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2013 DIGILAW 704 (MP)

Sanjay Agrawal v. Jyoti Agrawal

2013-06-25

A.K.Shrivastava, B.D.Rathi

body2013
JUDGMENT Shrivastava, J. -- 1. By this appeal under section 28 of the Hindu Marriage Act, 1955 (in short “the Act of 1955”) the husband-appellant has assailed the judgment and decree dated 10.12.2008 passed by learned District Judge, Guna in Case No.2/2008 Hindu Marriage Act, whereby the learned District Judge, Guna has passed the decree of divorce. 2. In brief the facts of the case are that the wife-respondent filed an application under section 13 of the Act of 1955 praying to pass a decree of divorce. In the application of divorce it has been pleaded by the wife that she is a widow and earlier she was married to one Vinay Agrawal, who later on died and out of the wedlock with her first husband, she is having a daughter Khushboo having age of 8 years. Thereafter, her second marriage was solemnized with the appellant on 7.6.2006. After marriage, for 10-12 days behaviour of the appellant-husband as well as his mother was cordial towards her,but later on the appellant (husband) after consuming liquor started harassing her and was making demand of dowry of Rs.3,00,000/- (Rs. Three lacs only) cash and one Alto Car. The behaviour of the appellant towards her daughter Khushboo (born from her first husband) was not cordial and despite her daughter being a child she was asked to discharge the domestic works and food was not being provided to her timely. Further, it has been pleaded that the appellant used to beat her (wife) after bolting the room from inside. In August, 2006 i.e. only after two months of her marriage with the appellant the respondent came back to her parents’ house where she lived with her parents upto 15th August, 2007. During this period the respondent-wife received a sum of Rs.12,00,000/- (Rs. Twelve lacs only) of insurance of her late first husband. When this fact came in the knowledge of the appellant, immediately he came to her parents’ house where she was residing and carried her with him to her nuptial house at Indore. It is the further case of respondent that at Indore appellant started making demand of Rs.12,00,000/- which was received by the respondent towards insurance on account of the death of her late first husband and also gave threat that in case she would not give the said amount, he will not keep her with him. It is the further case of respondent that at Indore appellant started making demand of Rs.12,00,000/- which was received by the respondent towards insurance on account of the death of her late first husband and also gave threat that in case she would not give the said amount, he will not keep her with him. On 22nd August, 2007 a document of divorce was also executed before a Notary and thereafter the respondent came back to her parents’ house at Guna. Thereafter, again the appellant arrived at Guna and gave threat to the respondent that he will forcibly take her to Indore, hence, she had filed an application for divorce by praying that a decree of divorce may be passed in her favour. 3. The averments made in the application of divorce by the respondent were denied by the husband-appellant. The factum of making demand of cash Rs.3,00,000/- and one Alto car has also been denied. Further, it has been denied that the behaviour of appellant towards Khushboo (the daughter of respondent from his first husband) was inhuman. The factum of making demand of Rs.12,00,000/- of insurance, which the respondent obtained, has also been denied. According to the appellant, because the respondent gave threat of committing suicide, therefore, he executed the document of divorce and put his signature upon that document. According to him, he never gave any consent of divorce. It has also been pleaded by the apellant-husband that his financial condition is very sound and he never made demand of any money from the respondent. It is his further case that he is ready to deposit any amount in the bank in the name of respondent. On the basis of these averments, it has been prayed that the application of divorce may be dismissed. 4. The learned trial Court framed necessary issues and after recording the evidence of the parties, passed a decree of divorce. In this manner, this appeal has been filed by the husband-appellant before this Court. 5. The contention of learned senior counsel for appellant, Shri Bharadwaj, is that the factum of cruelty has not been proved by the wife-respondent. 4. The learned trial Court framed necessary issues and after recording the evidence of the parties, passed a decree of divorce. In this manner, this appeal has been filed by the husband-appellant before this Court. 5. The contention of learned senior counsel for appellant, Shri Bharadwaj, is that the factum of cruelty has not been proved by the wife-respondent. According to him, even if it is held that the appellant was cruelsome towards the respondent, since his alleged cruel behaviour was condoned by the wife-respondent on account of going back to her nuptial house at Indore with the appellant in August, 2007 and because there is no averment either in the application of divorce or in the evidence of the respondent that again the husband-appellant became cruel towards the respondent-wife, therefore, the learned trial Court has erred in passing the decree of divorce. In support of his contention, learned senior counsel has placed heavy reliance upon the decision of Supreme Court Dr. N.G. Dastane v. Mrs. S. Dastane [ AIR 1975 SC 1534 ], and further by citing certain decisions of this Court learned senior counsel has submitted that indeed the key person is the father of respondent, who don’t want that the respondent-wife should live a happy marital life with the appellant. In this regard our attention has been drawn to the testimony of respondent and her father Gopal Das, who were examined respectively as AW1 and AW2. It has also been argued by learned senior counsel that the appellant gave an open offer to the respondent-wife and still he is firm on his stand to deposit whatever amount the respondent desires by way of FDR in the bank and said FDR will be in her name and, therefore, the allegation, which has been made against the appellant that he is very keen to grab the amount of Rs.12,00,000/- of insurance, which the respondent had received, stands nowhere. On this ground, it has been prayed that this appeal may be allowed and the impugned judgment and decree of divorce may be set aside. 