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2005 DIGILAW 357 (MP)

Uttam Soni v. Kiran Soni

2005-03-07

S.L.JAIN

body2005
JUDGMENT This appeal is directed against the judgment and decree dated 17.1.1995, passed by Additional District Judge, Sihora in Civil Suit No. 3A194, allowing the petition under section 13 of the Hindu Marriage Act (henceforth, the 'Act') as filed by the respondent-wife (hereinafter referred to as the 'petitioner' as she was before the trial Court) on the ground of cruelty. It is not in dispute that the non-applicant-appellant Uttam Soni (hereinafter referred to as the 'non-applicant' as he was before the trial Court) and the petitioner were married to each other in accordance with the Hindu rites in the year 1984 at village Khitola, District Jabalpur. At the time of filing of the petition, the parties were living at village Khitola within the jurisdiction of trial Court. The petitioner filed a petition under section 13 of the Act on the ground specified underc1ause (ia) of sub-section (1). It is alleged by the petitioner that after the solemnization of the marriage, non-applicant treated her with cruelty. The non-applicant used to harass her for or in connection with demand for dowry. The non-applicant used to demand Rs. 10,000/- by way of dowry. He used to consume liquor and under the effect of intoxication, he used to assault the petitioner. He repeatedly gave threats that he will remarry. It is also the case of the petitioner that she was turned out by the husband from her matrimonial home. Sincere attempts were made for conciliation but the non-applicant did not show any change in his behaviour. The last incident of beating occurred on 16.12.1993. Thereafter the petitioner started living with her father. It is alleged by the petitioner that the cruelty meted out to her is of such a nature as to cause a reasonable apprehension in her mind that it is harmful or injurious for her to live with the husband. The non-applicant submitted his written statement denying the allegations of cruelty made against him. Non-applicant also pleaded that the petitioner after solemnization of the marriage was living in adultery. She had voluntary sexual intercourse with one Gendlal. Gendlal and the petitioner had filed an application before marriage officer for registration of their marriage which was dismissed on the objection raised by the father of Gendlal. Non-applicant also pleaded that the petitioner after solemnization of the marriage was living in adultery. She had voluntary sexual intercourse with one Gendlal. Gendlal and the petitioner had filed an application before marriage officer for registration of their marriage which was dismissed on the objection raised by the father of Gendlal. During trial, on the date of nearing the non-applicant did not appear before the trial Court, therefore, the case proceeded ex-parte against him and the petition was allowed vide judgment and decree dated 17.1.1995. This order of the trial Court is assailed by the non-applicant in this appeal. I have heard Shri S. Gautam, learned counsel for the non-applicant. None appeared for the petitioner at the time of final argument; therefore, the appeal proceeded ex-parte against the petitioner. Learned counsel for the non-applicant first contended that the trial Court committed grave error in proceeding ex-parte against the non-applicant. The non-applicant was appearing before the Court regularly, therefore, the Court should not have proceeded ex-parte only on the ground that the non-applicant failed to appear on one date. If not more, at least one more opportunity should have been granted to the non-applicant. The contention cannot be accepted. Before the trial Court the case was fixed for evidence on 15.12.1994. On this date two witnesses of the petitioner namely Roshan and Suresh were present. As the trial Court was busy in recording the evidence in S.T. No. 11/93, the case was adjourned for evidence of both the parties with a direction that the parties shall appear before the Court along with their counsel and witnesses at 11 a.m. on 20.12.1994 and the evidence shall be recorded at the same time. On 20.12.1994, the non-applicant appeared in person. His counsel was not present. Appellant sought 15 minutes time to bring has counsel. After 15 minutes; non-applicant appeared and informed that his counsel could not reach the Court. The Court directed that the case will be taken at 11.15 a.m. Again the case was taken up at 11.30 a.m. and the non-applicant was directed to bring his counsel till 11.45. At 11.45 non-applicant informed the Court that his counsel had not come, therefore, the Court proceeded with the case. The petitioner's witnesses Suresh and Roshan were examined. No question was put to these witnesses by the non-applicant in the cross-examination. Counsel for the petitioner closed the evidence. At 11.45 non-applicant informed the Court that his counsel had not come, therefore, the Court proceeded with the case. The petitioner's witnesses Suresh and Roshan were examined. No question was put to these witnesses by the non-applicant in the cross-examination. Counsel for the petitioner closed the evidence. At this stage, the non-applicant requested the Court that some time may be given to him to bring his counsel so that he may adduce his evidence. On the request of the non-applicant, the case was adjourned for some time. After sometime, the counsel for the non-applicant appeared and filed an application for giving an opportunity to cross-examine the witnesses examined on behalf of the