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2007 DIGILAW 640 (MP)

Sukhram Yadav v. Nirupama Yadav

2007-06-25

A.K.MISHRA, K.S.CHAUHAN

body2007
JUDGMENT Chauhan, J. -- 1. This appeal under section 19 of the Family Court Act has been preferred by the appellant being aggrieved by the judgment and decree dated 20th January, 2004 passed by Presiding Officer, Family Court, Bhopal in RCS No. 606A/2002 whereby the application filed by the appellant under sections 11 and 13 of Hindu Marriage Act seeking divorce has been rejected. 2. The facts of the petition in short are that the appellant is the husband of the respondent-Smt. Nirupama Yadav. The marriage was solemnized on 10.12.1993 according to Hindu Rites and Customs at Bhopal. They discharged the conjugal obligations upto one month but thereafter the respondent changed her behaviour and started ill-treatment with the appellant, his mother and his family members. She used to go to Bhopal at her parental house, not to return upto 15-20 days the appellant took the rented house at 6 1/2 No. bus stop at Bhopal and lived therein for two months in 1993 but she did not live with him. 3. It is also averred that one daughter was born on 7.3.1995 out of their wedlock at her parental house. The appellant went there to see his daughter but he was not allowed to see and was ill-treated. 4. It is also averred that his uncle Kunwar Singh and elder brother Anil Yadav went at the parental house of the respondent on 28.2.1999. She came Village Vishankheda with them and returned on the same date. Again the appellant went to her parental house with his relatives but she refused to accompany him and stated that she does not want to live with him. She has deserted him without any reasonable cause and the cohabitation has not taken place since 1995 in between them. She has also misbehaved and ill-treated with him and his family members. Thus, the appellant has been treated with cruelty. She has also made a false report at Obedullaganj police station that the appellant is performing another marriage but on inquiry it was found that no such marriage was being performed. Thus she has shaken the reputation of his family in society. 5. It is also averred that the appellant filed the application for restitution of conjugal rights before the Raisen Court wherein the respondent has given the statement that she does not want to live with him. Thus she has shaken the reputation of his family in society. 5. It is also averred that the appellant filed the application for restitution of conjugal rights before the Raisen Court wherein the respondent has given the statement that she does not want to live with him. Likewise the respondent has also filed an application under section 125 of the Code of Criminal Procedure in Bhopal Court wherein she has also stated the same fact. Since there has not been any cohabitation in between them since 1995, therefore, the application was filed to dissolve their marriage consummated on 10.12.1993 by granting the decree of divorce. 6. The respondent has submitted the written statement denying most of the averments of the petition and contended that she went to village Vishankheda after marriage. According to prevalent custom, she stayed there upto 3 days and returned back to her parental house. She was carried again to that village where the demand of Scooter, Fridge and ColourT.Y. was made by the appellant and his family members. On expressing her inability to provide, she was sent back to her parents' house where she apprised her father. He complained to Anil Yadav-cousin brother of the appellant about the dowry demand. Anil Yadav assured that no such things would be repeated. On this assurance, she again went to her-in-laws house but she found appellant's behaviour not changed. The appellant started abusing and causing marpeet with her. Anyhow she spent two months there and at the time of Rakshabandhan when she was coming to her parental house the appellant again asked her to bring the above articles in dowry and it was also stated that if she will not bring the aforesaid articles she will not be permitted to enter the house. He also threatened to perform another marriage in case she fails to bring the aforesaid articles. Again she apprised her father about this fact who consulted the appellant's uncle. Then she again went to Shankar Nagar to live with the appellant but he neglected her. No medical treatment was caused to be done at the time when she was ill and pregnant. Often he used to say to bring the money from her father. He left her at her parents' house and never came to bring her back. 7. It is also averred that nobody came to see her newly born baby. No medical treatment was caused to be done at the time when she was ill and pregnant. Often he used to say to bring the money from her father. He left her at her parents' house and never came to bring her back. 7. It is also averred that nobody came to see her newly born baby. In the month of June, 1997 the appellant suddenly came and demanded share in the house of her father. Thus, the appellant himself has treated her with cruelty and ill treatment with her. 8. It is also averred that the appellant had married with Shobha and one daughter has also born out of their wedlock. Thus the application has been filed on false grounds, hence deserves to be dismissed. 9. On the basis of the pleadings of the parties, the trial Court framed issues to the effect that whether the respondent has deserted the appellant without any sufficient cause and whether the respondent has treated him with cruelty. 10. The appellant examined himself as well as Shri Anil Yadav and the respondent examined herself as well as her father Shri R.S. Yadav. On 9.1.2004 the trial Court cancelled the issue No.1 regarding desertion and also an additional issue with the consent of the learned counsel of parties. This issue was relating to the ground of desertion taken by the appellant. Thus, the trial Court considered the case only on issue No.2 i.e. with regard to the ground of cruelty. The trial Court found that the appellant has failed to prove this ground and, therefore, dismissed the petition. 11. Being aggrieved by the judgment and decree passed by the trial Court the instant appeal has been preferred under section 19 of Family Courts Act, 1984 on the grounds mentioned therein. 