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2018 DIGILAW 326 (RAJ)

Raj Kumar Sharma S/o Shri Ganpatlal Sharma v. Manju W/o Shri Rajkumar Sharma

2018-01-24

AJAY RASTOGI, DINESH CHANDRA SOMANI

body2018
JUDGMENT : Dinesh Chandra Somani, J. 1. The instant appeal has been preferred by the appellant-husband under Section 19 of the Family Courts Act against the judgment and decree dated 25.08.2012 passed by the Judge, Family Court No.2, Jaipur (hereinafter referred as “the Family Court”) in Matrimonial Case No.459/2007, whereby the petition filed by the appellant-husband under Section 13 of the Hindu Marriage Act for seeking divorce, was dismissed. 2. The skeletal material facts necessary for disposal of this appeal are that the appellant-husband has filed a petition under Section 13 of the Hindu Marriage Act (hereinafter referred to as “the Act”) for seeking divorce on the ground of cruelty and desertion with averment that the appellant was married to the respondent on 28.04.1999 in Chomu District Jaipur according to Hindu rites and customs. The marriage has not been registered. Thereafter, the respondent-wife was living with the appellant/husband at Bhrahmkoop Ki Bagichi, Jaipur City. Out of the wedlock, the respondent-wife gave birth to a male child named Roshan, who is presently 7 years 6 months old. This is pleaded case of the appellant-husband that after marriage, he came to know that the respondent-wife is suffering from mental derangement and she behaves like distracted. The appellant-husband got her treated. She had been fine for a while but after sometime she started doing her own actions. Respondent-wife’s brother Kailash took a loan of Rs.80,000/- from the appellant for his son’s marriage and Pappu @ Hari Mohan took a loan of Rs.50,000/- from the appellant for marriage of his own. When the appellant-husband demanded the loan amount, the respondent-wife started misbehaving with the appellant-husband on instigation of her brothers. The respondent-wife used to blame parents of the appellant-husband on false accusations, though they were living at Kota. 3. It is also pleaded by the appellant-husband that along with son, all the jewellery and clothes given to respondent-wife from both sides, she went to her parents’ house to attend marriage of her brother Pappu @ Hari Mohan, but thereafter she did not come back to her matrimonial home and she is staying there under influence of her mother and brother. Despite request, respondent-wife did not come to her matrimonial home even when the appellant’s mother had an accident. 4. Despite request, respondent-wife did not come to her matrimonial home even when the appellant’s mother had an accident. 4. It is further pleaded that the appellant-husband, his parents and relatives made several efforts for bringing the respondent-wife back from her parents’ house but she did not come. On 15.01.2006, the appellant-husband himself went to the respondent-wife for bringing her to matrimonial home but she refused. Thereafter, the appellant-husband filed a petition for restitution of conjugal rights. During conciliation, the respondent-wife refused to live with the appellant-husband, despite payment of maintenance allowance which was settled in Lok Adalat held on 11.09.2007. It is also stated that without any reasonable cause, the respondent-wife has deserted the appellant-husband for more than two years and prayed for dissolution of the marriage and decree of divorce in his favour. 5. The respondent-wife filed her written statement. In the written statement, the respondent-wife admitted the fact of solemnization of marriage with the appellant, living together in Jaipur as husband and wife and giving birth to a male child Roshan, as pleaded in the divorce petition. The respondent-wife denied all the allegations levelled by the appellant-husband in his petition for dissolution of marriage with regard to cruelty and desertion. It has been stated by the respondent-wife in her written statement that the appellant-husband has filed the petition for restitution of conjugal rights for his escape as he had apprehension of action under Section 498-A, 406 of IPC. But the respondent-wife did not take action for 498-A, 406 of IPC, therefore the appellant-husband himself withdrew the petition filed under Section 9 of the Hindu Marriage Act. 6. It is also stated that the respondent-wife is physically and mentally healthy. Brothers of the respondent-wife never took any loan from the appellant-husband. The appellant-husband is a person of angry nature, who used to give beatings to the respondent-wife on petty matters. The appellant-husband was demanding dowry and gave beatings to the respondent-wife and drove her out of the house in November, 2003 to solemnize second marriage and to get more dowry. The appellant-husband himself has deserted the respondent-wife. It is also pleaded that neither the appellant/husband came on 15.01.2006 to bring back the respondent nor his relatives ever came to her and she prayed to dismiss the husband’s petition for divorce. 