6. On this ground, it has been prayed that this appeal may be allowed and the impugned judgment and decree of divorce may be set aside. 6. On the other hand, Shri Bohare, learned counsel appearing for respondent-wife, argued in support of the impugned judgment and submitted that the learned trial Court on the basis of evidence has found that the behaviour of appellant-husband towards the respondent-wife is cruel and he used to cause Marpeet to her after consuming alcohol and was also making demand of cash money and one Alto car and thus, no interference is needed in this appeal and the same may be dismissed. In support of his contention, learned counsel has placed reliance upon Chimmobai v. Ashfaqmian [1980(II) MPWN 155], Himmat Singh v. Smt. Prembai [ 2004(I) MPWN 110 ], and Vinita Saxena v. Pankaj Pandit [ AIR 2006 SC 1662 ]. 7. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be dismissed. 8. The learned trial Court framed issue No.1 which pertains to cruelty after 10-15 days of the marriage and issue No.2 is in respect of making demand of cash and Also car towards dowry and on not fulfilling the said demand, the husband-appellant used to beat the respondent-wife after consuming alcohol. In her testimony, wife Smt. Jyoti Agrawal (AW1) has categorically stated that in the marriage her father gave ornaments of gold weighing 20 tolas and 500 gms. silver. Specifically she has deposed that only after 10-12 days of her marriage the husband-appellant became cruelsome and he used to come in the home after consuming liquor and started making demand of Rs.3,00,000/- cash and one Alto car. According to her, after her marriage she went twice to Indore and stayed there for two months and during that period all the time appellant was making demand of cash and car. Specifically she has stated that after consuming alcohol the appellant used tobeat her and was taking the domestic works from her innocent daughter, who was born out of the wedlock with her late first husband. She has further stated that food was not being provided properly and timely and her innocent child was asked to broom and sweep the house, to clean the shoes and sleepers (chappal), to clean the utensils etc. She has further stated that food was not being provided properly and timely and her innocent child was asked to broom and sweep the house, to clean the shoes and sleepers (chappal), to clean the utensils etc. Specifically she has deposied that the husband after closing the door from inside used to beat her and was not permitting to meet with her daughter. According to the wife (AW1), when she made complaint to her fahter, she was brought back at Guna by her father. There is specific evidence of this witness that at Guna she obtained a sum of Rs.12,00,000/ of insurance on account of death of her first husband and when this fact came in the knowledge of appellant, the lust of grabbing the money carved out in his mind and he arrived at Guna and under the false pretext that now he will maintain cordial and sweet relations with the respondent-wife brought her back to Indore. However, at Indore immediately he asked to give Rs.12,00,000/- otherwise he will abandon her. 9. The evidence of wife (AW1) is corroborated by the evidence of her father Gopal Das Agrawal (AW2) and this witness has also stated that the behaviour of appellant towards his daughter was cruelsome. He was making demand of Rs.3,00,000/- cash and an Alto car. When such demand was not fulfilled, appellant started beating his daughter. The behaviour of appellant with Khushboo was also inhuman. This witness has also stated that because his daughter (respondent) received an amount of Rs.12,00,000/- of insurance of her late first husband, therefore, to grab that money the appellant carried his daughter to Indore back. 10. The learned trial Court in para 11 has noticed that there are certain contradictory statements of the respondent and her father, which have been mentioned in the said para, but on going through the statement of the appellant Sanjay Agrawal (NAW1), this Court finds that in cross-examination he has admitted that his mental status is not good and on account of the disturbed mental status he is not in a position to do his business. Further, he has admitted that from August-September, 2006 his mental condition is disturbed, which is still continuing. Further, he has admitted that from August-September, 2006 his mental condition is disturbed, which is still continuing. Admittedly the appellant and respondent got married on 7.6.2006 and as per own admission of the respondent, he became mentally disturbed from the month of August-September, 2006 i.e. only after 2-3 months of the marriage and, therefore, one can infer that on account of mental disturbance he must be ill-treating the respondent and was cruelsome towards her. True, the evidence of the wife is not fully corroborated from the evidence of her father Gopal Das (AW2), but certainly there is positive evidence of Smt. Jyoti Agrawal (AW1) against the appellant and there is no reason to disbelieve her statement. In these circumstances, if learned trial Court has decided issues 1 and 2 against the appellant, it cannot be said that the finding is erroneous or is not in accordance to the law. Hence, we hereby affirm said finding. 