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2013 DIGILAW 1863 (RAJ)

Madhu lal v. Mangi Bai

2013-10-24

ARUN BHANSALI

body2013
JUDGMENT 1. - This appeal is directed against the judgment and decree dated 8.2.2006 passed by the District Judge, Bhilwara, whereby the petition filed by the appellant under Section 13 of the Hindu Marriage Act, 1955 ('the Act') has been rejected. 2. The petition was filed on 2.7.2002 on the ground of desertion and cruelty with the allegations that the parties entered into wedlock 18 years before the date of filing the petition and were seperated in the year 1996. Two sons were borne out of the said wedlock, who were living with the appellant. It was alleged that the behaviour of the respondent was normal at the time and after the marriage for some time and thereafter, she started behaving with cruelty with him and his family members, whereby she would not follow the requests / instructions of the family members claiming that she was not their servant, the respondent was not interested in living with the family and wanted to separate from the family as her brothers were quite rich having business and showroom at Bombay and Baroda, the respondent used to threaten that she would commit suicide and involve the appellant and his family members, the respondent used to misbehave in the presence of relative and guests. 3. It was thereafter alleged in the petition that the respondent left the matrimonial home without any reasonable cause and left two children with the appellant, one of whom is a mentally challenged child and despite his best efforts she has not returned back to the matrimonial home, which clearly shows her intention to desert. Ultimately, it was prayed that the marriage between the parties be dissolved. 4. A written statement was filed by the respondent-wife denying the averments made in the petition. It was inter-alia contended that despite unreasonable behaviour by the husband and his family members, whereby demand of dowry etc. was made and physical / mental violence was committed by them, she continued to remain in family, however, she was turned out of the house for no fault of her. It was inter-alia contended that despite unreasonable behaviour by the husband and his family members, whereby demand of dowry etc. was made and physical / mental violence was committed by them, she continued to remain in family, however, she was turned out of the house for no fault of her. It was also contended that the respondent has lodged criminal proceedings, wherein the appellant has been convicted, however, benefit of probation was granted to him, proceedings under Section 9 of the Act were initiated by her for restitution of conjugal right and another FIR under Sections 498A and 494 IPC was filed by her as the appellant has contracted second marriage with one Ms. Neeru. The averments made in the petition regarding leaving the children with the husband were also denied. It was claimed that the children were living with her and they were got admitted in the school, however, the appellant took away the children with him from the school itself. Ultimately, it was prayed that the petition be dismissed. 5. The trial court framed six issues. On behalf of the appellant, three witnesses were examined and on behalf of the respondent, two witnesses were examined and documentary evidence regarding the charge-sheet, FIR, judgment of the Family Court, application under Section 9 of the Act etc. were exhibited. 6. After hearing the parties, the learned trial court came to the conclusion that the appellant failed to prove cruelty and desertion and that the proceedings were lodged only for the purpose of getting away from the pending proceedings filed by the respondent-wife. In the result, the petition was dismissed. 7. It is contended by learned counsel for the appellant that the trial court has not dealt with the issue relating to cruelty and desertion in the proper perspective and has recorded findings beyond the record of the case. It was submitted that it is an admitted case between the parties that the children borne out of the wedlock are living with the appellant, which clearly goes to show that it is the respondent, who has deserted the appellant as well as children and despite efforts being made by him, she has failed to come back to the matrimonial home. 8. 8. It was further submitted that from the evidence placed on record, it is apparent that the behaviour of the respondent was cruel towards the appellant and his family members and therefore, the findings on that count deserves to be reversed and the petition for divorce deserves to be allowed. 9. On the other hand, learned counsel for the respondent supported the judgment passed by the learned trial court. It was submitted that from the record, it is apparent that the proceedings were initiated by the appellant only as a counter blast to the proceedings initiated by the respondent with a view to show his bona fides, which are clearly absent in the facts. It was submitted that the appellant has contracted second marriage and proceedings in this regard are still pending and therefore, the appeal be dismissed. 10. I have considered the rival submissions made by learned counsel for the parties. 11. A bare look at the allegations made in the petition seeking divorce as noticed here-in-before reveals that the allegations relating to cruelty are wholly devoid of any substance. The allegations made are very petty and cannot make out a case of cruelty on part of the wife. The allegations made, which has been supported by two witnesses, can at best be termed as matrimonial bickerings and can in no case be termed as cruelty on part of the wife, even if, the same are taken as proved, though the evidence in this regard is not sufficient even for proving the said allegations. 12. So far as the allegation regarding the desertion by the respondent is concerned, the appellant has failed to indicate any specific date and / or any specific point of time, whereby the wife is alleged to have deserted him. Further the appellant has also failed to prove any effort on his part to see that the wife returns back to the matrimonial home in case it was a case of desertion. 13. On the other hand, the respondent by producing documents has clearly demonstrated that the first FIR under Section 498A of the IPC was filed by her on 9.6.1998, in which challan was filed against the appellant and he was ultimately convicted by the criminal court on 8.5.2001, though he was given benefit of probation. 13. On the other hand, the respondent by producing documents has clearly demonstrated that the first FIR under Section 498A of the IPC was filed by her on 9.6.1998, in which challan was filed against the appellant and he was ultimately convicted by the criminal court on 8.5.2001, though he was given benefit of probation. Besides the said proceedings, the respondent filed petition under Section 9 of the Act on 1.3.2002 and thereafter filed FIR on 5.6.2002 under Sections 498A and 494 IPC with the allegations of second marriage by the appellant on 20.5.2002 with Ms. Neeru D/o Nanu Ram. The said proceedings clearly indicates that on the one hand, while the husband has apparently not done anything to show desertion and on the other hand, from the documentary evidence, it is evident that though the respondent was not treated appropriately, but was making efforts to get back into the matrimonial home and the allegations have been made regarding contracting second marriage. The dates of the proceedings are also relevant, inasmuch as, the judgment of the criminal court was delivered on 8.5.2001, the proceedings under Section 9 of the Act were initiated on 1.3.2002 and the second FIR was filed on 5.6.2002, whereas the present petition under Section 13 of the Act has been filed on 2.7.2002, which clearly goes to show that the effort on part of the appellant has been to raise defence based on the said proceedings. It is also significant to note that despite being aware of the entire proceedings as noticed here-in-above, the appellant has chosen not to make any whisper about the said proceedings in the divorce petition, which clearly show that the appellant only wanted to avoid the said proceedings in the litigation. 14. From the above consideration, it is apparent that the appellant has failed to prove cruelty and desertion and the findings recorded by the trial court on the various issues does not call for any interference.Accordingly, there is no substance in this appeal and the same is, therefore, dismissed. No costs.Appeal dismissed. *******