JUDGMENT

NAVITA SINGH, J. –

This appeal is preferred against the judgment and decree dated 15.10.2001 passed by Additional District Judge, Sangrur, whereby petition filed by the appellant under Section 13 of the Hindu Marriage Act, 1955, (Act for short), was dismissed.

2. The marriage between the parties was solemnized on 24.03.1991 and one female child was born out of the wedlock in 1993. The petition for divorce was filed by the appellant on the ground that the respondent used to misbehave with him in presence of friends and relatives and insisted that she should live separately from his parents. She wanted the appellant to transfer land in her name and refused to co-habitat with him stating that she did not like him. She would refuse entry to him in the bedroom. She did not perform the household chores and would bolt the door of the house from inside when the parents of the appellant were away and did not allow them in many a time.

3. In May, 1994, the respondent left the house of the appellant in his absence and took away jewellery and other valuables with her. A panchayat was convened and an attempt was made to sort out the matter, but the respondent refused to accompany the appellant. She had deserted the appellant for a period of more than two years immediately preceding the filing of the petition.

4. The respondent in her reply to the petition admitted the marriage and the birth of the child, but denied all other allegations made against her. She said that she was a dutiful wife and she was rather turned out of the matrimonial home in May, 1993, after being beaten up. At that time, she was carrying the child in her womb. According to her, no panchayat was convened nor any effort was made on the part of the appellant and/or his family to rehabilitate her in her matrimonial home.

5. The appellant had filed a petition under Section 9 of the Act, which was dismissed as withdrawn on 18.07.1996. He then filed a petition under Section 13 of the Act, which was dismissed for non-prosecution on 20.02.1997. A petition under Section 125 of the Code of Criminal Procedure was filed by the respondent, which was decided in her favour.

6. The trial Court framed issues regarding desertion and cruelty and took evidence of the parties which consisted of the statement of the appellant as PW2 and that of Modan Singh as PW1 and Sohan Singh as PW3 and of the statement of the respondent as RW3, Jagjit Singh as RW1 and Kulvir Singh as RW2.

7. It may be pointed out here initially that the appellant did not bother to disclose in the petition that he had filed a petition under Section 9 of the Act and also another petition under Section 13 of the Act, the first having been withdrawn by him and the second having been dismissed in default. He, thus, concealed material facts. It would also be interesting to note that both the petitions were produced in evidence by the respondent which showed that the appellant did not level even half of the allegations in the petition under Section 9 of the Act while in the petition filed for divorce earlier, he levelled almost similar allegations. He pleaded that in August, 1994, the respondent had left her matrimonial home in the absence of the appellant and took away certain ornaments, the description and weight in gold of which was given. In the present petition, however, he, not realizing that he had pleaded August 1994 as the time of desertion, alleged that the respondent deserted him in May 1994, and that is what he mentioned in the petition under Section 9 of the Act.

8. In any case, while the petition under Section 9 of the Act was pending, it meant that the appellant had condoned all acts of cruelty on the part of the respondent as he wanted her to join company with him. The petition was withdrawn on 18.07.1996. First petition for divorce was filed on 07.10.1996, i.e. after less than three months. This would make it obvious that the petition under Section 9 of the Act was filed only to create evidence or may be to gain sympathy of the Court. Till the time the said petition was withdrawn, the presumption would be that the appellant had wanted to live with the respondent, whereas less than three months after that, he moved the Court for divorce giving a different date regarding desertion.

9. In any case, as mentioned above, all previous acts of cruelty stood condoned when application under Section 9 of the Act was filed and nothing new having been pleaded, the ground of cruelty was not available to the appellant. Though the present petition was filed more than two years after the withdrawal of the petition under Section 9 of the Act and in less than two years after dismissal of the first petition for divorce, it would not be sufficient to prove that the respondent had deserted the appellant, as alleged. The latter was not even sure as to when his wife deserted him because at one place he pleaded that desertion was in May 1994, and in the previous petition, it was mentioned as August 1994. Nothing came on record as to why first petition for divorcee was not pursued and why the appellant even did not bother to mention in the present petition regarding the previous two petitions, one under Section 9 and the other under Section 13 of the Act. In the cross-examination, the appellant stated that he had earlier filed a petition for divorce which he had withdrawn. However, record shows that the petition was dismissed in default. He also admitted that he had filed petition under Section 9 of the Act. The documents and the relevant orders were put to him, which he admitted.

10. No evidence was led regarding any panchayat having been taken to the house of the respondent earlier on two occasions with different persons and there was nothing to show that the respondent had deserted the appellant, as alleged. The allegations of cruelty were also general in nature which could be termed as normal wear and tear of married life. Rather the respondent led evidence to show that she was turned out of the matrimonial home and no sincere effort was made by the appellant to rehabilitate her.

11. It appears that for some reason the appellant decided to break the nuptial tie and then became adamant. He had no intention of living with the respondent, but failed in his attempt to put all the blame on her so that he could get a decree of divorce.

12. As a sequel to the discussion made above, the appeal must fail and is dismissed.

Appeal dismissed.

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