Research › Search › Judgment

Uttarakhand High Court · body

2009 DIGILAW 329 (UTT)

MADAN SINGH NEGI v. LAXMI

2009-06-24

B.S.VERMA, PRAFULLA C.PANT

body2009
JUDGMENT Hon’ble Prafulla C. Pant, J.: This appeal, preferred under Section 19 of Family Courts Act, 1984, read with Section 28 of Hindu Marriage Act, 1955, is directed against the judgment and decree dated 09.04.2008, passed by Judge, Family Court, Pauri Garhwal, in Matrimonial Suit No. 61 of 2006, whereby the petition of the appellant, moved under Section 13 of Hindu Marriage Act, 1955, was dismissed. 2. Heard learned counsel for the parties and perused the lower court record. 3. Brief facts giving rise to this appeal are that appellant Madan Singh Negi got married to respondent Laxmi on 17.04.2003, following the Hindu rites. They lived together and on 30.05.2004, a male child (Rohit) was born out of the wedlock. Appellant Madan Singh Negi used to live in Delhi where he works, and respondent Laxmi was made to live with her in-laws in Village Sirala, District Pauri Garhwal. She used to ask her husband to take her to Delhi but the husband did not take her there and told her that his salary is only Rs. 2,400/- per month and it is not possible for him to take her to Delhi. It is further pleaded in the petition under Section 13 of Hindu Marriage Act, that Laxmi (respondent) was suffering from epilepsy and this fact was not disclosed to him at the time of marriage. It is stated that on 14.12.2005, respondent left her in-laws house in Village Sirala and started living in her parental house in Village Swalu, as such, it is pleaded that she has deserted the petitioner (appellant). Lastly, it is alleged that Smt. Laxmi (respondent) attempted to implicate her husband and other relatives in a false dowry demand case. With the above pleadings decree of divorce sought by the husband. 4. Respondent Laxmi contested the suit and filed her written statement before the trial court. She admitted having married to petitioner (appellant) and also admitted that a male child (Rohit) was born out of the wedlock. She further admitted that she did ask her husband to take her to Delhi, where he is employed but he did not take her. She also admitted that since 14.12.2005, she is living in her parental house. Rest of the pleas taken by the husband are denied. It is pleaded in the written statement that the respondent is not suffering from epilepsy. She also admitted that since 14.12.2005, she is living in her parental house. Rest of the pleas taken by the husband are denied. It is pleaded in the written statement that the respondent is not suffering from epilepsy. It is further pleaded that when she was subjected to cruelty by her in-laws for non-fulfilment of demand of dowry, she did move an application under Section 156(3) of Code of Criminal Proceure, 1973, before Judicial Magistrate, Pauri, but same was dismissed. She did not pursue the matter, as she wanted to save her matrimonial home. 5. On the basis of the pleadings of the parties, the trial court framed following issues :- 1. Whether respondent Laxmi suffers from epilepsy and insisted to live with her husband in Delhi and whether the petitioner is entitled to decree of divorce on the ground of cruelty under Section 13 of Hindu Marriage Act, 1955? 2. Whether the petitioner made any demand of dowry from the respondent. If not, whether the respondent committed cruelty by initiating proceedings on that ground? 3. To what relief, if any, the petitioner is entitled? 4. Whether the respondent has deserted the petitioner without any sufficient cause? 6. Petitioner got himself examined as P.W.1 (Madan Singh Negi), before the trial court and respondent got himself examined as D.W.1 (Laxmi). They also adduced some documentary evidence. The trial court after hearing the parties, found that neither the petitioner could prove ground of cruelty nor the ground of desertion. With the findings against the petitioner, the suit/petition for divorce, was dismissed by the trial court (Judge Family Court, Pauri Garhwal). Hence this appeal. 7. Admittedly, the parties got married to each other according to Hindu rites on 17.04.2003. It is also admitted that a male child Rohit was born out of the wedlock. It is also admitted that the petitioner/appellant lives in Delhi where he is employed. It is also not disputed that he made his wife (respondent Laxmi) live with her in-laws in village Sirala. It is also admitted to the parties that till 13.12.2005, she lived in said village but since 14.12.2005, she is living in her parental house (Village Swalu). 8. It is also not disputed that he made his wife (respondent Laxmi) live with her in-laws in village Sirala. It is also admitted to the parties that till 13.12.2005, she lived in said village but since 14.12.2005, she is living in her parental house (Village Swalu). 