# Upendra Kumar v. Sangeeta alias Babli Opp. Party

- **Citation:** (2019) 2 ILRA 784
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-06
- **Case number:** Second Appeal No. 64 of 2013
- **Bench:** Siddhartha Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/upendra-kumar-v-sangeeta-alias-babli-opp-party-44746
- **Pages:** 6

## Headnote

Sri Divakar Rai Sharma

A. Maxim - 'NULLUS COMMODUM CAPERE
POTEST DE INJURIA SUA PROPRIA' - No
man can take advantage of his own wrong.
 (Para 16)

B. Hindu Marriage Act, 1955 - Section 13 -
Husband
Divorce
Petition
-
Husband
himself was responsible for the breakdown
of marriage and therefore could not take
advantage of his own wrong.
Held:-There was not even an iota of evidence
to show that the wife was responsible for any
desertion or cruelty - Irretrievable breakdown
of marriage had occurred because of the
plaintiff/husband himself. He himself was
responsible for the breakdown and therefore
could not take advantage of his own wrong.
The principle enunciated in the maxim
'NULLUS COMMODUM CAPERE POTEST wholly
applies in this case. Husband could not take
advantage of his own wrong. (Para 17)
Appeal dismissed (E-5)
List of cases cited: -

## Text

784 INDIAN LAW REPORTS ALLAHABAD SERIES
to be made during trial subject to
evidence, or at times upon an application
of the law which the parties did not
understand to be that what the Court has
concluded. If any of these contingencies
where the Court finds itself to be without
jurisdiction, there is simply no reason to
penalize a litigant with the dismissal of
his suit. Looked at from another angle, a
Court that opines not to have any
jurisdiction over the subject matter of the
suit does not have jurisdiction to decide
anything about it; a fortiori it has no
jurisdiction to dismiss the suit.

46. In this view of the matter, this
Court is of considered opinion that where a
suit is held barred by the provisions of
Section 331 of the UP ZA & LR Act at any
stage of the proceedings, be it in appeal or
revision, the suit cannot be dismissed but
has to be dealt with by an order directing
return of the plaint to be presented to the
proper Court. Substantial question of law
no.(i) is answered accordingly. Substantial
questions of law no.(ii) has already been
answered hereinabove. In view of the
answers to questions nos. (i) and (ii),
question no.(iii) is not required to be
answered.

47. In the result, this appeal succeeds
partly and allowed to the extent that the
decree of dismissal of the suit passed by the
lower Appellate Court is set aside, and shall
stand substituted by an order directing
return of the plaint for presentation in
accordance with law to the proper Court.
The Trial Court shal0.79 "l carry out the
aforesaid order immediately upon receipt of
records. The defendants shall be entitled to
their costs from the plaintiffs throughout.

48. It is, accordingly, ordered.
----------
(2019)10ILR A 784

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.09.2019

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.

Second Appeal No. 64 of 2013

Upendra Kumar ...Appellant
Versus
Sangeeta alias Babli ...Opp. Party

Counsel for the Appellant:
Sri M.K. Gupta, Sri Pankaj Agarwal, Sri
Sandeep Saxena, Sri Ved Mani Sharma

Counsel for the Opp. Party:
Sri Divakar Rai Sharma

A. Maxim - 'NULLUS COMMODUM CAPERE
POTEST DE INJURIA SUA PROPRIA' - No
man can take advantage of his own wrong.
 (Para 16)