12. The learned counsel of the appellant has submitted that the trial Court has not considered the version of the appellant regarding ill behaviour and has wrongly discarded the evidence of the appellant. In this regard, the finding is illegal, erroneous and contrary to law hence deserves to be set aside. 13. On the other hand, the learned counsel for the respondent has submitted that the appellant has failed to prove the case, therefore, the trial Court has rightly dismissed the petition of the appellant hence it does not call for any interference. 14. 13. On the other hand, the learned counsel for the respondent has submitted that the appellant has failed to prove the case, therefore, the trial Court has rightly dismissed the petition of the appellant hence it does not call for any interference. 14. The main point for consideration in this appeal is that whether the trial Court has committed any illegality in dismissing the divorce petition filed by the appellant under section 13 of Hindu Marriage Act, 1955. 15. We have perused the record and evidence adduced in the case. 16. The cruelty is one of the grounds of divorce mentioned in section 13 (1) (ia) of Hindu Marriage Act, 1955. The petitioner is required to prove that after the solemnization of marriage the respondent treated the petitioner with cruelty. In this case, petitioner-Sukhram Yadav (AW 1) who has stated that the respondent has ill-treated with him and his mother aged 75 years. The details of ill-treatment and misbehaviour have not been stated specifically. From his evidence it appears that he wants to establish that the respondent is not residing with him and frequently visits her parents' house and stays there and has not cohabitated with him since 1995, therefore, she has treated him with cruelty. But the situation is different when we perused the statements given by respondent-Nirupama Yadav (NA WI) and her father R.S. Yadav (NA W 2). From her evidence it is manifestly clear that she went to village Vishankheda and also at his residence at Bhopal frequently but the appellant and his family members demanded Scooter, Fridge and Colour T. V. etc. in dowry. The demand was not made once but repeatedly she was asked by the appellant to bring the articles of dowry failing which she will not be permitted to enter his house and also threatened to marry with another woman. He has also demanded the money and share in her father's house. Instead of rendering help at the time of her illness and pregnancy, he did not pay attention towards respondent and neglected her. So these are some causes which prevented the respondent to live with the appellant. 17. On perusal of Ex. D-2 the Court at Raisen refused to grant the decree of restitution of conjugal rights in favour of the appellant holding that there is reasonable cause by which the respondent is residing separately. So these are some causes which prevented the respondent to live with the appellant. 17. On perusal of Ex. D-2 the Court at Raisen refused to grant the decree of restitution of conjugal rights in favour of the appellant holding that there is reasonable cause by which the respondent is residing separately. It appears that on the basis of such finding the appellant has not pressed issue No. 1 framed on the ground of desertion of divorce, therefore, there is no question to consider this ground and to deal with the evidence in detail in this respect. 18. As stated earlier, the appellant has not specifically mentioned how she misbehaved or ill-treated with him. The mother of the appellant has not been examined and, therefore, it cannot be proved that she misbehaved with her mother-in-law. Anil Yadav (AW 2) has stated that she has not misbehaved with him and his family members. 19. The petitioner has stated the another cause of cruelty that he was not permitted to see his newly born baby by the respondent at her parents house and this evidence is rebutted by the respondent deposing that nobody turned up from her-in-laws house to see newly born baby. Thus it has not been established that respondent treated the petitioner with cruelty. "- 20. The petitioner has stated another reason that the respondent made the complaint to the police that the appellant is going to perform another marriage which was found false. the respondent in this regard has deposed that the appellant has performed another marriage with Sobha and one baby has been born out of their wedlock. Thus, this conduct of the respondent cannot be regarded as cruelty to the petitioner. 21. In the case of Sobha Rani v. Madhukar Reddi [ AIR 1988 SC 121 ] the Hon'ble apex Court has observed: "There has been a marked change in the life around us. In matrimonial duties and responsibilities in particular, there is a sea change. They are of varying degrees from house to house, person to person. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance." 22. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance." 22. In the case of Parihar (Priti) v. Parihar (Kailash Singh) [ AIR 1978 Raj. 140 ] the Rajasthan High Court has observed: "legal cruelty comprises two different elements, viz., ill-treatment actually complained of and the resultant danger or the apprehension thereof." 23. In the case of Rajinder Bhardwaj v. Anita [ AIR 1993 Del. 135 ] the High Court of Delhi has observed: "No hard and fast rule can be laid down as to what acts or conduct will amount to cruelty in any given case. What may amount to cruelty in one case may not amount to cruelty in another case. In deciding whether or not a particular state of affairs amounts to legal cruelty, the Court has to consider the social status, the environment, the education, the mental and physical conditions and the susceptibilities of the innocent spouse as also the custom and manners of the parties. Whether acts and conducts complained of constitute cruelty have to be construed in reference to the whole matrimonial relationship. It may be that various acts or conduct complained of, by itself and in isolation to each other, do not amount to cruelty, but in their overall effect they may amount to cruelty." 24. On the analysis of entire evidence adduced in this case, it is found that the appellant himself has treated the respondent with cruelty and not the respondent. The appellant anyhow wants to take divorce on the fictitious ground. The trial Court has rightly found that the appellant has failed to prove his case and hence dismissed the petition. We also affirm such finding of the trial Court. 25. We find no merit in this appeal and hence deserves to be dismissed. 26. Consequently, the appeal fails and is dismissed accordingly.