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2013 DIGILAW 987 (MP)

Sunita Rathore v. Lokendra Rathore

2013-08-20

M.K.Mudgal, S.K.Gangele

body2013
JUDGMENT Mudgal, J. -- 1. The appellant-defendant has filed the appeal under section 28 of the Hindu Marriage Act being aggrieved by the judgment and decree dated 20/21.12.2001 passed by the Court of III Additional District Judge, Morena (Shri Mahesh Chandra Jain) in Civil Suit No.60-A of 2000 allowing the suit for divorce filed by the plaintiff against the defendant. In this appeal, the appellant is referred as ‘defendant’ and respondent as ‘plaintiff’. 2. The admitted facts are that on 26.6.1993, the marriage of the appellant-defendant with the respondent was solemnized as per Hindu rituals and customs at Village Sangoria Ka Pura, Morena from where, after sometime of marriage, the defendant went to her maternal house and when on request being made by plaintiff, the defendant refused to go with him to her in-laws house. The plaintiff filed an application bearing No.94 of 1998 before Sub-Divisional Magistrate, Morena in which, a search warrant was issued and in response to the said warrant, the defendant was located and produced before the District and Sessions Judge, Morena where, she refused to live with the plaintiff and since then, she has been residing with her mother Rama where, she also gave birth to a second child. 3. Facts, in brief, of the plaint are that after marriage, the defendant resided with the plaintiff for five days only and thereafter, she went to her maternal house. After two and half years, the mother of the defendant performed Gauna of the defendant and sent her with the plaintiff where, she resided with the plaintiff only for five months and came back along with one Pehalwan (DW2) to her mother’s house again. Thereafter, when plaintiff along with his father and neighbours went to her mother’s place to bring her back to his house, the mother of the defendant and said Pehalwan who was residing with her, refused to send her with him. Hence, the plaintiff filed an application before SDM Court Morena and got the search warrant issued against defendant. The defendant was brought and produced before the District and Sessions Judge, Morena, where, she refused to live with the plaintiff, her statement Ex.P-1 was recorded on 16.4.1998 him and since then, she has been residing with her mother. She also gave birth to second child there, in spite of the fact that the plaintiff had no physical relationship with her for more than five years. She also gave birth to second child there, in spite of the fact that the plaintiff had no physical relationship with her for more than five years. The defendant has been volunarily residing along with her mother in her maternal house since Deepawali 1995 and has not been ready to go back to the plaintiff’s house, hence, the plaintiff filed a suit for issuance of a decree of divorce against the defendant on the ground of desertion and adultery. 4. Denying the allegations made in the plaint except that of her marriage with the plaintiff, the defendant has submitted that the plaintiff used to beat her up for bringing dowry and expelled her from his house when she was pregnant. The children were born out of the wedlock with the plaintiff. The plaintiff does not want to maintain the children, hence, he has filed this application for divorce. The plaintiff and his family members used to ask her to bring Rs.50,000/- from her mother and when she refused to do so, she was beaten by them and hence persisting risk to her life from her husband and in-laws, she left for her mother’s house. The plaintiff has solemnized the marriage with another woman namely Pushpa d/o Ramgopal r/o Farahkota. Hence, the defendant has prayed for awarding Rs.25,000/- by way of maintenance and for the dismissal of the suit. 5. The learned trial Court after framing six issues, recording evidence of both the parties and having considered the recorded evidence, allowed the suit filed by the plaintiff vide impugned judgment dated 21.12.2001 and granted decree of divorce in favour of the plaintiff against the defendant on the ground of desertion but the ground of adultery was not found proved. 6. The following questions arise for consideration in this appeal : (a) Whether, the defendant has deserted the plaintiff since Deepawali, 1995? (b) Whether, the findings recorded by the learned Court are based on proper reasonings? 7. The learned counsel for the appellant submits that the findings of the learned trial Court are not based on proper reasonings as the plaintiff never made an attempt to bring the defendant back to his home. Neither a petition in this connection was filed under section 9 of the Hindu Marriage Act for restoration of conjugal rights nor a notice was given to the defendant by the plaintiff for coming back to his home. Neither a petition in this connection was filed under section 9 of the Hindu Marriage Act for restoration of conjugal rights nor a notice was given to the defendant by the plaintiff for coming back to his home. Besides, the plaintiff got married to Pushpa d/o Ramgopal without seeking divorce from the defendant, on account of which, the defendant has sufficient ground to live separately from the plaintiff. The learned trial Court did not properly consider and appreciate the evidence in deciding the matter. The learned counsel placing reliance on the judgment in Lachman Utamchand Kriplani v. Meena alias Mota [ AIR 1964 SC 40 ], has submitted that the burden of proof was on the plaintiff to prove the fact that the defendant has voluntarily deserted him without any adequate reasons. Hence, the impugned judgment and decree passed by the trial Court be set aside and the plaintiff’s suit be dismissed. 