7. On basis of the pleadings of the parties, learned Family Court framed the following issues :- 1. The appellant-husband himself has deserted the respondent-wife. It is also pleaded that neither the appellant/husband came on 15.01.2006 to bring back the respondent nor his relatives ever came to her and she prayed to dismiss the husband’s petition for divorce. 7. On basis of the pleadings of the parties, learned Family Court framed the following issues :- 1. Whether after solemnization of the marriage, non-petitioner-wife has treated the petitioner with cruelty as alleged in the petition? 2. Whether the non petitioner-wife has deserted the petitioner-husband for more than two years without any reasonable excuse? 3. Relief? 8. In support of the petition, the appellant-husband examined AW-1 Raj Kumar Sharma, AW-2 Radhey Shyam, AW-3 Mahaveer Prasad and exhibited five documents as Ex.1 to Ex.5. In defence, the respondent-wife examined DW-1 Manju Sharma, and DW-2 Sugani. 9. The learned Family Court after evaluating and appreciating the evidence available on record and after hearing both the parties, arrived at a conclusion that the appellant-husband has failed to prove that he was treated by the respondent-wife with cruelty and that he was deserted by the respondent-wife for more than two years and dismissed the petition filed by the appellant-husband vide impugned judgment dated 25.08.2012. 10. Being aggrieved and dissatisfied with the impugned judgment dated 25.08.2012, the appellant-husband has preferred this appeal. 11. At the beginning of the arguments, Mr. M.M. Ranjan, Sr. Advocate assisted by Mr. Daulat Sharma, Advocate appearing for the appellant has fairly conceded that the “cruelty” is not proved as alleged by the appellant-husband in his petition, and he constrained his arguments only on second ground pleaded in the petition for dissolution of marriage i.e. “desertion”. As such the findings of learned Family Court on issue no.1 with regard to “cruelty” does not require consideration of this Court and we have to evaluate the evidence and pleadings of the parties in relation of “desertion” only. 12. Learned senior counsel for the appellant-husband submitted that it is proved from the evidence produced on record that in the year 2003, the respondent-wife went to her parents’ house to attend the marriage of her brother. The appellant-husband also attended the marriage. Thereafter, the appellant-husband came back to his home but the respondent-wife did not return. After 15- 20 days, the appellant-husband went to the respondent-wife for bringing her to matrimonial home but she did not come. The appellant-husband also attended the marriage. Thereafter, the appellant-husband came back to his home but the respondent-wife did not return. After 15- 20 days, the appellant-husband went to the respondent-wife for bringing her to matrimonial home but she did not come. The appellant-husband went to the respondent-wife several times for bringing her back. The appellant-husband went with his maternal uncle Radhey Shyam, uncle Mahaveer Prasad and Vidhya Prakash, brother-in-law Vinod also, who made efforts for bringing the respondent-wife back from her parents’ house but they also failed as she refused to come back. 13. Learned counsel also submitted that thereafter, the appellant-husband filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act in the Family Court, Jaipur. Even then the respondent-wife did not return to her matrimonial home, therefore the appellant-husband withdrew the petition for restitution of conjugal rights and filed the petition for dissolution of marriage. Learned counsel also submitted that appellant’s mother had an accident but despite request, she did not come to the matrimonial home. Conduct of the respondent-wife is to neglect the appellant-husband willfully without his consent and that too without any reasonable cause to leave the matrimonial home. Therefore, the impugned judgment passed by the learned Family Court requires interference of this Court and prayed to quash and set aside the impugned judgment, and to allow the appellant’s petition for dissolution of marriage. 14. Per contra, Mr. Tejashwi Sharma, learned counsel for the respondent-wife controverted the submissions made by learned senior counsel for the appellant-husband and supported the impugned judgment passed by the Family Court. 15. Learned counsel for the respondent-wife submitted that it is proved from the evidence that the appellant-husband used to give beatings to the respondent-wife on petty matters. The appellant-husband was demanding dowry and gave beatings to the respondent-wife and drove her out of the house in November, 2003, since then the respondent-wife is living in her parents’ house. Learned counsel also submitted that the respondent/wife is not living willingly in her parents’ house but in compelling circumstances. It is also proved that the respondent-wife has not neglected and deserted the appellant-husband, rather it is proved that the appellant-husband himself has deserted the respondent-wife and drove her out of the house after giving beatings, which is reasonable excuse for the respondent-wife to live in her parents’ house. It is also proved that the respondent-wife has not neglected and deserted the appellant-husband, rather it is proved that the appellant-husband himself has deserted the respondent-wife and drove her out of the house after giving beatings, which is reasonable excuse for the respondent-wife to live in her parents’ house. Learned counsel supported the impugned judgment passed by the learned Family Court and prayed to dismiss the appeal being devoid of merits. 