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2014 DIGILAW 1643 (PNJ)

Suman v. Subhash

2014-11-28

AJAY KUMAR MITTAL, SNEH PRASHAR

body2014
Sneh Prashar, J. 1. A petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter to be referred as "the Act of 1955") was filed by Smt. Suman, petitioner-appellant (hereinafter to be referred as "the appellant") seeking dissolution of her marriage with her husband Subhash-respondent (hereinafter to be referred as "the respondent") on the ground that she had been treated with cruelty and also that she had been deserted without any reasonable cause by the respondent. On notice of the petition, the respondent appeared but when the petition was fixed for filing of written reply by him, he committed default in appearance and was proceeded against ex parte . The appellant led ex parte evidence. Besides stepping into the witness box herself as PW1 and making a statement in the shape of her affidavit Ex.PW1/A, she also examined her brother Binder, who corroborated her version through his affidavit Ex.PW2/A. 2. The evidence led by the appellant did not weigh with learned Additional District Judge, Hisar and the petition was dismissed vide judgment and decree dated 03.01.2009. 3. Feeling aggrieved, the appellant preferred the instant appeal. 4. Heard the submissions made by Shri Tara Chand Dhanwal, Advocate, learned counsel for the appellant. 5. The appellant pleaded that her marriage with the respondent was solemnized on 15.05.1997, at Village Kuwari, Tehsil Hansi, District Hisar, according to Hindu rites and ceremonies. After marriage, they resided together as husband and wife and two sons, namely, Naveen, aged 8 years and Anand, aged 6 years (at the time of filing petition) were born out of the wedlock and were presently living with the appellant. Narrating her tail of agony which led to the filing of the instant petition, the allegations of the appellant were that from the very beginning of the marriage, the behaviour of the respondent was cruel and arrogant towards her. He was a quarrelsome person and was addicted to many vices. He and his family members were not happy with the dowry given by her parents and they demanded additional dowry. As she was unable to fulfil their demands, she often used to be physically assaulted by them. On many eves, their demands were meted out by her parents but their lust was everlasting and as she was unable to satisfy the same, she used to be maltreated. As she was unable to fulfil their demands, she often used to be physically assaulted by them. On many eves, their demands were meted out by her parents but their lust was everlasting and as she was unable to satisfy the same, she used to be maltreated. On 06.08.1998, the respondent demanded ` 10,000/- from her, which she brought from her parents to avoid disturbance in married life. In the month of February, 1999, after the birth of first child, the respondent raised a demand of ` 20,000/- and when she refused to get the same, she was given merciless beatings. Ultimately, she had to bring the said amount also from her parents. In the last week of December, 2001, the respondent again demanded ` 30,000/- which had also to be fulfilled. This continued upto 2005 and ultimately, on 06.06.2005, when she expressed her inability to bring the amount of ` 50,000/- demanded by the respondent, she was severely beaten and was turned out of the matrimonial home in wearing apparels. 6. Deposing through her affidavit Ex.PW 1/A, the appellant reiterated all the above allegations against the respondent and deposed that since 06.06.2005, she alongwith her two minor children was residing separately. Her parents convened several Panchayats of brotherhood but the respondent flatly refused to keep her or maintain the children. It was under such compelled circumstances that she had to file the instant petition. The statement of the appellant was corroborated by her brother PW2 Binder on all material aspects. 7. Analyzing the allegation of the appellant that she had been treated with cruelty by the respondent, learned trial Court disbelieved the testimony of PW2 Binder, firstly on the ground that at the time of marriage of the appellant with the respondent he was only 11 years old and, therefore, could have no knowledge about the expenditure incurred on the marriage and secondly that he could have no direct information of the ill treatment meted out to the appellant by the respondent and his family members. Also rejecting the testimony of the appellant it was mentioned as under:- "Merely because the marriage has irretrievably broken down due to the passage of time spent in courts or otherwise it would not be legally correct to dissolve the marriage. Cruelty can be said to be an act committed with the intention to cause sufferings to the opposite party. Also rejecting the testimony of the appellant it was mentioned as under:- "Merely because the marriage has irretrievably broken down due to the passage of time spent