S.D. Anand, J.
1. This is wife's appeal against judgment dated 27.3.1999 vide which the learned Trial Judge, while allowing the petition filed by the respondent-husband, ordered the dissolution of the marriage, between the parties.
2. It is apparent from record that the respondent-husband applied for dissolution of marriage on plea of cruelty. The parties were married, as per Anand Karaj on 11.5.1985. However, no issue was born out of their union. The respondent-husband was in the Army. After the marriage, he went to his place of posting. He had throughout been posted elsewhere; while appellant-wife continued denied to stay with her-in-laws at the matrimonial house. When the respondent came home for the first time after the marriage, he was informed by his parents that the appellant-wife had not been behaving properly with them and that she would pickup quarrel even on a petty matter. The respondent asked the appellant to be reasonable and to mend her ways. Whenever the respondent would go to his place of posting, the appellant would leave the matrimonial home and go over to her natal house. She would return to the matrimonial house only when it would be time for the respondent-husband to come home on leave. The respondent did make a grievance of that fact and also the behaviour of the appellant to her parents but it had no effect upon her behaviour. In September, 1997, the appellant left the matrimonial house and has not returned thereto ever since then. The respondent had taken a number of panchayats to the natal house of the appellant to ensure her return to the matrimonial house but she declined to join the matrimonial company of the husband. On the other hand, the appellant filed a petition under Section 125 of the Cr.P.C., which was dismissed by the Court on 9.1.1992. However, an appeal filed by the appellant was accepted by the Appellate Court on 4.3.1994 and maintenance allowance came to be awarded in favour of appellant wife. Thereafter, the appellant also filed a petition for restitution of conjugal rights which was decreed by the Court of the then learned Additional District Judge, Jagadhari on 25.7.1992. However, inspite of decretal thereof, the appellant did not resume matrimonial ties by going over to her matrimonial house. It was on the above allegations that the respondent filed a plea for dissolution of marriage.
3. The appellant contested the allegation afore-mentioned and denied having ever misbehaved with the respondent or members of his natal family. She also denied having ever picked up any quarrel with the respondent-husband and members of in-laws family. It was also denied by her that she used to leave the matrimonial house for her natal house during the period her husband was away on duty. She did, however, concede that her appeal against the dismissal of application under Section 125 Cr.P.C. had been allowed. Site further conceded she filed a plea under Section 9 of the Hindu Marriage Act. The respondent filed written statement therein conceding the plea for the restitution of conjugal rights and it was in the light of that admission that the petition came to be decreed. However, the further averment is that the respondent did not resume co-habitation with the petitioner and has entered into a second marriage.
The trial proceeded on the following issues:
1. Whether the petitioner is entitled to seek dissolution of marriage? OPP
2. Whether the petitioner performed second marriage with Smt. Jasvinder Kaur, if so, its effect? OPR
4. The learned Trial Court gave finding under both the issues in favour of the respondent-husband.
5. It was noticed by the learned Trial Judge that the appellant-wife did not take any steps to get the decree under Section 9 of the Act of the conjugal rights (obtained by her against the respondent-husband in the year 1987) enforced. On the other hand, learned Trial Judge noticed that she had been pursuing the petition under Section 125 of the Cr.P.C. (which came to be declined by the learned Trial Court but was allowed by the then learned Appellate Court) on 19.9.1988 and that she had also launched a prosecution under Sections 494 and 497 IPC against the respondent-husband in the year 1996. On the plea of cruelty, the learned Trial Judge observed that he continued staying away of the appellant wife for the last 11-12 years and also the pursuit for the proceedings under Section 125 Cr.P.C. and also the prosecution under Section 494 and 497 IPC and further the lodging of report with the Army authorities, about the respondent-husband having contracted second marriage, are all acts which constitute cruelty on the party of the appellant-wife.
6. Learned Counsel for the appellant-wife argues that the allowance of the divorce plea filed by the respondent-husband, on a plea of non compliance of the decree under Section 9 of the Act, amounts to allowing the respondent to take advantage of his own wrong. The plea, in the context, is that it was for the respondent-husband to comply with that decree.
7. Learned Counsel was not a firmer footing when he raised the above plea. On the own showing of the appellant-wife, there has been no resumption of matrimonial ties between the parties of the last 11-12 years inspite of the decretal of petition under Section 9 of the Act in favour of the appellant-wife and against the respondent. It is neither here nor there for the learned Counsel for the appellant to argue that it was for the husband to comply with the decree under Section 9 of the Act. If the respondent-husband did not comply with that decree, it was for the appellant-wife to notify that fact to the learned Trial Court. The conduct of the wife is to be appreciated in the light of the fact that, on the one hand, she obtained a decree for the restitution of conjugal rights in the year 1987; while on the other hand she kept on prosecuting the petition under Section 125 of the Cr.P.C. and also the prosecution launched by her against the respondent-husband under Sections 494 and 497 in the year 1996. It is, thus, apparent from the above facts that the appellant-wife never ever intended to resume the matrimonial ties with the respondent-husband.
8. Insofar as the aspect of cruelty is concerned, there also the finding recorded by the learned Trial Court deserves affirmation for the reasons indicated hereunder:
The appellant-wife made a complaint against the respondent-husband to Army authorities on the plea that latter had remarried. She also launched a prosecution under Sections 494/497 IPC against the respondent-husband in the year 1996. There is not even an averment that the prosecution aforementioned has culminated in a decision. The appellant-wife had also not placed on record any documentary evidence to prove that respondent-husband had indeed contracted second marriage with a lady by the name of Jaswinder Kaur. Except the oral submission made by the appellant wife and her father at the trial, there is nothing on record to prove the allegation that the respondent-husband entered into a second marriage. On point of fact, it maybe noticed that respondent-husband had denied having entered into a second marriage with the lady aforementioned. If a spouse makes a false allegation of the indicated category to the employer of the other spouse and also launches a prosecution on that very premises, mere could be no better proof of an act of cruelty on the part of that spouse vis-a-vis the other spouse.
9. Apart therefrom, the appellant-wife has not resumed cohabitation with the respondent-husband for the last number of years. She obtained a decree for the restitution of conjugal rights just as a paper transaction and did not take any steps whatsoever to get it implemented. She even did not notify the non-compliance of that decree, on the part of the respondent-husband, to the learned Trial Court. That, by itself, would prove that it is she who had caused mental cruelty to the respondent-husband.
10. The above discussion would prove that the finding recorded by the learned Trial Judge does not call for any interference. The appeal shall stand dismissed.