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2017 DIGILAW 1103 (HP)

Joginder Prashad v. Shreshta Devi

2017-09-21

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed against the judgment rendered by the learned District Judge, Kangra Division at Dharamshala, H.P. on 28.05.2013 in Hindu Marriage Petition No. 41-D/III/2010/2006, whereby, the petition aforesaid constituted therebefore, by the petitioner/appellant herein stood dismissed. 2. The brief facts of the case are that the marriage inter se the contesting parties hereat stood solemnized on 15.06.1999 at village Asan Pat, Mouza Lahla, Tehsil Palampur, District Kangra. The marriage was also consummated and out of the wedlock, one daughter was born. It is averred that the petitioner is serving in veterinary Department as pharmacist and posted at village & post office Kaned, District Kangra since 13.12.2004. After the marriage, the parties lived together happily for about one year and thereafter, the respondent started misbehaving with the petitioner as well as his parents. She was in a habit to leave the matrimonial home to her parental house without the knowledge and consent of the petitioner. She voluntarily came back after 5-6 days. It is also averred that requests of the petitioner fell on the deaf ears of the respondent and she did not change her behaviour, instead of she started quarreling and abusing the petitioner. When the petitioner requested the respondent to live with him at Bharmour, the respondent flatly refused by saying that she is not interested to live with him. The respondent left the matrimonial home without informing the petitioner as well as his parents, about six months prior to the filing of petition. When the respondent did not come back after 5-6 days, then the petitioner had gone to his in-laws' house in order to bring back the respondent in the matrimonial home but she flatly refused to accompany the petitioner. It is also averred that when the respondent was living in the matrimonial home she expressed her intention to live separately and also demanded Rs. 500/- from him as personal expenses. Upon this, the petitioner arranged the separate accommodation and started giving Rs.500/- per month to her. Apart from this the petitioner also pleaded about the facts that the respondent lodged a false and frivolous complaint against him in womencell at Dharamshala and the matter was also reported to women-commission, Shimla, who called the petitioner at various places. Upon this, the petitioner arranged the separate accommodation and started giving Rs.500/- per month to her. Apart from this the petitioner also pleaded about the facts that the respondent lodged a false and frivolous complaint against him in womencell at Dharamshala and the matter was also reported to women-commission, Shimla, who called the petitioner at various places. It is the case of the petitioner that due to cruel behaviour of the respondent, the petitioner has lost his mental peace and prayed that his married with respondent my kindly be dissolved by way of decree of divorce. 3. The petition for divorce instituted by the petitioner/appellant herein before the learned District Judge, concerned stood contested by the respondent herein by hers instituting reply thereto wherein she controverted all the allegations constituted against him in the apposite petition by the appellant herein in the petition. However, it is averred by the respondent that the petitioner proclaimed that he will get divorce from her and will remarry with a lady Chhuma Devi. 5. The petitioner/appellant herein filed rejoinder to the reply of the respondent, wherein, he denied the contents of the reply and re-affirmed and re-asserted the averments, made in the petition. 6. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the respondent has treated the petitioner with cruelty, if so, its effect, as alleged? OPP. 2. Whether the petition is not maintainable, as alleged? OPR. 3. Relief. 7. On an appraisal of evidence adduced before the learned District Judge, he proceeded to dismiss the apposite petition constituted before him by the petitioner. 8. The averred, trite cruelty beset upon him, by the respondent, is, grooved in the factum of the respondent leaving for her parental home, without, the knowledge and consent of the petitioner and after hers staying there for 5 to 6 days, hers returning to her matrimonial home. The aforesaid errant behaviour of his spouse, was protested by the petitioner but to no avail, rather its sequelling his spouse quarreling and abusing him. The aforesaid errant behaviour of his spouse, was protested by the petitioner but to no avail, rather its sequelling his spouse quarreling and abusing him. It is also averred that six months prior to the petitioner instituting the apposite petition, his spouse, as usual, proceeded to her parental home yet she did not within 5-6 days thereafter, as she earlier did, return thereto, whereupon, the petitioner proceeded to the parental home, of his spouse, for beseeching her to rejoin his company, yet his spouse spurning his conciliatory overtures. From January, 2005, the respondent is averred to be staying separately from the company of the petitioner, stays whereof of his spouse being in a room located in the upper storey of the building, in portion whereof the petitioner is also residing, rental(s) whereof borne in a sum of Rs.500/- per mensem, from, January, 2005 upto May, 2006, stand averred to be paid by the petitioner. Furthermore, the petitioner has averred, of, his spouse making frivolous complaint(s) against him before the women cell, Dharamshala and before the Women Commission, Shimla. The respondent in her reply has, not, denied factum of hers making complaint(s) against the petitioner before the women cell, Dharamshala and before the Women Commission, Shimla. However, the gravamen of her refusal to co-habit with the petitioner, is, grooved in a proclamation made by the petitioner, of, his after annulling his marital ties with her, his aspiring to re-marry one Chhuma Devi. Also thereon, it appears that the respondent is concerting to validate the factum of hers alienating from the marital company of her husband also she is striving to exculpate herself from hers thereupon besetting mental cruelty vis-a-vis her husband. 9. In support of the respective averments reared in the apposite petition and in the reply thereto furnished by the respondent, each respectively adduced their evidence upon issues in respect thereto struck by the learned District Judge. 