B. Hindu Marriage Act, 1955 - Section 13 -
Husband
Divorce
Petition
-
Husband
himself was responsible for the breakdown
of marriage and therefore could not take
advantage of his own wrong.
Held:-There was not even an iota of evidence
to show that the wife was responsible for any
desertion or cruelty - Irretrievable breakdown
of marriage had occurred because of the
plaintiff/husband himself. He himself was
responsible for the breakdown and therefore
could not take advantage of his own wrong.
The principle enunciated in the maxim
'NULLUS COMMODUM CAPERE POTEST wholly
applies in this case. Husband could not take
advantage of his own wrong. (Para 17)
Appeal dismissed (E-5)
List of cases cited: -
1. Statish Sitole Vs Ganga (Smt.) (2008) 7 SCC
734
2 All. Upendra Kumar Vs Sangeeta alias Babli
785
2. K. Srinivas Rao Vs D.A. Deepa (2013) 5 SCC
226
3. Mamta Dubey Vs Rajesh Dubey (2009) 5
ADJ 516 (DB)
4. Sandhya Singh Vs Major Sandeep Singh
(2009) 6 ADJ 189
5. Manisha Tyagi Vs Deepak Kumar (2010) 4
SCC 339
6. Arti Pandey Vs Vishnu Kant Tiwari (2012) 10
ADJ 619 (DB)
7. Rattan Singh Vs Manjit Kaur AIR 2010 Punj.
& Har. 72
8. Ram Babu Babeley Vs Smt. Sandhya (2006)
1 AWC 183
9. Dutt Sharma Vs Manju Sharma (2009) 7 JT
5 Vishnu
(Delivered by Hon'ble Siddhartha Varma, J.)

1. This second appeal has been filed
against the judgement and decree dated
23.11.2012 passed by the Additional
District Judge Court No.1 Muzzaffar
Nagar in Civil Appeal No. 52 of 2011. It
has been prayed that after the judgement
and decree dated 23.11.2012 is set aside,
the judgement and decree dated 18.5.2011
passed by the Additional Civil Judge
(S.D.) Court No. 3 Muzzaffar Nagar in
Petition No. 872 of 2005 be restored.

2. A petition under Section 13 of the
Hindu Marriage Act, 1955, was filed by
the
appellant
Upendra
Kumar,
the
husband. It was stated in the petition that
after the appellant i.e. Upendra Kumar
had got married to the respondent Smt.
Sangeeta on 10.4.1994 the latter came to
her husband's house at Alavalpur, Mazra,
where her two sons who were aged about
8 years and 6 years at the time of the
filing of the petition were born. It was
contended in the Divorce petition that
there was no compatibility between the
husband and the wife as their intellectual
levels did not match. The wife, it was
stated, did not like her husband and she
always wanted to stay with her mother in
Village - Johra. The wife, it was stated in
the petition, never agreed with anything
the husband desired to do. At the time of
marriage, the husband was doing a private
job in Delhi. For some time, he had also
worked privately in Faridabad. It was
stated that the wife never wanted stay in
the rented accommodation where the
husband was staying and she always
wanted to stay with her mother at Johra.
There were always fights between the two
of them and the neighbours used to
witness the fights. There were times when
for days together the wife never used to
prepare food for the plaintiff-husband and
he had to cook for himself.

3. It has further been stated in the
plaint that when in 1997, the plaintiff
husband became a Junior Engineer in the
Railways and was posted in Bhusawal,
District - Jalgaon, Maharashtra then the
defendant-wife stayed with him for a very
short period of time and in September
1998 when she entered into a fight with
him she came back to her Mayaka. When
she did not come back to him, he filed an
Application for the restitution of conjugal
rights. However, with the intervention of
some known and respected people of the
area, namely, Sri Tilak Ram, Sri Veersain
and Sri Ram Swaroop, a compromise was
entered into and the couple began to live
together. This, however, did not restore
normalcy. When the husband came to
know that the wife was all the time asking
his friends as to whether if the husband
died would she be getting a job in his
place and when the plaintiff husband
suspected the character of his wife things
again reverted to the original state. The
786 INDIAN LAW REPORTS ALLAHABAD SERIES
wife again left the house of her husband
and went to her mother's house.

