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2003 DIGILAW 565 (PNJ)

Suresh Kumar v. Sunita

2003-04-23

V.M.JAIN

body2003
Judgment V.M.Jain, J. 1. This appeal has been filed by the appellant against the judgment and decree passed by the learned Additional District Judge, dismissing the divorce petition filed by him against the respondent-wife under Section 13 of the Hindu Marriage Act. 2. Suresh Kumar, appellant had filed a petition under Section 13 of the Hindu Marriage Act, against the respondent-wife, seeking dissolution of marriage by a decree of divorce, alleging therein that on 25.2.1994, the marriage between the parties was solemnised and that out of the said wedlock no child was born. It was alleged that after some months of the marriage, the respondent-wife had started misbehaving with the petitioner on the lame excuses and without any rhyme and reason, and had started disturbing the life of the petitioner/appellant and his family members. It was alleged that the respondent used to leave the house in the absence of the petitioner and without his consent and he used to bring her back from her parental house. It was alleged that ultimately on 1.11.1996, without the notice and consent of the petitioner, the respondent left the matrimonial home along with jewellery and cash amounting to Rs. 20,000/- and since then she is residing in her parental home. It was alleged that on 2.11.1996, the petitioner along with others had gone to her parents house and had also convened a Panchayat, but the respondent, her parents and other family members misbehaved with them and the respondent refused to accompany the petitioner and also refused to return the cash amount and jewellery etc. It was alleged that thereafter, on 20.11.1996, again the petitioner along with others had gone to the parents house of the respondent for sending the respondent to the matrimonial home and to return the amount of Rs. 20,000/- and jewellery to the petitioner, but to no avail. It was alleged that on 27.11.1996, the petitioner tried to lodge report, vide DDR No. 2 dated 27.11.1996, in City Police Post Patodi Chowk, against the respondents. It was alleged that again efforts were made on 16.1.1998 and lastly on 19.9.1998 by going to the parents house of the respondent for sending the respondent with them and to return the cash and jewellery, but to no avail. 3. In the written statement filed by the respondent-wife, various allegations made by the petitioner-husband were controverted. It was alleged that again efforts were made on 16.1.1998 and lastly on 19.9.1998 by going to the parents house of the respondent for sending the respondent with them and to return the cash and jewellery, but to no avail. 3. In the written statement filed by the respondent-wife, various allegations made by the petitioner-husband were controverted. It was denied that after some months of the marriage, the respondent had started misbehaving with the petitioner or his family members or that she had ever left the house of the petitioner without his knowledge and without his consent. It was also denied that she left the house of the petitioner on 1.11.1996, without his knowledge and consent, with the jewellery and cash amounting to Rs. 20,000/-. It was also denied that the petitioner came to the parents house of the respondent on 2.11.1996 with the others or convened a Panchayat or that family members of the respondents misbehaved with them or that respondent refused to accompany him. It was also denied that on 20.11.1996, the petitioner had come to the parents house of the respondent as alleged. It was denied that any report was lodged with the police by the petitioner on 27.11.1996, It was alleged that if there was any such report, the same was false. It was also denied that any effort was made by the petitioner, even subsequently, to bring back the respondent. It was alleged that in fact, in the month of August, 1996, the petitioner had asked respondent for coming to the matrimonial home on 13.8.1996 but she could not reach the matrimonial home on 13.8.1996, because her father was not well. She reached the matrimonial home on the next day i.e. 14.8.1996 and on that account, she was given merciless beatings and was turned out from the matrimonial home and since then she is residing with her parents. It was accordingly prayed that the petition be dismissed. 4. After recording the evidence and after hearing both sides, the learned Additional District Judge, dismissed the divorce petition filed by the husband, holding that the petitioner-husband, had failed to prove that the respondent had treated the petitioner with cruelty or had deserted him for a continuous period of more than 2 years immediately preceding the filing of the petition. Accordingly, the divorce petition was dismissed on 31.7.2000. Accordingly, the divorce petition was dismissed on 31.7.2000. Aggrieved against the same, the petitioner filed the present appeal in this Court. 5. I have heard the learned counsel for the parties and have gone through the record, carefully. 