Ramratan v. Lata Bai — 1992 DIGILAW 702 (MP)

JUDGMENT R.P. Awasthy, J. 1. The appellant named above has filed the present appeal against the judgment dated 27-7-90 delivered by Shri A.S. Naidu, First Addl. Judge to the court of Distt. Judge, Balaghat. By virtue of the said judgment and decree the petition filed by the petitioner/appellant under Section 13 of the Hindu Marriage Act (Act in short) for granting a decree of divorce against the non-applicant/respondent Smt. Latabai was dismissed. 2. It was not in dispute that the appellant was married to respondent on 1-3-79 at village Sondbar according to Hindu rites. After the marriage (be non-applicant came to reside with the appellant at Balaghat. The father of the non-applicant had purchased a house at village Hirri in which house the petitioner, non-applicant and the parents of the petitioner started residing. At the lime of marriage of non-applicant with the petitioner, the petitioner was studying in II year of Bachelor of Science degree. No issue was born out of the said wedlock. In the year 1983 the petitioner was appointed as teacher and in the year 1985 he was posted as a teacher in High School at village Marai. 3. On 1-2-86 the Panchyat was convened, in which the petitioner expressed that he did not want to keep the non-applicant with him any longer. In the said Panchayat. the non-applicant was not present. The father of the non-applicant was however present in the said Panchayat. The Panchas determined that the father of the non-applicant bad given Rs. 3100/- in cash and articles and ornaments worth Rs. 10909/- were given by the father of the non-applicant to the petitioner in the said marriage. It was further decided that the petitioner would pay Rs. 14009/- to the father of the non-applicant in the first week of January, 1987. However the panchayat could not be convened in the first week of the month of January, 87. It was nevertheless again convened on 9-3-87. In the said Panchayat convened on 9-3-87 the applicant paid Rs. 5000/- to the father of the non-applicant and promised to pay the remaining amount amounting to Rs. 9009/- by the month of December, 1987. The remaining amount of Rs. 9009/- was not paid till filing of the petition or till the date of the delivery of judgment and passing of the decree by the trial court by the petitioner to the non-applicant. 9009/- by the month of December, 1987. The remaining amount of Rs. 9009/- was not paid till filing of the petition or till the date of the delivery of judgment and passing of the decree by the trial court by the petitioner to the non-applicant. The facts contained in paragraphs 2 and 3 of this judgment are not in dispute. 4. The contention of the petitioner was that the non-applicant was menially retarded and hard of bearing. She treated him with cruelty in as much as she poured kerosene oil on her person on two occasions and threatened to commit suicide. Though the father of the non-applicant had agreed that the non-applicant would divorce (as per caste custom) the petitioner, yet since the non-applicant did not turn out on 31-12-87, the petitioner did not pay the remaining amount to the father of the non-applicant. 5. The non-applicant denied the said allegations and submitted that in fact the petitioner did not like her looks and hence on the said score wanted to divorce her. He treated the petitioner with cruelty. As a matter of fact (he petitioner wants to marry another lady. The non-applicant wants to reside with the applicant and the agreement entered into by the father of the non-applicant is not acceptable to her. Therefore the petitioner is not entitled to get any decree of divorce against her. 6. After recording evidence in the case the trial court held that it could not be proved that the non-applicant ever poured kerosene oil on her person. It further held that it could not be proved that the non-applicant treated the petitioner with cruelty. On account of inability of the petitioner to establish the said facts, the petition for granting a decree of divorce in favour of the petitioner was rejected. 7. It has been argued for the appellant that from the evidence available on record, it is established that at least for once the non-applicant had poured kerosene oil on her person. It was not essential to prove that the non-applicant repeatedly used to pour kerosene oil on her person. Therefore, the trial court ought to have had held that the non-applicant treated the petitioner with cruelty. 8. The respondent was served with a notice of this appeal but no one made appearance for her. It was not essential to prove that the non-applicant repeatedly used to pour kerosene oil on her person. Therefore, the trial court ought to have had held that the non-applicant treated the petitioner with cruelty. 