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2019 DIGILAW 441 (UTT)

BHUDEV SHARMA v. NEERU

2019-08-08

R.C.KHULBE, SUDHANSHU DHULIA

body2019
JUDGMENT Per: Hon'ble R. C. Khulbe, J. This appeal has been filed against the impugned judgment and decree dated 08.10.2013 passed by the learned Judge, Family Court, Pauri Garhwal in matrimonial Suit No.98 of 2010 “Bhudev Sharma Vs. Smt. Neeru", whereby the petition filed by the appellant under Section 13 (I) (i-a), (i-b) of the Hindu Marriage Act, 1955 has been dismissed. 2. The brief facts of the case are that the marriage of the parties was solemnized on 26.05.1998 at Ganeshpur, Roorkee as per Hindu rites and rituals. After the marriage the respondent stayed with the appellant for few months at his house and performed her matrimonial obligations. But in the month of November, 1998 the respondent left the matrimonial house and went to her parental house at Ganeshpur and did not return even on the request of the appellant. Thereafter, the respondent filed a suit no.32 of 2004, “Smt. Neeru Vs. Bhudev" for seeking maintenance. Thereafter, the respondent filed another criminal case no.1201 of 2006, “State Vs. Bhudev Sharma" against the appellant and his family members in the Court of Judicial Magistrate, Roorkee, which was dismissed on 09.11.2009. The appellant went to Jhansi for employment and filed a suit at Jhansi for restitution of conjugal rights but the respondent had replied in the case filed for Dowry Prohibition that she did not want to go with appellant, due to which the appellant had to withdraw the said suit on 04.04.2006. The respondent continuously tortured the appellant by different means; even she did not come back for the last 11 years and has completely failed in performing her matrimonial obligations. With these averments the divorce petition was filed. 3. The respondent filed her written statement, in which the factum of marriage with the appellant was admitted. She denied rest of the averments as made in the suit and it was said that the appellant and in-laws of the respondent were not happy with the dowry given at the time of marriage. The respondent performed her matrimonial obligations with the appellant but the appellant continuously tortured her for demand of dowry. She denied rest of the averments as made in the suit and it was said that the appellant and in-laws of the respondent were not happy with the dowry given at the time of marriage. The respondent performed her matrimonial obligations with the appellant but the appellant continuously tortured her for demand of dowry. The respondent conveyed this demand to her parents on which the father and relatives of the respondent came to the house of appellant and convinced the appellant and his family members, but in the month of November, 1998 the family members of the appellant ousted the respondent from her matrimonial home. Thereafter, a criminal case under Section 406 IPC was filed against the appellant, which is pending before the Sessions Judge, Haridwar. On 20.10.2002, when parents of the respondent had gone to Rishikesh for some work and the respondent was alone in the house, the appellant along with his elder brother Munesh Sharma came to the parental house of respondent at Ganeshpur and demanded Rs.50,000/- (Rupees Fifty Thousand) and a motorcycle. The respondent told them that her father is not in a position to fulfill the demand for dowry then the appellant and his elder brother committed marpeet with the respondent. It was also stated that the respondent is ready to live with the appellant and prayed that the suit be dismissed. 4. After exchange of the pleadings and hearing counsel for both the parties, the learned Family Court framed the following issues as under:- 1) Whether the respondent is living separately from the petitioner/appellant without any cause, as stated in the suit, if so, its effects? 2) Whether the respondent has been treated with cruelty, harassed physically and mentally for demand of dowry by the appellant, if so, its effects? 3) Whether the appellant is entitled for any relief? 4) Whether the respondent has treated the appellant with cruelty, if so, its effects? 5. In support of his evidence, the appellant examined himself as PW-1 and submitted his examination-in-chief by way of an affidavit 23Ka exhibited as 23Ka/2 PW-1. While respondent-Smt. Neeru examined herself as DW-1 and submitted her examination-in-chief by way of an affidavit Ex.35Ka/1 exhibited as 35Ka/3 and examination-in-chief of DW2, Pinki exhibited as 37Ka/3. 6. 5. In support of his evidence, the appellant examined himself as PW-1 and submitted his examination-in-chief by way of an affidavit 23Ka exhibited as 23Ka/2 PW-1. While respondent-Smt. Neeru examined herself as DW-1 and submitted her examination-in-chief by way of an affidavit Ex.35Ka/1 exhibited as 35Ka/3 and examination-in-chief of DW2, Pinki exhibited as 37Ka/3. 