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2016 DIGILAW 1359 (RAJ)

Usha Tirpathi W/o Shankar Prasad v. Shankar Prasad S/o Shri Tilakmane

2016-09-16

NAVIN SINHA, PANKAJ BHANDARI

body2016
ORDER : These two appeals arise from a common order dated 17.9.2015 passed by the Family Judge, Bikaner dismissing Civil Misc. Case No.374/2012 filed by the appellant seeking divorce from the respondent under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”) on grounds of cruelty, while simultaneously allowing Civil Misc. Case No.370/2012 preferred by the respondent for restitution of conjugal rights under Section 9 of the Act. 2. Learned counsel for the appellant submitted that the Family Judge has erred in holding that cruelty had not been established. The respondent would beat the appellant, use abusive language and had also threatened to have her killed. He had concealed before their marriage that he was already married with six children and when the appellant conceived he forced her to abort twice. The respondent had taken a house from the appellant's father in dowry. He had taken back the mobile that he had given to the appellant. The respondent was indulging in rumors that the appellant was of loose character tarnishing her image and reputation. 3. The suit filed for restitution of conjugal rights was nothing but a camouflage to cover his own misdeeds of cruel behaviour. The appellant had also filed a criminal prosecution against the respondent under Section 498-A IPC and under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the Domestic Violence Act”) which are still pending. 4. PW2 Shambhuram who was the neighbour of the respondent had also supported cruelty on part of the respondent towards the appellant and that he had thrown her out of the house as also threatened to have her killed by anti-social elements. PW3 Virendra Choudhan, the father of the appellant had also supported the allegations of cruelty. The rejection of the application for divorce on grounds of failure to prove cruelty was therefore not justified and it ought to have been allowed. If the respondent had committed cruelty with the appellant, the question of allowing restitution of conjugal rights under Section 9 does not arise. 5. It was next submitted that today the appellant is suffering from mouth cancer because of which she is unable to speak. For reasons attributable to the cruel behaviour of the respondent she is not willing to live with him. 6. 5. It was next submitted that today the appellant is suffering from mouth cancer because of which she is unable to speak. For reasons attributable to the cruel behaviour of the respondent she is not willing to live with him. 6. Learned counsel for the respondent submitted that the Family Judge has correctly held that cruelty has not been established on the face of the pleadings in the application for divorce and the nature of evidence led. Not a single instance of cruelty, the nature of the same and the date on which it may have been committed has been pleaded or proved. The entire issue has arisen after superannuation of the respondent from service in 2007 when he lost source of income and was surviving on pension only. The appellant left the matrimonial home thereafter on 1.6.2008. He preferred an application for restitution of conjugal rights. The appellant thereafter filed the application for divorce and subsequent thereto filed the criminal case under Section 498-A IPC and under the Domestic Violence Act. The respondent was all along willing and is willing to keep the appellant with respect and dignity. Notwithstanding his superannuation and consequent decline in income, the terminal illness of the appellant including her loss of speech, he is still desirous to restore the matrimonial relationship unconditionally. 7. There was no concealment by the respondent of his earlier marriage and children born from the same before he remarried the appellant after demise of the first wife. 8. We have considered the submissions on behalf of the parties. 9. The respondent was employed on the post of Dy. Inspector in the CRPF at the time of his superannuation in 2007. He married the appellant on 9.8.1993 while he was in service. The parties lived as husband and wife for long years since then and the entire issue has arisen after his superannuation when his sources of income have declined and he still has to look after two of his six children one of whom is stated to be physically challenged and the other is still studying. Despite the same, the respondent in full awareness of the medical condition of the appellant is still desirous to restore the matrimonial relationship. 10. After the appellant left the matrimonial home on 1.6.2008, the respondent filed an application for restitution of conjugal rights on 14.9.2009. Notices were issued to the appellant on 16.9.2009. Despite the same, the respondent in full awareness of the medical condition of the appellant is still desirous to restore the matrimonial relationship. 10. After the appellant left the matrimonial home on 1.6.2008, the respondent filed an application for restitution of conjugal rights on 14.9.2009. Notices were issued to the appellant on 16.9.2009. Notice was served and the appellant entered appearance on 17.11.2009. It was only thereafter the application for divorce was filed by her on 4.1.2010. Despite 35 adjournments, the appellant did not file any reply to the application under Section 9. 11. The criminal case under Section 498A IPC and under the Domestic Violence Act was filed even after the institution of the application for divorce. 