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2008 DIGILAW 1890 (PNJ)

Mohini Chawla v. Subhash Chander Chawla

2008-11-10

AUGUSTINE GEORGE MASIH

body2008
Judgment 1. Through this appeal, the appellant has challenged the judgment and decree dated 11-9-2008 passed by the Additional District Judge, Rohtak whereby the petition under Section 13 of the Hindu Marriage Act, 1955 filed by the respondent-husband has been allowed and the marriage between the parties has been dissolved by a decree of divorce. 2. Briefly stated, the facts of the case are that the marriage between the appellant-wife and the respondent-husband was solemnized on 13-4-2001 at Delhi according to Hindu rites. At the time of their marriage, both the parties were divorcees. They started living together at Delhi but as per the assertion of the respondent, the marriage was not consummated. On the very first night, the appellant refused to have sex with him under the pretext that she was undergoing menses course. After few days of marriage, the appellant told the respondent that she after getting divorce from her previous husband about seven years ago had decided not to re-marry and that the present marriage with the respondent was against her will and wishes. She was not interested in the married life and particularly for sex or for procreation of children. According to the respondent, he gave her some time to settle. His business at Delhi was not going on well and, therefore, he had shifted to Village Anwal in July, 2001. The appellant was at that time handed over Rs. 25,000/- by the respondent which she gave to her mother in village Anwal. On shifting to Village Anwal, the appellant started residing with her mother in her house which was also situated in the same village. With the intervention of the close relations such as Krishan Lai Dua, Ram Lubhaya, Bhagwan Dass Kinra and Mahla Ram Chawla, the appellant came to her matrimonial house in August, 2001 and thereafter in the last week of October, 2001 unwillingly. She stayed there for one night each time but she did not allow the respondent to have sexual intercourse with her. After the last week of October, 2001, the appellant never came back to the matrimonial house and since then, is residing in her parental house. On these facts, the respondent had sought divorce on the ground of physical and mental cruelty as well as desertion. 3. On the other hand, the appellant denied all the allegations made by the respondent against her. On these facts, the respondent had sought divorce on the ground of physical and mental cruelty as well as desertion. 3. On the other hand, the appellant denied all the allegations made by the respondent against her. She contended that the petition for divorce has been filed just to harass her and rather, her stand is that Usha and Suman who are the sisters of the respondent are residing in the matrimonial house with him. They off and on used to pass remarks that the appellant has not brought sufficient dowry and she is unable to conceive and give birth to a child. Similarly, the mother-in-law Sheela and brother-in-law Madan Lai also taunted her and harassed her. As a matter of fact, the appellant was turned out of her matrimonial home in her wearing apparels and all her dowry articles were retained by the respondent and his family members. After the death of her mother, her sister Varsha Kumari, brother-in-law Parveen Kumar, cousin Gulshan Kumar, brother Shadi Lai and his wife went to the respondent to persuade him to keep her with him and it was then that they were told that since the appellant could not deliver any child, therefore, they would not keep her with them. The respondent also supported them and refused to keep the appellant with him. On the basis of the said pleadings, evidence was led by both the parties and on consideration of the same, the petition preferred by the respondent has been allowed and decree of divorce passed. It is the judgment and decree dated 11 -9-2008 passed by the Court below which has been challenged in the present appeal. 4. It is the contention of the counsel for the appellant that the contention of the respondent that the marriage was not consummated and the appellant had refused to have sexual relations with the respondent cannot be accepted as no medical evidence was produced by the respondent to prove that as a matter of fact no consummation of marriage had taken place between the parties. It is further the contention of the counsel for the appellant that no documentary evidence was produced and the case was based only upon oral evidence of the parties. It is further the contention of the counsel for the appellant that no documentary evidence was produced and the case was based only upon oral evidence of the parties. Further, the contention of the counsel for the appellant is that desertion and cruelty has not been proved at all as it is proved otherwise that the appellant was always ready and willing to cohabit with the respondent as his wife and it was rather the respondent who had thrown her out of the matrimonial house. The actual reason for seeking divorce was that the appellant could not conceive from the loins of the respondent and, therefore, could not bear any child. The non-consummation of the marriage and denial of sexual relations with the respondent has been taken as a pretext to get rid of the appellant. 5. I have gone through the records of the case with the able assistance of the counsel for the appellant and have given my thoughtful consideration to the submissions made by him. A perusal of the evidence produced on record shows that the first and the foremost question which would clinch the issue is as to whether the marriage was consummated between the parties and as to whether the appellant refused to have sexual intercourse with the respondent after the marriage. Apart from the statement of the respondent, the statement of PW-3 Ram Lubhaya, a close relative of the respondent, clearly goes on to show that the marriage between the parties was not consummated rather the clincher would be the evidence of Varsha Kumari-RW-2 who is the real sister of the appellant. In her cross-examination, she has categorically admitted that her siser used to tell her about her physical relations with the respondent saying that no physical relations could be developed between her and the respondent during their marriage. She has further stated that she did not know as to whether after her first marriage, the appellant was reluctant to marry the respondent and that it was only her family members i.e. parents who were willing to re-marry her which would in effect mean that she has not denied the plea of the respondent that appellant, Mohini, was not willing to marry for the second time with the respondent. This goes a long way to prove that there was no sexual activity between the appellant and the respondent which would amount to mental as well as physical cruelty to the respondent. It has further come on record that the appellant after her return from Delhi to village Anwal, had remained with the respondent for one night only on each occasion in August and October, 2001 and on those days also, there was no sexual relationship between them. Therefore, the cruelty on the part of the appellant-wife stands proved which alone is a good ground for the grant of decree of divorce. 6. The second ground which has been taken for grant of decree of divorce is desertion which again stands amply proved from the facts as has been brought about in evidence. It has come on record in the statements of the parties that in July, 2001, the appellant and the respondent returned from Delhi to Village Anwal. On return from Delhi, the appellant started living with her mother and did not stay in the matrimonial house. A Biradari Panchayat was convened where close relatives of both the parties participated. Due to persuasion of the Panchayat and the relatives, the appellant stayed for one night only in the matrimonial house and on the very next day moved out of the house. A similar attempt which was made in the month of October, resulted in the same fate. The evidence which has come on record, clearly establishes that as a matter of fact, the appellant stayed only for one day each on the above-mentioned two occasions and she was all-through staying with her mother. Thus, the desertion by the appellant is also proved. 7. In view of the above, I do not find any merit in the present appeal and dismiss the same in limine.