8. Controverting the submissions made on behalf of the appellant, the learned counsel for the respondent-plaintiff supports the judgment and submits that living with the plaintiff after a span of five or six months the defendant was carried by a person Pehalwan Singh Gurjar (DW2) with whom, the defendant’s mother is staying as his wife having left her first husband Gopi. The counsel further argues that the plaintiff and his family members made several efforts to bring her back from her maternal house to in-laws’ house but she refused to come back. Not only this, even the plaintiff got the search warrant issued from the SDM Court whereby, she was produced before the Court of Sessions Judge Morena and her statement Ex.P-1 was recorded by the Court, wherein, she emphatically refused to stay with the plaintiff without any cause and since then, she has been residing with her mother and there she delivered a female child. However, the plaintiff had not indulged in any act of sex with the defendant. The lelarned counsel placing reliance on the judgments in Durga Prasanna Tripathy v. Arundhati Tripathi [ (2005)7 SCC 353 ], and Kiran v. Mohan Singh [ 2008(I) MPWN 29 =2007(4) MPLJ 178], has requested to dismiss the appeal. 9. Heard the arguments and perused the record. 10. In order to prove the desertion, the plaintiff got the statement of three witnesses namely Lokendra (PW1), Ratanlal (PW2) and Ramesh (PW3) recorded. 9. Heard the arguments and perused the record. 10. In order to prove the desertion, the plaintiff got the statement of three witnesses namely Lokendra (PW1), Ratanlal (PW2) and Ramesh (PW3) recorded. All the three witnesses have unequivocally stated in their statements that the defendant has been residing in her mother’s house for a long time. Though they tried to persuade her to come back to the plaintiff’s house, yet she refused to come back. As per para 11 of the defendant’s statement, she has been staying with her mother since 1997. The same has been stated by Pehalwan Singh Gurjar (DW2) in para 7. Though the witnesses have tried to say that Suneeta (DW1) was expelled by the plaintiff and her in-laws after having thrashed her and further the witnesses have stated that the defendant Suneeta was asked to bring a sum of Rs.50,000/- by the plaintiff and his family members and she was beaten by them for the same. During cross-examination, both the witnesses have admitted that no report was lodged by Suneeta against the plaintiff and his family members for the said demand and for beating her. 11. Indisputably, a search warrant was got issued by the plaintiff against the defendant from the SDM Court, Suneeta (DW1) has admitted this fact in para 12 of her statement and her statement Ex.P-1 was recorded on 16.4.1998 by the Sessions Judge, Morena. Therein she refused to go back and stay with her husband and expressed her desire to stay with her mother only. In this statement, there is no such mention of demand of Rs.50,000/-. Considering the statement Ex.P-1, it becomes clear that the defendant had prepared a false and concocted story as regards the demand of Rs.50,000/- only to justify her own conduct and unwillingness to go back to her matrimonial house. If the defendant had been assaulted or otherwise misbehaved by the plaintiff and his family members, she would certainly have lodged a complaint in the police station or any public forum but she did not do so. 12. The act of getting the search warrant issued by the plaintiff clearly shows his intention to bring the defendant back with him and stay with him together. On the defendant’s refusal to stay with the plaintiff, the Sessions Judge passed the order Ex.D-2 whereby, she was allowed to stay with her mother. 12. The act of getting the search warrant issued by the plaintiff clearly shows his intention to bring the defendant back with him and stay with him together. On the defendant’s refusal to stay with the plaintiff, the Sessions Judge passed the order Ex.D-2 whereby, she was allowed to stay with her mother. Apart from this, if the defendant was interested in living with the plaintiff, she could have filed an application for restitution of her conjugal rights under section 9 of the Hindu Marriage Act but she did not do so. There has not been any instance that proves that she has ever tried or made any attempt to go back and stay with the plaintiff. On other hand, the plaintiff cannot be blamed for deserting his wife Suneeta. 