12. Cruelty is incapable of precise definition and much will depend on the status of the parties, the facts of each case, the nature of behaviour, the act which is stated to constitute cruelty. While a single act of cruelty may be sufficient to sustain a prayer for divorce, continued minor irritants of married life with normal skirmishes between the husband and wife cannot constitute cruelty. It connotes conduct of one party to the marriage making it impossible for the other to live with the former, resulting in every day life becoming an intolerable burden and impossible to tolerate. Therefore, if a person alleges cruelty, the onus is on such person to prove it. In order to establish cruelty, it is necessary not only to set out the nature and manner of the conduct, any repetition of the same, more particularly the occasions when it may have been committed. 13. In the present case, the appellant in her application for divorce has alleged that whenever she told her desire to conceive, the respondent would flare up and would be ready to assault her. There is no pleading that she had conceived twice and was forced to abort. There can be no evidence without the foundational pleadings. Yet the Family Judge has considered her plea of forced abortion twice during deposition to conclude that she had placed no evidence in support of her oral evidence. We find no infirmity in the reasoning of the Family Judge. 14. The second allegation of cruelty made by the appellant is that the respondent suspected her character after retirement and had the tendency to beat her. We find no infirmity in the reasoning of the Family Judge. 14. The second allegation of cruelty made by the appellant is that the respondent suspected her character after retirement and had the tendency to beat her. Her life had become hell as he was behaving like an animal towards her. His language turned foul and he would invariably fight with her, abuse her in front of others, committed atrocity, called her a prostitute and generally insult her causing mental and physical torture. Resultantly his entire family started to suspect and abuse her. Such a conduct was going on for the last 2-3 years when she ultimately left the matrimonial home on 1.6.2008. She was thrown out at night. 15. We have gone through her evidence and find no infirmity in the discussion of the Family Judge that not a single instance of the nature of cruelty committed, the date of occurrence, the nature of the foul language used and in whose presence she was abused and assaulted has been disclosed either by her or her father PW3 Virendra Chouhan. Casting aspersions on the character of a woman would undoubtedly constitute cruelty. But, there has to be atleast the minimum iota of evidence as to when the utterance was made and in what manner and in whose presence. The Family Judge has noticed that the Police Station was hardly 2 km. from her matrimonial home. If she had been suffering inhuman behaviour of the respondent at the matrimonial home for past two years previous to 2008, there has to be some explanation why she did not complain to any of her family members let alone the police. On the contrary PW3 Virendra Chouhan, the father of the appellant in his cross-examination stated that he was not aware that his daughter was being ill-treated in the matrimonial home. 16. To make false allegations of cruelty would itself constitute cruelty. Matrimonial relations between the parties appear to have subsisted from 1993 till his retirement in 2007 and the acrimony developed only when his sources of income decreased. Nonetheless the respondent filed an application for restitution of conjugal rights. Notice was served on the appellant. She did not file any reply to the same and on the contrary only thereafter filed an application for divorce and followed it up by a criminal case under Section 498A IPC and under the Domestic Violence Act. Nonetheless the respondent filed an application for restitution of conjugal rights. Notice was served on the appellant. She did not file any reply to the same and on the contrary only thereafter filed an application for divorce and followed it up by a criminal case under Section 498A IPC and under the Domestic Violence Act. It is therefore patent that the application for divorce and the criminal case under Section 498A and under the Domestic Violence Act was in retribution to the suit for restitution of conjugal rights filed by the respondent as an after-thought. 17. In absence of any reply filed by the appellant to the application for restitution of conjugal rights filed by the respondent, the pleadings not having been traversed, stand admitted. The claim in the same gets reinforced when the plea of cruelty by the appellant has rightly been disbelieved in defence to the same. 18. There exists approximately 26 years of age difference between the parties. PW3 Virendra Chouhan, the father of the appellant has deposed that he married his daughter considering the good job and income that the respondent had without making any further enquiry. The plea of the appellant that the marriage was done by deceit concealing that he was previously married and had children denied by the respondent loses much of its significance in view of the evidence of PW3 Virendra Chouhan. 19. The respondent has undertaken that he is not only desirous to restore the matrimonial relationship but also that he will bear the medical expenses of the appellant and look after her in the nature of her illness and keep her with dignity. 20. We therefore find no reason to interfere with the order dated 17.9.2015 dismissing the application for divorce and allowing the application for restitution of conjugal rights. 21. The appeals are dismissed.