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2004 DIGILAW 67 (MP)

Radheshyam v. Rajubai

2004-01-23

A.K.AWASTHY

body2004
Judgment ( 1. ) APPELLANT/petitioner has filed this appeal under Section 28 of the Hindu Marriage Act against the judgment and decree dated 20-8-97 in Hindu Marriage Case No. 291/94 passed by learned IXth Additional District Judge, Indore, whereby the petition for divorce on the ground of desertion and cruelty was dismissed. ( 2. ) ADMITTED facts of the case are that the marriage in between the appellant and the respondent was solemnised in the year 1983 at Village Hatod, Tehsil Indore, according to Hindu rites and customs and they had a daughter Ku. Bhaona, who is from the wedlock and her age in the year 1994 was about 9 years. It is also the common ground that the respondent/wife is not living with the appellant/husband after August, 1986 and after August, 1986 she alongwith her daughter is living in her maternal house. ( 3. ) THE case of the appellant/petitioner is that the defendant was in habit of picking up quarrels, abusing and insulting the petitioner and his family members and she used to leave the matrimonial house without informing her husband. That the defendant was in habit of giving filthy abuses and she used to insult the petitioner and created the intolerable circumstances leading to the mental cruelty and that the defendant is running hotel with her father at Hatod Chouraha and she is earning about Rs. 1500/- p. m. That the defendant has refused to return to matrimonial house after the year 1986, although repeated efforts were made by the petitioner to bring her back. It is alleged by the petitioner that the defendant has taken her ornaments and other belongings and she is not willing to live with the petitioner. The petitioner has prayed for dissolution of marriage on the ground of desertion and cruelty. ( 4. ) THE case of the defendant is that the petitioner has made false allegation of misbehaviour by the defendant. That the petitioner has not made any attempt to bring her back from her maternal house after she went there in the year 1986 at the time of festival of rakhi. It is further alleged by the defendant that the petitioner has performed second marriage from Manubai d/o Ramchandra, r/o Village Jamunia and he is having two daughters from his second wife. It is further alleged by the defendant that the petitioner has performed second marriage from Manubai d/o Ramchandra, r/o Village Jamunia and he is having two daughters from his second wife. The defendant has denied that she has left the matrimonial house after taking her gold and silver jewellery or the belongings. It is further denied by her that she is helping her father in business of hotel and she is earning about Rs. 1500/- p. m. ( 5. ) LEARNED Trial Court after framing the issues has examined Radheshyam (P. W. 1), Premnarain (P. W. 2), Satyanarayan (P. W. 3), Dilipsingh (P. W. 4), Mangilal (P. W. 5) and from the opposite side defendant Rajubai (D. W. 1), Shrikishan (D. W. 2), Gangaram (D. W. 3), Shyamlal (D. W. 4), Lakhansingh (D. W. 5) and Kudrat Patel (D. W. 6) and the petition was dismissed by the learned Trial Court on the ground that the defendant has not treated her husband with cruelty and that the ground of desertion is not available to the petitioner as he has performed second marriage. ( 6. ) APPELLANT has assailed the impugned judgment and decree on the ground that the learned Trial Court has erred in holding that the 2nd marriage was performed by the petitioner and that the petitioner was not treated with cruelty by his wife. It is alleged by the learned Counsel for the appellant that the defendant is living separately from 1986, i. e. , for more than 16 years and the marriage has irretrievably broken down and as such the marriage be dissolved by a decree of divorce. ( 7. ) PETITIONER Radheshyam (P. W. 1) has stated that the behaviour of his wife was improper and she used to abuse and insult him. Radheshyam has further stated that at the time of rakhi festival in the year 1986 the father of his wife took her to the house of her parents and, thereafter, she never returned, although, he and his father persuaded the defendant to resume the relationship. It is not in dispute that the defendant is living separately from her husband from the year 1986. Consequently, the main question for discussion is whether the defendant has valid ground of living separately from her husband. ( 8. It is not in dispute that the defendant is living separately from her husband from the year 1986. Consequently, the main question for discussion is whether the defendant has valid ground of living separately from her husband. ( 8. ) DEFENDANT Rajubai (D. W. 1) and her father Gangaram (D. W. 3) have stated that the petitioner has performed second marriage with Manubai daughter of Ramchandra of Village Jamunia and it is further stated by them that they have learnt that the petitioner is going to perform marriage with Manubai and they took stay order from the Court and reported the matter to the police and went to Village Jamunia, but the petitioner has fled away from there and he has performed second marriage with Manubai in another village. Lakhansingh (D. W. 5) has stated in Paras 11 and 12 of his cross-examination that he went to Village Jamunia in house of Ramchandra. There was arrangement of marriage of petitioner with Manubai, but the father of Manubai Ramchandra has asked them to leave the village and he was saying that defendant and his father have come to see that the marriage is not performed. Lakhansingh (D. W. 5) has further stated that thereafter they went to Village Kapnia where the second marriage of the petitioner with Manubai was performed. ( 9. ) LAKHANSINGH (D. W. 5) is related to the petitioner and also he is relative of the defendant. There is no reason to doubt the veracity of the statement of Lakhansingh (D. W. 5 ). Consequently, from the statement of Rajubai (D. W. 1) and her father Gangaram (P. W. 3) and Lakhansingh (D. W. 5) it is clear that the petitioner alongwith her father has made an attempt to prevent the petitioner not to perform second marriage with Manubai daughter of Ramchandra. ( 10. ) SHRIKISHAN (D. W. 2) and Shyamlal (D. W. 4) have stated that the petitioner is living with his second wife Manubai. Shyamlal (D. W. 4) is an independent witness and there is no reason to disbelieve him. Kudrat Patel (D. W. 6) has stated that rashan Card (Ex. D-5) and the certificate (Ex. D-6) were given by him to the defendant and they were prepared on the basis of register of rashan Card in the village. Shyamlal (D. W. 4) is an independent witness and there is no reason to disbelieve him. Kudrat Patel (D. W. 6) has stated that rashan Card (Ex. D-5) and the certificate (Ex. D-6) were given by him to the defendant and they were prepared on the basis of register of rashan Card in the village. Kudrat Patel (D. W. 6) is a Sarpanch of the village and there is no reason to disbelieve his statement that before issuing the rashan Card (Ex. D-5) and giving certificate (Ex. D-6) he enquired from the Village Chowkidar and other Panchas about second marriage of the petitioner. Ex. D-9 is the voter list from which it is clear that Manubai is the wife of the petitioner. In Ex. D-5, which is the rashan Card Manubai is shown as wife of the petitioner and his two daughters are also named therein. Consequently, there is overwhelming documentary and oral evidence to prove that the petitioner has performed the second marriage. ( 11. ) THE defendant has a right to live separately from her husband in the event of performance of second marriage by the petitioner with Manubai. The petitioner is not entitled for the relief of divorce by virtue of Section 23 of the Hindu Marriage Act, which provides that the petitioner should not be allowed to take advantage of his own wrong. In these circumstances, the learned Trial Court has not committed any error in holding that the appellant/ petitioner is guilty of committing matrimonial offence of performing second marriage and, therefore, the defendant has a right to remain separately from him and in the aforesaid circumstances the petition filed by the appellant for divorce on the ground of desertion and cruelty is not tenable. ( 12. ) THE appeal is devoid of merit and it is hereby dismissed.