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2012 DIGILAW 2238 (RAJ)

Jitendra v. Anjana Soni

2012-11-29

DINESH MAHESHWARI, VINEET KOTHARI

body2012
Hon'ble MAHESHWARI, J.—This appeal under Section 19 of the Family Courts Act, 1984 is directed against the judgment and decree dated 06.03.2010 as passed in Civil Misc. Case No.206/2007 whereby the Family Court, Udaipur has rejected the petition filed by the appellant-husband for judicial separation under Section 10 of the Hindu Marriage Act, 1955. 2. The relevant background aspects of the matter could be taken into comprehension as follows: The marriage between the appellant-husband and the respondent-wife was solemnized on 20.04.2007 as per the Hindu rites at Pala Ganeshji Temple, Udaipur. Less than three months from the marriage, the appellant-husband filed the petition seeking judicial separation on 05.07.2007, alleging the acts of cruelty by the respondent-wife. The appellant alleged that the respondent asked for solemnisation of the marriage in a temple so as to save her father from the related expenditure; that on 20.04.2007, she came ready for marriage and none of her family members accompanied; and that they got married in the said temple as desired. The appellant further averred that the respondent did not bring any amount or jewellery and rather, he gifted her a Mangal Sutra weighing 2 tolas in gold and two pairs of Payjeb. The appellant further averred that immediately after marriage, upon reaching the house, the respondent started quarreling with him and his mother calling them names and complaining that they had given much less items in gold and ought to have gifted about 10 to 15 tolas of gold to her. According to the appellant, the respondent went to her parental house after such quarrel whereupon himself and his family members talked to the family members of the respondent pointing out that the appellant was a Class-IV employee and was not having the capacity to offer the gold as demanded. The appellant alleged that after persuasion, a reception was organised by the respondent's family on 23.04.2007 and even in such a function, the respondent kept on repeating her demand for gold and money. According to the appellant, the respondent came to the matrimonial house after much persuasion but kept on quarreling with him and his mother. The appellant alleged that after persuasion, a reception was organised by the respondent's family on 23.04.2007 and even in such a function, the respondent kept on repeating her demand for gold and money. According to the appellant, the respondent came to the matrimonial house after much persuasion but kept on quarreling with him and his mother. The appellant further averred that he took his wife and mother from Udaipur to Deedwana, the place of his posting, on 08.05.2007 but thereat too, the respondent continued to abuse and to misbehave with him and his mother; and threatened that if they would not meet with her demand of gold jewellery, she would get them entangled in criminal cases. 3. The appellant further averred that on 4.6.2007, upon investigation at the Govt. Bangar Hospital, Deedwana, the respondent was found pregnant whereupon she got furious and insisted to get the pregnancy terminated; and upon him pleading against such a proposition, she again taunted the appellant that he would not be in a position to maintain her and the child. The appellant yet further averred that upon the respondent's insistence, he took her to Udaipur but upon reaching Udaipur, the respondent abused his mother and threatened that she would get them imprisoned. The appellant alleged that on 09.06.2007, the respondent got the pregnancy terminated without his consent; and threatened to foist criminal cases against the appellant and his family members unless the demanded 10 tolas gold was given to her. 4. The appellant further alleged that when he expressed inability to give the gold as demanded, the respondent went away to her parental house while repeating her threats. It was, thus, submitted that the respondent-wife had treated the appellant with cruelty and it was difficult for him to maintain the matrimonial relations. 5. While denying the allegations as levelled in the petition, the respondent-wife submitted in her reply that the appellant lured her into the marriage with love affair for about a year and prevailed upon her to marry in a temple on 20.04.2007 where, of course, her brother Kailash Soni was also present. 5. While denying the allegations as levelled in the petition, the respondent-wife submitted in her reply that the appellant lured her into the marriage with love affair for about a year and prevailed upon her to marry in a temple on 20.04.2007 where, of course, her brother Kailash Soni was also present. It was alleged that after marriage, the appellant did not take the respondent to his house but asked for holding of a reception whereupon the reception was organized by her family on 23.04.2007 and thereat, the appellant and his family members made the demand of a sum of Rs.5 lacs; and with difficulty, the brother of the respondent arranged for an amount of Rs.2 lacs. The respondent denied herself making any demand but levelled counter allegations against the appellant and his family members about ill-treatment and demands. It was also alleged that upon coming to know of the fact that she had conceived, the appellant and his mother physically ill-treated her that resulted in aborting of the pregnancy and when her condition deteriorated, the appellant brought the respondent to Udaipur and sent her to her parental house. It was also submitted that even when the brother of the respondent died in an accident and the entire family was in bereavement, the appellant and his mother reiterated their demands. Put in a nutshell, the respondent denied all the allegations of cruelty as levelled against her and on the contrary, levelled the allegations of cruelty against the appellant. 