, no attempt was made to prove these documents. For the first
time when the Respondent entered the witness box, she was
confronted with these documents. She has denied that she has taken
out any Life Insurance Policy. She has explained how her name is
there in a Bank Account jointly with Hari Shankar Sharma. Even after
the Respondent explained the documents, no attempt has been made
to prove these documents. As these documents have not been proved
or marked in evidence, we are of the opinion that no reliance can be
placed on these documents.
Thus, we find that no case for desertion is made out.
Faced with this situation, it was submitted that the marriage has
irretrievably broken down. It was submitted that on this ground the
divorce may be granted by this Court. In support of this submission,
reliance was placed on the authority of this Court in L. V. Jadhav Vs.
Shankarrao Abasaheb Pawar & Ors. [(1983) 4 SCC 232].
On the ground of irretrievable break down of marriage, the Court
must not lightly dissolve a marriage. It is only in extreme
circumstances that the Court may use this ground for dissolving a
marriage. In this case, the Respondent, at all stages and even before
us, has been ready to go back to the Appellant. It is the Appellant
who has refused to take the Respondent back. The Appellant has
made baseless allegations against the Respondent. He even went to
the extent of filing a complaint of bigamy, under Section 494, IPC,
against the Respondent. That complaint came to be dismissed. As
stated above, the evidence shows that the Respondent was forced to
leave the matrimonial home. It is the Appellant who has been at fault.
It can hardly lie in the mouth of a party who has been at fault and who
has not allowed the marriage to work to claim that the marriage
should be dissolved on the ground of irretrievable break down. We,
thus, see no substance in this contention.
For the above reasons, the Appeals stand dismissed with no
order as to costs.