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Rajasthan High Court · body

2003 DIGILAW 500 (RAJ)

Bala v. Kailash Chandra

2003-04-07

ANIL DEV SINGH, H.R.PANWAR

body2003
JUDGMENT 1. - This appeal is directed against the order of the Family Court, Jodhpur dated 12.6.2000 passed in Civil Matrimonial Case No. 68/2000. By that order the Family Court dismissed the petition of the appellants filed under section 13 of the Hindu Marriage Act, 1955 (in short, referred to as the Act' hereinafter). 2. The facts giving rise to the appeal are as follows. On 15.5.1989 the appendant and respondent were married at Jodhpur in accordance with Hindu rites. As per the petition for divorce filed by the appellant the respondent, his parents, sisters and brother used to taunt her for bringing inadequate dowry. She was treated by them as a maid servant. Many a times she was not given any food. Even on small matters the appellant was scolded upon in front of the others. She was even subjected to unnatural sexual acts by the respondent. Several times, on her protest she was beaten up in order to strike terror in her. Due to this treatment she suffered physical and mental pain. As a result of being subjected to unnatural acts she developed piles. It is complained that on 16.4.1990, she was subjected to beating and was turned out of the house of the respondent. Prominent members of the society tried to impress upon the respondent and his parents to see reason but their efforts were of no avail. She was not even given back her ornaments and dowry articles by the respondent. It was also asserted that the respondent, in order to secure further dowry, wants to get married again. 3. The respondent in his reply to the petition denied the allegations and claimed that the appellant did not like to stay in tie joint family. After marriage she was putting pressure upon him to leave the house of his parents and stay with her in a separate house. According to the respondent, this was not possible in view of he being unemployed. Since he did not to accede to the demand of the appellant she left the matrimonial house and did not return despite his efforts. The appellant's father also rejected the proposal of the meeting of general assemblage of the community to send the appellant to her matrimonial home. 4. Since he did not to accede to the demand of the appellant she left the matrimonial house and did not return despite his efforts. The appellant's father also rejected the proposal of the meeting of general assemblage of the community to send the appellant to her matrimonial home. 4. On the basis of the pleadings of the parties the learned Family Court is framed the following issues: (1) Whether the respondent treated the appellant cruelly as per the allegations made in Para 2 to 5 of the petition? (2) Whether the respondent administered beating to the appellant on 16.4.1990 and turned her out of the matrimonial home, or, whether the respondent deserted the appellant for continuous period of more than two years? (3) Whether the appellant is entitled to a decree of divorce from the respondent? (4) Relief. 5. In order to prove the issues the appellant examined herself as AW1. She also examined her mother Smt. Kamla as AW2, her father Gopal Singh as AW3, neighbours Ashok Kumar, AW4 and Venkatesh Giri, AW5. On the other hand, the respondent examined himself as NAW 1. He also examined his relatives Babulal, NAW2 and Bhanwar Lal, NAW3. It is significant to note that the respondent did not either examine his father or mother in support of his case. The learned Family Court, on evaluation of the evidence, came to the conclusion that the appellant was not able to prove that she was treated with cruelty by the respondent. She was also not able to prove that she was deserted by the respondent for a period of more than two years before filing of the petition. The Family Court also did not believe the allegations of the appellant that she was subjected to beating on 18.4.1990 and was turned out of the respondent's house. The learned Family Court came to the conclusion that the appellant was not entitled to be granted the decree of divorce. 6. We have perused the statements of the witnesses and scanned the evidence minutely. 7. It appears to us that the trial Court was not right in disbelieving the evidence adduced by the appellant to prove that she was treated with cruelty by the respondent and was turned out of the matrimonial house on 15.4.1990 after being subjected to beating by the respondent. 7. It appears to us that the trial Court was not right in disbelieving the evidence adduced by the appellant to prove that she was treated with cruelty by the respondent and was turned out of the matrimonial house on 15.4.1990 after being subjected to beating by the respondent. From the statements of the appellant, her father and her mother it is proved that the appellant was married to the respondent several years back but she was treated with cruelty. Her husband was unemployed and she was at the mercy of his parents. According to her statement which is corroborated by the statements of her mother and father she was ill-treated and on 15.4.1990 she was turned out of the house after receiving beating at the hands of the respondent. It is strange that none of the parents of the respondent appeared in the witness box to traverse the allegations of the appellant regarding the beating which 'as administered to her on 15.4.1990 and the factum of her being turned out ,f the matrimonial house. The Family Court failed to attach proper weight to the statement of the appellant as also the statements of her parents. The Family Court also failed to attach importance to the fact that though the allegation of the respondent was that the appellant left the matrimonial home on her own on 16.4.1990 he filed application for restoration of conjugal rights under section 9 of the Act on 14.8.1995 i.e., after more than five years of her going to her parents house. The respondent was also not paying maintenance to the appellant with the result that the appellant had to move the Court to secure order under section 125, Cr.F.C. Despite orders, the maintenance was not paid with the result that an application for execution of the order was moved by the appellant. In reply to the petition, the respondent admitted that he was unemployed, therefore, was unable to accede to the request of the appellant to shift from his parental home to a separate accommodation. 8. The conspectus of facts which have appeared in the evidence and on record leave no manner of doubt in our minds that the appellant had made out a case for grant of decree for divorce for having been treated with cruelty by the respondent. 8. The conspectus of facts which have appeared in the evidence and on record leave no manner of doubt in our minds that the appellant had made out a case for grant of decree for divorce for having been treated with cruelty by the respondent. The evidence produced by the respondent in support of his stand is not convincing at all. Witnesses Babulal, NAW2 and Bhanwarilal, NAW3 have not been able to dislodge the allegations of the appellant that she was treated with cruelty by the respondent. 9. Since issue No. 1 stands proved, the order of the trial Court cannot be sustained. In the circumstances, therefore, we allow the appeal. The judgment and decree passed by the Family Court is set aside and the petition filed by the appellant under section 13 of the Act is ordered to be allowed. Accordingly, the appellant is granted a decree of divorce on the ground of cruelty. There shall, however, be no order as to costs.Appeal Allowed. *******