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Madhya Pradesh High Court · body

2003 DIGILAW 686 (MP)

Saraswatibai ALIAS Saritabai v. Ramshanker

2003-05-08

A.K.AWASTHY

body2003
Judgment ( 1. ) THE appellant/wife has filed this appeal under Section. 28 of the Hindu Marriage Act against the judgment and decree dated 22. 9. 1998 passed by the Additional District Judge, Gadarwara in Civil Suit No. 44-A/1997 wherein the marriage is dissolved by the decree of divorce under Section 13 of the Hindu Marriage Act. ( 2. ) THE admitted facts of the case are that in the year 1992 the marriage between the parties was solemnised at village Salichowki, Tah. Gadarwara, District Narsinghpur according to the Hindu rites and customs and they have one daughter and one son from their wedlock. ( 3. ) THE respondent/husband has filed a petition under Section 9 of the Hindu Marriage Act for the restitution of the conjugal rights on the ground that on 25. 6. 1997 the appellant/wife took his son and daughter along with ornaments and her other articles and left the matrimonial house permanently. That the respondent/husband visited her parental house to bring her back but she had refused to go back to the matrimonial house and said that if any body will try to forcibly take her back, then she will make false report of demand of dowry against him. The respondent has further alleged that the appellant/wife is living separately without any rhyme or reason and she had made false report against the respondent/husband and his family members about her ill-treatment for getting the dowry. It is prayed by the respondent/husband that the restitution of conjugal rights be passed and in case the appellant/wife refuses to live with the respondent/ husband then the marriage be dissolved by the decree of divorce. ( 4. ) THE appellant/wife has denied that she has taken her ornaments and other articles from the matrimonial house and it is also denied that she has deserted her husband. The appellant/wife has pleaded that her husband and his parents used to harass and ill-treat the appellant for getting Rs. 10,000/-, Cooler, Fridge, etc. as dowry. That the appellant has lodged the report on 13. 5. 1995 against her in-laws and the husband about the ill-treatment on account of the demand of dowry. The appellant/wife has pleaded that her husband and his parents used to harass and ill-treat the appellant for getting Rs. 10,000/-, Cooler, Fridge, etc. as dowry. That the appellant has lodged the report on 13. 5. 1995 against her in-laws and the husband about the ill-treatment on account of the demand of dowry. That the respondent along with his parents was called by the Court in the Criminal Case and respondent assured that he will properly keep his wife and not demand the dowry from her and on the basis of the assurance given in the Court the appellant/wife returned to her matrimonial house. The appellant has alleged that the respondent has filed the petition on the false ground and as such his prayer for divorce or for the restitution of conjugal rights be rejected. ( 5. ) LEARNED Trial Court has examined the respondent and his two witnesses Kharagram (A,w. 2) and Maniram (A. W. 3 ). That the appellant examined herself and her witness Lalchand (NAW 2) and Nathuram (NAW 3 ). The learned Trial Court has passed the decree of dissolution of marriage holding that the appellant/ wife had refused to live with her husband. ( 6. ) THE appellant has assailed the impugned decree on the ground that the learned Trial Court has wrongly passed the decree of divorce because the respondent/husband has not taken any ground whatsoever provided under Section 13 of the Hindu Marriage Act. ( 7. ) LEARNED Sr. Counsel for the respondent/husband has supported the impugned judgment on the ground that the wife is living separately from her husband without any reasonable and probable cause. It is also prayed by him that the Court should call the parties for re-conciliation. ( 8. ) FROM the perusal of the impugned judgment, it is clear that the learned Trial Court has passed the decree of divorce on the ground that the wife has admitted in Para 15 of her cross-examination that she does not want to live with her husband. Learned Trial Court has not discussed the vital issue whether the appellant/wife was living separately from her husband without rhyme or reason. It was not pleaded by the respondent/husband that he wants the dissolution of marriage on the ground of cruelty or desertion. Learned Trial Court has not discussed the vital issue whether the appellant/wife was living separately from her husband without rhyme or reason. It was not pleaded by the respondent/husband that he wants the dissolution of marriage on the ground of cruelty or desertion. The learned Trial Court has not given even the shadow of the findings to the effect that the appellant/wife is guilty of committing matrimonial offence of cruelty or desertion. From Para 3 of the plaint it is clear that the appellant/wife has left the matrimonial house on 25. 6. 1997. The petition was filed within half month i. e. 10. 7. 1997. Consequently, the ground of desertion for the divorce was not available to the respondent/ husband. ( 9. ) FROM the statement of Saraswatibai (NAW 1), Lalchand (NAW 2) and Nathuram (NAW 3), it is clear that the respondent/husband used to ill-treat the appellant for pressurising her to bring the more dowry. The criminal case was filed against the respondent/husband in which the respondent/husband and his family members assured that they will properly keep the appellant and they will not demand the dowry. It is clear from the statements of witnesses of appellant that on the basis of the aforesaid assurance the appellant was sent back to the matrimonial house and again she was ill-treated about which the report was lodged against the respondent in police. Ramshanker Bathre (A. W. 1) has admitted in Para 5 of his examination that his wife made the report in police on 13. 5. 1995 against him and his family members about her ill-treatment for the dowry. Ramshanker Bathre (A. W. 1) has further admitted in Para 10 of his cross-examination that after the police report the village Panchayat was held and thereafter the appellant came back to her matrimonial house. The appellant who is young and married lady of about 22 years who is having one daughter and one son from the wedlock, will not like to spoil the future of her children and marital life by lodging the police reports against her husband. The respondent/husband has not shown any ostensible reason about the fact that why his wife had lodged the false report against him. Consequently, it is clear from the statement of the witnesses of the appellant and from the attending circumstances that the respondent/husband is guilty of ill-treating and harassing his wife. The respondent/husband has not shown any ostensible reason about the fact that why his wife had lodged the false report against him. Consequently, it is clear from the statement of the witnesses of the appellant and from the attending circumstances that the respondent/husband is guilty of ill-treating and harassing his wife. In these circumstances, the learned Trial Court has gravely erred in passing the decree of divorce against the appellant/wife on the only ground that the appellant/wife has refused to go back to her matrimonial house. ( 10. ) THE prayer of the learned Senior Counsel for calling the parties for the re-conciliation is meaningless because the marriage between the parties is not being dissolved by decree of divorce. However, on 23. 12. 1997 the parties were called for reconciliation and the appellant/wife has refused to live with her husband alleging that the husband ill-treated her. It is already held that the behaviour of the respondent/husband with his wife was highly objectionable. In these circumstances, the prayer of the learned Senior Counsel for the respondent/ husband for calling the parties for re-conciliation is worthless. ( 11. ) CONSEQUENTLY, the appeal is allowed. I hereby set aside the impugned decree and judgment. The petition of the respondent is hereby dismissed. Parties to bear their own costs on the appeal.