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2003 DIGILAW 1333 (MP)

Sushila Sharma v. Chintaman Sharma

2003-12-09

A.K.AWASTHY

body2003
Judgment ( 1. ) APPELLANT/defendant has filed this appeal under Section 28 of the Hindu Marriage Act against the judgment and decree dated 31. 7. 1996 of dissolution of marriage on the ground of desertion passed in Case No. 61/95 by the learned IXth Additional District Judge, Indore. ( 2. ) THE admitted facts of the case are that the marriage in between the appellant and the respondent was performed on 9. 5. 1974 according to Hindu Rites and Customs. In the year 1978 a son and in the year 1981 a daughter was born from the wedlock. That the appellant has lived with her husband in the matrimonial house for 17 years and from the year 1990 the appellant is living separately from her husband. It is also not in dispute that the respondent/petitioner was doing the work of distribution of films. It is a common ground that the appellant wife has lodged a report against the respondent/husband of treating her with cruelty for demand of dowry and the police has filed charge-sheet against the respondent and the respondent has been acquitted by the Judicial Magistrate, First Class after the trial. ( 3. ) THE case of the petitioner is that the defendant has left the matrimonial house with all her belongings on 27. 5. 1990,and, thereafter, she has lodged a false report against him of cruelty on account of demand of dowry. That the behaviours of the defendant was improper and the cash from the house used to be stolen by the defendant and she was in habit of sending money to her brother. The petitioner has prayed for dissolution of the marriage from the defendant on the ground that she has deserted him from 27. 5. 1990 and she has done act of mental cruelty by lodging false report against him in the police station. ( 4. ) THE defendant has denied that her behaviour with her husband was indescent or improper. She has denied that the money was stolen by her and she used to give money to her brother. The defendant has also denied that the behaviour of her husband after the marriage was proper and it is alleged that the petitioner used to harass her and treated her with cruelty continuously for 17 years. She has denied that the money was stolen by her and she used to give money to her brother. The defendant has also denied that the behaviour of her husband after the marriage was proper and it is alleged that the petitioner used to harass her and treated her with cruelty continuously for 17 years. That report is lodged by her in the police station and the petitioner has filed case for divorce in order to pressurise her to compromise in the report lodged by her with the police. It is further alleged that she has not deserted her husband and he was never made any attempt to take her back to the matrimonial house. ( 5. ) THE learned Trial Court after framing the issue has examined petitioner Chintaman (P. W. 1), Laxman Jadhav (P. W. 2) and from the opposite side defendant Sushila (D. W. 1), Kailash (D. W. 2) and Mahesh Chandra (D. W. 3) and the learned Trial Court has held that the appellant is living separately for more than two years before filing the petition for divorce from her husband without any rhyme or reason and she has lodged false report against her husband and as such the decree was passed by the learned Trial Court on the ground of desertion and cruelty. ( 6. ) THE appellant has assailed the impugned judgment and decree on the ground that the issue was not framed regarding cruelty by the appellant/defendant and the learned Trial Court has not properly appreciated the evidence and record and erred in passing the impugned decree of divorce. ( 7. ) CHINTAMAN Sharma (P. W. 1) has stated that after his marriage with the defendant in the year 1974 they have passed happy married life and they have one son and a daughter, But in the month of May 1990 his wife has left the matrimonial house and on the instigation of his brother and family members she has lodged a false report of demand of dowry against him. Chintaman (P. W. 1) has produced letters (Exs. P/l to P/12) written by his wife to him from 15,7,1977 to 29. 8. 1983 and from these letters it is clear that the relations between the husband and wife were loving and cordial. Defendant Smt. Sushila (D. W. 1) has admitted in para 11 of her cross-examination that these letters (Exs. Chintaman (P. W. 1) has produced letters (Exs. P/l to P/12) written by his wife to him from 15,7,1977 to 29. 8. 1983 and from these letters it is clear that the relations between the husband and wife were loving and cordial. Defendant Smt. Sushila (D. W. 1) has admitted in para 11 of her cross-examination that these letters (Exs. P/1 to P/12) were written by her to her husband. Smt. Sushila (D. W. 1) has stated that her husband has treated her with cruelty in those 17 years and letters (Exs. P/l to P/12) were got written by her under pressure. There is no evidence whatsoever that the letters (Exs. P/l to P/12) from the year 1977 to 1983 were procured by the defendant from his wife by pressurising her. The defendant has not produced any evidence to show that in the aforesaid 17 years she was ill-treated by her husband. On the other hand Smt. Sushila (D. W. 1) has admitted in para 10 of her cross-examination that she has never reported to her family members or the parents about the physical assault by her husband during the last 17 years. She has further admitted in para 18 of her cross-examination that she has never made any complaint to anybody and never disclosed the fact of cruelty by her husband before giving evidence in the Court. ( 8. ) CONSEQUENTLY, the learned Trial Court has rightly held that the relations between the appellant/defendant in 17 years were normal and they lived happily. ( 9. ) LAXMAN Jadhav (P. W. 2) has stated that he went to the house of the defendant to give her the sweets and garments to her son which were sent by the petitioner on the birth day of his son and daughter, but the defendant has refused to receive them and she told him that in future he should never come to her house. Smt. Sushila (D. W. 1) has never made an attempt to live with her husband in last more than 5 years after leaving the matrimonial house. Smt. Sushila (D. W. 1) has lodged the police report against her husband on the allegation that the dowry was demanded by her husband and she was treated with cruelty by him. Police has registered a case against the respondent/husband and after trial the respondent was acquitted. Smt. Sushila (D. W. 1) has lodged the police report against her husband on the allegation that the dowry was demanded by her husband and she was treated with cruelty by him. Police has registered a case against the respondent/husband and after trial the respondent was acquitted. Smt. Sushila (D. W. 1) has not led any evidence to prove that the dowry was demanded by her husband and that she was assaulted or pressurised to bring the dowry from her parental house. Smt. Sushila (D. W. 1) has admitted in para 14 of her cross-examination that she has never made any complaint to her parents or brother or sister that her husband beats her and compels her to bring the dowry from her parents. ( 10. ) CONSEQUENTLY, it is clear that the appellant defendant has made the false allegations of cruel treatment of her house in 17 years of her stay in the matrimonial house and she has also made false complaint against her husband for demand of dowry. The fact that the appellant/defendant is living separately from many years from her husband and that she has lodged the false report against her husband with the police for demand of dowry after about 18 years of her marriage goes to show that the appellant defendant has forsaken the relations with her husband and she has deserted her husband for more than statutory period of two years. The learned Trial Court has not committed any error in holding that the appellant/ defendant is also guilty of causing the mental cruelty. ( 11. ) IT is contended by the learned Counsel for the appellant that the learned Trial Court has not provided her permanent alimony under Section 25 of the Hindu Marriage Act. The application for providing permanent alimony was not filed by the appellant/defendant before the Trial Court. In these circumstances the learned Trial Court has not committed any error in not passing the order of permanent alimony in favour of the appellant defendant while granting the decree of divorce. However, the appellant/defendant is at liberty to file application before the Family Court under Section 25 of the Hindu Marriage Act for permanent alimony. ( 12. ) THE appeal is devoid of merit and is hereby dismissed with no order as to costs.