16. We gave our anxious consideration to rival submissions of learned counsel for the parties and perused the record of the case. 17. In order to prove his case, the appellant-husband examined himself as AW-1 and produced two witnesses Radhey Shyam AW-2 and Mahaveer Prasad AW-3. 18. Appellant-husband Raj Kumar Sharma (AW-1) deposed that the respondent-wife lived with him for three years. In the year 2003, the respondent-wife along with the appellant-husband, went to attend marriage of her brother. After 2-3 days, the witness returned back but the respondent-wife did not come. After 15-20 days, the witness went for bringing the respondent to matrimonial home. The witness went 15-20 times for bringing the respondent-wife to matrimonial home. The respondent/wife told the witness to come with uncle Mahaveer Prasad and Vidhya Prakash, maternal uncle Ghanshyam. Then the witness went alongwith them but the respondent-wife did not come. In the year 2005 and 2007, the witness and his uncle went for bringing the respondent in the marriage of his cousins but she did not come. Thereafter he filed a petition for restitution of conjugal rights. Even then she did not come, therefore he withdrew the case. The witness also stated that the respondent-wife never came back to him after the year 2003. The witness further deposed that in the year 2007, his father had a heart attack and the witness went to the respondent for bringing her but she did not come. In 2008, mother of the witness had an accident and he went for bringing the respondent but she did not come. The respondent is living separately for last 7 years and she has willfully neglected him. In cross-examination, the witness denied that the respondent would have sustained injury in her right hand on account of beatings given by him. 19. Radhey Shyam (AW-2) is maternal uncle of the appellant-husband. The witness deposed that after the marriage, the respondent lived in her matrimonial home for about 3-4 years. In cross-examination, the witness denied that the respondent would have sustained injury in her right hand on account of beatings given by him. 19. Radhey Shyam (AW-2) is maternal uncle of the appellant-husband. The witness deposed that after the marriage, the respondent lived in her matrimonial home for about 3-4 years. Thereafter, the respondent along with the petitioner went in the marriage of her brother but she did not return after solemnization of the marriage. After 5-7 days, Raj Kumar (the petitioner) went for bringing the respondent but she did not come. The witness also went for bringing the respondent, then mother of the respondent told him to come with uncle and maternal uncle of the petitioner. Then, the witness again went alongwith Mahaveer, Vidhya Prakash and Vinod, even then the respondent did not come. The witness also deposed that despite request, the respondent did not come even in the marriage of daughters of Mahaveer Prasad. The witness further deposed that the respondent did not come even when father of the petitioner had an heart attack in 2007 and mother of the petitioner had an accident in 2008. Raj Kumar (the petitioner) filed a case for restitution of conjugal rights, even then the respondent did not come. The witness further deposed that now both of them cannot live together. In cross-examination, the witness denied that the petitioner ever gave beatings to the respondent. The witness himself deposed that none of them ever told to him in this regard. 20. Mahaveer Prasad (AW-3) is uncle of the petitioner, who also supported the case of the petitioner. The witness gave almost similar statement and deposed that the respondent is living in her parents’ house since 2003. The respondent went to her parents’ house to attend marriage of her brother but she did not return thereafter. The witness also deposed that along with Radhey Shyam and Vidhya Prakash, he went for bringing the respondent but she did not come. The witness also deposed that he went for bringing the respondent in the marriages of his daughters solemnized in November, 2005 and in 2009 but she did not come. 21. The witness further deposed that he went for bringing the respondent when father of the petitioner had a heart attack also but she did not come. The respondent did not come also when mother of the petitioner had an accident. 21. The witness further deposed that he went for bringing the respondent when father of the petitioner had a heart attack also but she did not come. The respondent did not come also when mother of the petitioner had an accident. The respondent is living separately from 2003. 