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2003 DIGILAW 1282 (MP)

Himmat Singh v. Prembai

2003-11-21

A.K.AWASTHY

body2003
JUDGMENT Appellant/defendant has filed this appeal under section 28 of the Hindu Marriage Act against the judgment and decree dated 28.7.97 in Civil Suit No. 18-A/94 by the learned Additional District Judge Dewas regarding dissolution of marriage on the ground of cruelty. Admitted facts of the case are that the marriage in between the appellant and the respondent was solemnized in the year 1989 according to the Hindu rites and customs and that they have no issue from the wedlock. It is also not in dispute that the respondent/petitioner has lived with the appellant in the matrimonial house only for 2 years and thereafter she is living in the house of her parents. The case of the petitioner is that the defendant is mentally unsound, impotent and in habit of physically assaulting her without any rhyme or reason. That the elder brother of her husband used to keep bad eye on her. That the petitioner/wife has a fear that her life is not safe in the house of her husband and as such the marriage be dissolved by a decree of divorce. The defendant has denied that he is mentally imbalanced or unsound mind or he used to beat his wife or his elder brother was having evil intention against the petitioner. The learned trial Court after framing the issues has examined Prembai (PW 1), Devisingh (PW 2), Sajjansingh (DW 3), Madhavsingh (DW 4) and the learned trial Court has passed a decree of dissolution of marriage holding that the appellant/defendant is guilty of matrimonial offence of cruelty. The appellant has assailed the impugned judgment and decree on the ground that the learned trial Court has not properly appreciated the evidence on record and erred in passing the impugned decree under section 13(1)(ia) of the Hindu Marriage Act. Prembai (PW 1) has stated that her husband is mentally ill, impotent and in capable of consuming sexual intercourse. Prembai (PW 1) has further stated that her husband used to physically assault her and he was in habit of unnecessarily torturing her under the fits of madness. Devisingh (PW 2) has stated that the petitioner used to tell her that her husband is mentally sick and impotent and his elder brother harbers bad intention and keeps bad eye on her. Devisingh (PW 2) has further stated that the petitioner used to tell him that the appellant was in habit of beating her. Devisingh (PW 2) has stated that the petitioner used to tell her that her husband is mentally sick and impotent and his elder brother harbers bad intention and keeps bad eye on her. Devisingh (PW 2) has further stated that the petitioner used to tell him that the appellant was in habit of beating her. Umraosingh (PW 3) and Mansingh (PW 4) have also corroborated the statements of Devi Singh (PW 2). Defendant Himmatsingh (DW 1) has made a peculiar and absurd statement in para 5 of his cross-examination. He has stated that his age is about 45 years and he is young and as such he does not go to the market. Himmatsingh (DW 1) has further stated in para 5 of his cross-examination that he lives in the forest and in the night he sleeps on the well. Himmatsingh (DW 1) has further stated that he does not know about the written statement filed in the case and he has signed the papers on the direction of his elder brother. Himmatsingh (DW 1) has further stated that he is a simple man and he has little understanding of the things. The defendant has not given any explanation that the petitioner has left the house and she is making the allegation against the defendant. In view of the statement of the defendant (DW 1) in para 5 of his cross-examination it is clear that he is not mentally sound. In these circumstances, the allegation of the appellant that his husband is in habit of unnecessarily beating her appears to be correct. However, there is no evidence to corroborate the statement of the petitioner that her husband is impotent or the elder brother of her husband used to keep bad eye on the petitioner. However, the learned trial Court has rightly held that the appellant defendant is guilty of assaulting her wife. It is expected from the husband that he should respect his wife and should not do anything to create the fear or terror or violet her dignity and personality. The act of unnecessarily beating the wife by the husband amounts to cruelty and as such the respondent-petitioner deserves the dissolution of marriage on the ground of cruelty under section 13(1)(ia) of the Hindu Marriage Act. The appeal is devoid of merits and is hereby dismissed. Parties to bear their own costs.