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2010 DIGILAW 260 (RAJ)

VINOD v. SANGEETA

2010-02-02

D.VINEET KOTHARI

body2010
JUDGMENT ( 1 ) THIS appeal has been filed by the appellant-husband Mr. Vinod being aggrieved by the judgment of the District judge, Pratapgarh District Chittorgarh rejecting his application under Section 13 of the Hindu Marriage Act seeking divorce from respondent Smt. Sangita. ( 2 ) THE brief facts of the case as per appellant are that the appellant-petitioner filed a divorce petition against the respondent for granting decree of divorce on the ground of cruelty. The respondent whenever lived with the appellant, she treated the appellant and his family persons with cruelty. She used to quarrel with the family members and use irony and filthy language and never paid respect and regards to the family members and oftenly caused damage to the property of the petitioner unnecessarily and by this fact the respondent created mental cruelty in the mind of appellant and she also not allowed the appellant to have a co-habitation and as such the respondent created the mental cruelty and the life of the appellant became difficult and harden with the respondent. The respondent was also a nature of free moving and without any consent of the family members and the appellant. She left the matrimonial home at so many occasions. The appellant and his parents tried to solve such type of problem but the parents of the respondent stated that (vernacular matter is omitted Ed.) In this respect tried to call the Panchayat meeting and therefore the parents of the respondent lodged a false case under Sections 498a and 406 against the appellant and his parents. In this false case the learned trial Court though convicted the appellant but the learned Sessions Judge acquitted the appellant on 5-12-2002 in criminal/appeal No. 72/2002 and against which no appeal has been filed and therefore this judgment has become final. ( 3 ) THE learned counsel for the appellant-husband Mr. N. K. Rastogi relying upon the judgment of this Court in the case of Rakesh v. Surbhi Sharma. AIR 2002 Raj 138 submitted that act of wife of leaving matrimonial home without husband's consent and not returning thereafter amounts to mental cruelty and thus, divorce decree deserves to be passed in the present case and, therefore, the rejection of his application under Section 13 of the Act by the learned Courts below was wrong. AIR 2002 Raj 138 submitted that act of wife of leaving matrimonial home without husband's consent and not returning thereafter amounts to mental cruelty and thus, divorce decree deserves to be passed in the present case and, therefore, the rejection of his application under Section 13 of the Act by the learned Courts below was wrong. He submitted that by evidence in the form of statement of various persons who appeared on behalf of the appellant husband before the learned Court below it was proved that the respondent-wife willingly and voluntarily deserted the matrimonial home of the appellant and her behaviour towards the appellant-husband and other family members was cruel and, therefore, the present appeal deserves to be allowed. ( 4 ) ON the other hand, Mr. Abhishek sharma appearing for the respondent-wife submitted that the appellant had remarried another lady Usha and had also begot two children out of the said second marriage and the family members of the appellant-husband also harassed the respondent-wife for dowry and that is why a criminal complaint under section 498a, I. P. C. was filed against them and even though the learned Sessions Judge after conviction by the learned trial Court acquitted the appellant in appeal by the judgment dated 5-12-2002. giving them the benefit of doubt, it does not prove that the behaviour of the family members of the appellant-husband towards the respondent-wife was not that of harassment and cruelty. It is on account of such cruelty and dowry demands that the respondent-wife had to leave the matrimonial home and in that second marriage for which the father and mother of the respondent-wife had clearly stated before the learned Court below in their statements that the appellant Vinod had, remarried one usha and both were living in village Thada and had also begot two children one son and one daughter, therefore it cannot be said that the respondent-wife had deserted the appellant-husband. ( 5 ) LEARNED counsel submits that the judgment relied upon by the learned Counsel for the appellant does not apply in the facts and circumstances of the present case and, therefore, the appeal being devoid of merit deserves to be dismissed and rejection of the application under Section 13 of the Act by the Court below deserves to be upheld. ( 6 ) I have heard learned counsels at length and given my thoughtful consideration to the rival submissions and judgment cited at the Bar. ( 7 ) THE allegations of the cruelty and desertion in the present case are of very general nature. As stated in the memo of appeal and the impugned judgment, the allegations are only of the vague nature that the respondent used to quarrel with the family members and used filthy language and did not respect the family members of the appellant-husband. No specific instance of such behaviour with the date and relevant particulars have been stated by the appellant either in the application under Section 13 of the Act or in the memo of appeal or it has come in evidence. ( 8 ) LEARNED counsel for the appellant relied heavily upon the acquittal by the learned sessions Judge in a case under Section 498a which in the opinion of this Court does not ensure to the benefit of appellant-husband. It is true that the desertion by the wife and leaving of matrimonial home without consent and not returning thereafter could amount to mental cruelty as held by this court in case of Rakesh Sharma v. Shurbhi sharma ( AIR 2002 Raj 138 ) but the facts of the present case are quite different from the facts of the said case. It has not been established by the appellant-husband in the present case that the respondent-wife had permanently left the matrimonial home without the consent of the appellant and never returned. On the contrary, it appears that on complaint filed under Sections 498a and 406, I. P. C. the learned trial Court had even convicted the appellant and other family members under Sections 498a and 406 and the appellant Court only acquitted them giving them the benefit of doubt. In the circumstances which led to such filing of complaint and even conviction at the hands of learned trial court may give sufficient reason to the respondent-wife to even leave the matrimonial home to save her life and acquire peace from such harassment. Such leaving of matrimonial home cannot amount to desertion for furnishing that ground of desertion under Section 31 (1) (i) (a) of the Hindu Marriage Act, 1955. Such leaving of matrimonial home cannot amount to desertion for furnishing that ground of desertion under Section 31 (1) (i) (a) of the Hindu Marriage Act, 1955. ( 9 ) LEARNED Court below has discussed all the relevant evidence and has also found that from the statement of parents of the respondent-wife, it appears that the appellant-husband entered into second marriage with one usha and had begot two children out of said wedlock. This may even amount cruelty on the part of the appellant-husband upon the respondent-wife. ( 10 ) CONSEQUENTLY this Court is of the opinion that the learned Court below has rightly rejected the application of the appellant-husband under Section 13 of the Act and there is no force in the present appeal filed by the present appellant-husband. ( 11 ) THE appeal is, therefore, dismissed. No order as to costs. Appeal dismissed. --- *** --- .