22. In rebuttal, Manju Sharma (DW-1), the respondent herself deposed that the petitioner used to give her beatings on petty matters. The petitioner is a person of angry nature. Once the petitioner gave beatings and broke her left hand. The witness also deposed that the petitioner and his family members used to pressurize her for divorce to solemnize second marriage. Lastly in November-2003, the petitioner gave beatings and drove her and son Roshan out of the house, since then she is living in her parents’ house. The witness also deposed that she did not file dowry case against the petitioner. Now she does not want to live with the petitioner but she does not want divorce. The witness further deposed that the petitioner himself has deserted her since November, 2003 without reasonable excuse. In cross-examination, the witness stated that she is living separately from the petitioner for last 8 years. The witness denied the suggestion that after death of her grandmother-in-law, her uncle-in-law Jagdish Prasad, Mahaveer Prasad and brother of the petitioner Prem would have come for bringing her to matrimonial home. The witness admitted that she did not go to console when her grandmother-in-law expired. 23. Sugani (DW-2) is mother of the respondent-wife who supported the case of the respondent and deposed that after some time of the marriage, the petitioner and his family members started to give beatings to the respondent and they also gave beatings when the respondent was eight months pregnant. Then they brought the respondent to her parents’ house. The respondent and her son are living with the witness for last 7-8 years. The witness also deposed that once the petitioner came for bringing the respondent. In cross-examination, the witness deposed that they made efforts for sending the respondent to her matrimonial home but the petitioner threatened to break her hand or to burn by acid. The witness also deposed that father, maternal uncle and uncle of the petitioner came for bringing the respondent but they told that they will give beatings to the respondent, therefore she did not send the respondent with them. 24. The witness also deposed that father, maternal uncle and uncle of the petitioner came for bringing the respondent but they told that they will give beatings to the respondent, therefore she did not send the respondent with them. 24. In AIR 2002 SC 88 Adhyatma Bhattar Alwar vs. Adhyatma Bhattar Sri Devi, the Apex Court in para 8 of it’s judgment held as under:- The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition. This clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include willful neglect of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes willful neglect of the petitioner by the other party to the marriage. Therefore, for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period. 25. On analysing the evidence, it transpires that the respondent herself did not depose that she was ever beaten by the petitioner during her pregnancy. Whereas her mother Sugani (DW-2) gave an exaggerated statement that the respondent was beaten by the petitioner during her pregnancy. Therefore the evidence given by Sugani (DW-2) cannot be relied upon without other corroborative evidence. Further, she did not saw any alleged incident of beating and misbehaviour of the appellant and she is a hearsay witness only. 26. Case of the appellant-husband is that his father, relatives and he himself made several efforts for bringing the respondent-wife back to matrimonial home. Further, she did not saw any alleged incident of beating and misbehaviour of the appellant and she is a hearsay witness only. 26. Case of the appellant-husband is that his father, relatives and he himself made several efforts for bringing the respondent-wife back to matrimonial home. In this respect, respondent-wife Manju Sharma (DW-1) deposed that appellant-husband never came for bringing her to matrimonial home. She also stated that father, uncle, maternal uncle of the appellant-husband never came. Whereas mother of the respondent-wife, Sugani (DW-2) deposed that father, maternal uncle and uncle of the appellant-husband came for bringing the respondent-wife and once the appellant-husband also came. Sugani (DW-2) in her cross-examination, deposed that they made several efforts for sending the respondent to her matrimonial home but the petitioner (husband) threatened to break her hand or to burn by acid, whereas respondent-wife Manju Sharma does not speak anything about said threats. To show the intention to live together, the respondent-wife stated that she used to contact the petitioner (husband) through telephone, but no such suggestion was given to the petitioner (husband) in his cross-examination. Thus, there are contradictions on material facts in the evidence given by respondent-wife herself and her mother Sugani (DW-2). 27. The necessary ingredients to prove the matrimonial offence of “desertion” under Section 13 (1) (i-b) of the Hindu Marriage Act, 1955 are as under :- (i) The factum of separation; and (ii) The intention to bring cohabitation permanently to an end animus deserendi. 