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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.