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2017 DIGILAW 1345 (GAU)

SUNITA GUPTA v. RAHESH SAHU

2017-10-23

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT : Ajit Singh, J. This appeal is by the wife, whose petition for divorce has been dismissed by the impugned judgment dated 31.10.2014 passed in T.S.(D) No. 5/2014 by the Additional District & Sessions Judge, Hojai, Sankardev Nagar. 2. The marriage of appellant-wife with respondent-husband was solemnized on 1.7.2009 according to the Hindu Rites and Ceremonies. At the time of marriage, the father of wife spent substantial amount and gave valuable gifts to the husband as per his demand. But, within few days, husband disclosed to wife that their marriage was against his consent, as he was having love affairs with another woman. The husband also demanded Rs. 5 lacs. more from wife, failing which, he treated her with physical and mental cruelty. The husband almost every day physically assaulted the wife by giving fists and kick blows. The wife informed about her miserable condition to her elder brother Raju Gupta, who, in turn, requested the husband not to torture, but to no avail. Instead, the husband and his family members insisted for payment of Rs. 5 lacs. or else, they refused to keep her with them. Therefore, on 5.8.2009, Raju Gupta brought the wife to her parental home and since then she is living there. 3. The husband, instead of bringing back his wife to his house, sent innumerable filthy messages through cell phone saying that he does not recognize her as his wife and that he will continue to torture her and even wants divorce from her. 4. On 9.1.2011, the father and uncle of husband again went to the wife and reiterated their demand of Rs. 5 lacs. with a threat that husband would remarry another woman if the demand was not met. Parents of wife and brother expressed their inability to fulfil the illegal demand and requested them to take her back, but they refused to do so. 5. The wife then filed complaint Case No. 86/2011 under Section 498(A) and 406/34 of the Indian Penal Code in the Court of the Sub-Divisional Judicial Magistrate, Hojai, Sankardev Nagar. The wife has also filed MR Case No. 37/2011 in the Court of Judicial Magistrate First Class, Hojai, Sankardev Nagar for grant of maintenance allowance against husband. In both the cases, husband is avoiding service of notice on him and as such, the matters are still pending for adjudication. The wife has also filed MR Case No. 37/2011 in the Court of Judicial Magistrate First Class, Hojai, Sankardev Nagar for grant of maintenance allowance against husband. In both the cases, husband is avoiding service of notice on him and as such, the matters are still pending for adjudication. On these facts, the wife filed a petition for divorce against the husband, who, despite service, refused to participate in the proceedings. In the result, the Court proceeded ex-parte. 6. The wife, in her evidence, clearly testified about the physical assault on her by the husband for not fulfilling his demand of Rs. 5 lacs. She also testified that husband had disclosed to her about his having love affairs with another woman and he was not interested in marriage with her. The evidence of wife was not controverted by the husband in any manner. And yet, the trial court dismissed her petition for divorce on the ground that she failed to prove cruelty by husband on her. Aggrieved, the wife has filed the present appeal. And, in the appeal also, despite paper publication of notice, the husband has not made any appearance. 7. After hearing the learned counsel for the appellant, we are of the considered view that the appeal deserves to be allowed. There is ample un-controverted evidence of wife on record that she was beaten almost every day by the husband for not satisfying his demand of Rs. 5 lacs. As already mentioned above, the wife was also informed by the husband that his marriage with her was against his consent and he was in love with another woman. There is nothing on record to suggest that husband made any attempt to bring the wife from her parental home to live a married life with her. The record also reveals that both of them have been living separately since 5.8.2009 and there is no chance of reconciliation between them. On these facts, wife cannot be denied decree of divorce from the husband. 8. We accordingly set aside the impugned judgment and allow the appeal. A decree for divorce be immediately prepared in favour of the wife.