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2006 DIGILAW 2527 (RAJ)

Tara Devi v. Arun Kumar

2006-08-22

PRAKASH TATIA

body2006
Judgment Prakash Tatia, J.-This appeal is against the Judgment and decree dated 04.01.2000 passed by the learned District Judge, Rajsamand in Divorce Case No.69/96 filed under Section 13 of the Hindu Marriage Act by the respondent. 2. Brief facts of the case are that the marriage of the plaintiff respondent with appellant-defendant took place in the year 1987. According to the plaintiff , the defendant lived with the plaintiff till the year 1988 for one year only. According to the plaintiff , the defendants attitude towards plaintiff and his family members became very inimical and hence she used to quarrel with the plaintiff and his family members. In the year 1988, the defendant-appellant gave threat that she will take poison or will burn herself and implicate the plaintiff and his family members. She tried to burn herself 2-3 times but she was saved by the plaintiff and his family members. It is alleged that since the year 1988, after the said dispute, the defendant left the plaintiff and is living at her parental house. The plaintiff sought decree for divorce on the ground of desertion as well as on the ground of cruelty by filing the divorce petition on 110.1996. 3. The appellant-defendant submitted written statement and stated that she lived with the husband till 1996 and since she could not give birth to any child, therefore, plaintiff s mother as well as plaintiff , who was influenced of his mother, had intention to marry second time and, therefore, they used to harass the defendant. The defendant-appellant specifically pleaded that on 17.09.1996, the defendant was given beating and was turned out from the house and since then she is living with her mother and father. Issues were framed and the plaintiff gave his statement and produced witnesses AW-2 Rajesh, AW-3 Dalpat Singh,AW- 4 Santosh Kumar, AW-5 Vinod and AW-6 Mahesh, whereas defendant appellant gave her statement and produced witnesses NAW-2 Suresh and NAW-3 Tulsidas. The trial Court decided both the issues in favour of the plaintiff -respondent and granted the decree for divorce by impugned Judgment and decree dated 04.01.2000. Hence this appeal. 4. The trial Court decided both the issues in favour of the plaintiff -respondent and granted the decree for divorce by impugned Judgment and decree dated 04.01.2000. Hence this appeal. 4. According to the learned Counsel for the appellant, the Court below committed serious error of fact in holding that the appellant left the respondent-plaintiff after one year of their marriage in the year 1988, whereas the appellant produced witnesses and gave her statement to prove that she lived with the husband since 1996. She gave specific date on which date she was turned out by the plaintiff and his family members. It is also submitted that if the age of the plaintiff is calculated from the age given by the plaintiff in his statement, then at the time of marriage of the appellant-defendant with the respondent plaintiff , the age of the respondent-husband was 15 years only whereas the age of the wife appellant was 13 years. It is submitted that from the statement of the plaintiff himself , it comes out that the defendant appellant lived with the husband at least for 8 years and that comes to the year 1996. It is submitted that since no issue was born to the plaintiff and defendant, therefore, the appellant-defendants mother-in-law instigated respondent-plaintiff to contract second marriage so that the respondent may have child and, therefore, false allegations have been levelled against the appellant-defendant by the respondent plaintiff . It is also submitted that the Court below did not consider the appellants unconditional offer that she is ready and willing to live with the husband. It is also submitted that the witnesses produced by the appellant clearly proved the fact that the appellant-defendant was turned out by the plaintiff-respondent. In view of the above reasons, the decree for divorce granted by the Court below deserves to be set aside. 5. The learned Counsel for the appellant vehemently submitted that all the allegations levelled against appellant by the respondent about the cruelty are absolutely vague. Not only this but in the statement of the respondent also, there are only vague allegations. No particular of any specific incident and period has been given by the respondent in his evidence. The respondents witnesses also could not narrate any particular and specific incident of cruelty. Not only this but in the statement of the respondent also, there are only vague allegations. No particular of any specific incident and period has been given by the respondent in his evidence. The respondents witnesses also could not narrate any particular and specific incident of cruelty. It is also submitted that even if the allegations levelled by the respondent-plaintiff is seen, then from the face value itself , it is clear that they are minor incidents which have been projected as grounds for cruelty. 