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2007 DIGILAW 845 (RAJ)

Sunita Alias Kusum v. Mohan Saini

2007-04-24

GUMAN SINGH, SHIV KUMAR SHARMA

body2007
JUDGMENT 1. - This appeal is directed against the judgment and decree dated 10.1.2002, passed by Judge, Family Court No. 2, Jaipur, in Case No. 117/99 whereby a petition under Section 13(1)(ib) of the Hindu Marriage Act (for short 'the Act') was allowed and a decree of dissolution of marriage was passed with a further direction to the respondent-husband to pay a sum of Rs. 800/- to the appellant and Rs. 500/- for her son Prince as maintenance under Section 25 of the Act. 2. Briefly stated the facts essential for disposal of this appeal are that on 15.5.1999, the respondent-husband (hereinafter referred to as the 'husband') filed a petition under Section 13(1)(ib) of the Act for dissolution of marriage with the appellant-wife (hereinafter referred to as the 'wife'), alleging therein that the marriage between them was solemnized on 27.4.1996, according to Hindu Rites at Jaipur, and out of the wedlock, a son, namely, Prince was born to them on 12.3.1997. Soon after the marriage it was felt by the husband that the wife frequently used to visit her parental house. In the year 1996 she went there on Rakhi Festival and did not come back for one and half month. She came back only when the husband with five other persons went there to bring her back. But she again went to her parent's house after staying for 15 days only. It is stated that on 6.3.1997, the mother of the appellant-wife and her younger sister with their tenants came there and took the appellant with them in spite of her refusal. Thereafter the appellant did not return to her matrimonial home. 3. On 11.3.1998, the husband filed an application under Section 9 of the Act for restitution of conjugal rights. During the proceedings, the matter was compromised between the parties but as per proceedings dated 19.12.1998, the wife refused to go with the husband. Therefore, the petition for restitution of conjugal rights was withdrawn and the present petition was filed on the ground of desertion. It has been further alleged that on 12.8.1999, the wife also lodged a report at Mahila Police Station, Jaipur, against the husband as a result of which the husband was arrested. Therefore, it was prayed that a decree of divorce may be granted to the husband-respondent. 4. The wife filed reply controverting all the allegations. It has been further alleged that on 12.8.1999, the wife also lodged a report at Mahila Police Station, Jaipur, against the husband as a result of which the husband was arrested. Therefore, it was prayed that a decree of divorce may be granted to the husband-respondent. 4. The wife filed reply controverting all the allegations. However, it was alleged that respondent-husband started drinking and made a demand for bringing rupees 50,000/-, Colour T.V. and Fridge from her father failing which she was threatened to be turned out of the house. It was further alleged that in 1996, mother of respondent-husband had left her to her parent's house but no body turned up to bring her back, and she had to come back to her matrimonial home with her brother. In March 1997, she was sent to her parents house along with her mother and elder sister as she was to deliver a child. But after the delivery of child when she went to her in-laws house on 20.4.1997, she was asked as to why she did not bring the dowry and was turned out of the house with her small child. It was further alleged that petition under Section 9 of the Act was withdrawn by the respondent-husband so as to escape from the amount of maintenance which could be awarded to her. It was further alleged that the wife-appellant had to lodge report to the Police as the respondent refused to return the articles of daily use lying with him and thereafter the respondent illegality obstructed her and assaulted her when she had gone to attend hearing in the. Family Court on 15.9.1999, and for that, a report was also lodged in the Police. 5. On the basis of pleadings of the parties, following issues were framed : 1. Whether appellant-wife treated her husband-respondent with cruelty? 2. Whether the appellant-wife left the house of the respondent-husband without any reasonable cause continuously for a period of two years and thereby committed desertion? 3. Relief? 6. Both the parties led their evidence. The judge, Family Court decided Issue No. 1, regarding cruelty, against the respondent-husband while Issue No. 2 pertaining to desertion, against the appellant-wife and decree of divorce was granted. 7. We have heard learned counsel for the parties and carefully gone through the order impugned. 8. 3. Relief? 6. Both the parties led their evidence. The judge, Family Court decided Issue No. 1, regarding cruelty, against the respondent-husband while Issue No. 2 pertaining to desertion, against the appellant-wife and decree of divorce was granted. 7. We have heard learned counsel for the parties and carefully gone through the order impugned. 8. From the evidence led by both the parties, it is revealed that initially the respondent-husband had a grudge with the appellant-wife that she used to visit her parent's house frequently and as and when she went there she did not come at her own, and when she finally went to her parent's house on 6.3.1997 she did not come back and petition under Section 9 of the Act for restitution of conjugal rights on 11.3.1998 had to be filed. On behalf of respondent-husband it has been alleged that a compromise had taken place in the aforesaid petition on 7.11.1998 but the appellant wife refused to go to reside with him on 19.12.1998 as per the proceedings in the said petition. In this regard, the learned counsel for the appellant has argued that no such compromise had taken place on 7.11.1998 and it is wrong to say that the appellant-wife was not present before the Family Court on 19.12.1998 and from the proceedings it is not made out that she had refused to go with the respondent-husband. In support of his arguments, counsel for the appellant has placed before us the copies of the aforesaid proceedings from which it is revealed that there is no mention of the alleged compromise and consequent refusal by the wife while she has been shown present. In view of the above, the counsel for the appellant-wife argued that there was no occasion for the husband to withdraw the petition for restitution of conjugal rights if he at all wanted that the matrimonial ties between the husband and wife should be restored. Counsel for the appellant has further argued that in fact it was the respondent-husband who had undergone a change of mental state and hence he filed the present petition to snap the matrimonial ties and as such the wife-appellant can not be held liable for desertion. Counsel for the appellant has further argued that in fact it was the respondent-husband who had undergone a change of mental state and hence he filed the present petition to snap the matrimonial ties and as such the wife-appellant can not be held liable for desertion. On reappraisal of evidence led by the parties and considering the totality of the case and developments taken place between the husband and wife, we are of the view that the argument advanced by counsel for the appellant is of much avail as we find that the withdrawal of petition under Section 9 of the Act is indicative of the intention of the husband that he had decided to snap the ties instead while there is no convincing evidence that the appellant had deserted her husband to put an end to matrimonial ties. 9. Therefore, in our view, the Judge, Family Court has failed to appreciate the evidence in right perspective on the point of desertion and as such the finding on Issue No. 2, pertaining to desertion decided against the appellant-wife is liable to be quashed and set-aside. 10. While adverting to the Issue No. 1, pertaining to cruelty, in the light of above discussion, it is revealed that the Judge, Family Court has given a finding on the basis of evidence on record that acts of cruelty alleged towards wife are of trivial nature and the same do not amount to cruelty as a ground of dissolution of marriage. We find that the finding arrived at by the Judge, Family Court does not suffer from any infirmity and the same is liable to be confirmed. 11. Therefore, finding on issue No. 1, given by the Judge, Family Court, is confirmed, while the finding on issue No. 2 is set aside and the judgment and decree passed by Family Court No. 2, Jaipur, for dissolution of marriage as well as order pertaining to permanent alimony under Section 25 of the Hindu Marriage Act, 1955 is liable to be set-aside. 12. Consequently, the appeal of the appellant-wife is allowed and the judgment and decree dated 10.1.2002, passed by Judge, Family Court No. 2, Jaipur, is set-aside with no order as to costs.Appeal Allowed. *******