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2009 DIGILAW 348 (CHH)

R. N. Wahne v. Smt. Vinita Wahne

2009-12-02

R.L.JHANWAR, T.P.SHARMA

body2009
JUDGMENT The judgment of the Court was delivered by T.P.Sharma, J.:- 1. This first appeal under Section 19 (1) of the Family Courts Act, 1984 (in short `the Act, 1984') is directed against the judgment & decree of dismissal of the suit for dissolution of marriage by a decree of divorce dated 23.1.2007 passed by the Third Additional Principal Judge, Family Court, Durg, in Civil Suit No.141A/06. 2. Judgment & decree are challenged on the ground that the Court below has not considered the proved case of cruelty committed by the respondent and thereby committed illegality. 3. Brief facts necessary for disposal of this appeal as per pleadings of the parties are that the parties are Hindu legally wedded spouse. The appellant was married with respondent on 28.6.1987. Parents of the respondent after concealing the truth of mental illness of the respondent married with the appellant. Behavior of the respondent was abnormal right from the beginning and was regularly creating problem for him, his parents and his family. She used to misbehave with the parents of the appellant and used to quarrel with them. Earlier the appellant has filed a petition for dissolution of marriage by a decree of divorce, but subsequently on the assurance of the respondent, same has been withdrawn. Again she used to commit cruelty upon the appellant. Then the appellant reported the matter to Pariwarik Sulah Centre, but the respondent did not turn up, then the petitioner filed petition for dissolution of marriage by a decree of divorce. The respondent has denied the allegation and specifically alleged that her behavior is submissive. She has not committed any cruelty upon the appellant and she is not mentally ill. The appellant has obtained signature over some documents and also dictated to right some letter in his support which she has written. She is still ready and willing to perform marital obligation and to live with the appellant. 4. On the basis of averments of the parties, learned Third Additional Principal Judge, Family Court, Durg has framed the issues and after affording opportunity of hearing to the parties has dismissed the suit for dissolution of marriage by a decree of divorce. 5. We have heard learned counsel for the appellant and perused the judgment & decree impugned. 6. 4. On the basis of averments of the parties, learned Third Additional Principal Judge, Family Court, Durg has framed the issues and after affording opportunity of hearing to the parties has dismissed the suit for dissolution of marriage by a decree of divorce. 5. We have heard learned counsel for the appellant and perused the judgment & decree impugned. 6. Learned counsel for the appellant vehemently argued that the respondent is mentally ill and was not in a position to perform marital obligation and discharge family responsibility as a wife. The appellant has tried his level best to adjust her, but the respondent has not ready and willing to adjust herself in the family of the appellant. Previously he had filed petition for dissolution of marriage by a decree of divorce, but on the assurance of the respondent, he has withdrawn the same. Learned counsel further submits that the respondent herself has executed consent letter that she is not in a position to discharge her marital obligation on the ground that her ill behavior and she has also written letters to the appellant which are sufficient for drawing inference that behavior of the appellant is abnormal. She is mentally ill and not in a position to discharge her marital obligation. Learned counsel also argued that the appellant has proved the factum of cruelty by adducing evidence of himself and other witnesses which has not been denied by the respondent. 7. In the present case, notice issued to the respondent has been served upon her, but she has not made her presence. 8. In order to appreciate the contentions of the parties, we have examined the evidence available on record. According to nutshell evidence of the appellant and his witnesses Arshad Hussain (PW-2), Pannalal Kothari (PW-3) and Rajkumar Wasnik (PW-4), behavior of the respondent is abnormal and it appears that the appellant has tried to prove the fact that the respondent is mentally ill. The appellant has placed reliance of document (Ex.P/2) consent letter executed by the respondent in which it has been specifically mentioned that her behavior is not normal. She is of irritating behavior. She is not capable of discharging her marital obligation and she has given her consent for second marriage to the appellant. The appellant has placed reliance of document (Ex.P/2) consent letter executed by the respondent in which it has been specifically mentioned that her behavior is not normal. She is of irritating behavior. She is not capable of discharging her marital obligation and she has given her consent for second marriage to the appellant. Other letters (Exs.No.P/3, P/4, P/5 and P/6) alleged written by her also reveal that her behavior is not normal on the ground of her mental illness. In her evidence, she has specifically deposed that the present appellant has taken signature over Ex.P/2. She has written other letters as dictated by the appellant. 9. On close scrutiny of the letters, alleged consent letter (Ex.P/2) and the evidence adduced on behalf of the appellant, it is clear that claim and the evidence of the appellant are contradictory. In one hand, the appellant has taken the ground that the respondent is mentally ill, on the other hand, he has taken the ground that the respondent has written letters and consent letter in support of her mental illness and inability. If one person is mentally ill, then it beyond expectation that she will right something voluntarily and if the person is not mentally ill, then letter written by her shows that they are not genuine and they have been written at the instance of the appellant or some other person and such person has succeeded in taking the documents in favour of the appellant with a view to take benefit of those documents. 10. The respondent is legally weeded wife of the appellant and the appellant is under obligation to provide better treatment to her in case of her illness instead of taking the same as a ground for dissolution of marriage by a decree of divorce, but the present appellant has not adduced any evidence to show that he has provided adequate medical treatment to her. This fact itself shows the cruelty committed by the appellant upon the respondent, disentitles him for dissolution of marriage by a decree of divorce. 11. On close scrutiny of the ocular and documentary evidence, we are of the considered view that the appellant has tried to get decree for dissolution of marriage by a decree of divorce in his favour by hooks or crooks without any ground available under Section 13 (1) of the Hindu Marriage Act, 1955. 12. 11. On close scrutiny of the ocular and documentary evidence, we are of the considered view that the appellant has tried to get decree for dissolution of marriage by a decree of divorce in his favour by hooks or crooks without any ground available under Section 13 (1) of the Hindu Marriage Act, 1955. 12. After considering the evidence adduced on behalf of the parties, learned Third Additional Principal Judge, Family Court, Durg has dismissed the suit for dissolution of marriage by a decree of divorce. Learned Third Additional Principal Judge has not committed any illegality or infirmity in dismissing the suit. 13. For the foregoing reasons, we do not find any substance in this appeal. The appeal is liable to be dismissed and is accordingly dismissed. No order as to costs. Advocate fee as per schedule. Decree be drawn up accordingly.