Research › Search › Judgment

Madhya Pradesh High Court · body

2014 DIGILAW 1214 (MP)

Manju v. Pawan Kumar Andani

2014-09-25

S.K.GANGELE, S.K.PALO

body2014
JUDGMENT S.K. Palo, J. 1. Aggrieved by the judgment dated 10.09.2008 pronounced by the First Additional Judge to the Court of First Additional District Judge, Datia, in case No. 74/07 HMA, by which the learned Trial Court has disallowed the application filed by the appellant under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as "The Act, 1955" for brevity), the appellant/wife has filed this appeal under Section 96 of the Code of Civil Procedure (which ought to have under Section 28 of the Act, 1955). 2. It is not disputed that the marriage of the appellant was solemnized with the respondent on 04.02.1999 observing Hindu rites. After the marriage, the appellant lived with the respondent/husband at her matrimonial home at village Urai, district Jhalon, Uttar Pradesh. 3. The appellant/wife filed the application under Section 13 of the Act, 1955 on the ground of "cruelty" and "desertion". The appellant/wife pleaded that due to their wedlock, a baby girl was born on 04.01.2000. During her stay with the husband, she was being treated cruelly and was pressurized to bring money despite the fact that her father had given one lac rupees and 20 tolas gold, apart from a scooter. It is alleged that the non-applicant/husband demanded money for his business. Her father gave two lac rupees in different installments, during a period of two years. But the non-applicant/husband spent the money in gambling and for his own luxury. The scooter given to him at the time of marriage was sold by him. After spending all the amount, he started harassing the applicant. The applicant tolerated the harassment thinking that time would come when everything will be normal. On 14.03.2007, the non-applicant driven her out from his house. She went to her grand mother's house at Bhopal alongwith her daughter. From there she could manage to go to her father's house at Datia on 15.03.2007. Since then the non-applicant has not taken care to know about the whereabouts of the applicant and her daughter. The applicant and her daughter are also deprived of maintenance, it is not possible for the applicant to live with the non-applicant, therefore, the appellant prayed for grant of decree of divorce. 4. Per contra, the non-applicant denied all averments and submitted that his marriage was solemnized without any dowry. He has been treating the applicant with affection. The applicant and her daughter are also deprived of maintenance, it is not possible for the applicant to live with the non-applicant, therefore, the appellant prayed for grant of decree of divorce. 4. Per contra, the non-applicant denied all averments and submitted that his marriage was solemnized without any dowry. He has been treating the applicant with affection. He was discharging his obligations normally but it was the applicant who insisted to start business at Bhopal, therefore, the non-applicant shifted to Bhopal and started his business and was leading a happy married life. The applicant has falsely alleged that she was being treated cruelly. The applicant herself left for Datia alongwith her daughter. The reservation for travelling by train was done by the non-applicant/husband. The non-applicant had gone to call her wife and daughter in the month of April. However, on the insistence of her brother he returned back. For the second time when he again called the applicant she avoided and insisted that the non-applicant should shift to Gwalior and do business there. The applicant did not go to Bhopal to live with the non-applicant. The present application has been filed on false grounds. 5. On the above averments, the learned Trial Court framed issues and afforded opportunity to both the parties to adduce evidence. The learned Trial Court pronounced the impugned judgment and held that the appellant/wife has failed to prove her case. Therefore, dismissed the petition under Section13 of the Act, 1955. 6. The appellant/wife has filed this appeal on several grounds. It is contended that the finding of the Trial Court is erroneous, illegal and contrary to law, therefore, liable to be set-aside. 7. In paragraph 5 of the impugned judgment respondent/husband has accepted that he is maintaining his scooter which was received in dowry but in the written statement has denied about receiving any scooter. This exhibits the respondent's suppression of truth. The learned Trial Court given much stress on the reservation of travelling by train from Bhopal to Daita. The non-applicant/husband claimed that he reserved the tickets for the applicant but failed to produce any document in this regard. Therefore, the learned Trial Court had erred in assuming that it is the non-applicant/husband, who got her reservation for travelling from Bhopal to Datia. 8. We have heard the learned counsel for the appellant and thoroughly examined the evidence on record. 9. Therefore, the learned Trial Court had erred in assuming that it is the non-applicant/husband, who got her reservation for travelling from Bhopal to Datia. 8. We have heard the learned counsel for the appellant and thoroughly examined the evidence on record. 9. In a matrimonial dispute, the evidence has to be appreciated by "preponderance of probability". The evidence has to be evaluated, in the present case, on the basis of "Oath Vs. Oath". Regarding maltreatment and cruelty at her matrimonial home, no outside witness can be available. 10. Normally when such disputes arise, the spouse especially the wife attempts not to go to the Police with the believe that one day things will come to pass and there will be normalization in relationships. Therefore, the Court should not insist on Police report in such incidents between the husband and wife. Of course lodging such report entail in the proceedings both civil and criminal, but in matrimonial cases available of such reports is very rare. 11. In Samar Ghosh Vs. Jaya Ghosh, (2007) 4 SCC 511 , it has held by the Apex Court that:- "Cruelty is something that cannot be explicitly cast in a particular mode, as regards what is and what may not amount to cruelty. The Supreme Court has stated that, however as a result of some situations, the marriage may become a fiction, and though supported by a legal hue, such a bond ought to be severed." 12. The non-applicant/husband tried to project that he was willing to live with the appellant but did not try to bring the appellant and her daughter. The only notice he had given was after the suit for divorce was instituted by the appellant. This conduct of the respondent/husband indicates that he has been stating the same according to his convenience. 13. The statement of the applicant/wife that she was driven out by the house of respondent on 14.03.2007 alongwith her minor daughter from Bhopal carries much weight. 14. The learned trial Court has held that the appellant failed to prove "desertion". Therefore, issue No. 2 has been rightly answered in negative. The reason being, for a case under Section 13(1)(1b) of the Act, 1955, the desertion should be for a continuous period of not less than two years immediately preceding the presentation of the petition. The "desertion" claimed is from 14.03.2007. Petition was filed on 7.11.2007. Therefore, issue No. 2 has been rightly answered in negative. The reason being, for a case under Section 13(1)(1b) of the Act, 1955, the desertion should be for a continuous period of not less than two years immediately preceding the presentation of the petition. The "desertion" claimed is from 14.03.2007. Petition was filed on 7.11.2007. So far as "cruelty" as provided under Clause 1-A of Section 13(1) of the Act, 1955 is concerned, it would be appropriate to note that the legal conception of "cruelty" and the kind of degree of cruelty necessary to amount to matrimonial offence has not been defined by any statute of the Indian Legislature relating to marriage or divorce. In Dastane Vs. Dastane reported in AIR 1975 SC 1534 , the Hon'ble Supreme Court critically examined the matrimonial ground of cruelty as it was stated in the old Act and observed that the inquiry in any case covered by that provision had to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for the petitioner to live with the respondent. 15. In the present case, when the appellant/wife has been driven out by the respondent/husband alongwith her minor daughter her apprehension could not be reckon as unfounded. 16. In the present case, the evidence of the appellant stood to reason being plausible and supported by the statement of her father Narendra Kumar (AW-2). In the circumstances prevailing in this case, the respondent/husband not wanting to divorce the appellant/wife may be for the reason that he do not want to loose the "duck who lays the golden eggs". We therefore are inclined to allow this appeal. 17. We allow this appeal under Section 13(1)(1a) of the Act, 1955, setting aside the impugned judgment, dated 10.09.2008 and grant a decree of divorce in favour of the appellant and against the respondent. 18. Looking to the peculiar circumstance of the case, no order as to costs.