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2008 DIGILAW 2075 (RAJ)

Kalpu @ Mukta Mandoth v. Prakash Mandoth

2008-09-04

C.M.TOTLA, PRAKASH TATIA

body2008
JUDGMENT 1. - The appellant is aggrieved against the divorce decree passed by the Family Court, Jodhpur in Civil Original Suit No.94/91 dated 1st Nov., 1996, hence, preferred this appeal. 2. Originally, the divorce petition was filed in the Family Court at Bangalore by the respondent, which was registered as case no.MC No.509/1990. The appellant-non-applicant sought transfer of said divorce petition to the Court at Jodhpur in the State of Rajasthan by moving transfer petition (Civil) No.549/1994 before the Hon'ble Supreme Court, which was allowed by the Hon'ble Supreme Court by order dated 20th Dec., 1990. In consequence thereof, the divorce petition was transferred to the Family Court, Jodhpur. After trial, the trial court granted the decree for divorce. 3. The marriage of the appellant and the respondent was solemnized on 5th Dec., 1987 at Sumerpur in Pali District of State of Rajasthan according to the Hindu rites. The appellant started living with her husband at Bangalore after marriage. On 30th Oct., 1988, a baby Guddu @ Tina born to them. According to the respondent, appellant started behaving rudely at Bangalore with him as well as with his family members. The respondent had a large family rather he was member of joint family as respondent was living with his four younger brothers and four younger sisters. According to the respondent, he had responsibility to look after his aged parents and younger brothers and sisters. The appellant did not like this situation and wanted to live with her husband only. According to the respondent within three months after coming to the Bangalore, the appellant started demanding separate house for her at Sumerpur and appellant also wanted that respondent-husband should live at her parents' house at Sumerpur. When the respondent did not accept this demand of the appellant, then according to the respondent, the respondent was abused by the appellant by filthy language. She also abused family members of the respondent and threatened to commit suicide. Because of the behaviour of the appellant, according to the respondent, the respondent and his family members loss their entire peace. The respondent's relatives also tried to intervene who advised the appellant to live good life, but the appellant shot back towards the relatives of the respondent, who tried to intervene between them. Because of the behaviour of the appellant, according to the respondent, the respondent and his family members loss their entire peace. The respondent's relatives also tried to intervene who advised the appellant to live good life, but the appellant shot back towards the relatives of the respondent, who tried to intervene between them. According to the respondent, the appellant went to houses of their relatives and informed them that respondent and respondent's family members alongwith other relatives are torturing her. With the facts in detail, the respondent sought divorce on the ground that because of the act of the appellant, he and his family members are suffering serious mental cruelty. 4. Several letters exchanged between the parents of both the parties and those were produced and exhibited, details of which is not necessary because of the reason that the exchange of letters by both the parties clearly show that relation was not strained only between the appellant and the respondent but become strained with their family members. Be it as it may be, according to the respondent, the appellant left for her parents house at Sumerpur on 23rd Sept., 1989 with valuable articles and did not return Bangalore. The respondent's parents, went to Sumerpur to bring back the appellant, but she did not come back. Again on 26th May, 1990, the respondent went to Sumerpur to bring back his wife-appellant, but she did not come to Bangalore with respondent and wrote a letter saying "good bye" to the respondent. It is also alleged that even at Sumerpur, the respondent was ill treated by the appellant. The respondent on the ground of cruelty sought divorce as well as custody of his daughter Guddu @ Tina. 5. The appellant submitted reply to the divorce petition on 21st Jan., 1992 and admitted that her marriage with the respondent as per Hindu rites at Sumerpur. She also admitted that she gave birth to daughter Guddu @ Tina and admitted that her daughter is living with her. She denied all the allegations levelled against her about her rude behaviour against the respondent and his family members. She levelled counter allegations of her harassment by her mother-in-law and levelled allegation of demand of dowry and torture. She denied that she demanded separate house at Sumerpur. She denied all the allegations levelled against her about her rude behaviour against the respondent and his family members. She levelled counter allegations of her harassment by her mother-in-law and levelled allegation of demand of dowry and torture. She denied that she demanded separate house at Sumerpur. It is also stated by the appellant that her parents tried to persuade the respondent to keep the appellant with him, but the respondent and his family members insisted for dowry. She also stated that younger brother of the respondent Nirmal conducted second marriage, obviously to show that what was the nature of family members of the respondent. She alleged that respondent used to come late in night and she had doubt about his character. She stated that she had utmost love and affection for her daughter Guddu who was student of Model English School at that time. 6. The rejoinder was submitted by the respondent and in rejoinder, it is stated that on 22nd June, 1992, it was decided that both the parties will seek divorce mutually and all ornaments and cash and other goods were returned to the appellant for which appellant gave due receipt. 