4. It has still further been stated in
the plaint that on 15.4.2004, the plaintiffhusband went to the maternal home of the
wife but she refused to come along with
him. On 1.5.2004, the plaintiff husband
went back to Bhusawal. In the plaint, it
has been stated, that on 18.7.2004 the
defendant wife alongwith her brother
Mintu and her two sons reached Bhusawal
and left her two sons behind and came to
her mother's house. On 3.12.2004, the
plaintiff-husband came back to Delhi and
started living with his children over there.
In the plaint he has narrated an incident
which occurred on 31.8.2005 whereby
according to him, he was criminally
intimidated at the instance of his wife.
With regard to this criminal intimidation,
he had also got a complaint lodged at
Thana - Nazafgarh. He further stated that
on
8.9.2005
even
his
father
was
threatened.

5. However, the wife in reply to the
petition
for
divorce
filed
by
the
husband/plaintiff
had
denied
the
allegations made therein. She also stated
that she had filed an application under
Section 9 of the Hindu Marriage Act
being Suit No. 779 of 1999 for the
restitution of conjugal rights. She denied
the fact that she had left the children with
the husband and stated that, in fact, he had
taken away the children forcibly and had
forsaken the wife i.e. the defendant. The
defendant wife had also denied any kind
of adulterous living and she had stated
that only to malign her reputation, the
plaintiff-husband was stating that she was
living with other men. She has stated that
no other person had been arrayed as a
party in the Divorce Petition by name.
The suit for divorce was decreed on
18.5.2011. However, the First Appeal
which was filed by the wife (the
respondent here) was allowed and the suit
was
dismissed.
The
point
for
determination before the First Appellate
Court was as to whether the conduct of
the wife could be termed as being cruel
towards the husband and because of the
cruelty was it not possible for the two to
live together as husband and wife.

6. A perusal of the judgement of the
First Appellate Court shows that while
deciding
the
point
which
it
had
determined for decision, the Court also
decided as to whether there was desertion
from the side of the wife. It also appears
that the First Appellate Court looked into
the fact as to whether the wife was
responsible
for
the
irretrievable
breakdown of the marriage. The First
Appellate Court while deciding the
Appeal found that there was no desertion
from the side of the wife and it was also
found that there was no cruelty from her
side and, thereafter, allowed the first
appeal.

7. The instant second appeal was
initially admitted on 20.10.2016. On various
occasions i.e. on 20.10.2016, and thereafter
efforts were made for re-conciliation. When
no re-conciliation appeared possible, this
Court on 22.5.2019 framed two questions of
law which are being reproduced here as
under:-

I. Whether the allegations made in
the plaint amount to cruelty?

II. Whether the acts alleged would
mean desertion?

8. The further question of law which
was argued by the parties, though was not
2 All. Upendra Kumar Vs Sangeeta alias Babli
787
formulated, was whether divorce could be
granted on the ground of irretrievable
breakdown of marriage because of the
fact that the parties were not living
together for a very long time.

9. Learned counsel for the appellant
submitted that the defendant wife was not
staying with the plaintiff-appellant ever
since May, 2004, and, therefore, there was
no chance of them living together as
husband and wife. He reiterated the
various grounds which he had taken in the
plaint for divorce. He also took the Court
through the various evidence which could
make the Court believe that the wife i.e.
the defendant had forsaken the plaintiff
and, therefore, there was a desertion. He
also submitted that acts which were
committed by the wife, the defendant,
amounted to cruelty. He still further
submitted that her staying with other men
amounted to adulterous living. Therefore,
he prayed that ths second appeal be
allowed. The judgement and decree of the
first appellate court be set aside and the
decree of divorce as was passed by the
Trial Court be restored.

10. Learned counsel relied upon the
testimony of the plaintiff-appellant and
one Sri Virendra Singh to substantiate his
case.

