ORDER
1. The facts necessary for deciding this Letters Patent Appeal are that appellant-Gajinder Singh filed a petition in the Court of District Judge, Narnaul for passing a decree of judicial separation under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the 1955 Act) with the assertion that he was married with respondent No. 1 on 18.6.1978 and after the birth of a male child on 18.7.1984, respondent-Raj Bala started misbehaving with him. He also averred that respondent No. 1 was ignoring him in all domestic matters and she had developed habit of lavish spending. It was further averred by him that respondent No. 1 was in the habit of going out of the house without his consent and knowledge and she used to meet respondent No. 2 who was Chamar by caste. He alleged that the respondents were hatching a conspiracy to eliminate him and this was the reason why she had voluntarily withdrawn herself from his society.
2. In the written statement, respondent No. 1 denied the allegations made by the appellant, she also made a counter allegation that the appellant wanted to get rid of her and also to extract money from her parents. She alleged that the appellant is a vagabond, a habitual drunkard and used to give her threat that he would marry a girl of his choice with whom he had previously developed some relations.
3.On the basis of the pleadings, the learned District Judge framed the following issues :
” (1) Whether the respondent has been cruel to the petitioner as alleged ? OPP
(2) Whether the petitioner has been cruel to the respondent as alleged ? OPR
(3) Relief.”
4. After analysing the pleadings of the parties and evidence produced by them, the learned District Judge held as under :
“From the statement of the petitioner it would appear that he did not make any definite allegation of cruelty against his wife except that she had illicit relations with Om Parkash. His father also stated about that fact but there is nothing in their statements beyond mere allegations and suspicions. The only person on whose testimony they base their conclusion regarding the illicit relationship of Raj Bala with Om Parkash is P.W. 3-Guggan Ram. He too does not state that there had been an illicit intimacy between the respondent-Raj Bala and Om Parkash. His statement is that he had only seen them talking at about 8.00 or 9.00 a.m. Evidently, at that hour no body would talk of illicit intimacy or love affairs because the people around are all awake. It is, therefore, a cock and bull’s story which has been concocted by this witness in collusion with the petitioner and his father Din Dayal, who is a retired police officer. The petitioner also tried to assert that he had received two letters mark A and B from the box of the respondent. In the first place the authenticity of these letters has nowhere been established and in the second place the letters are in different hands. It is also not proved that these letters had actually been in the possession of the respondent or about the authorship thereof. Therefore, no reliance could be placed upon the letters mark A and B. Therebeing no other allegation of cruelty in the statement of the petitioner who did not even state anything about her misbehaviour or about her refusal to submit sexual intercourse with him as alleged in the petition, therefore) these allegations have to be held to be false. His father Din Dayal no doubt stated that the respondent abused his son but the son did not state anything about it so that is also a false allegation and far from being reliable.”
5. The learned District Judge, Narnaul then proceeded to consider the allegations contained in the written statement and held that both the parties appears to have committed cruelty against each other. The relevant extracts of the findings recorded by him are reproduced below:
“There is, however, one allegation that the petitioner and her parents maltreated her and that she was compelled to go to her parental house which stands corroborated from the statement of Balbir Singh, her elder brother. It has also been stated by Rajbala who is corroborated by the statement of her brother that she had brought money from her parents on one or two occasions and that the petitioner made constant demands for more money. This is indirectly corroborated by the statement of Balbir Singh who stated that the petitioner was given Rs. 5,000/- and he had promised to behave nicely towards Rajbala. Also he added that he had been coming to the house of the petitioner and he gave money to his sister to meet the household expenses. That coupled with vague averment that the respondent was a spend that off shows the greedy nature of the petitioner who must have kept her tight for necessary expenses even. It was for this reason that he beat the respondent as alleged by her which can be wholly relied upon in the fact of false allegations by him against her. It was also for this reason that a Panchayat was held at Narnaul to persuade him to behave properly with the respondent though it failed to achieve its object.
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 mal-treatment by her which also amount to cruelty. In such circumstances, it appear to me that both the parties have committed cruelty against each other and 1 decide the two issues accordingly.”
6. During the pendency of the appeal filed by Smt. Raj Bala, the appellant sought amendment of the original petition for claiming divorce on the basis of the allegations made in the written statement. The learned Single Judge rejected that prayer and then proceeded to held that the counter allegations made by the respondent could not have been made basis for granting the decree of divorce.
7. The observations and the findings recorded by the learned Single Judge on these aspects read as under :
“I have heard the learned Court 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 under Section 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 6f maltreatment by her, he has 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 stated 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 facts and circumstances of the case.”
8. We have heard Mr. S.K. Mittal. At the outset, we consider it necessary to mention that by an order dated 20.3.1991, the name of respondent No. 2 Om Parkash was struck off from the array of parties. In view of this, Mr. Mittal found it impossible to persuade us to upset the concurrent finding recorded by the trial Judge and the learned Single Judge that the appellant has failed to prove the allegation of adultery against the respondent. Learned Counsel also could not advance any tangible argument to convince us that the concurrent finding recorded by the two Courts on this issue of cruelty suffers from any legal error. That apart, we have ourselves minutely gone through the evidence produced by the parties and are in agreement with the two Courts that the appellant has failed to lead cogent evidence to prove that the respondent had treated him with cruelty. We are also in complete agreement with the learned Single Judge that on the basis of allegations made in the written statement, the appellant could not be granted a decree of divorce on the ground of cruelty. The appellant’s failure to seek amendment of the petition before the trial Court is sufficient to draw an inference that he gave up his right to seek judicial separation on the ground that by making false allegations in the written statement, the respondent has committed cruelty upon him.
9. The end result of the above discussion is that the appeal is held to be without merit and it is liable to be dismissed as such. Ordered accordingly.
