Ram Khelawan Gupta v. Seeta Gupta — 1998 DIGILAW 485 (MP)

JUDGMENT D.M. Dharmadhikari, J. 1. The petition for divorce filed by the husband on the ground of cruelty and desertion by the wife having been dismissed by the Matrimonial Court below, the present appeal has been preferred under Section 28 of the Hindu Marriage Act. 2. The parties were married on 20.2.1988. The wife delivered a male child on 24.2.1997 in Medical College Hospital, Rewa. 3. In the petition for divorce, the husband alleged that on 7th August, 1993, the wife quarrelled with the husband and his family members and left the matrimonial home with her brother Sunil Gupta. On the date of petition she was living with her parents at Jaitwara. According to the husband, despite efforts, she refused to return to the husband's house which constitutes an act of desertion. 4. The allegations of cruelty made against the wife are as follows: She always quarrelled with the husband and accused him of having developed illicit relations with several girls. She used to hurl filthy abuses towards him and his family members in the presence of neighbours and his friends. She used to call him 'impotent' and on 5.1.1993 when he tried to perform sexual intercourse, she kicked him on his private parts which caused him serious injuries and he had to take medical treatment for the same for a considerable period. 5. The other allegations are that in the month of June, 1991, the wife lodged a false report in the Rewa Police Station specially set up for ladies alleging that the husband has been ill-treating her. That false report brought him down in the estimation of the members of the community in general. 6. The divorce petition was filed on 29.8.1995. On 22.4.1997 the divorce petition was amended to allege an additional ground for seeking divorce that on 27.2.1997 the wife delivered a male child and in the hospital records got the name of the father of the child mentioned as Ramakant Gupta of Dhobia Tanki, Rewa. It has been alleged by the husband that the child born to the wife was illegitimate as he had no opportunity of sexual intercourse with her from the date she left the house of the husband. It has also been stated that he got his semen tested from a pathological laboratory which shows the existence of sperm as nil proving that he was incapable of producing a child. 7. It has also been stated that he got his semen tested from a pathological laboratory which shows the existence of sperm as nil proving that he was incapable of producing a child. 7. The wife resisted the proceedings denying the allegations against her. It is stated that the husband and his family members used to treat the wife verycruelly. On one occasion they locked her in a room and on demands of dowry she was beaten. When she got released she came out of the house and shouted for help. It is because of continuous cruel treatment to her that she was compelled by circumstances to make a report to the Mahila Police Station. It is also submitted in reply by the wife that the husband doubted the paternity of the child. According to her at the time when she was pregnant and delivered the child she was living with the husband. She was got admitted in the hospital by the brother of the husband and the brother's wife. It is they who got the name of Ramkant Gupta inserted in the birth certificate as the father of the child delivered by her. The wife expressed desire to live with the husband provided the cruel treatment meted out to her in the past is not continued. 8. The learned Judge of the Matrimonial Court below dismissed the petition for divorce filed by the husband holding that the evidence produced by him is false and fabricated. 9. Mr. S.P. Singh, learned Counsel appearing for the husband in this appeal, took me through the relevant parts of the evidence of the husband and wife and argued that the trial Judge was wrong in disbelieving the version of the husband. It is submitted that the acts such as abusing and calling the husband 'impotent', hitting him on the private parts and lodging a criminal report against him in the police station are grave acts of cruelty which should have been held as justifiable ground for a decree of divorce. 10. Mr. K.K. Pandey, learned Counsel appearing for the wife, supported the order passed by the trial Judge. 10. Mr. K.K. Pandey, learned Counsel appearing for the wife, supported the order passed by the trial Judge. He states that the evidence produced by the husband is clearly false and fabricated and as reconciliation efforts have failed, this Court should not only dismiss the appeal of the husband but also grant permanent alimony to the wife and child under Section 24 of the Hindu Marriage Act on the basis of an interlocutory application (I.A. No. 2835/98) filed by the respondent/ wife in this appeal. It is also submitted that this Court should direct return of all articles given in marriage to the wife a list of which is annexed as Annexure A to the above application. 11. I have carefully examined the oral and documentary evidence on record and found that the learned trial Judge was fully justified in not only finding the case set up by the husband as wholly concocted and false but in also passing strictures against him for his reprehensible conduct prior to and after the institution of the divorce proceedings. 12. The learned trial Judge after presentation of the divorce petition was trying to secure the personal presence of the wife. She has recorded in the order-sheet that for the purpose of holding sessions of reconciliation between the parties, the wife ultimately was served at the address of the husband and was produced in Court when she was living with the husband. In the order-sheet of 4.12.1996, the learned trial Judge has recorded the fact that the husband was trying to obtain ex-parte decree against the wife and it is only on the insistence of the Court that he admitted that oh 19.11.1996 her brother and Bhabhi (brother's wife) forcibly left her at the husband's place. Having thus accepted the fact that the wife was living with the husband, the trial Judge directed him to show cause why he should not be prosecuted for filing a false affidavit that the wife was not living with him. The learned trial Judge then made a direction to the husband to produce the wife in the Court. She was thereafter produced in the Court. The direction to the husband to produce the wife in Court was made on 15.7.1997. On 19.3.1997, the Trial Court records that the husband and wife are living together and the wife has delivered a child on 27.2.1997. She was thereafter produced in the Court. The direction to the husband to produce the wife in Court was made on 15.7.1997. On 19.3.1997, the Trial Court records that the husband and wife are living together and the wife has delivered a child on 27.2.1997. She, therefore, dropped the proceedings of reconciliation and framed issues for setting down the case for trial. The above resume of the order- sheets and the comments made by the trial Judge make it clear that the