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2019 DIGILAW 2301 (RAJ)

Sangeeta Pareek v. Veerendra Tiwari

2019-08-27

INDERJEET SINGH, S.RAVINDRA BHAT

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JUDGMENT : Inderjeet Singh, J. 1. This appeal is directed against the judgment and decree dated 15.07.2017 passed by the learned Family Court, Jhunjhunu in Civil Misc. Case No. 293/2014 (34/2016) (130/2016), whereby the application filed by the appellant under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter to be referred as 'Act of 1955') was dismissed. 2. Brief facts of the case are that the appellant (hereafter 'wife') filed an application under Section 13(1)(ia) of the Act of 1955 against the respondent (hereafter 'husband') before the learned Family Court, Jhunjhunu seeking decree of divorce on the ground of cruelty. It was stated that the marriage of the applicant with non-applicant (hereafter 'the husband') took place as per Hindu Customs on 27.04.2001 and out of this wedlock one son born on 24.06.2003 and one daughter was born on 28.12.2005 respectively. It was further stated in the application that both of them were living together as husband and wife but the behavior of the husband with her was very cruel. The husband on the instigation of his father, brother and bhabhi used to torture and misbehave with her. It was further stated that for a long period she kept quiet and ultimately she told about such behavior of the husband to her parents and other family members. It was further alleged that at the time of birth of her son in the year 2003 her father gave a lot of gifts but the husband demanded more dowry and harassed her for about two years; she again gave birth to a daughter in the year 2005 and the behavior of the husband was cruel to her. Routinely he used to misbehave and torture her and her family members with demand of dowry. It was also stated in the application that the husband used to consume drugs (Ganja) and beat to her along with children often and ultimately the husband threw her out of his house along with children in the year 2011 due to non-fulfillment of demands of dowry. 3. It has also come on record that on account of demand of dowry by the husband and cruelty by him, the wife lodged a complaint which the police registered FIR (394/2012) against him in which after investigation a charge-sheet was filed, by the investigating agency on 23.11.2012. 3. It has also come on record that on account of demand of dowry by the husband and cruelty by him, the wife lodged a complaint which the police registered FIR (394/2012) against him in which after investigation a charge-sheet was filed, by the investigating agency on 23.11.2012. The charges were also framed under Section 498-A and 406 of IPC against the husband. It was further stated that on account of cruelty made by the husband she started living separately since May, 2012. Lastly, she claimed a decree of divorce under Section 13(1)(ia) of the Act of 1955. 4. The husband filed a reply to the application denying the allegations of cruelty. It was further stated that the wife started living with her parents since 2011. The husband helped her to undergo higher studies and ultimately she got the degree of B.Ed. It was alleged that as she wanted to marry someone else, she lodged a false criminal complaint against him, alleging that he made of demands of dowry. He stated that he was ready to live with his wife. Therefore, he sought rejection of the petition seeking divorce. 5. The learned Family Court on the basis of pleadings of the parties framed the following issues:- ^^U;k;ky; ds le{k fopkj.kh; fcanq ;g gS fd vk;k vkosfndk o vukosnd ifr&iRuh gS rFkk vukosnd }kjk fookg ds i'pkr ls gh vkosfndk ds lkFk fujarj Øwjrk dkfjr dh xbZ rFkk bl vk/kkj ij vkosfndk fookg foPNsn dh fMØh izkIr djus dh vf/kdkjh gS\ bl rudh dks lkfcr djus dk Hkkj vkosfndk ij jgk gSA^^ 6. The wife in support of her case produced two witnesses namely AW-1 (herself) and AW-2 Surendra Pareek and she also produced copy of FIR No. 394/2012, marriage certificate and the charge-sheet and got them exhibited as Ex. 1, Ex. 2 & Ex. 3 respectively. 7. The husband in support of his case produced two witnesses namely NAW-1 (himself) and his brother-in-law NAW-2 Damodar Pareek and also produced copy of the warrant which was exhibited as Ex. 4. 8. The Family Court after hearing the parties and going through the evidence submitted on behalf of the parties, dismissed the application submitted by the wife under Section 13(1)(ia) of the Act of 1955. 9. 4. 8. The Family Court after hearing the parties and going through the evidence submitted on behalf of the parties, dismissed the application submitted by the wife under Section 13(1)(ia) of the Act of 1955. 9. Counsel for the wife submitted that the finding of the trial court on the issue of cruelty is perverse as there was sufficient material on record to show that the husband after solemnization of the marriage treated the wife with cruelty. Counsel further submits that the husband was in a habit of consuming drugs (Ganja) and on a number of occasions in an intoxicated condition, he had beaten her along with children and harassed her for fulfillment of the demand of dowry even after the birth of two children. Counsel further submits that ultimately the wife had to file a criminal complaint against her husband on which FIR was lodged by the police and after due investigation the charge-sheet under Section 498-A & 406 was filed before the competent court of jurisdiction. 10. Counsel further submitted that the trial court failed to discuss the fact that the husband was in a habit of consuming drugs and therefore, the finding given by the Family Court with regard to cruelty deserves to be set aside and the wife is entitled to a decree of divorce. 11. Counsel further submits that the husband in his cross-examination before the Family Court also admitted that a case is also pending against him in the court at Chirawa with regard to maintenance and domestic violence. Counsel further submits that the appellant is a working lady and has been living separately since May, 2012 and there is no possibility of her living with the husband, now after a lapse of 7 years and she is presently living with her parents along with her two children peacefully. 12. Counsel further submitted the family court did not consider the admission made by the husband in his reply that wife is not residing with him since the year 2011. 