in courts or otherwise it would not be legally correct to dissolve the marriage. Cruelty can be said to be an act committed with the intention to cause sufferings to the opposite party. Austerity of temper, rudeness of language, occasional outburst of anger may not amount to cruelty, though it may amount to misconduct. Marital wear and tear does not imply cruelty. From the facts and circumstances of the case, it cannot be said that the respondent had created an atmosphere that it had become impossible for the petitioner to enjoy a healthy and normal life." 8. Further, rejecting the plea of desertion of the appellant, learned trial Court recorded the following finding and dismissed the petition:- "Now the question remains as to whether the petitioner lived separate from the respondent without any reasonable cause as such deserted her. The oral testimony of the petitioner to the effect that she is residing separately since 2005 is not sufficient to show that the respondent has deserted her without any reasonable cause." 9. The deposition of the appellant that the respondent and his family members were not satisfied with the dowry given by her parents and had all along been demanding dowry in the shape of cash amount etc. from time to time, which on certain occasions, were fulfilled by her parents and thereafter when she was unable to satisfy them, she used to be given severe beatings, was corroborated by her brother PW2 Binder. The brother of the appellant may have been aged 11 years at the time of marriage, but by no stretch of imagination, it can be assumed that he had no knowledge about the hardships his sister was facing at the matrimonial home. It could also not be said that being young he was ignorant of how his parents were satisfying the demands raised by the respondent to save the marriage of his sister. Corroboration of allegations of the appellant against the respondent was a material piece of evidence. 10. It could also not be said that being young he was ignorant of how his parents were satisfying the demands raised by the respondent to save the marriage of his sister. Corroboration of allegations of the appellant against the respondent was a material piece of evidence. 10. Be that as it may, the fact is that the appellant alongwith the two minor children born out of the wedlock, was residing at her parental home since 06.06.2005 i.e. the date on which she was turned out of the matrimonial home. The allegation of demand of dowry by the respondent and his family members and that she was being harassed and maltreated for not fulfilling their demands, had come to the knowledge of the respondent, when on notice of the petition, he appeared in the Court on 09.09.2008. As mentioned in Para No. 3 of the judgment of learned trial Court the petition was fixed for filing written statement by the respondent as well as for filing reply by him to the application under Section 24 of the Act of 1955 filed by the appellant, when the respondent committed default in appearance leaving the proceedings to continue ex parte against him. Having known the allegations, when he walked out of the proceedings, his conduct not only substantiated the allegations of the appellant but also exhibited his attitude and conduct towards the appellant and their children. Apparently, as stated by the appellant, he was not inclined to rehabilitate her and was also not bothered about the maintenance and life of the children. It was known to him that the appellant was single handedly bringing up the children. The very fact that he initiated no step to take care and maintain the children proved that his behaviour was harsh and cruel towards the appellant. It may be mentioned here that during appeal proceedings also the notice was sent to the respondent which was received back served through his mother yet he did not appear. In the above facts and circumstances, the conclusion irresistible is that there is force in the allegation of the appellant that during her stay with the respondent she was being treated with cruelty. It is also established that the respondent has wilfully deserted the appellant without any reasonable cause and the marriage has irretrievably broken down. In the above facts and circumstances, the conclusion irresistible is that there is force in the allegation of the appellant that during her stay with the respondent she was being treated with cruelty. It is also established that the respondent has wilfully deserted the appellant without any reasonable cause and the marriage has irretrievably broken down. Resultantly, finding that the appellant is entitled to a decree of divorce on the ground of cruelty as well as desertion, the judgment and decree dated 03.01.2009 passed by Additional District Judge, Hisar is set aside and the appeal is allowed. As a consequence thereof, the petition under Section 13 of the Act of 1955 is allowed and a decree of divorce dissolving the marriage of the appellant with the respondent is hereby passed.