11. We shall now deal with the contention of learned senior counsel for the appellant that even if the appellant was cruel towards respondent, but on account of having resumed the matrimonial life in August, 2007, the cruelsome act of the husband-appellant has been condoned by the wife and, therefore, the decree of divorce cannot be passed. In this context, learned senior counsel has invited our attention to section 23(1)(b) of the Act of 1955 and has also placed reliance upon the decision of Supreme Court Dastane (supra). In order to deal with the argument of learned senior counsel, we think it appropriate to quote section 23(1)(b) in its entirety, which runs as under : “23. Decree in proceedings. -- (1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that : (a) xxx (b) where the ground of the petition is the ground specified in clause (i) of sub-sectrion (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and (c) xxx (d) xxx (e) xxx” When the application of divorce is based on cruelty the doctrine of condonation would be applicable if cruelty is proved in terms of section 13(1)(ia) of the Act of 1955. Now it is to be seen as to whether the respondent had condoned the cruelty of the husband-appellant or not. Looking to the pleading and evidence placed on record it is proved that the respondent on account of cruelsome bahaviour of the appellant came back in the month of August, 2006 at the house of her parents at Guna. Thus, she had lived with the appellant only for near about twomonths after the marriage. It is borne out from the testimony of Smt. Jyoti Agrawal (AW1) that in the month of August, 2007 when the appellant came to know that the respondent had received an amount of Rs.12,00,000/- of insurance of her late first husband, he went to Guna and brought the respondent at her nuptial house at Indore by assuring the parents of the respondent and will maintain sweet and cordial relations with the respondent and will never ill-treat or beat her, but immediately when she arrived at Indore the appellant made demand of Rs.12,00,000/- from her and insisted to give that amount, which she had kept in the bank and told that in case she will not give that amount, he will leave her. But, respondent never agreed and again came back to her parents’ house at Guna. 12. The purpose of quoting aforesaid crux of testimony of AW1 is that whether in such a circumstance it can be said that respondent-wife had condoned the act of cruelty of the appellant-husband. Under the Act of 1955, the term “condonation” has not been defined. The general meaning of condonation is that it is forgiveness and reinstatement with knowledge of material facts. According to us, condonation consists of a factum of reinstatement and animus remittendi. It rests on the principle that in a case where status quo ante between the spouses has been restored, which would mean restoration of offending spouse to the same position as he or she occupied before the offence was committed. According to us, to constitute condonation two elements are required viz. forgiveness and restoration. The restoration of matrimonial life means normal sexual life that has been led by the spouses amongst them. However, in the present case there is no iota of evidence in this regard that in August, 2007 when respondent came back along with the appellant at Indore they ever had sexual intercourse with each other. forgiveness and restoration. The restoration of matrimonial life means normal sexual life that has been led by the spouses amongst them. However, in the present case there is no iota of evidence in this regard that in August, 2007 when respondent came back along with the appellant at Indore they ever had sexual intercourse with each other. The decision of Supreme Court Dastane (supra), place reliance by learned senior counsel for the appellant also lays down the law that sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfilment. In that case there was evidence that the spouses led a normal sexual life even after series of cruelty by one spouse, which proves that the other spouse had condoned the cruelty. In this regard, para 56 of the said decision may be seen. However, in the present case neither the wife (AW1) in her cross-examination nor the husband when he was examined as NAW1 in his testimony has so deposed that in the month of August, 2007 when respondent came back to Indore with him they had normal sexual life with each other and they ever had sexual intercourse with each other. The Supreme Court in aforesaid decision Dastane (supra), in para 56 has further held that sometime sexual intercourse is not a necessary ingredient of condonation because there may be evidence otherwise to show that the offending spouse has been forgiven and has been received back into the position previously occupied in the home by them. According to us, the sexual intercourse is a strong inference of condonation with its dual requirement; forgiveness and restoration. But, in the present case there is absolutely no evidence in this regard otherwise to infer that the respondent condoned the act of appellant of cruelty. On the other hand, her specific evidence is that when she came back toIndore, immediately thereafter the appellant made demand of Rs.12,00,000/- which the respondent had received towards insurance of her late first husband and thus, immediately thereafter on 22.8.2007 she came back to her parents’ house. 13. On the other hand, her specific evidence is that when she came back toIndore, immediately thereafter the appellant made demand of Rs.12,00,000/- which the respondent had received towards insurance of her late first husband and thus, immediately thereafter on 22.8.2007 she came back to her parents’ house. 13. That apart, it is proved on the basis of evidence that as soon as the respondent came to know about the factum of receiving Rs.12,00,000/- of insurance by respondent on account of the death of her late first husband, he came to Guna with intention to grab that money and under the false pretext and by misrepresentation that he will keephis wife-respondent with him without harassing her and would not beat her and also gave an understanding that he will maintain sweet and cordial relations with her, brought her to Indore, but his real intention was to grab anyhow the amount of Rs.12,00,000/- from her (respondent-wife). Thus, in such facts and circumstances when on account of misrepresentation the respondent was brought, it cannot be said that the doctrine of condonation would come into play and the appellant cannot take any advantage of said doctrine. In these facts and circumstances, the doctrine of condonation has not been proved by the appellant. 14. For the reasons stated herein-above we don’t find any merit in this appeal. The same is hereby dismissed with no order as to costs. .............