6. On the pleadings of the parties and looking to the subjectmatter of the petition, the Family Court, Udaipur framed the following issues for determination of the questions involved in the matter:- ^^1- D;k foi{kh;k ifRu Jherh vatuk lksuh dk O;ogkj izkFkhZ ifr ftrsUnz ds lkFk izkFkZuk i= esa of.kZrkuqlkj Øwjrkiw.kZ jgk gS vkSj bl vk/kkj ij og U;kf;d i`FkDdj.k dh vkKkfIr ikus dh vf/kdkfj.kh gS\ 2- vuqrks"k** 7. In evidence, the appellant examined himself as AW-1, his mother Yasoda Devi as AW-2 and his maternal uncle Dalpat Soni as AW-3. On the other hand, the respondent examined herself as NAW-1, her brother Kamal Soni as NAW-2 and her sister Manju as NAW-3. 8. In evidence, the appellant examined himself as AW-1, his mother Yasoda Devi as AW-2 and his maternal uncle Dalpat Soni as AW-3. On the other hand, the respondent examined herself as NAW-1, her brother Kamal Soni as NAW-2 and her sister Manju as NAW-3. 8. After having heard the parties and having examined the evidence adduced, the learned Judge, Family Court, Udaipur found baseless the allegations of the appellant as levelled against the respondent about her demanding 10 to 15 tolas of gold; and looking to the background aspects, observed that in the given scenario, the probability had been of the appellant and his family members making the demands and, upon the demands having not been fulfilled, having ill-treated the respondent. The learned Judge further observed that after noticing the likelihood of the respondent taking up the proceeding against him, the appellant filed the petition seeking judicial separation only about 75 days from the date of marriage. The learned Judge further observed that the respondent had married the appellant against the wishes of her family and was well aware about the financial condition of the appellant who was earning meagre salary as a Class-IV employee and hence, the allegations of her throwing tantrums and demanding heavy gold appeared to be false and dramatic. The learned Judge took note of the statement made by the appellant's mother (AW-2) that the respondent was not allowed to leave home alone and observed that the appellant had also admitted that when he came to know about his wife's illness, instead of getting her treated at Deedwana itself, brought her to Udaipur and left her to her parental home for treatment. 9. Thus, the learned Judge concluded that in the present matter, the appellant had failed to establish that the respondent had treated him with such cruelty that had made his life miserable and judicial separation was the only proper remedy. The learned Judge also observed that the statements as made by the appellant and his witnesses were unworthy of credence and probably, the matter was of the respondent having been swayed in love and having taken the thoughtless decision of marrying the appellant on emotions and sentiments. 10. In an overall comprehension of the entire matter, the Family Court found no reason to grant the decree as prayed for; and proceeded to reject the petition for judicial separation as filed by the appellant-husband. 11. 10. In an overall comprehension of the entire matter, the Family Court found no reason to grant the decree as prayed for; and proceeded to reject the petition for judicial separation as filed by the appellant-husband. 11. Assailing the judgment and decree so passed by the Family Court, Udaipur, the learned counsel for the appellant submitted that the learned Family Court has not properly appreciated the evidence adduced by the appellant and has passed the impugned decree only on emotional considerations whereas it is amply proved from the evidence that the respondent has treated the appellant with cruelty. The learned counsel for the appellant also submitted that a bare perusal of the prescription slip dated 09.06.2007 makes it clear that the respondent wife at her own sweet will, got the pregnancy terminated at Pannadhay Mahila Government Hospital, Udaipur and the so called FIR for the offence punishable under Section 498A IPC was lodged by her in a counter blast after receiving the notice of the petition under Section 10 of the Act of 1955 so as to falsely implicate the appellant and his mother. The learned counsel for the appellant strenuously contended that the Family Court has not considered these aspects of the matter and only while holding that the appellant has not been able to controvert the allegations levelled by the respondent, has rejected the petition filed by the appellant rather on irrelevant considerations and conjectures. 12. Per contra, learned counsel for the respondent submitted that the Family Court has rightly rejected the petition based on frivolous grounds; and since no case of cruelty on the part of the respondent is made out, the appellant is not entitled to a decree for judicial separation. 