petitioner. The prayer was allowed, subject to payment of cost of Rs. 100/-. As the witnesses examined on behalf of the petitioner left the Court it was directed that the cost of recalling the witnesses shall be borne by the non-applicant and the case was fixed for cross-examination of the petitioner's witnesses and for the evidence of non-applicant on 10.1.1995. On this date again the non-applicant did not appear. His counsel pleaded no instructions. Accordingly, the trial Court proceeded ex-parte against the non-applicant. From the narration of above facts, it appears that the non-applicant did not take the proceedings of the Court seriously. The trial Court was justified in proceeding ex-parte against the non-applicant. No application for setting aside the ex-parte decree was filed under Order 9 Rule 13 of the Civil Procedure Code. No reason has been assigned by the non-applicant as to what prevented him from appearing on 10.1.1995. Therefore, the contention of the counsel for the non-applicant cannot be countenanced. Learned counsel for the appellant next contended that the evidence of the petitioner with regard to cruelty is quite vague and on such evidence the decree of divorce could not have been granted. I have examined the evidence adduced on behalf of the petitioner PW 1 Kiran Soni, the petitioner has specifically stated that the non-applicant often used to beat her. She was subjected to cruelty for or in connection with demand for dowry. PW 2 Suresh and PW 3 Roshan have also corroborated the testimony of the petitioner. Both these witnesses have also stated that the non-applicant used to beat the petitioner. Thus, there is ample evidence of physical violence against the petitioner. The repeated acts of violence and assault are nothing but cruelty. PW 2 Suresh and PW 3 Roshan have also corroborated the testimony of the petitioner. Both these witnesses have also stated that the non-applicant used to beat the petitioner. Thus, there is ample evidence of physical violence against the petitioner. The repeated acts of violence and assault are nothing but cruelty. The cruelty meted out to respondent is certainly of such a character as to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injuries for her to live with her spouse. No evidence has been given by the non-applicant in rebuttal. Allegations of cruelty by a wife against her husband if not rebutted by husband by any cogent evidence are sufficient to pass a decree for divorce on the ground of cruelty. Therefore, the findings recorded by the trial Court in this regard cannot be disturbed. Much stress was placed by learned counsel for the non-applicant that there was sufficient material on record to record a finding that the petitioner was living in adultery. There is material on record to reach a conclusion that the petitioner had voluntarily sexual intercourse with Gendlal. This conduct of the petitioner is sufficient to deprive her of the decree for divorce. The contention cannot be accepted. No evidence has been given on behalf of the non-applicant in this regard. A copy of the application alleged to have been filed by Gendlal and the petitioner and the copy of notice issued by marriage officer and copy of the objection raised by the father of Gendlal before marriage officer have been filed. These documents have not been properly proved. There is no evidence that the signature purporting to be of the petitioner. on the application is really of the petitioner. It can also not be said that the signature purporting to be of father of Gendlal on the objection are genuine. In this regard learned counsel for the non-applicant submits that the documents are public documents. This contention also cannot be accepted. The petition filed by the parties before the marriage officer cannot be said to be a public document. Thus, it cannot be said that the petitioner along with Gendlal filed an application for registration of marriage between Gendlal and the petitioner. This contention also cannot be accepted. The petition filed by the parties before the marriage officer cannot be said to be a public document. Thus, it cannot be said that the petitioner along with Gendlal filed an application for registration of marriage between Gendlal and the petitioner. It is true that notice issued by the marriage officer can be said to be a public document but unless it is proved that application was actually filed by the petitioner and objection was actually raised by father of Gendlal, it cannot be said that notices were issued on the application of the petitioner and Gendlal. Even if it is accepted that the non-applicant has proved that the petitioner is living in adultery, the same will not deprive the wife from seeking divorce on the ground of cruelty. The fact that the wife was living in adultery or she had voluntarily sexual intercourse with any person other than her spouse may be a ground for husband to seek dissolution of marriage by a decree of divorce on that ground but the same will not deprive the non-applicant from seeking dissolution of marriage by decree of divorce on the ground of cruelty. The ground of cruelty has been proved by the petitioner beyond any doubt, therefore, the petitioner is entitled to decree for divorce and the judgment of the trial Court on this ground is defensible. In view of what has been discussed above, I am of the view that the appeal is sans substance and the same is, therefore, dismissed. The non-applicant shall bear his own cost of this appeal and also the cost of petitioner throughout. Counsel's fees Rs. 500/- if certified.