JUDGMENT
S. Muralidhar, J.
1. This appeal is directed against the judgment dated 3.5.1997 passed by the Additional District Judge, Delhi dismissing the appellant’s petition HMA No. 255 of 1996 seeking divorce from the Respondent on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955.
2. The parties were married on 12.12.1994. According to the appellant Respondent was creating problems soon after the marriage; she often used to run away from the matrimonial home and go away to Aligarh; the brother-in-law of the Respondent used to often visit the matrimonial home which was not liked by the appellant and he also underwent mental agony when the brother-in-law informed him that the appellant could not satisfy the Respondent. He suspected that the brother-in-law was having illicit relations with the respondent. It is alleged that the Respondent falsely told the appellant that she was attending marriage of her friend but later when he found that she had not gone there, he had stopped talking to her. The Respondent fought with the appellant on 11.12.1995 and consumed phenyl and it was only with great difficulty that the appellant and his brother were able to save her.
3. According to the appellant, about three months prior to this incident, on 18.9.1995, out of the suspicion created in his mind, he got himself sterilized at the R.K.Puram Family Planning Centre under the fake name of Rajesh Kumar and also gave the name of wife as Savita. He did not disclose this fact to the Respondent or to any of his family members. He states that he underwent further mental agony when the Respondent informed him that she had conceived a child around 8.5.1996. At that stage he informed the Respondent of his having undergone sterlisation and upon hearing of it the Respondent became violent and attempted to pour kerosene oil on him and set him on fire. He states that in order to save the honour of the family, he did not take any action except lodging a Peshbandi report with the police on 11.5.1996 and an intimation to the Crime Against Women Cell at Seelam Pur on 10.5.1996. He states that the Respondent fled the matrimonial home on 10.5.1996. She went to Aligarh and has not returned since.
4. The case of the Respondent was that soon after the marriage, the appellant and his family members started harassing her for more dowry; that she is a teacher in a Government school; that the appellant was having illicit relations with his Bhabi and compelled the Respondent to have illicit relations with his elder brother to which she did not agree. She denied the allegations made by the appellant against her brother-in-law as baseless and false and alleged that he did not come to Court with clean hands as he probably obtained a false certificate of sterlisation just to obtain a divorce from the Respondent. She denied the allegation that she had tried to kill the appellant and instead stated that the appellant had tried to kill her by pouring kerosene on her clothes from which she escaped.
5. The appellant examined two police officials for proving that he had lodged a complaint on 10.5.1996 with the Women’s Cell and on 11.5.1996 with the Police Station Gokul Puri. The appellant examined himself as PW-3 and reiterated what he had stated in his petition. He denied the suggestion made to him in the cross-examination that the brother-in-law used to visit only rarely and that the Respondent was not having any illicit relationship with the said brother-in-law. While he admitted that he had more attachment towards his Bhabi as compared to the Respondent. He volunteered that he admired Bhabi and used to treat her as his mother. He denied that the sterlisation certificate obtained by him was false and fabricated. Shri Jagdish Kumar was produced as PW-4 to prove the sterlisation certificate issued in the name of Rajesh S/o Shri S.B.Singh. This witness produced a register which contained the right thumb impression of the person who underwent the sterlisation.
6. The Respondent examined herself as the sole witness on her behalf. She admitted in her cross-examination that she had tried to consume phenyl on 11.12.1995 and that the appellant and the family members provided timely medical treatment to save her. While she denied that she had any knowledge of the appellant having got himself sterilized on 18.9.1995 or her having told him only on 8.5.1996 that she was pregnant. She stated that she was pregnant since February, 1996.