6. The learned Counsel for the appellant relied upon the Judgment of this Court delivered in the case of Chetandas vs. Smt. Kamla Devi, 1996 DNJ 233 (Raj), wherein this Court held that mere bald allegation about cruelty without any specific incident, cannot be a ground for passing the decree for divorce. It is also held in the case of Chetandas (Supra), that mere wifes living separately from the husband and in case factum of desertion or cruelty is not proved, mere living separate is no ground for divorce. In the another Judgment delivered in the case of Magghi Devi vs. Kedar Chand Swamy, 1996 DNJ 136 (Raj), this Court held that mere allegation that the wife left the house many times without any reasons and threatened to commit suicide, cannot be a ground for passing the decree for divorce. This Court also held that the divorce, on the ground of marriage having been irretrievable broken, cannot be granted because that is not the ground provided under Section 13 of the Hindu Marriage Act. The learned Counsel for the appellant pointed out from the evidence of the plaintiff-respondent that the plaintiff -respondent, in his cross-examination stated that his wife-appellant is residing separately from the respondent since last eight years. The evidence was recorded in the year 1999 then the period of separate living of the appellant and respondents comes to from the year 1991.Whereas the plaintiff s case was that the defendant-appellant left the house of the plaintiff in the year 1988. It is also submitted that the plaintiff admitted that at the time when the wife left him, he was driver. It is also submitted that the plaintiff admitted that at the time when the wife left him, he was driver. Looking to his age as given in his statement in Court on 28.1999 at the time when the defendant left the house of the plaintiff even as per the allegation of the plaintiff , then the plaintiff was engaged in the service of driving vehicles. If the age of the plaintiff is calculated from his statement then also his case that the defendant left the house of the plaintiff in the year 1988 is false one. 7. The learned Counsel for the appellant further vehemently submitted that the appellant unequivocally and clearly stated that she is ready and willing to live with husband. This stand was taken in the written statement as well as in her statement before the Court below. Contrary to it, the husband-plaintiff in his statement, clearly stated that he is not ready to accept the appellant-defendant with him. In view of the above , in fact the respondent and his family members turned out the defendant-appellant from the matrimonial house of the appellant because of the reason that no child born to the appellant. 8. I perused the record and considered the arguments advanced by the learned Counsel for the parties and the Judgment s relied upon by the learned Counsel. 9. It is clear from the facts mentioned above that there is no dispute that the marriage between the parties solemnized in the year 1987. The question is that from which time the appellant-defendant is residing away from the respondent-plaintiff and whether the respondent-plaintiff turned out the appellant-defendant from matrimonial house or the appellant-defendant voluntarily left the house of the husband with intention to not to come back. For this purpose, the plaintiff gave his statement and stated on oath that the defendant left the house of the plaintiff after one year of their marriage. Admittedly, no issue born to the plaintiff and the defendant. The plaintiff also stated that the defendant used to misbehave with the family members of the plaintiff by abusive language. She used to give threat that she will kill herself and will involve other family members of the plaintiff in a false case. The plaintiff also stated that till the plaintiff s wife remained with the plaintiff for one year, her attitude was somewhat good but that turned hostile subsequently. She used to give threat that she will kill herself and will involve other family members of the plaintiff in a false case. The plaintiff also stated that till the plaintiff s wife remained with the plaintiff for one year, her attitude was somewhat good but that turned hostile subsequently. In cross-examination, the plaintiff stated that he never gave beating to his wife. He denied the suggestion of the defendant that the appellant lived with the plaintiff till the year 1996. In cross-examination, the plaintiff stated that since last 8-9 years, both are living separately. The contention of the learned Counsel for the appellant is based upon this statement in cross-examination of the plaintiff . It appears that at this stage, no further question was put to the plaintiff to explain how there is gape of about two years in the statement given in examination-in-chief and in cross-examination. Obviously, it appears that the parties were not serious about this period of one or two years gape in between the statement of the plaintiff , in cross-examination and examination-in-chief . From the statement of the plaintiff , in cross-examination, of living separately for last 8-9 years, makes the separation from the year 1990-91, whereas the plaintiff s case is that since 1988 the wife is living separately. The discrepancy in the statement of the plaintiff is not such that on the basis of plaintiff s case that defendant left in the year 1988 can be rejected. 