11. Learned counsel for the
appellant
also
relied
upon
certain
decisions, namely, 2008 (7) SCC 734 :
(Statish Sitole vs. Ganga (Smt.), 2013
(5) SCC 226 : (K. Srinivas Rao vs. D.A.
Deepa), 2009 (5) ADJ 516 (DB) :
(Mamta Dubey vs. Rajesh Dubey), 2009
(6) ADJ 189 : (Sandhya Singh vs.
Major Sandeep Singh) and submitted
that separate living for a very long time
amounted to an irretrievable break down
of marriage and a decree of divorce be
granted.

12. Learned counsel for the plaintiffappellant also submitted that divorce
could be granted if there was only a single
act of cruelty and relied upon 2010 (4)
SCC 339 : (Manisha Tyagi vs. Deepak
Kumar), 2012 (10) ADJ 619 (DB) : (
Arti Pandey vs. Vishnu Kant Tiwari),
AIR 2010 Punjab and Haryana 72 :
(Rattan Singh vs. Manjit Kaur).

13. Learned counsel for the
respondent Sri Diwarkar Rai Sharma, in
reply, however, submitted that the First
Appellate Court had after looking into the
evidence as was available on record had
definitely come to a conclusion that there
was no desertion from the side of the
defendant wife and, in fact, had arrived at
a definite conclusion that it was the
plaintiff-husband
who
had
managed
things in such a manner that the
separation of the two had resulted.

14. Learned counsel for the
respondent took the Court through the
various evidence and also the judgement
of the First Appellate Court and stated
that so far as any adulterous living was
concerned, no finding could be arrived at
as per the Hindu Marriage and Divorce
Rules, 1956, as no name had been
provided of anyone with whom the wife
might have tried to live an adulterous life.
In fact, the learned counsel of the
respondent-wife drew the attention of the
Court to the various findings which had
been arrived at by the First Appellate
Court and tried to convince the Court that
the abandoning of the children, the
fighting between husband and the wife
and the criminal intimidation from the
side of the wife were a figment of the
788 INDIAN LAW REPORTS ALLAHABAD SERIES
imagination of the husband. Learned
counsel also drew the attention of the
Court to the evidence led by the wife
regard to the case she had filed for the
restitution of conjugal right. He also drew
the attention of the Court to the
application which the wife had filed for
custody of the children.

15. In the end learned counsel for
the respondents vehemently argued that
when
the
husband
himself
was
responsible
for
the
irretrievable
breakdown of the marriage then he could
not seek divorce on that ground. Learned
counsel for the respondent relied upon
2006 (1) AWC 183 : Ram Babu Babeley
vs. Smt. Sandhya, and stated that the
appellant-plaintiff
could
not
take
advantage of his own fault and say that
the
marriage
had
irretrievably
brokendown and that a decree of divorce
be granted. Learned counsel relying upon
2009 (7) JT 5 : Vishnu Dutt Sharma vs.
Manju Sharma argued that irretrievable
breakdown was not a ground provided in
Section 13 of the Hindu Marriage Act,
1955.

16. The counsel for the respondents
relied upon the maxim of law 'NULLUS
COMMODUM CAPERE POTEST DE
INJURIA SUA PROPRIA' and submitted
that no man can take advantage of his
own wrong. He submitted that the
husband who had filed the petition
himself, as per the evidence on record and
as per the findings arrived at by the First
Appellate Court, was responsible for the
breakdown in the marriage. Learned
counsel, therefore, submitted that the
findings of fact as had been arrived at by
the First Appellate Court could not be
interfered with and the Second Appeal
may be dismissed as such. He submitted
that the substantial questions of law as
were
framed
could
not
be
called
substantial questions of law which arose
in this case and the findings were crystal
clear in the judgement of the First
Appellate Court. Regarding the question
that
separation
would
amount
to
irretrievable break down of marriage,
learned counsel for the respondents
submitted that the husband himself was
responsible for the separation of the
husband and the wife and this ground was
not available to the appellant-plaintiff.