husband has been setting up a false case of the wife having deserted him and having treated him with cruelty. He was making an attempt to obtain an ex-parte decree of divorce against her. 13. So far as the allegation of his own impotency and illegitimacy of the child is concerned, the learned Judge has rightly noted that the wife delivered the child on 27.2.1997 and the birth certificate (Ex.Pl) was issued from the hospital on 29.3.1997. Although this document was in possession of the husband since 29.3.1997, it was brought to the notice of the Court in pending proceedings only by an amendment made on 22.4.1997. The husband in his oral testimony before the Court has admitted that the wife was got admitted in the hospital by his brother and Bhabhi and she delivered the child while she was living with the husband. The version of the wife is worth believing that in the birth certificate the husband or his relations got the name of Ramakant Gupta inserted to create false evidence against the wife. 14. The plea of impatency of the husband based on the pathological test of semen is also not proved. Impotency is not proved merely by filing the pathological report. It has not been proved by examining the doctor i.e. Dr. Kameshwar Goswami, who conducted the pathological test. The plea of impotency of the husband and his physical incapacity to produce child, thus, does not stand proved. 15. The allegations of cruelty such as kicking the husband on his private parts have also not been proved by examination of Dr. Tripathi from whom the husband is alleged to have received medical treatment for the injury caused to his private parts. The medical papers (Exs. P2, P3 and P4) are not sufficient to prove that the husband was treated for injuries to his private parts. Tripathi from whom the husband is alleged to have received medical treatment for the injury caused to his private parts. The medical papers (Exs. P2, P3 and P4) are not sufficient to prove that the husband was treated for injuries to his private parts. The learned trial Judge is right in finding that the medical reports regarding treatment for some other ailment are tried to be connected with a false incident of the wife kicking the husband on his private parts. 16. On the other allegations of cruelty or abusing the husband publicly in the presence of neighbours and friends and in lodging a police report, the wife apart from examining herself to prove that she suffered hardship and cruel treatment from her husband and his family members, has examined PW 2 Prannath Suldawar and PW 3 Pushpa Choudhary who lived in the neighbourhood of the house of the couple. Both of them proved that the wife was being treated cruelly and the husband and wife used to quarrel because for long period there was no birth of any child. The lady witness who lived in the neighbourhood i.e. PW 3 Pushpa Choudhary has proved the fact that after delivery of the child when the wife went along with the child to the husband's house, the mother of the husband closed the door and the wife was not even permitted to enter the house on accusation of unchastity. 17. The witnesses examined by the wife also proved that the wife suffered cruel treatment from the husband and his family members and some times used to come out of the house and shout to seek help of the neighbours. From the evidence of the wife and her witnesses it is amply proved that the wife was given such harsh and cruel treatment that she was compelled to take shelter of the police by lodging a report. It is on record that in fact a criminal case has been registered and under trial against the husband and his family members. 18. In this appeal this Court also made efforts of reconciliation between the parties, as the wife is rendered destitute and has a child in her lap. Despite efforts of the Court and the Counsel, reconciliation was not possible because the husband refused to accept the wife and continued to doubt her chastity. 19. 18. In this appeal this Court also made efforts of reconciliation between the parties, as the wife is rendered destitute and has a child in her lap. Despite efforts of the Court and the Counsel, reconciliation was not possible because the husband refused to accept the wife and continued to doubt her chastity. 19. This is a fit case where as reunion between the couple has not become possible this Court should saddle the husband with the liability of maintaining the wife and the child. On behalf of the wife application under Section 24 of the Act has been made for grant of maintenance pendente lite and litigation expenses. On that application, direction for payment of litigation expenses of Rs. 1,000/- was made on 22.4.1998 and the husband was granted time to file reply to the application for grant of interim maintenance. Thereafter, the case was listed for reconciliation between the parties and it is being finally decided by this order. The application for grant of interim compensation during proceedings, therefore, cannot be considered at this stage. 20. So far as the grant of permanent alimony is concerned, since decree of divorce has been refused to the husband, permanent alimony cannot be fixed as such power can be exercised only in the event of passing of a decree and not on refusal of a decree. That is the view of this Court as also of the Supreme Court.. See : Chandni v. Jawaharlal, (1993) 3 SCC 406 . 21. As these proceedings are over, in case the husband refuses to accept the wife and their child and neglects to maintain them, it would be open to the wife to claim maintenance under Section 18 read with Section 20 of the Hindu Adoptions and Maintenance Act, 1956. That would be the appropriate remedy where the parties can lead evidence with regard to the need of the wife and the capacity of the husband to pay, for fixing a proper quantum of maintenance for livelihood and education of the minor child. 22. So far as the claim for return of ornaments and properties presented at or about the time of marriage is concerned, no such application was made in the Court below and no evidence, therefore, could be recorded on such claim. The Court below as well as this Court has refused to grant any decree of divorce to the husband. 22. So far as the claim for return of ornaments and properties presented at or about the time of marriage is concerned, no such application was made in the Court below and no evidence, therefore, could be recorded on such claim. The Court below as well as this Court has refused to grant any decree of divorce to the husband. In these circumstances, such an application made for the first time in this appeal cannot be considered. The wife is free to adopt such other remedy as is available to her in law for recovery of the property which she claims to be jointly belonging to them and presented at or about the time of marriage. The claim also requires recording of evidence of the parties which cannot be done in this appeal. 23. Consequently, the appeal fails and is hereby dismissed with costs. Counsel's fee Rs. 1,000/-, if certified.