8. The respondent was served with a notice of this appeal but no one made appearance for her. On the basis of the said circumstance, it was contended for the appellant that there has again been an agreement between the parties to the case on the basis of which it has been decided that the petitioner would pay the remaining amount to the non-applicant and the non-applicant would not appear in this court, so that a decree of divorce may be passed in favour of the petitioner against the respondent. 9. I have carefully gone through the evidence recorded in the case. The contention of the petitioner that the non-applicant is mentally retarded and is hard of bearing is belied by the statement given by Latabai (PW 1). Mere perusal of the said statement (given by Latabai) it becomes clear, and obvious that the said allegation of the petitioner is blatantly false. 10. The trial court has further considered the discrepancies appearing in (be statements of the witnesses regarding the version that Latabai had poured kerosene oil on her person and thereby had tried to commit suicide. I fully agree with the trial court in this regard that the discrepancies appearing in the testimony given by the said witnesses are irreconcilable. Whereas the father of the petitioner has deposed that he was very much present in the house when Latabai had allegedly poured kerosene oil on her person and when Mohan and Natthu had come to his house as guests. The other witness Bhupendrasingh (PW 4) has deposed that the father of the petitioner Ramdayal (PW 6) was not present at that time. It is also pertinent to note that the said guests Mohan and Natthu who had allegedly come to the house of Ramdayal have not been examined in the case. The other material witness viz. the mother of the petitioner Ramratan has not also been examined in the case. 11. It is also pertinent to note that the version given by the petitioner is highly exaggerated and he could not establish in the least that on any other occasion Latabai had poured kerosene oil on her person. The other material witness viz. the mother of the petitioner Ramratan has not also been examined in the case. 11. It is also pertinent to note that the version given by the petitioner is highly exaggerated and he could not establish in the least that on any other occasion Latabai had poured kerosene oil on her person. It was contended by the petitioner that on second occasion when the petitioner had given a sari to his cousin sister, non-applicant Lata had torn the said sari and had put kerosene oil on her person (please see para 8 of the petition). In this regard Ramdayal has deposed that Latabai had merely declined to give a new sari belonging to her which was in her possession to the cousin sister of the petitioner. Looking to such nature of evidence, the trial court was fully justified in holding that it could not be established that the non-applicant treated the petitioner with cruelty. On the other band, it is established and not disputed that at the time of the marriage of the non-applicant with the petitioner, the petitioner was studying. It appears that when be got a reasonable good job of a High School teacher his aspirations became higher and he started contending that the non-applicant is mentally retarded and hard of hearing, whereas, in reality it is not in the least so. This goes to indicate that the petitioner does not have a liking for her non-applicant and wants to get rid of her by seeking a decree of divorce under one or the other pretext. It is categorically mentioned also in the agreement dated 1-12-86 (Ex. P-l) that the petitioner now does not want to keep the non-applicant with him. Under the said circumstances the contention of the non-applicant that it was the petitioner himself who had treated her with cruelty, appears to be more probable. 12. As regards non-appearance of the respondent in this appellate court it has to be seen that if the respondent has agreed to divorce the appellant by mutual consent, both the parties can very well file a petition under Section 13(l)(b) of the Hindu Marriage Act for granting a decree of divorce on the basis of mutual consent. However, it is totally unsafe to infer from the non-appearance of the respondent in this appellate court that the non-applicant is willing to give divorce to the petitioner. However, it is totally unsafe to infer from the non-appearance of the respondent in this appellate court that the non-applicant is willing to give divorce to the petitioner. The appeal can be allowed only on the basis of the fact that the judgment delivered by the lower appellate court suffers from any infirmity. As had already been mentioned, the trial court has rightly concluded that the petitioner has failed to establish that the non-applicant ever or even once poured kerosene oil on her person in an attempt to commit suicide or ever treated the petitioner with cruelty. 13. In the result the present appeal fails and is disallowed. The decree passed by the trial court of dismissing the petition filed by the petitioner is maintained. Pleaders fee Rs. 300/- if certified.