7. The issues were framed and in the trial court respondent gave his statement as AW-1 and produced other witness AW-2 Sohan Lal, AW-3 Jagdish, AW-4 Smt. Nazri Bai, AW-5 Suwa Lal and AW-6 Devi Lal Shaklecha. The appellant gave her own statement and produced NAW-2 Narayan Bharti, NAW-3 Pukh Raj, NAW-4 Kailash Chandra Arora, NAW-5 Shiv Kumar, NAW-6 Narayan lal Agarwal and NAW-7 Smt. Indu. 8. The trial court decided the issue of committing cruelty by the appellant in favour of the respondent, but decided the issue about the entitlement to the custody of daughter Guddu @ Tinna in favour of the appellant and against the respondent . A counter issue about the ill treatment by the respondent against the non-applicant-appellant was also framed by the trial court and that was decided against the appellant as she failed to prove ill treatment of the respondent and his family members. The trial court also held that for Istridhan no evidence was produced by the appellant and a receipt dated 22nd June, 1992 has been produced to show that ornaments, cash and cloths etc were returned by the respondent to the appellant. The trial court also held that for Istridhan no evidence was produced by the appellant and a receipt dated 22nd June, 1992 has been produced to show that ornaments, cash and cloths etc were returned by the respondent to the appellant. In consequence to the findings recorded above, the divorce decree was granted by the trial court on 1st Nov., 1996. 9. We may recapitulate the fact that marriage of appellant and respondent took place on 5th Dec., 1988 and the divorce decree was granted by the trial court as back as on 1st Nov., 1996. In the evidence, the appellant herself stated that respondent already contracted second marriage and according to the learned counsel for the appellant, the respondent has children from second marriage. According to the learned counsel for the appellant, the respondent conducted second marriage when the divorce matter was pending. It is also submitted by learned counsel for the appellant that the respondent owns duty to maintain his daughter and contribute in the marriage of his daughter. Learned counsel for the appellant also submitted that the decree for divorce on the ground of cruelty cannot be sustained. 10. Learned counsel for the respondent submitted that in view of the serious allegations against the character of the appellant and in view of the fact that the respondent and appellant are living separately since more than 10 years even from the date of decree of divorce and in view of the allegations of the appellant, there is no chance of reunion between the parties. It is also submitted that appellant has her own income sufficient to maintain herself as well as to bear all necessary expenses for marriage of her daughter. It is also submitted that there is no evidence on record on the basis of which any amount can be awarded for the purpose of marriage of the respondent's daughter. It is also submitted that from the oral as well as documentary evidence, it is fully proved that appellant has committed grave cruelty and torture to respondent and his family members. Therefore, appeal of the appellant may be dismissed. 11. We considered the submissions of learned counsel for the parties and perused the record. It is also submitted that from the oral as well as documentary evidence, it is fully proved that appellant has committed grave cruelty and torture to respondent and his family members. Therefore, appeal of the appellant may be dismissed. 11. We considered the submissions of learned counsel for the parties and perused the record. Without referring the detail evidence of the parties we would like to observe that after perusing all the letters exchanged between the family members of the appellant and the respondent containing several allegations and counter allegations, there appears that the situation became absolutely out of control for both the parties and their family member in the matter of relation of the appellant and the respondent and it happened decade ago. The learned trial court considered the various judgments on the issue of cruelty - physical and mental both and the trial court thereafter, reached to the conclusion that the respondent proved by evidence that cruelty was committed by the appellant upon respondent and his family members. Even if that finding suffers from any error of fact even then no useful purpose can be served by setting aside the judgment and decree of the trial court granting divorce for appellant and respondent, looking to the allegations against the character of respondent-husband and the allegation of the appellant that respondent contracted second marriage and has children from second marriage and looking to the allegation that the appellant herself has been harassed and tortured by the respondent and his family members then now after 12 years of divorce decree, there is no possibility of reunion of parties. The documentary evidence, the letters Ex.17 (8.8.1991), Ex.18 (16.7.1991), Ex.19 (16.7.1991) and Ex.1 to Ex.16, Ex.A3 as well as oral evidence of parties running in several pages only proved one fact that they cannot live together. In this situation, we do not want to interfere with the judgment passed by the trial court granting decree for divorce. The allegation of cruelty lost its any importance after lapse of more than 12 years from the time of passing of decree of divorce for appellant and respondent. Therefore, we are not inclined to interfere in the impugned judgment and the decree passed by the trial court when the parties are living separately since more than 12 years, may be because of the decree passed by the trial court. 12. Therefore, we are not inclined to interfere in the impugned judgment and the decree passed by the trial court when the parties are living separately since more than 12 years, may be because of the decree passed by the trial court. 12. So far as claim of the appellant for any amount for the purpose of marriage of the appellant and respondent's daughter is concerned, there is no material and evidence available on record apart from the fact that there was no prayer before the trial court as it could not have been at the time due to age of the daughter of the appellant and respondent. Consequently, there is no evidence on the basis of which this issue can be considered by this Court at appellate stage when both the parties are not present before the Court. If the appellant and respondent's daughter is entitled to any relief of any kind then she may be free to avail the remedy in accordance with law. 13. In view of the above reasons, the appeal of the appellant is dismissed. No order as to costs.Appeal Dismissed. *******