10. The plaintiff produced witnesses AW-2 Rajesh, who is brother of the plaintiff , who also stated that both the plaintiff and the defendant lived together for one year. He also supported the statement of the plaintiff about the threat of the defendant of committing suicide and involving the family members of the plaintiff . The plaintiff s brother Rajesh was not cross-examined on this point of plaintiff s and defendants living separately after one year of the marriage. The plaintiff s another witness is AW-3 Dalpat Singh, who also stated that the plaintiff and defendant lived together for one year only. He also stated that the defendant stated that she will kill herself . He is neighbour of the plaintiff . The witness AW-4 Satish Kumar is also neighbour of the plaintiff . He also stated that the plaintiff and the defendant lived together with one year. He also stated that the defendant stated that she will kill herself . He is neighbour of the plaintiff . The witness AW-4 Satish Kumar is also neighbour of the plaintiff . He also stated that the plaintiff and the defendant lived together with one year. He was not cross-examined on the point of plaintiff s and defendants living separately after one year. 11. Other witnesses produced by the plaintiff AW-5 Vinod and AW-6 Mahesh also supported the case of the plaintiff on the question of plaintiff s and defendants living together for only year and separately thereafter. 12. The appellant-defendant appeared in the witness-box and stated that she was turned out by the plaintiff and his mother. In support of that stand of defendants turning out in the year 1996, two more witnesses were produced by the defendant and one is Suresh(NAW-2), who stated that his two sisters in-laws house is near the house of the appellant-defendant, therefore, he knows the fact about the appellants matrimonial relation. He stated that the appellant-defendant lived with the husband for 8-9 years. His statement was recorded in the year 1999, then by this statement, the appellant-defendant lived with the husband upto 1990-91 only. That is contrary to defendants case that defendant appellant lived with husband till 1996. In cross-examination, NAW-2 Suresh stated that he went to appellants house about two times in the first year. Thereafter he visited the house of the appellant till his statement was recorded only once. The defendants another witness Tulsidas (NAW-3) stated that when the defendant was turned out, Suresh was also present alongwith NAW-3 Tulsidas further stated that the appellants father was also present there. Suresh nowhere says that he was present when appellant was turned out and the appellant defendants father did not appear in the witness-box. In view of the above evidence, the trial Court was right in holding that the appellant and defendant are living separately since 1988, just after one year of the marriage. 13. So far as reasonable reason for living separately by the appellant from the plaintiff , the evidence of the plaintiff and his witnesses, which have been discussed above, appears to be more reliable,in view of the fact that the appellant-defendants witnesses are not reliable witnesses as they gave wrong statements that the appellant-defendant lived with the husband till 1996. 13. So far as reasonable reason for living separately by the appellant from the plaintiff , the evidence of the plaintiff and his witnesses, which have been discussed above, appears to be more reliable,in view of the fact that the appellant-defendants witnesses are not reliable witnesses as they gave wrong statements that the appellant-defendant lived with the husband till 1996. The plaintiff and plaintiff s witnesses clearly stated that because of habit of the defendant-appellant of quarrellings with the family members of the appellant and after giving threat, she left the house of the plaintiff , appears to be more correct because of the reason that the appellant-defendant could not furnish any reasonable cause for living separately from her husband. There are allegations of vagueness in the incidents on the basis of which divorce was sought by the plaintiff but at the same time, the stand taken by the defendant is also absolutely vague and she could not disclose any reasonable cause for living separately. The allegation that she could not give birth to any child was the cause for ill-treatment by the plaintiff and his family members, is quite vague in view of the reason that the defendant-appellants father or mother have not been produced in evidence. The defendant produced witnesses in support of her case NAW-2 Suresh and NAW-3 Tulsidas. Both are cousin brothers of the defendant. The evidence of the witness Suresh clearly reveals that he had no personal knowledge about any incident because of which the appellant and the respondent are living separately. 14. In view of the above, if the Court below held that the appellant is living separately from the respondent without any reasonable cause, the Court below has not committed any error of fact or law. 15. So far as cruelty is concerned, it is true that the Division Bench of this Court in the case of Rajendra Prasad Pareek vs. Smt. Krishna Devi Pareek, 1992 (1) WLC 256 (Raj), held that irretrievable break down of marriage is no ground provided under Section 13 of the Hindu Marriage Act. Here in this case, the divorce has not been granted because of irretrievable break down of relations between the parties but has been granted on the ground of desertion and on the ground of cruelty. Not discharging matrimonial obligations by the wife without any reasonable cause also amounts to cruelty. Here in this case, the divorce has not been granted because of irretrievable break down of relations between the parties but has been granted on the ground of desertion and on the ground of cruelty. Not discharging matrimonial obligations by the wife without any reasonable cause also amounts to cruelty. Therefore, this Court is not inclined to interfere in the finding recorded by the trial Court on the question of cruelty. 10.16. In view of the above discussion, I do not find any merit in this appeal. Hence, the appeal of the appellant is dismissed.