6. After considering the evidences on record, the learned Family Court, Pauri Garwal dismissed the divorce petition filed by the appellant under Section 13(I), (i-a) and (i-b) of the Hindu Marriage Act, 1955. Aggrieved by it, the present first appeal has been filed. 7. We have heard learned counsel for the parties and perused the entire material on record. 8. The appellant Bhudev Sharma said in his evidence that his marriage was solemnized on 26.05.1998 at Ganeshpur, Roorkee with Hindu rites and rituals. In the month of November, 1998 the respondent left the matrimonial house and went to her parental house at Ganeshpur and did not return even on the request of the appellant. The respondent filed suit No.32 of 2004, “Smt. Neeru Vs. Bhudev" seeking maintenance before Family Court, Roorkee. Thereafter, respondent filed criminal case no.1201 of 2006, “State Vs. Bhudev Sharma" before Judicial Magistrate, Roorkee, Haridwar against appellant and his family members with false allegations, which was dismissed. The appellant went to Jhansi for employment and filed suit no.246 of 2004 under Section 9 of Hindu Marriage Act, 1955 for restitution of conjugal rights in Family Court, Jhansi, which was withdrawn by the appellant. It is also stated that in the examination-in-chief that with the intention to harass the appellant, the respondent filed suit no.565 of 2010, “Neeru Sharma Vs. Bhudev Sharma" under Section 406 IPC, which was dismissed by the Court adopting procedure under Section 203 of IPC. The respondent is continuously harassing the appellant and his family members by different means since 1998 and even after 12 years she is not coming back to stay with the appellant in his house and has completely failed in discharging her matrimonial obligations. She is living separately for the last 14 years. Therefore, he is entitled for a decree of divorce. 9. Respondent-Smt. Neeru stated in her evidence that she is ready to live her husband. In her cross-examination, she denied that she wants to live independently and is still ready to live with the appellant as his wife. 10. She is living separately for the last 14 years. Therefore, he is entitled for a decree of divorce. 9. Respondent-Smt. Neeru stated in her evidence that she is ready to live her husband. In her cross-examination, she denied that she wants to live independently and is still ready to live with the appellant as his wife. 10. It is an admitted fact that the appellant Bhudev Sharma is husband of the respondent-Neeru. So far as the cruelty is concerned, it is the allegation of the appellant that the respondent has filed a criminal case against him with false allegations while the respondent has stated in her statement that the appellant has himself filed a petition under Section 9 of Hindu Marriage Act, 1955 for restitution of conjugal rights in Family Court, Jhansi. 11. It is an admitted fact that the respondent-wife has filed an application seeking maintenance against the appellant and another criminal case under Section 406 IPC before the Judicial Magistrate, Roorkee. So far as the criminal case No.565 of 2010, “Neeru Vs. Bhudev Sharma" is concerned, it was dismissed under Section 203 Cr.P.C. against which a revision was filed before the Sessions Judge and the matter was remanded back to the Judicial Magistrate. So far as the criminal case no.1201 of 2006, “State Vs. Bhudev Sharma" is concerned, the Judicial Magistrate, Roorkee has acquitted the appellant for the offence punishable under Section 498-A IPC and Section 3 read with Section 4 of Dowry Prohibition Act on 09.11.2009. Mere filing of criminal case under Section 498-A IPC and Section 3 read with Section 4 of Dowry Prohibition Act it cannot be said that the said criminal case was filed by the respondent against the appellant-husband with false allegations. 12. The appellant has admitted in his statement that after 15 days of the marriage he had gone to Jhanshi and he cannot say as to when he came back to Kotdwar from Jhanshi. He also admitted that he did not took his wife Neeru along with him to Jhansi. He also admitted that there were cordial relations between the parties after marriage. The respondent Neeru never misbehaved with him. He has no knowledge as to when he went to Roorkee to take his wife. He has no knowledge as to when the respondent refused to live with him. He also admitted that there were cordial relations between the parties after marriage. The respondent Neeru never misbehaved with him. He has no knowledge as to when he went to Roorkee to take his wife. He has no knowledge as to when the respondent refused to live with him. While the respondent Neeru has stated in her statement that she is ready to live with her husband. 