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Rajasthan High Court · body

2015 DIGILAW 690 (RAJ)

Mohit Mathur v. Manisha Mathur

2015-03-24

AJAY RASTOGI, J.K.RANKA

body2015
Hon'ble RASTOGI, J.—Instant appeal is directed against judgment & decree passed by the ld. Family Court, Ajmer, dt.25.5.2007 for dissolution of marriage u/S.13 of the Hindu Marriage Act, 1955 (The Act). 2. The facts giving rise to the present appeal in nutshell are that the appellant husband got married with the respondent wife according to the Hindu rites & customs on 3.10.1998 at Ajmer. The complaint of the appellant is that the respondent wife concealed the salient fact from the appellant and his family members that she is hard of hearing and was undergoing treatment and that has resulted him in very awkward situation in front of family members & friends and the appellant had to suffer mental agony and humiliation. The parties lived together upto April 2001 and as alleged during this period she did not discharge her matrimonial obligations and that was the reason that there was no issue out of this wedlock. 3. It is also alleged that the respondent after leaving appellant's house worked in Savitri Girls College, Ajmer from July 2001 to November 2002 in the clerical cadre and while the appellant was in Ajmer, she stayed separately in Girls Hostel. Ajmer and because of great mental stress and agony, divorce petition came to be filed by the appellant u/S.13 of the Act before the ld. Family Court, Ajmer on 15.12.2002. It was also alleged that wife was not behaving well with the appellant and his family members and failed to discharge matrimonial relationship and even after long period of time, she did not return to her matrimonial home and despite his attempts to settle the dispute with the initiation of family members of both the sides including friends and relatives she refused to come back to her matrimonial home. 4. After notices of the divorce petition came to be served upon respondent, written statement was filed and the ld. Family Court framed the following issues- ¼1½ vk;k vizkFkhZ;k dk O;ogkj izkFkhZ ds lkFk ;kfpdk esa of.kZr vk/kkjksa ij Øwjrkiw.kZ jgk gSA\ ¼2½ vk;k izkFkhZ izkFkhZ;k ds fo:) fookg foPNsn dh fMØh ikus dk vf/kdkjh gS\ ¼3½ vuqrks"k\ 5. The appellant husband examined himself as AW-1 and and also exhibited 10 documents in support thereof. 6. In defence, respondent wife examined herself as NAW-1 and also exhibited document A/1, a letter written by her father in support thereof. 7. The appellant husband examined himself as AW-1 and and also exhibited 10 documents in support thereof. 6. In defence, respondent wife examined herself as NAW-1 and also exhibited document A/1, a letter written by her father in support thereof. 7. The appellant husband AW1 in his examination in chief deposed that at the time of marriage, family members of the respondent wife concealed salient fact from him and his family that she was hard of hearing and is undergoing medical treatment for a long time and because of clinical ailment which the respondent is suffering that has caused him great embarrassment in the presence of family members and his friends and further deposed that her behaviour with family members was not good and also started behaving with the husband badly and her attitude towards his parents was also bad and always used to sit at the outside door of the room and her defence was that she used to sit at the door so that she may hear the call of his mother and she abnormally used to go frequently within 15 days to Jodhpur for completion of educational course in computers and whenever his parents and brother as well as Bhabhi go to Jodhpur her parents refused to talk to them and were rudely treated by them. It was also pleaded that she had deserted her matrimonial home and he is facing mental cruelty since long. In his cross examination, the appellant husband stated that till filing of the divorce petition he was always willing to live with the respondent but no correspondence took place between parents of the parties but he admitted that the only trouble was that she had joined service without informing him and the appellant still wants to live with the respondent but the problem by passage of time accumulated and it became impossible for him to stay with the respondent wife. 8. In defence, the respondent in her examination in chief deposed that she has always expressed her willingness to live with the appellant but the appellant refused to live with her and denied in strong words. 8. In defence, the respondent in her examination in chief deposed that she has always expressed her willingness to live with the appellant but the appellant refused to live with her and denied in strong words. As regard medi-cal prescription is concerned, it was deposed that they all are in reference to common disease and that could occur due to cold, work on computer which led to temporary illness but it was not because of loss of hearing and the respondent was firm that she never suffered from any loss of hearing. 9. It will be noted that the appellant failed to prove that it was because of mental cruelty or desertion and failed to produce any document in support thereof and even to establish the alleged hard of hearing, no evidence was produced by the husband and the ld. Family Court after due appreciation of evidence on record, arrived to a conclusion that the appellant failed to prove bad behaviour by the wife and that the respondent ever suffered of hard hearing as prayed for. Regarding death of mother of the husband, ld. Family Court observed that information of death was not extended to the respondent wife and during pendency of litigation, what happened cannot be termed as cruelty. However, only admitted fact came on record is that the respondent wife while serving in a private college stayed in a hostel at Ajmer which at least could not be considered as a mental cruelty rather her intentions cannot be termed cruelty in the present facts & circumstances. 10. As regard plea of desertion which is a passing reference made in the application filed for seeking divorce u/S.13 of the Act, we find that there was no issue framed by the ld. Family Court in support of plea of desertion as prayed for. At the same time, we find that even in divorce petition, it was averred that the respondent wife left her matrimonial home in April 2001 and did not turn up thereafter despite efforts being put in by the appellant and she failed to discharge her matrimonial obligation despite willingness of husband. At the same time, we find that even in divorce petition, it was averred that the respondent wife left her matrimonial home in April 2001 and did not turn up thereafter despite efforts being put in by the appellant and she failed to discharge her matrimonial obligation despite willingness of husband. But we find from the record that as per his own allegation in the petition she left her matrimonial home in April 2001 and the present petition came to be filed on 15.12.2002 and to claim for desertion u/Sec.13(1)(ib), the divorce petition could be filed if the party deserted for continuous period of not less than two years immediately preceding the presentation of the petition. 