28. From pleadings of the parties and evidence produced by them, it is revealed that the appellant-husband has filed the petition for dissolution of marriage on 20.11.2007 stating therein that the respondent-wife is living separately and has deserted the appellant-husband for more than two years. The respondent-wife has also pleaded that the appellant-husband gave beatings and drove her out of the house in November, 2003. The appellant-husband Raj Kumar deposed that the respondent did not return after 2003. Radhey Shyam (AW-2) and Mahaveer Prasad (AW-3) corroborated the version of the appellant. The respondent-wife also stated that in November-2003, the husband drove her out of the house and since then she is living in parents’ house. Thus indisputably, from November-2013, the appellant and the respondent are living separately. Thus, the factum of separation is established. 29. Radhey Shyam (AW-2) and Mahaveer Prasad (AW-3) corroborated the version of the appellant. The respondent-wife also stated that in November-2003, the husband drove her out of the house and since then she is living in parents’ house. Thus indisputably, from November-2013, the appellant and the respondent are living separately. Thus, the factum of separation is established. 29. It is reveled from the evidence on record that the respondent-wife had gone to her parents’ house to attend marriage of her brother solemnized in the year 2003, which cannot be construed as her expression or her desire to forsake her husband permanently but after marriage of her brother, the respondent/wife did not return to the matrimonial home, though efforts were made by the appellant-husband, his parents and relatives. In the meantime, father of the appellant-husband had heart attack and mother of the appellant-husband had an accident, but the respondent/wife did not come to the matrimonial home, despite requests and efforts for bringing her. 30. It is also revealed that in the meantime, grandmother of the appellant-husband expired but the respondent-wife did not come to the matrimonial home to console. 31. Mahaveer Prasad (AW-2) is uncle of the appellant-husband. It also transpires that in the meantime, marriages of two daughters of Mahaveer Prasad (AW-2) were solemnized in November, 2005 and 2009. Mahaveer Prasad (AW-2) himself went for bringing the respondent/wife to the matrimonial home but she did not come. There is nothing on record to suggest that the respondent-wife ever expressed her desire to join her husband at the matrimonial home. Moreover the respondent herself deposed on oath that now she does not want to live with the petitioner. 32. The allegations of demand of dowry, beating and misbehaviour of the appellant-husband as alleged by the respondent-wife, are general in nature with no details. Admittedly, the respondent-wife did not file any complaint in any Court/police station with regard to alleged demand of dowry and the incidents of beatings. The respondent-wife neither examined nor made any prayer to the Family Court to summon any relative or neighbour of the matrimonial home nor offered any explanation for not producing/summoning such evidence to substantiate the allegations of alleged demand of dowry, incidents of beating and misbehaviour of the appellant-husband. 33. The Cumulative effect of the circumstances and conduct of the respondent-wife is that she had given expression of animus deserendi. 33. The Cumulative effect of the circumstances and conduct of the respondent-wife is that she had given expression of animus deserendi. Thus, both the ingredients of “desertion” i.e. (i) factum of separation and (ii) animus deserendi have been established by the appellant-husband. The conduct of the respondent-wife seems to be more indicative of her firm determination not to return to the matrimonial home and discharge the obligation of matrimonial life. 34. Having regard to the facts and circumstance of the case the learned trial Judge was not right to record the finding that the petitioner-husband has not established the case of desertion by the respondent-wife and dismissed the petition for dissolution of marriage filed by the appellant-husband. Therefore, the finding of the learned Family Court qua the issue No.2 is not sustainable and has to be set aside. The appellant-husband has satisfactorily proved that the respondent-wife is guilty of having deserted him for a continuous period of more than two years preceding the filing of the petition for dissolution of the marriage and he is entitled for a decree of divorce under Section 13 (1) (i-b) of the Act, 1955. The appeal preferred by the appellant-husband deserves acceptance. 35. Accordingly, the appeal is allowed, the judgment impugned dated 25.08.2012 of the Family Court No.2, Jaipur is set aside. Petition filed by the appellant-husband under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage is allowed and marriage solemnized on 28.04.1999 between the appellant-husband and the respondent-wife is dissolved from today and a decree of divorce is granted in favour of the appellant-husband. No costs.