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2009 DIGILAW 1520 (PNJ)

Rekha Tomar v. Sanjeev Kumar

2009-08-27

VINOD K.SHARMA

body2009
Judgment Vinod K.Sharma, J. 1. The appellant/wife by way of this appeal has challenged the judgment and decree dated 27.09.2005 passed by the learned Additional District Judge, Rohtak vide which petition filed under section 13 of the Hindu Marriage Act (for short the Act) by the respondent/husband stands decreed. 2. The parties were married on 6.12.1998 according to Hindu custom and ceremonies at Rohtak and a female child namely Shruti was born on 31.12.2000 out of this wedlock. 3. Divorce was sought on the allegations that adoptive father of the appellant being issueless wanted the respondent to be Ghar Jamai. The adoptive father used to influence the respondent/husband in the presence of wife who instead of supporting him always sided with her father. When after the pregnancy the respondent/husband went to bring her back to matrimonial home the adoptive father refused to send her by taking a stand that the marriage was a formality and the appellant was to stay with him. Torture to the respondent was to such an extent that he even decided to commit suicide but for the reason that her younger sister was yet to be married he never attempted. That on 7.7.2000 after joining as Forest Ranger he had gone to the house of the appellant along with appointment letter with 2 kilograms of sweets but he was not allowed to enter the house nor he was allowed to meet the appellant. The appellant was sent to the matrimonial home in December, 2000 to avoid the delivery expenses of the child but when the respondent went for Forest Rangers Course she was again taken back by the adoptive father. However, she continued visiting her father against his wishes. The father of the respondent even got the appellant employed as teacher in Sanskrit School at Rohtak but she spent entire salary on his adoptive parents and resided with them, even though the expenses for her status was borne by the father of the respondent. It is pleaded that the appellant even did not join the Hawaii ceremony held at the residence of the respondent to bless the parties and that the appellant used to quarrel with the respondent/husband. It was pleaded that these acts caused mental cruelty to the respondent. It is pleaded that the appellant even did not join the Hawaii ceremony held at the residence of the respondent to bless the parties and that the appellant used to quarrel with the respondent/husband. It was pleaded that these acts caused mental cruelty to the respondent. It was claimed that in spite of best efforts he was unable to convince the appellant to stay in the matrimonial home and on 21.2.2003 she deserted him; that at the time of leaving the matrimonial home the appellant had given a threat that her uncle was Superintendent of Police at Karnal and the respondent and her family member would be taught a lesson. Then FIR No. 170 dated 23.3.2003 was registered against the respondent and his family members under sections 498-A and 406 read with section 34 IPC at Police Station Civil Lines, Rohtak in which the respondent, his parents and younger sister were sent to jail which amounted to cruelty. . 4. Petition was contested on the following allegations: That the respondent and his parents were greedy persons and they were demanding dowry. The allegations leveled were said to be a false story coined and were said to be false and baseless; that the appellant used to be physically and mentally tortured on one pretext or the other as the respondent wanted to avoid the female child; at the time of marriage of younger sister of the respondent dowry was demanded from the father of the appellant and a sum of Rs. 1 lac was paid in two instalments; that the parents of the appellant to resort the dispute could not succeed as the respondent and his parents misbehaved with her father; that the respondent wanted to get rid of the appellant so that he could be married again. 5. On the pleadings of the parties the learned matrimonial court was pleased to frame the following issues :- 1. Whether the petitioner is entitled for decree of divorce by dissolving the marriage dated 6.12.1998 on the grounds or cruelty and desertion, as alleged,in the plaint ? OPP 2. Relief. 6. In support of his case, petitioner/husband himself appeared as PW 1 and examined Dr. Whether the petitioner is entitled for decree of divorce by dissolving the marriage dated 6.12.1998 on the grounds or cruelty and desertion, as alleged,in the plaint ? OPP 2. Relief. 6. In support of his case, petitioner/husband himself appeared as PW 1 and examined Dr. B.S. Malik PW 2, Shri O.P. Verma, Advocate PW 3, Sumitra Devi wife of Halwant Singh PW 4, Amarawati wife of Chander Pal as PW 5, Sahabo Devi mother of petitioner PW 6, Mahinder Singh Chahi an employee of CSD Canteen, Rohtak PW 7. Hari Om Tanwar PW 8, Naresh as PW 10. M.S. Chahar, Principal CR College PW 11, Jitender Singh Parmar, clerk Law Department M. University Rohtak PW 12, Ms. Rajeshwari, Steno to Sr. Drug Inspector PW 13, Sombir Singh, Welfare Organizer ZilaSainik Board, Rewari PW 14, Ram Raji Assistant Complaint Clerk, SP Office, Rohtak PW 15, Bhupinder Phogat assistant Ahlmad PW 16, Sandeep Mittal Advocate PW 17 and R.P. Tomar PW 18. 7. Respondent/wife on the other hand, examined Vijay Kumar, Clerk Govt. High School, Chamariyan RW 1, Deen Dayal clerk of the office of DFO Rohtak RW 2, Ram Kumar Duhan RW 3, Bijender Singh RW 4, M.S. Chahar, Principal CR College RW 5, Amir Singh adopted father of respondent RW7 and she herself appeared as RW 6, beside tendering some documents. 