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2018 DIGILAW 667 (RAJ)

Kamla W/o Bhawani Shankar Meena (Bheel) v. Bhawani Shankar S/o Sohanlal Meena (Bheel)

2018-03-05

PRADEEP NANDRAJOG, VINIT KUMAR MATHUR

body2018
JUDGMENT : 1. Heard learned counsel for the appellant. 2. Marriage between the appellant and the respondent as per Hindu custom was solemnized on 20.5.1996. 3. The respondent filed a petition for divorce decree being granted on 23.3.2011 alleging mental cruelty, adultery and desertion against the appellant. 4. Case pleaded by the respondent was that after the marriage was solemnized in the year 1996 the appellant stayed with her parents for five years because she was pursuing her studies. During this period of five years the appellant developed illicit relationship with one Anil Vyas (impleaded as respondent no. 2 in the divorce petition) through whom she conceived but underwent an abortion. This fact respondent claims came to his knowledge after the appellant joined consortium with him. Pleading further that after the appellant joined him in their matrimonial house her attitude was hostile towards his family members and she would constantly threaten to hang herself, a threat to intimidate him and his family members. A child named Rahul born to the appellant was not conceived through him because at the alleged time of conception he was not mentally fit and was undergoing a stage of depression. The child was actually conceived through Anil Vyas. That the appellant lodged false and frivolous criminal cases against the respondent. That the appellant and her father practiced ritual (jadu-tona) on him and his family members. That since 3.11.2007 the appellant was living in adultery with Anil Vyas. 5. In the written statement filed the appellant denied the allegations made against her and pleaded dowry demand in sum of Rs. 25,000/- as the cause of the discord with additional cause, as pleaded in paragraph 3 of the written statement, “that the respondent had kept another woman in his house through whom a child was born”. 6. On the pleadings of the parties three issues were settled by the learned Judge, Family Court. The first was whether the appellant treated the respondent with cruelty. The second was whether the appellant left the matrimonial house without a justifiable cause. The third was whether the appellant was living in adultery with Anil Vyas (respondent No.2). 7. The respondent examined himself as AW1, his father as AW2, Lokesh as AW3 and one Bhajja as AW4. The appellant besides examining herself as NAW1 examined her father as NAW2, Nandlal as NAW3 and one Ramesh as NAW4. 8. The third was whether the appellant was living in adultery with Anil Vyas (respondent No.2). 7. The respondent examined himself as AW1, his father as AW2, Lokesh as AW3 and one Bhajja as AW4. The appellant besides examining herself as NAW1 examined her father as NAW2, Nandlal as NAW3 and one Ramesh as NAW4. 8. Suffice it to state as is expected in matrimonial cases where oral evidence is led, the appellant’s witnesses supported her version, the respondent’s witnesses supported his version. 9. The appellant could not prove her allegation that the respondent had started living with another woman in his house and a child was born to them. Similarly, the respondent could not prove against the appellant that she was having illicit relationship with Anil Vyas (respondent No.2) and had undergone an abortion when she conceived through him, as also that the child named Rahul was actually born from the relationship of Anil Vyas. 10. From the fact that the appellant had lodged FIR for offences punishable under Section 498A read with Section 406 IPC the learned Judge, Family Court concluded that this act constituted the act of cruelty. Thus, issue No.1 was decided against the appellant and so was issue No.2. Issue No.3 pertaining to the adultery was decided against the respondent and in favour of the appellant. 11. We agree with the submission advanced by learned counsel for the appellant that merely because the appellant lodged complaint against the respondent for offences punishable under Section 498A read with Section 406 IPC it could not be said that she had acted with cruelty, more so for the reason, by the time the impugned decision was pronounced, the trial in said FIR was on. 12. It may also be correct when the appellant urges that upon respondent not being able to prove allegations of adultery she could not be expected to live with him and thus had a good cause to withdraw from the consortium. 13. But the counter allegation of the appellant that respondent was living in adultery with another woman and through whom a child was born remains unproved. 14. It is thus a case of mutual cruelty. The appellant alleges adultery against the respondent and vice versa. Neither of them have been able to prove the same. 15. 13. But the counter allegation of the appellant that respondent was living in adultery with another woman and through whom a child was born remains unproved. 14. It is thus a case of mutual cruelty. The appellant alleges adultery against the respondent and vice versa. Neither of them have been able to prove the same. 15. In a judgment dated October 21, 2016 MAT.APP.(F.C.) 36/2014 Sandhya Kumari vs. Manish Kumar the Delhi High Court had noted that though irretrievable breakdown of marriage is not a ground for divorce, but in the judgments reported as 2006 (2) Mh.L.J.307 Madhvi Ramesh Dudani vs. Ramesh K.Dudani, 2007 (4) KHC 807 Shrikumar vs. Unnithan vs. Manju K.Nair, (1994) 1 SCC 337 V.Bhagat vs. D.Bhagat and (2006) 4 SCC 558 Navin Kohli vs. Neelu Kohli the concept of cruelty has been blended by the Courts with irretrievable breakdown of marriage. The ratio of law which emerges from said decisions is that where there is evidence that the husband and wife indulge in mutual bickering, leading to remonstration and therefrom to the stage where they target each other mentally, insistence by one to retain the matrimonial bond would be a relevant factor to decide on the issue of cruelty, for the reason the obvious intention of said spouse would be to continue with the marriage not to enjoy the bliss thereof but to torment and traumatize the other. 16. Thus not for the reasons given by the learned Judge, Family Court, for aforesaid reasons we maintain the decree of divorce granted by the learned Judge, Family Court. 17. The appeal is dismissed.