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Madhya Pradesh High Court · body

2003 DIGILAW 681 (MP)

Brijlal Moganiya v. Hemlata Moganiya

2003-05-07

A.K.AWASTHY

body2003
Judgment ( 1. ) THE appellant/petitioner has filed this appeal Under Section 28 of the Hindu Marriage Act against the judgment and finding dated 6. 7. 1999 passed by the Xth Additional District Judge, Bhopal in Civil Suit No. 41-A/1998, dismissing the petition filed for decree of divorce and annulling the marriage. ( 2. ) THE admitted facts of the case are that the marriage in between the appellant/husband and the respondent/wife was solemnised on 2. 5. 1995 at Gwalior according to Hindu rites and customs and that they had one daughter from the wedlock. ( 3. ) THE case of the appellant/petitioner is that the respondent withdrew herself from the society of the husband in the month of February, 1996 without any reasonable or probable cause and since then she has deserted the appellant. It is also alleged by the appellant that the respondent was mental patient before the solemnisation of the marriage and the fact of mental illness was suppressed during the settlement of the marriage. That matrimonial life of the appellant has become tortuous on account of the horrifying conduct of the respondent. The appellant has also contended that the respondent has often threatened that she will commit suicide. The appellant has prayed that the marriage in-between the appellant and the respondent be dissolved by the decree of divorce and it be annulled. ( 4. ) THE respondent has denied that she is mentally ill or her behaviour with the appellant was abnormal and cruel. The respondent has alleged that she was physically assaulted by the appellant and the appellant driven her out from the matrimonial house. ( 5. ) LEARNED Trial Court after framing the issues has examined the appellant and the respondent and the witnesses were neither examined by the appellant nor the respondent. Learned Trial Court has held that the allegation of mental illness of wife, cruelty and desertion are not proved and the petition was, therefore, dismissed. ( 6. ) LEARNED Counsel for the appellant has assailed the impugned judgment on the ground that the evidence and law applicable in the case is not properly appreciated by the learned Trial Court and as such the appeal and the petition filed by the appellant be allowed. ( 7. ( 6. ) LEARNED Counsel for the appellant has assailed the impugned judgment on the ground that the evidence and law applicable in the case is not properly appreciated by the learned Trial Court and as such the appeal and the petition filed by the appellant be allowed. ( 7. ) APPELLANT Brijlal has stated that after about six days of marriage his wife started vomiting and she stated complaining pain in the nerves on back side of her head. Brijlal has not stated that his wife is suffering from mental disorder. The name of the mental disease of the wife is neither disclosed by the appellant in his plaint nor in his statement. The appellant has neither examined any witness nor the Doctor to prove that his wife was a mental patient at the time of the solemnisation of the marriage. No witness was examined to prove that the behaviour of wife was such as to show that her mind was derailed. ( 8. ) RESPONDENT Hemlata has stated that she went to Mental Hospital, Gwalior to get the certificate that she is of sound mind. From this admission, it cannot be said that she is mentally sick or deranged. It is admitted by Brijlal (P. W. 1) that his wife is in the Government service. Consequently I hold that the allegation made by the appellant Brijlal about the mental illness of his wife are baseless. Consequently, the learned Trial Court has rightly rejected the prayer of the appellant to annul the marriage on the ground of mental illness. ( 9. ) THE appellant has not given the specific instances of the act of misbehaviour or ill-treatment by his wife. The appellant has not examined any witness to prove the matrimonial offence of cruelty. Smt Hemlata has stated that on 3. 9. 1997 her husband threw the kerosene oil on her and asked her to bring the dowry of Rs. 50,000/- for purchasing the motor cycle. The argument of the learned Counsel for the appellant is that the respondent is living separately from the appellant since last four years and as such the decree of divorce be passed on the ground of desertion. The appellant has not led any evidence that he made attempt to bring back his wife and rejoin him in matrimonial home. The argument of the learned Counsel for the appellant is that the respondent is living separately from the appellant since last four years and as such the decree of divorce be passed on the ground of desertion. The appellant has not led any evidence that he made attempt to bring back his wife and rejoin him in matrimonial home. The appellant was not inclined to keep his wife and his behaviour in this respect was cold, indifferent and not conducive for reunion with his wife. The appellant had levelled reckless, wild and baseless allegations against his wife/respondent about her mental illness. Consequently the appellant being guilty of making the baseless allegations against his wife, he cannot take advantage of his own wrong. As such by virtue of Section 23 (1) (a) of the Hindu Marriage Act the appellant is not entitled to get the decree of divorce on the ground of desertion. ( 10. ) THE finding of the learned Trial Court is in accordance with the evidence on record and law applicable in the case. ( 11. ) THE appeal deserves to be dismissed and it is hereby dismissed. Parties shall bear their own costs of the appeal.