8. The plea of desertion was rejected as the case set up by the respondent was that the appellant had deserted him on 21.2.2003, whereas the petition was filed on 27.2.2003 i.e. within a week. 9. Learned matrimonial court on appreciation of respective evidence was pleased to record the following findings :- " Thus, in these circumstances on through perusal of the controversy in between the parties, it is made out that all these incidents have certainly caused mental cruelty to the petitioner. It is also made out that parties had come to such a point that there are no chances of return and marriage seems to have been irrevocably broken and it is also made out that parties had been on logger heads since the very beginning and that there had been interference of the parents of both the sides in the smooth running of this marriage. There are no chances of reconciliation between the parties and they are not expected to live with each other and that fighting between the parties is a serious than ordinary wear and tear of married life." 10 Learned counsel for the appellant has challenged the impugned judgment and decree primarily on the ground that the findings recorded by the learned matrimonial court cannot be sustained in law as the learned matrimonial court has taken the allegations made by the respective parties to be a case of irretrievably broken marriage and that there was no chance of reconciliation between the parties and therefore, it amounted to cruelty. 11. This contention of the learned counsel for the appellant deserves to be accepted as irretrievably broken marriage cannot be a ground of grant of divorce. 12. It is also the contention of the learned counsel for the appellant that the learned matrimonial court has taken the filing of criminal case to bean act of cruelty which cannot be sustained. This contention also deserves to be accepted. Mere filing of criminal case cannot be said to be cruelty though filing of false criminal case would certainly be an act of cruelty. It is not in dispute that criminal case is still pending and it is yet to be determined as to whether the allegations levelled were false or true. Other allegations were specifically denied by the respondent/wife and the learned matrimonial court has not given any finding and has disposed of the case by recording a finding reproduced above. 13. There is another aspect to this case. In the criminal case on the basis of evidence collected the respondent and his family members were found to be not guilty of offence under section 406 IPC and were ordered to be discharged. The appellant being dissatisfied w ith the said order of discharge challenged the same in this Court but she could not succeed. The appellant while denying the allegations of the respondent made serious allegations against him and his family members by reiterating her version made in the FIR. In addition, it was also averred that the attempts were being made to get the respondent remarried and it was for that reason that the respondent/husband wanted divorce from her. 14. The appellant while denying the allegations of the respondent made serious allegations against him and his family members by reiterating her version made in the FIR. In addition, it was also averred that the attempts were being made to get the respondent remarried and it was for that reason that the respondent/husband wanted divorce from her. 14. While appearing in the witness box an affidavit was filed by the appellant alleging therein that the respondent was guilty of offence under section 494 IPC having contracted second marriage. In view of the affidavit filed by the appellant the respondent/husband moved an application under section 340 Cr.PC for prosecuting the appellant for filing false affidavit in the court. On the said application learned matrimonial court was pleased to pass the following order on 21.9.2004:- " As far as application for summoning of salary record of petitioner is concerned, it is agreed by both the parties that the application earlier filed u/s 26 read with section 26-A of H.M.Act for enhancement of interim maintenance moved by the respondent can be disposed of even without summoningof salary record of petitioner. At this stage, petition under section 195 Cr.PC read with section 340 Cr.PC for having committed the offences by the respondent u/s 193 IPC to 196, 199 and 2001PC filed by petitioner. But this petition shall be considered after final disposal of the main petition. Arguments on application qua enhancement of interim maintenance heard. To come up on 24.9.04 for orders. At this stage, affidavits of PWs Rampal Singh Tomar, Naresh, Hari Om Tanwar and Om Parkash Verma, Adv., filed. Copies of the same be supplied to the other side by tomorrow." 15. The ground taken by the respondent that he was entitled to a decree of divorce in view of the false allegations made against his character i.e. allegations of bigamy itself amounted to cruelty. The respondent had even moved an application under section 340 Cr.PC but instead of specific order while disposing of the petition no decision was taken on the said application nor these allegations were taken into consideration. 16. The judgment and decree passed by the learned matrimonial court for the reasons stated above, therefore, cannot be sustained and deserves to be set aside. 17. This appeal is accordingly allowed. 16. The judgment and decree passed by the learned matrimonial court for the reasons stated above, therefore, cannot be sustained and deserves to be set aside. 17. This appeal is accordingly allowed. The judgment and decree passed by the learned matrimonial court is set aside and the case is remanded back to the learned matrimonial court to decide the case afresh after taking into consideration the evidence led by the respective parties and by recording a positive finding with regard to the cruelty. The learned matrimonial court shall also take into considerations other allegations qua the conduct of the appellant during the pendency of the proceedings. The parties through their counsel are directed to appear the matrimonial court on 26.10.2009. Order accordingly.