11. Since the appellant's own statement in the application filed for divorce petition u/S.13 of the Act that she left her matrimonial home in April 2001 and the petition was instituted on 15.12.2002 at least the minimum qualifying period of two years was not completed and the appellant failed to fulfill the mandate of law in claiming desertion as one of the ground for divorce provided u/S. 13(1)(ib) of the Act. The ld. Family Court after due appreciation of evidence oral and documentary on record and the other material dismissed the petition filed by the appellant seeking divorce u/S.13 of the Act vide judgment & decree dt.25.5.2007. 12. Counsel for appellant submits that the ld. Family Court committed serious error in dismissing the petition presented for decree of divorce on the ground of mental cruelty and desertion u/S.13(1) of the Act and the ld. Family Court failed to appreciate the evidence of the parties in its true perspective resulting in failure of justice. 13. It was also submitted that by passage of time as they are living separately since April 2001 there is irretrievable breakdown of marriage and that can also be considered of being deserted for dissolution of marriage. 14. It was also stated that the respondent wife is not interested in living happy married life and the evidence produced by the appellant has not been considered in its true perspective and the finding recorded by the ld. Family Court deserves to be quashed and set aside and he is entitled to seek decree of divorce u/S.13 of the Act. 15. On the other hand, counsel for respondent while supporting the judgment of ld. Family Court deserves to be quashed and set aside and he is entitled to seek decree of divorce u/S.13 of the Act. 15. On the other hand, counsel for respondent while supporting the judgment of ld. Family Court submitted that no error of fact & law could be said to have been committed by the ld. Family Court in rejecting the divorce petition filed by the appellant husband. 16. Counsel for respondent has further submitted that the respondent wife has produced ample material to show that it is not the respondent who left matrimonial home but the appellant husband created such an atmosphere which persuaded her to leave her matrimonial home and she fairly discharged her matrimonial obligation and the ld. Family Court rightly came to the conclusion that this was not a case of irretrievable breakdown of marriage and dismissed the divorce petition after recording cogent finding on both the issue no.1 & 2 in the judgment & decree impugned dt.25.5.2007. 17. Although the cruelty has not been defined and it has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other. The legal concept of cruelty is generally described as conduct of such character as to have caused danger to life, limb or health (bodily and mental) or to give rise to reasonable apprehension of such danger. 18. The concept of cruelty has varied from time to time, from place to place and from individual to individual. Each case depends on its own facts and must be judged on its facts. 18. The concept of cruelty has varied from time to time, from place to place and from individual to individual. Each case depends on its own facts and must be judged on its facts. Sometime cruelty is adjudged by the conduct or by the human behaviour and that is one of the ground which, if established, one can claim divorce u/S.13 of the Act but in the instant case, the appellant failed to establish from the evidence on record that the respondent suffered from hard of hearing and if for the sake of argument we assume that the respondent wife was suffering from hard of hearing that in itself cannot be said to be the nature of cruelty as prayed from by the appellant seeking divorce and that depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable person's point of view after a consideration of any excuse which the respondent might have in the circumstances, the conduct is such that the appellant ought not to be called upon to endure. 19. The only instance which has been quoted by the appellant in his divorce petition claiming to be a case of mental cruelty is that the respondent before marriage was suffering with hard of hearing and taking long medical treatment and this fact was not disclosed to the appellant or his family members and because of her hearing impairment the appellant had to face embarrassing situation amongst friends and family members but in support thereof neither any material nor any other tangible evidence came on record which could substantiate that the respondent was suffering from hard of hearing and this fact was completely denied by the respondent as NAW1 in examination in chief and this Court also find substance that apart from his own statement for the reasons best known to the appellant himself, he failed to produce any evidence even of family members or the medical opinion of the specialist on record that the respondent if at all suffering from hard of hearing and after taking into consideration the submission made and the material which has come on record and appreciated by the ld. Family Court, we do not find any error being committed in deciding issue no.1 against the appellant and issue no.2 was dependent on the fate of issue no.1 of which we have already discussed and as regard submission made in regard to desertion which make him entitled to claim decree of divorce u/S.13(1)(ib) of the Act there is no pleadings on record in support thereof and what is being contended is even not acceptable for the reason that as per appellant's own statement in his divorce petition, the respondent left matrimonial home in April 2001 and the present divorce petition came to be instituted on 15.12.2002 and the statutory period of two years of desertion as alleged if any immediately preceding the presentation of the petition was not complied with and that appears to be the reason that no issue in this regard was framed by the ld. Family Court on the pleadings of the parties. 20. We would like to observe that concept of marriage is very sacrosanct and it is always expected that her sentiments have to be respected, her ambition and aspiration taken into account in making adjustment and her basic needs provided, though grievances arising from temperamental disharmony are irrelevant consideration in claiming divorce u/S.13 of the Act & plea of irretrievable breakdown of marriage as prayed is wholly without substance and deserves outright rejection. 21. Consequently, in view of the above discussion, we are not inclined to interfere in the impugned judgment & decree of the ld. Family Court dt.25.5.2007. 22. In the result, there is no force in the appeal and it is hereby dismissed. No cost.