6. The learned counsel appearing for the petitioner-appellant submitted before me that the respondent-wife had caused cruelty to the petitioner-appellant and as such, he was entitled to the dissolution of the marriage by a decree of divorce. However, I find no force in this submission made by the learned counsel for the petitioner/appellant-husband. In order to prove his case, Suresh Kumar, petitioner had himself appeared in witness box as PW1 and had examined his father, Ram Kishan as PW2 besides examining PW3, Lalit Kumar and another Suresh as PW4 and PW5 H.C. Jai Pal Singh. In my opinion, from the evidence led by the petitioner-appellant, it could not be said that the respondent-wife had caused cruelty to the petitioner-husband, which entitled him to seek the dissolution of the marriage by a decree of divorce. This is especially so when the allegations made by the petitioner and his witnesses were categorically denied by the respondent-Smt. Sunita, while appearing in the witness box as RW1. In fact, as per the allegations made in the petition and the evidence led by the petitioner, the respondent used to misbehave with the petitioner and his family members and used to leave the house of the petitioner without his knowledge and consent and finally while leaving the house, she had taken away Rs. 20,000/- from the house besides jewellery. Nothing has come on the record to prove that the respondent had ever misbehaved with the petitioner-husband or with his family members as alleged. It has also not been proved on the record that the respondent used to leave the matrimonial home without knowledge and consent of the petitioner-husband. Vague allegations made by the petitioner in this regard either in the petition or during the evidence, in my opinion, could not be made the basis for holding that the respondent had caused cruelty to the petitioner-husband. So far as the taking away of Rs. 20,000/- and the jewellery by the respondent-wife is concerned, this allegation made by the petitioner is not proved on the record. So far as the taking away of Rs. 20,000/- and the jewellery by the respondent-wife is concerned, this allegation made by the petitioner is not proved on the record. According to the petitioner, it was on 1.11.1996 when the respondent had left the house without his consent and without his knowledge and she had taken away Rs. 20,000/- in cash and all her ornaments. So far as the ornaments are concerned, even according to the petitioner, those ornaments were of the respondent and even if she had taken away the ornaments (which fact has been denied by the respondent), it could not be said that this amounted to cruelty, which could be made the basis for seeking dissolution of marriage by a decree of divorce. So far as the taking away of Rs. 20,000/-, in cash, is concerned, if it was a theft committed by the respondent, the petitioner should have reported to the police immediately thereafter. This is especially so when on the very next day i.e. 2.11.1996, the parents and other family members of the respondent had misbehaved with the petitioner and other members of the Panchayat, who had gone to her parents house and the respondent had refused to accompany the petitioner and had refused to return the cash and jewellery etc. 7. On the other hand, it was only on 27.11.1996 that a report was lodged with the police, which was recorded in the Daily Diary Register, copy Annexure P1. No explanation, whatsoever, has come on record for this delay on the part of the petitioner in reporting the matter to the police. Furthermore, no action was taken by the police on the aforesaid report lodged by the petitioner. PW5, H.C. Jai Pal Singh had stated that on the basis of the version detailed in the DDR Exhibit P1, no case was registered in the Police Station. 8. In my opinion, the petitioner-husband having made serious allegations of theft of Rs. 20,000/- in cash against the respondent-wife and having failed to prove the same, was not entitled to seek the dissolution of marriage by a decree of divorce on the ground of cruelty, especially when the petitioner-husband miserably failed to prove the allegations made by him against the respondent-wife. 20,000/- in cash against the respondent-wife and having failed to prove the same, was not entitled to seek the dissolution of marriage by a decree of divorce on the ground of cruelty, especially when the petitioner-husband miserably failed to prove the allegations made by him against the respondent-wife. On the other hand, the respondent-wife would be aggrieved against the petitioners for having lodged a false report against her and having made serious allegations of theft against her. 9. On the facts and circumstances of the present case, in my opinion, the learned Additional District Judge, was perfectly justified in holding that the petitioner-husband had failed to prove the allegations of cruelty against the respondent-wife and on that account, he was not entitled to the dissolution of marriage by a decree of divorce. 10. With regard to the second ground for divorce, namely, desertion, in my opinion, the learned Trial Court had rightly found that the period of two years had not expired between the alleged date of desertion and the date of the filing of the divorce petition as such, no fault could be found with the same. In view of the above, while upholding the findings of the Trial Court on Issue No. 1 and 2, finding no merit in this appeal, the same is hereby dismissed.