7. The trial court found that it was the appellant who treated the Respondent with cruelty by leveling a false allegation of adultery against her and her brother-in-law. The trial court found that the appellant had not complied with Rule 12 of the High Court Rules, framed under the Act which mandates, in such events impleading the brother-in-law as a co-respondent. The trial court also found that the cruelty was established by the appellant trying to get a sterilised certificate under a false name and not informing the Respondent of that fact till 8.5.1996. The trial court found it improbable that a person who married on 12.12.1994 and did not have a child would actually choose to get himself sterilised within nine months thereof. The trial Court found that other allegations may have been exaggerated by both the parties but those constituted the wear and tear of regular married life. Accordingly the trial court dismissed the petition.
8. Appearing for the appellant, Mr. J.C. Mahindroo, learned Advocate, states that the trial court has, while discussing the decision cited by the counsel for the appellant, found that some of them apply to the instant case and that despite this the petition has been dismissed. For instance he points out that the fact that the Respondent attempted suicide on 11.12.1995 has been found to constitute cruelty by the trial court in terms of the decision in 1993 1 DMC 358 (P&H). He further submits that the sprinkling of kerosene also stood proved and this was sufficient for the petitioner to succeed in his petition. According to Mr. Mahindroo, the appellant’s version regarding the sterlisation certificate stood proved by the evidence of PW-4 and if indeed the Respondent had conceived despite such sterlisation in September, 1995 that would definitely constitute cruelty. Finally, Mr. Mahindroo submitted that the parties had been admittedly living separately since 1996 and there was no prospect of the marriage surviving after this length of time. Relying on the judgments of the Hon’ble Supreme Court in Naveen Kohli v. Neelu Kohli and Samar Ghosh v. Jaya Ghosh (decision dated 26.3.2007 in Civil Appeal No. 151 of 2004), he submitted that divorce should be granted on the ground of irretrievable breakdown of marriage as well.
9. Appearing for the Respondent, Mr. Mohit Paul, submits that the trial court has returned to a clear finding that it is the appellant who treated the Respondent with cruelty particularly since he had made a false allegation of the Respondent having illicit relationship with her brother-in-law without even making brother-in-law a party to the petition. He further submitted that the evidence on record not only supported the conclusion that the sterlisation certificate was a fake one but also that the appellant subjected the Respondent to cruelty by not informing her of such operation till May, 1996. Finally he submitted that the Respondent was always willing to live with the appellant and that the appellant cannot seek divorce on the ground of irretrievable breakdown of marriage after making it impossible for the Respondent to live with him. He places reliance on the judgments of Hon’ble Supreme Court in R.Balasubramanian v. Vijayalakshmi Balasubramanian , Hirachand Srinivas Managaonkar v. Sunanda , Chetan Dass v. Kamla Devi and Perminder Charan Singh v. Harjit Kaur to contend that irretrievable breakdown of marriage cannot constitute a ground for dissolution particularly where the spouse seeking to avail of such a ground is the party responsible for causing cruelty.
10. The trial court appears justified in its conclusion that the appellant treated the Respondent with cruelty. The admitted position is that the child was born on 28.11.2006. The appellant set up a plea that this child was not born to him and for proving this he has tried to show that he underwent sterlisation giving a false name with false particulars on 18.9.1995. Further, to prove the false certificate so produced with this petition, he has examined Shri Jagdish Kumar, PW-4, a family planning field worker employed with the Family Planning Association of India. The evidence of PW-4 reads as under:
I have brought the original book of the certificates of sterlisation containing certificate No. 45/TU-33112 dt. 18/9/95 issued in the name of Sh. Rajesh S/o Sh.S.P.Singh. No address of the person is mentioned in the certificate. The person concerned was operated at Family Planning Association of India at the above said address. R.T.I. Of the person concerned is also taken. Photostate copy of the same is Ex.PW4/1. Orginal seen and returned.
11. Interestingly the above evidence only goes to show that a certificate was issued on 18.9.1995 in the name of one Rajesh. The above evidence does not show that it was the appellant here who went to the clinic on that day and posed himself as Rajesh and underwent sterlisation operation. The right thumb impression on the Register should have been that of the appellant if indeed the appellant’s version was true. No attempt was made to confirm this aspect either. The only conclusion therefore is that the appellant miserably failed to prove the plea set up by him of having undergone a sterlisation operation in September, 1995.