13. After having given thoughtful consideration to the rival submissions and having examined the record, we are not persuaded to consider interference in this matter so as to grant the relief of judicial separation as claimed by the appellant-husband. 14. In the present matter, both the parties have levelled allegations and counter-allegations accusing the other one of illtreatment and cruelty. The parties have essentially led oral evidence in support of their respective allegations. The Family Court, after having examined the record, has found the preponderance of probabilities rather in favour of the respondent than the appellant. In our opinion, the Family Court cannot be faulted in its approach and conclusions. 15. The parties have essentially led oral evidence in support of their respective allegations. The Family Court, after having examined the record, has found the preponderance of probabilities rather in favour of the respondent than the appellant. In our opinion, the Family Court cannot be faulted in its approach and conclusions. 15. As noticed, the appellant's case of cruelty of conduct against the respondent has been founded on three major allegations: (i) that on the very day of marriage, the respondent demanded 10 to 15 tolas of gold and hurled abuses on the appellant and his mother for having failed to give her that much of gold; (ii) that the respondent regularly misbehaved with the appellant and his mother; and (iii) that the respondent got the pregnancy terminated without the consent of the appellant. Noticeable it is that as regards the first allegation that the respondent demanded 10 to 15 tolas of gold, the assertion on the part of the appellant has also been that the respondent kept on repeating this demand at every stage. 16. So far the aspect of allegations against the respondent about her demanding gold is concerned, we find the allegations rather sketchy, implausible and pretentious. The relevant background aspects had been that the marriage between the parties was solemnized in a temple without any fun-fare. As per the appellant himself, none of the family members of the respondent were present in the marriage. Obviously, it had been a matter where the respondent had an inclination towards the appellant and entered into the matrimony of her own on 20.04.2007. Yet, admittedly the family of the respondent did organise a reception on 23.04.2007. In the given set of facts and circumstances, it is very difficult to accept that immediately after marriage, the respondent-wife would have made a vague demand of 10-15 tolas of gold and would have hurled abuses on the appellant and his mother with such demand. The allegations against the resondent-wife of her making such a demand of 10-15 tolas of gold do not fit in the normal course of conduct in the society the parties belong to; and are not compatible with the surrounding aspect that the respondent entered into the matrimony with the appellant of her own. We have no hesitation in approving the observations of the Family Court, made in rejection of such a baseless allegation. 17. We have no hesitation in approving the observations of the Family Court, made in rejection of such a baseless allegation. 17. On the second aspect of the alleged misbehaviour, the generalised suggestions have been made about the respondent entering into the quarrels and the same have been denied by the respondent. Nothing specific has been placed and proved on record by the appellant wherefrom a definite finding about baseless quarrels and thereby cruelty of conduct could be reached against the respondent-wife. 18. The third aspect of the allegations relating to the respondent aborting the pregnancy without consent of the appellant is also having its own shortcomings. The appellant has attempted to refer to the prescription slip dated 09.06.2007 to suggest that the respondent voluntarily chose the course of Medical Termination of Pregnancy ('MTP'); but the document does not appear to have been exhibited in evidence and has not been put to the respondent in cross-examination. The fact that the respondent-wife did take recourse to the procedure of MTP appears to be not in dispute but the respondent has asserted in her cross-examination that the appellant's mother was with her at the time of termination of pregnancy. In the totality of circumstances, the preponderance of evidence as adduced on record in this regard does not appear leaning in favour of the appellant inasmuch as, it cannot be concluded that the respondent took recourse to MTP with any ill-intent so as to constitute the matrimonial offence of cruelty. 19. In an overall comprehension of the material on record, it does appear that there had been misgivings between the parties that led to the appellant filing the petition seeking judicial separation and the respondent is also said to have filed a criminal complaint for offences under Sections 498-A and 406 IPC. However, so far the prayer for judicial separation is concerned, as made within 2½ months of the marriage by the appellant, the Family Court, Udaipur cannot be faulted in rejecting the same; and we find no reason to take a different view of the matter. 20. Consequently, the appeal stands dismissed. No costs.