13. The defendant has tried to justify her refusal to live with the plaintiff on the ground that the plaintiff got married to Pushpa without seeking divorce from her. The burden of proof of the said allegation was on the defendant. In this connection, the defendant has stated in para 1 that the plaintiff married Pushpa d/o Ram Gopal r/o Village Farah Kotara District Firojabad on 16.1.2001. The wedding card is Ex.D-1. The Ex.D-1 was neither tendered during examination of the plaintiff’s statement nor was any explanation sought from the plaintiff. This document was first introduced after closer of the plaintiff’s evidence. The defendant has not produced any evidence to prove from where and by whom, it was got printed. Thus, no conclusion regarding second marriage of the plaintiff with Pushpa can be drawn on the basis of Ex.D-1. 14. The defendant has not stated in her statement that she herself witnessed the second marriage of the plaintiff with Pushpa. She has further stated in paras 1 and 7 that plaintiff Lokendra got married at Morena whereas, the wedding card shows the venue of the marriage at Agra. Deposing in para 2 of her statement, she has stated that she was told about the said marriage by Amar Singh and Sukkha resident of her village but they were not examined by the defendant. Thus, it becomes here clear that she has just heard about the second marriage of Lokendra through those persons. The defendant’s statement is based on hearsay evidence which carries no substantial value. Thus, it becomes here clear that she has just heard about the second marriage of Lokendra through those persons. The defendant’s statement is based on hearsay evidence which carries no substantial value. In para 6 of her statement, it has come on record that she made no attempt to stop the wedding proceeding of the plaintiff. Though she has stated that she had tried to lodge the complaint against the plaintiff’s second marriage at Police Station Civil Lines, Morena, where her complaint was not registered by the police. Yet, this statement cannot be relied upon as if the report was not written by the said police station, she could have made complaint to the superior officers of the police under section 154(3) of the Code of Civil Procedure but it was not done so and no private complaint as regards the offence of second marriage punishable under section 494 of Indian Penal Code was filed by the defendant against the plaintiff. 15. The witness Pehalwan Singh (DW2) has claimed that he had witnessed the plaintiff’s second marriage. In para 8 of his statement, he has stated that he had gone to witness the marriage after being informed by Amar Singh and Sukkha about it. In para 9 of the his statement, he has deposed that the said marriage took place at village Badokhar. The statement of witness Pehalwan Singh (DW2) has no credence as there is discrepancy regarding the venue of the marriage in the statement of the defendant and the wedding card Ex.D-1. Pehalwan Singh (DW2) is highly interested witness to the defendant. As per allegation of the plaintiff, the defendant’s mother is presently living with Pehalwan Singh (DW2) after leaving her husband Gopi. Although the defendant and Pehalwan Singh have tried to hide this relationship, yet it has come on record in para 4 of Pehalwan Singh’s statement that the defendant’s mother is living with him. Because of this, the statement of the defendant’s mother was not got recorded by the defendant. From the statement of Suneeta and Pehalwan Singh, it has come on the record that Pehalwan Singh used to accompany Suneeta for every proceedings. 16. Because of this, the statement of the defendant’s mother was not got recorded by the defendant. From the statement of Suneeta and Pehalwan Singh, it has come on the record that Pehalwan Singh used to accompany Suneeta for every proceedings. 16. Rebutting the said allegation of Pehalwan Singh, Lokendra Singh (PW1) in para 4, Ratanlal (PW2) in para 3 and Ramesh (PW3) in para 2 have vehemently stated that the plaintiff Lokendra did not get married to Pushpa and nothing has come on record during the cross-examination to discredit their statements. Thus, the defendant has failed to prove her justification for living separately from the plaintiff. 17. In view of the said facts and circumstances, it is concluded that the findings recorded by the learned trial Court in respect of desertion of the plaintiff by the defendant without any sufficient cause are absolutely justified. No reason has been found to interfere in the conclusion of the impugned judgment. 18. In Rohini Kumari v. Narendra Singh [ AIR 1972 SC 459 ], it has been held by the apex Court that : “desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. It is total repudiation of the obligation of the marriage.” Further, in Smt. Kiran v. Mohan Singh [ 2008(I) MPWN 29 =2007(4) MPLJ 178], it has been held by this Court that if a wife has not turned up in spite of the attempts made by the husband, his parents and relatives, the ground of desertion is made out. In the instant case as discussed earlier, it has been found proved that the defendant has deserted the plaintiff without any plausible reasons and is not performing her obligation as wife. 19. Therefore, considering the facts and recorded evidence, affirming the findings of the impugned judgment the appeal being devoid of merit, is hereby rejected. The cost of this appeal shall be borne by the appellant herself and the respondent. Decree be drawn up accordingly. .............