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2014 DIGILAW 1268 (RAJ)

Rajkumar Patwari v. Smt. Vinita

2014-06-23

SANDEEP MEHTA

body2014
JUDGMENT 1. - The instant misc. appeal is directed against the order dated 16.4.2014 passed by the learned District judge, Sirohi in Civil Misc. Application No. 146/2011 whereby the Trial Court allowed the application filed by the respondent under Section 13 of the Hindu Marriage Act and dissolved the marriage between the appellant and the respondent. 2. Facts in brief are that the respondent wife filed an application under Section 13 of the Hindu Marriage Act in the Court of the learned District Judge, Sirohi on 13.12.2011. As per the averments made in the application the respondent was married to the appellant husband at Abu Road on 14.2.1997 by Hindu rites and ceremonies. After the marriage, the spouses resided in the joint family of the appellant husband at Deedwana. A daughter was born from the wedlock in the year 2000. After some duration, the appellant husband started misbehaving with the respondent wife and also started assaulting her under the influence of liquor. He shifted to Ambaji Gujarat and started a business of garments and STD Booth. The spouses resided at Ambaji till 2004 but the misbehaviour of the appellant husband continued. The husband became indebted and to clear the debts, he sold off the wife's gold and silver ornaments in the year 2004. Ultimately, he deserted the respondent wife and the daughter and went back to Deedwana leaving her at her father's home at Abu Road with her daughter. Since then the respondent wife was residing at Abu Road. The marital ties between the spouses were never revived thereafter. It was averred in the petition that the appellant husband had deserted the respondent wife since the year 2004 and the continuance of the marital relations between the parties was not possible. 3. Upon receiving notice, the appellant husband appeared and filed a reply to the divorce petition. It was pleaded in the reply that the spouses were married at Deedwana. For a period of about three years from the marriage, the respondent wife's behaviour with the appellant husband was proper but thereafter she started misbehaving and pressurising the appellant husband to leave Deedwana and take up a business at Abu Road. She used to abuse the appellants parents. The appellant husband, in order to save the marital ties, sold his share of the joint family property and shifted to Ambaji, Gujarat and started business there. She used to abuse the appellants parents. The appellant husband, in order to save the marital ties, sold his share of the joint family property and shifted to Ambaji, Gujarat and started business there. There, the respondent wife conducted herself properly for about three years but then her misbehaviour with the husband revived. She started pressurising the appellant husband to take up residence at Abu Road. She used to leave the home without any information and went to Abu Road without permission of the husband. The wife deserted him and went to live with her parents at Abu Road. In these harrowing circumstances, the appellant husband was left with no option but to wind up the business at Ambaji and returned back to Deedwana. It was claimed that the respondent wife had made the appellant husband's life a living hell. He was desirous of keeping her with him and to sustain the marital ties but the respondent wife was under the influence of her mother and instead of performing her wifely obligations, she deliberately deserted the husband. The allegation that he maltreated and assaulted the wife under the influence of liquor and demanded money was specifically denied. It was further submitted that the respondent wife continued to visit the appellant at Deedwana till 2010 and thus, the allegation of desertion was not tenable. 4. He also filed a counter claim under Section 9 of the Hindu Marriage Act praying for restitution of conjugal rights. The respondent wife denied the allegations levelled in the counter claim. The learned District Judge on the basis of the pleadings of the parties framed the following issues:- 1. As to whether the appellant treated the wife with cruelty and if so, whether the wife was entitled to a decree of divorce on the basis of cruelty? 2. As to whether the husband had deserted the wife for a period in excess of two years without any justification and if so, whether the wife was entitled to a decree of divorce on the ground of desertion? 3. As to whether the wife had failed to perform her matrimonial obligations without any justification and if so, whether the husband was entitled to a decree of restitution of conjugal rights? 5. The application seeking maintenance under Section 24 of the Hindu Marriage Act filed by the wife was allowed. 3. As to whether the wife had failed to perform her matrimonial obligations without any justification and if so, whether the husband was entitled to a decree of restitution of conjugal rights? 5. The application seeking maintenance under Section 24 of the Hindu Marriage Act filed by the wife was allowed. The appellant husband failed to comply with the order of maintenance passed in the wife's favour and thus, his defence was closed. The respondent wife examined herself in support of the application for divorce. The learned District Judge acting and relying upon the uncontested and uncontroverted testimony of the respondent wife accepted the divorce application by judgment dated 16.4.2014. Hence this appeal. 6. Shri Mrigraj Singh learned Counsel appearing for Shri P.R. Singh learned Counsel for the appellant husband vehemently contended that the respondent wife was responsible for the breaking the marital ties and thus, she was not entitled to a decree of divorce. He contended that the learned Trial Court was absolutely unjustified in denying opportunity fence to the appellant and therefore also the decree of divorce deserves to be set aside. He further contended that the appellant husband was always and is even presently ready and willing to maintain his wife and daughter and to continue the marital ties but the Trial Court did not consider this aspect of the matter and mechanically accepted the wife's prayer for divorce. Thus, he urged that the impugned judgment deserves to be set aside. 7. Heard and considered the arguments advanced at the bar and perused the impugned judgment. 8. The fact regarding the appellant husband having failed to make payment of the maintenance granted to the respondent wife in the proceedings under Section 24 of the Hindu Marriage Act is admitted. The defence of the appellant husband was closed for this very reason. The closure of defence by the Trial Court was not challenged and became final. The respondent wife appeared in evidence as AW-1 and testified regarding the maltreatment meted out to her by the appellant husband. The allegations extend to physical cruelty having been committed upon the respondent wife by the appellant husband under the influence of liquor. There was also a specific allegation regarding the ornaments of the respondent wife having been sold off by the appellant. The allegations extend to physical cruelty having been committed upon the respondent wife by the appellant husband under the influence of liquor. There was also a specific allegation regarding the ornaments of the respondent wife having been sold off by the appellant. The respondent specifically averred that she was deserted by the appellant in the year 2004 and thereafter, no efforts were made by the appellant to restore the marital ties or to take her and the child back to the matrimonial ties. The fact that the first attempt of the appellant at restoring the marital ties was by way of the counter claim filed under Section 9 of the Hindu Marriage Act speaks volumes about his conduct. It is manifest that during the period between 2004 to 2011, the appellant husband made no effort to bring the respondent wife back to the matrimonial home. The indifference and callous attitude of the appellant is also reflected from the fact that he made no effort to maintain his wife and minor daughter despite an order passed by the Trial Court under Section 24 of the Hindu Marriage Act. As the evidence of the respondent wife and the allegations levelled by her in claim application remained uncontroverted, the Trial Court was absolutely justified in accepting the application for divorce filed by her. The judgment impugned does x suffer from any illegality, perversity, irregularity or jurisdictional error so as to call for any interference by this Court.The appeal thus being devoid of any merit is hereby rejected. Stay application also rejected.Appeal dismissed. *******