17. Having heard the learned
counsel for the appellant and the
learned counsel for the respondents,
this Court is of the view that the
findings as have been arrived at by the
First Appellate Court had definitely
found that there was not even an iota of
evidence to show that the wife was
responsible
for
any
desertion
or
cruelty. From the findings as have been
arrived at by the First Appellate Court
it is clear that the plaintiff himself was
responsible for the separate living of
the
husband
and
the
wife
and,
therefore, irretrievable breakdown of
marriage had occurred because of the
plaintiff/husband himself. He himself
was responsible for the breakdown and
therefore could not take advantage of
his
own
wrong.
The
principle
enunciated in the maxim 'NULLUS
COMMODUM
CAPERE
POTEST
wholly applies in this case. The
plaintiff-appellant
could
not
take
advantage of his own wrong.

18. Under such circumstances, the
appeal is dismissed. The substantial
questions of law as were framed by this
Court need not any further be answered.
----------
2 All. Mohammad Shakil & Anr. Vs Girish Chandra & Ors.
789
(2019)10ILR A 789

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.09.2019

BEFORE

THE HON'BLE HARSH KUMAR, J.

Second Appeal No. 183 of 1998

Mohammad Shakil & Anr. ...Appellants
Versus
Girish Chandra & Ors. ...Respondents

Counsel for the Appellants:
Sri G.R. Jain, Sri Mukesh Kumar, Sri
Shyam Srivastava

Counsel for the Respondents:
Sri S.K. Misra

A. Code of Civil Procedure, 1908 - Section
96 and Section 104 read with Order XLIII -
Partition Suit - Appeal lies only against
final decree and not against partition
scheme - Appeal not maintainable against
order merely disposing of Amin report
Held:-In a partition suit, unless a partition
scheme is finalized and final decree is
prepared, no appeal lies as appeal lies only
against final decree and not against partition
scheme - Order of disposal of Amin report and
Commissioner report is not an order which
may be termed as decree and no appeal
against such order is legally maintainable
under Section 96 or 104 or order XLIII of Code
of Civil Procedure. (Para 4)
Appeal dismissed (E-5)
List of cases cited: -
1. Phanindra Nath Banerji Vs Labanya Mayee
Banerji 1950 Ald. Weekly Reporter 28
(Delivered by Hon'ble Harsh Kumar, J.)

Civil Misc. (Delay Condonation)
Application No.7 of 2019, Civil Misc.
Application No.8 of 2019 & Civil Misc.
(Substitution) Application No.9 of 2019

1. Heard Shri Dinesh Rai, Advocate,
holding brief of Shri Mukesh Kumar,
learned counsel for appellant and Shri
S.K.
Misra,
learned
counsel
for
respondent.

2. In reply to abatement application
no.172533 of 2015 filed by respondent on
14.5.2015, applications have been moved
by appellant for condonation of delay,
setting aside abatement and substitution
of legal representatives of deceasedrespondent nos.2 & 5 to which counter
affidavit has been filed on 30.7.2019.

3. At the very outset, it was pointed
out that present second appeal has been
filed against impugned judgment and decree
dated 23.1.1998 in First Appeal No.695 of
1987, passed by IVth Additional District
Judge, Farrukhabad against the order dated
25.8.1987 passed by IInd Additional Civil
Judge, Farrukhabad in proceedings of
execution i.e. for preparation of partition
scheme in a partition suit, disposing of the
report and map of Amin as well as report of
commissioner and objections thereto arising
out of Civil Suit No.152 of 1982. By above
order dated 25.8.1987, the learned trial
Court has disposed of the objections and
amended/modified the report Amin against
which, First Appeal No.695 of 1987 was
preferred by defendants/judgment debtors
which has been dismissed by impugned
order. Hence the defendants have preferred
this second appeal, which has been admitted
without framing any substantial question of
law, which is mandatory under provisions
of Section 100 (5) C.P.C.

4. Undisputedly, the order dated
25.8.1987 passed by trial Court is in order