13. There is none present on behalf of the husband despite service. Heard counsel for the wife and perused the record. 14. 12. Counsel further submitted the family court did not consider the admission made by the husband in his reply that wife is not residing with him since the year 2011. 13. There is none present on behalf of the husband despite service. Heard counsel for the wife and perused the record. 14. The record reveals that the wife i.e. AW-1 has stated in her evidence before the family court that her husband's behavior was cruel towards her and that he was in the habit of consuming drugs and on several times was in an intoxication condition he misbehaved/tortured her and children also. She also proved by her evidence that as regards the demand for dowry, an FIR was lodged against the husband in which after due investigation a charge-sheet was filed under Sections 498-A & 406 of IPC. 15. AW-2 Surendra Pareek the appellant-wife's brother stated in his evidence that his sister's marriage with the non-applicant was solemnized on 27.04.2001. He specifically stated in his evidence that the behavior of the non-applicant with his sister was cruel, that he was in the habit of consuming drugs and he had seen him in the intoxicated condition. 16. The husband NAW-1 stated in his evidence that his wife lodged a false criminal complaint against him as she wanted to live separately and she obtained a B.Ed degree and she does not want to live with his parents. He further stated that just to obtain the decree of divorce, a criminal complaint too was lodged by his wife against him. 17. NAW-1 admitted in his cross-examination that apart from the case under Section 498-A & 406 of IPC, one another case with regard to maintenance and domestic violence is also pending against him before the competent court of law at Chirawa. 18. NAW-2 who is brother-in-law of the husband stated that the husband did not commit acts of cruelty towards his wife and that she filed the divorce petition after completing her studies and getting a B.Ed degree, she got job and wished to live separately. He further stated that she is living separately since last 7-8 years. 19. After a careful consideration of the evidence on record and after considering the arguments advanced by the counsel for the wife, the finding given by the learned Family Court on the issue of cruelty in our considered opinion are erroneous and unsustainable. He further stated that she is living separately since last 7-8 years. 19. After a careful consideration of the evidence on record and after considering the arguments advanced by the counsel for the wife, the finding given by the learned Family Court on the issue of cruelty in our considered opinion are erroneous and unsustainable. Firstly, the evidence adduced by AW-1 & AW-2 regarding the fact that the husband was in the habit of consuming drugs was not considered by the learned Family Court. The witnesses stated that after consuming drugs, the husband used to misbehave with his wife, and torturer her. This amounts to cruelty towards the wife. Secondly, the husband demanded dowry and in this regard a criminal complaint was lodged against him for which an FIR was registered against him. Ultimately the charge-sheet was filed under Section 498-A & 406 of IPC. In our considered view the demand of dowry by the husband amounts to cruelty with his wife. Thirdly, the husband himself has admitted in his cross-examination before the learned Family Court that wife has lodged a criminal case against him with regard to maintenance and domestic violence which is pending in the court at Chirawa. The learned Family Court failed to take note of his admission while passing the impugned judgment. Lastly, the wife is a working woman and is living separately from her husband since last 7-8 years along with her two children. 20. The husband never made an attempt to prove that he had ever sought reconciliation with his wife. Furthermore, there is no material on record, establishing that he attempted to meet her, or the children. On the contrary, he has apparently not maintained them. His statement about willingness to reside with the wife is unworthy of credence and therefore cannot be accepted. 21. In the present case, the wife, in the opinion of this court has been able to establish that the husband, on account of his habit of drug use, resorted to physical acts of cruelty to his wife. He apparently even beat the children. These facts, deposed to by the wife and her brother, were not contradicted in cross-examination. 22. The Supreme Court in the matter of K. Srinivas Rao Vs. D.A. Deepa, reported in (2013) 5 Supreme Court Cases 226 in para 10 has held as under:- "10. He apparently even beat the children. These facts, deposed to by the wife and her brother, were not contradicted in cross-examination. 22. The Supreme Court in the matter of K. Srinivas Rao Vs. D.A. Deepa, reported in (2013) 5 Supreme Court Cases 226 in para 10 has held as under:- "10. Under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, a marriage can be dissolved by a decree of divorce on a petition presented either by the husband or the wife on the ground that the other party has, after solemnization of the marriage, treated the Petitioner with cruelty. In a series of judgments this Court has repeatedly stated the meaning and outlined the scope of the term 'cruelty'. Cruelty is evident where one spouse has so treated the other and manifested such feelings towards her or him as to cause in her or his mind reasonable apprehension that it will be harmful or injurious to live with the other spouse. Cruelty may be physical or mental." 23. In the facts and circumstances before us, we are of the view that the finding given by the learned Family Court on the issue of cruelty is erroneous and deserves to be set aside and the wife is entitled to a decree of divorce. 24. As a result, the appeal has to succeed. The impugned judgment and decree passed by the learned Family Court dated 15.07.2017 is quashed and set aside. The wife is granted the decree of divorce on the ground of cruelty. The marriage solemnized between the parties as alleged on 27.04.2001 is hereby dissolved. The decree be prepared accordingly. 25. The appeal is allowed in the above terms. All pending applications stand disposed of.