13. There is no evidence on record that the respondent has treated the appellant with cruelty. Mere filing of the petition under Section 125 Cr.P.C. for seeking maintenance is not a ground for cruelty. So far as filing of another criminal under Section 406 IPC is concerned, it also does not amount to cruelty. Apart from that, the appellant has admitted that he also filed a petition under Section 9 of Hindu Marriage Act, 1955 for restitution of conjugal rights in Family Court, Jhansi. He also admitted that later on the said case was withdrawn by the appellant, which shows that the appellant was not interested in continuing with the marriage. It is an admitted fact that the appellant never took his wife along with him to Jhansi. He himself left his wife at Kotdwar and went to Jhansi after a few days of the marriage. After marriage he never went to Roorkee for taking his wife back. He admitted that he left his wife at her parental home in Roorkee, which shows that it was not the intention of the respondent to desert the appellant. Although the respondent is living in her parental home at Roorkee, but it was not the intention of the respondent to desert the appellant permanently. It was the fault of the appellant who never took her wife along with him at Jhansi, where he was working. We are of the view that the appellant has failed to prove cruelty. 14. So far as the desertion is concerned, Section 13(I) (i-b) of Hindu Marriage Act, 1955 provides that any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. 15. 15. It is the separation of one spouse from the other with an intention on the part of the deserting spouse to put an end to cohabitation and it would be without reasonable cause. The expression “willful Negliect" in matrimonial law has been interpreted as neglect to discharge the matrimonial duties or obligations. It is necessary that there must be desertion to put an end to matrimonial relations and cohabitation. 16. In Lachman Utamchand Kirpalani Vs. Meena alias Mota, AIR 1964, SCC 40, Lordships of Supreme Court has held that that desertion means the intentional permanent forsaking and abandonment of one spouse by the other without the other's consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. The Hon'ble Apex Court in the said judicial pronouncement relying upon so many decision of different High Courts and Supreme Court held that for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, (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. 17. It is well settled Law that the burden of providing desertion—the “factum" as well as the “animus deserendi"—is on the petitioner, and he or she has to establish beyond reasonable doubt, to the satisfaction of the Court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. In other words, even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the petitioner-husband has to still satisfy the Court that the desertion was without just cause. 18. In the present case, the respondent had not deserted her matrimonial home willfully. The appellant has himself admitted that he had left his wife at her matrimonial home on her request. There is no evidence on record, which shows that the appellant went Roorkee to bring his wife back. 18. In the present case, the respondent had not deserted her matrimonial home willfully. The appellant has himself admitted that he had left his wife at her matrimonial home on her request. There is no evidence on record, which shows that the appellant went Roorkee to bring his wife back. He never took his newly wedded wife with him at his workplace in Jhanshi, which shows that the appellant is negligent and he does not want to keep his wife with him. 19. From the evidence it is true that respondent-Neeru has filed a suit no.32 of 2004, “Smt. Neeru Vs. Bhudev" before the Family Court, Roorkee for seeking maintenance. Learned Family Court has granted a maintenance @ Rs.1,000/- per month from the date of institution of the suit. 20. There is no evidence on record that the respondent has deserted the appellant permanently while the respondent is still willing to live with the appellant at her matrimonial home. Although the appellant has filed a petition under Section 9 of the Hindu Marriage Act for Restitution of Conjugal Rights against the respondent at Jhanshi but after filing the petition he himself withdrew that petition, which shows that the appellant is not willing to keep his wife with him. No efforts have been made by the appellant to bring his wife back to consummate the marriage even during this appeal. The learned Family Court had decided all the issues based on proper evidence, we do not find any illegality in the impugned judgment. 21. Taking overall view of the entire evidence on record and the judgment delivered by the trial Court, we firmly believe that there is no need to take a different view other than the one taken by the Trial Court. The appeal lacks merits and liable to be dismissed and is accordingly, dismissed.