12. The trial court, in these circumstances, was justified in coming to the conclusion that this obnoxious behavior of the appellant in trying to set up a false case of sterlisation and not informing the Respondent about it till after she conceived the child, itself amounted to cruelty. To this Court it appears that the plea of the appellant was itself a false one and that alone could have disentitled him from any relief.
13. As regards the Respondent having sprinkled kerosene on the appellant, the cross-examination of the Respondent shows that she has specifically denied the suggestion that the appellant informed her of this fact on 8.5.1996 and that upon hearing this she tried to set him on fire by sprinkling kerosene. Strangely if such an incident took place on 8.5.1996, it is surprising that the appellant made no attempt to lodge any complaint with the police. This allegation therefore has also not been proved by the appellant. Making such a false allegation also supports the finding of the trial court that it is the appellant who treated the Respondent with cruelty.
14. The allegation of the respondent having had illicit relations with her brother-in-law has also not been proved. The one incident of the respondent having consumed phenyl can hardly constitute cruelty particularly since the parties continued living together thereafter and the respondent also conceived the child in February 1996. In the considered view of this Court, the trial Court came to the correct conclusion on all these aspects and the judgment under appeal does not call for any interference.
15. Mr. Mahindroo, learned Counsel for the appellant, referred to specific paras of the judgment of the Hon’ble Supreme Court in Naveen Kohli and Samar Ghosh to urge for dissolution of marriage on the ground of irretrievable breakdown. He referred to the fact that despite several attempts made in this Court and the effort made by the appellant to deposit a lump sum amount in the name of the daughter, the Respondent did not agree to such proposal. This showed that the Respondent’s stand that she was agreeable to live with the appellant was false. According to him the matrimonial bond was beyond repair as its continuance would only cause more mental cruelty to the appellant.
16. In the judgments of the Hon’ble Supreme Court in Naveen Kohli and Samar Ghosh, there was a positive finding by the Hon’ble Supreme Court that the Respondent in each of those cases had treated the appellant there with cruelty. In neither case did the Hon’ble Supreme Court hold that notwithstanding the fact that the appellant had treated the Respondent with cruelty, the appellant would nevertheless be entitled to divorce on the ground of long years of separation. On the other hand, in other decisions, the Hon’ble Supreme Court has underscored the importance of not automatically accepting the plea of irretrievable breakdown of marriage on behalf of a spouse who is an erring party. It was observed in Chetan Dass v. Kamla Devi (2001) 4 SCC page 261 as follows:
…In this case, the averment made in the petition for obtaining a decree for divorce, namely, desertion on the part of the wife without any reasonable cause has not been found to be correct. The petition was liable to be dismissed on that ground alone. The defense of the respondent for having a justified reason to live away from the husband has been found to be correct. behavior of the appellant certainly falls in the category of misconduct on his part. In such circumstances, it is too much on his part to claim that he be given the advantage of his own wrong and be granted a decree of divorce on the ground of desertion on the part of his wife who is still prepared to live with him provided he snaps his relationship with the other woman….
17. This was again reiterated in Shyam Sunder Kohli v. Sushma Kohli where it was observed at page 749 as under:
…On the ground of irretrievable breakdown 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 breakdown. We, thus, see no substance in this connection.
18. Given the facts and circumstances of the present case, this Court is not inclined to accept the plea of the appellant, who is in fact the erring party, that the marriage should be dissolved on the ground of irretrievable breakdown only for the reasons that the parties have been living separately for over 11 years.
19. For all of the above reasons, this Court finds no merit in this appeal and it is dismissed with costs of Rs. 5,000/- which will be paid by the appellant to the Respondent within a period of four weeks from today.