8. As far as the ground of desertion is concerned, under Clause (ib) of sub-section (1) of Section 13 of Hindu Marriage Act, the petitioner is required to prove that the respondent deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. Admittedly respondent went to her parental house on 14.12.2005. Perusal of the lower court record shows that the petition was presented on 04.10.2006, which means the petition was presented within one year from 14.12.2005. As such, ground of desertion in the present case is not available to the petitioner/appellant, and the trial court has committed no error of law in recording findings against the petitioner on this point. 9. Now another ground on which divorce has been sought is the cruelty. Relating to said ground, the petitioner has alleged that respondent was suffering from epilepsy and it was not disclosed to him at the time of marriage. Merely for the reason that respondent was suffering with epilepsy, it cannot be said that she has committed any cruelty against the petitioner. As far as non disclosure of said fact is concerned, it could have been a ground under Section 12 of Hindu Marriage Act, for obtaining decree of annulment of marriage on the ground of fraud. But even for that it is required to be shown whether the petitioner lived with the other party after discovery of fraud or not. Apart from this, from the evidence on record, we find that the petitioner/appellant has not proved on record that his wife was really suffering from epilepsy. There is no medical evidence to this effect. P.W.1 Madan Singh Negi, has not stated on oath that his wife was suffering from epilepsy nor is it disclosed that when he came to know about it. Mere pleading without proof is of no consequence particularly when it is denied. In the circumstances, we concur with the finding, recorded by the trial court. 10. P.W.1 Madan Singh Negi, has not stated on oath that his wife was suffering from epilepsy nor is it disclosed that when he came to know about it. Mere pleading without proof is of no consequence particularly when it is denied. In the circumstances, we concur with the finding, recorded by the trial court. 10. Shri D.C.S. Rawat, learned counsel for the petitioner/appellant submitted that the respondent filed an application under Section 156(3) of Code of Criminal Procedure, 1973, and attempted to falsely implicate the petitioner/appellant and his relatives in a dowry harassment case, which was dismissed. Our attention is drawn to the case of Surjeet Singh Vs. Smt. Paramjit Kaur, AIR 2009 Uttarakhand 10, in which this Court has held that lodging of false First Information Report against husband and his family members relating to harassment of demand of dowry constitutes “cruelty”. We have gone through said case law. Facts of said case are different to the present one. In the present case, no First Information Report was lodged, only an application under Section 156(3) Cr.P.C. was admittedly given to the Magistrate and that too was dismissed. In the present case, neither the petitioner/appellant nor his relatives were made to appear in the court or they were made to go to jail. Though getting prosecuted husband and his relatives in a false dowry demand case does constitute cruelty on the part of the wife, but where neither they were summoned nor they were sent to jail, nor they appeared in the court or before police, it cannot be said that the husband or his relatives were subjected to cruelty by respondent (wife). As such, we agree with the view taken by the trial court that mental cruelty is not proved, as against the husband (petitioner/appellant). The trial court has rightly observed that the wife (respondent) did not make any unjust demand if she simply asked her husband that she wanted to live with him in Delhi. The trial court has rightly taken note of the fact that couple has a young boy, who is to be educated and looked after. Having considered all facts and circumstances of the case, and after going through the evidence on record, we find that it is not a case where the respondent has treated the petitioner with cruelty. As such, the petition for divorce has rightly been dismissed by the trial court. 11. Having considered all facts and circumstances of the case, and after going through the evidence on record, we find that it is not a case where the respondent has treated the petitioner with cruelty. As such, the petition for divorce has rightly been dismissed by the trial court. 11. For the reasons as discussed above, in the opinion of this Court, this appeal has no force and the same is liable to be dismissed. The appeal is dismissed. Costs easy.