9. In support of the respective averments reared in the apposite petition and in the reply thereto furnished by the respondent, each respectively adduced their evidence upon issues in respect thereto struck by the learned District Judge. The learned District Judge had side lined the gravity of the evidence adduced by the petitioner in support of the apposite averments, of, the respondent departing from her matrimonial home also undermined the testifications of the witnesses concerned, of, upon the petitioner along with them, visiting the parental home of the respondent, the latter declining the conciliatory overtures made upon her by the petitioner, “merely”, on the ground, of, with both PW-2 and PW-3 in the opening lines of their respective cross-examination(s), making, echoings of the respondent residing in a room located in the upper storey of a building, in portion of building whereof her matrimonial home is also located, thereupon, hers neither alienating herself from the matrimonial company of the petitioner nor hence there being any occasion for the petitioner or for PW-2 and PW-3, to, along with the petitioner, make any visit upon the respondent at her parental home. However, the learned District Judge has overemphasized the aforesaid facet, besides has thereupon made an attempt to both miscolour also to bely the veracity of averments in consonance therewith cast in the apposite petition, of the respondent alienating herself from his marital company “despite” testificatory evidence holding absolute consonance with all the apposite averments cast in the apposite petition, rather also despite the petitioner not making any active suppression of the vital factum probandum, whereas, thereupon the learned District Judge being enjoined, to therefrom and in entwinement with the admission(s) in respect(s) thereto made by the respondent in her testification, make apt conclusion(s) of the respondent, even if, staying in a room occurring in the upper storey of the building, in portion whereof her matrimonial home is located, hers obviously, not, cohabiting with the petitioner rather hers alienating herself from the marital company of the petitioner. Contrarily, the learned District Judge, has not, made the aforesaid conclusion therefrom rather has on anvil of aforesaid admissions proceeded, to, dispel the testifications of the petitioner and of PW-2 and of PW-3, who, along with the petitioner evidently visited the respondent at her parental home, especially when the latter PWs lend corroboration thereto besides when their apt disclosures occurring in their respective affidavits, tendered, during the course of their examination(s)-in-chief, were not, concerted to be ridden with any vice of falsity, whereas, with evidence on record making potent vigorous reflections, of, the respondent taking to stay in a room located in the upper storey of the building, whereat, her matrimonial home is also located, for ensuring that her minor daughter prosecutes her studies in a school located at Jadrangal also when she has, not, proven that she throughout stood lodged in the aforesaid premises, nor hers never proceeding therefrom to her parental home, thereupon, corollory thereof, is, of the testifications of PW-2 and PW-3 in respect of theirs along with the petitioner visiting the respondent at her parental home, for beseeching her to return to her matrimonial home, conciliatory overtures of the petitioners stood spurned by the respondent, hence, remaining unerodded of their efficacy. The further derivation therefrom is, of, at the time of the petitioner along with PW-2 and PW-3 visiting the respondent at her parental home, she thereat residing at her parental home dehors hers merely for ensuring her daughter prosecuting studies in a school located at Jadrangal, hers individually/singularly staying above the room of the petitioner. 10. The aforesaid conclusion of the respondent, not affirmatively responding to the conciliatory overtures, of her husband besides hers staying apart from the company, of the petitioner, trite factum of separateness of her stay from the company of her husband, is evidently borne from her admission qua hers staying in a room located above the room of the petitioner, per se yields a further concomitant conclusion of the respondent hence refusing to cohabit with her husband also, thereupon, hers entailing upon him severe mental cruelty. The aforesaid alienation, of, the respondent from the marital company of the her husband, would acquire an aura of validation also would hold a tinge of exculpation only when she had led cogent proof that her alienation from the marital company of her husband stood engendered by the petitioner herein contriving a false ground, for annulling his marital ties, merely for his satiating his aspiration of his thereafter remarrying one Chhuma Devi. However, proof qua the aforesaid facet is abysmally wanting. Consequently, the prolonged departure of the respondent herein from the marital company of her husband, is, preeminently without any just and reasonable cause also is without the consent and is against the wishes of the petitioner rather is a sequel, to an order borne in Ex. P-1, order whereof stood pronounced in proceedings instituted by the respondent herein under Section 3 of the Himachal Pradesh Maintenance of Parents and Dependents Act, 1986-2001, institution whereof is also ingrained with an element of its besetting the petitioner with mental cruelty. 11. The prolonged matrimonial acrimony inter se the petitioner and the respondent also the prolonged alienation of the respondent from the marital company of her husband, apparently, without any justifiable cause, nurses, an inference of their marital ties being irretrievably broken down, thereupon, also with their emotional ties coming under severe stress and strain, any refusal by this Court, to annul their marital ties would be worthless. Consequently, the findings rendered by the learned District Judge are not anvilled upon proper and mature appreciation of evidence on record rather they are sequelled by his mis-appreciating the germane and apt material avialable on record. 12. For the foregoing reasons, it is apt to clinchingly conclude of with the marital ties of the petitioner/appellant herein with the respondent herein standing broken down irretrievably hence, rendition of a decree qua severance of their marital ties would be both just and expedient. Consequently, the instant appeal is allowed. Accordingly, the marriage inter se the petitioner/appellant and the respondent herein is ordered to be dissolved. In sequel, the judgment and decree impugned before this Court is quashed and set aside. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.