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2021 DIGILAW 351 (RAJ)

Mukesh Kumar Sain v. Sanju Sain

2021-02-11

MANOJ KUMAR VYAS, SABINA

body2021
JUDGMENT 1. Appellant has filed the appeal challenging the judgment and decree dated 25.05.2018 passed by the Family Court No. 1, Jaipur (hereinafter referred to as 'the Family Court'), whereby, divorce petition filed by the appellant was dismissed. 2. Case of the appellant, in brief, was that he had got married to the respondent on 20.01.2003 as per Hindu rites. The parties were blessed with two children out of the wedlock and the said children were residing with the appellant. Conduct of the respondent from the first day of marriage was weird. Respondent started dancing by opening her hair and strongly stamped her feet and started singing songs in a low voice and would become unconscious etc. Appellant got scared from the said actions of the respondent and narrated the same to his parents. In October,2003, respondent went to her parental home with her brother and appellant came to know that the respondent was pregnant. Respondent stayed in her parental house after the birth of the child and when appellant went to bring the respondent from her parental house in the year 2006, he was taunted by the family members of the respondent and he returned home. Thereafter, respondent returned to the matrimonial home and stayed with the appellant for about 7-8 months. In the year 2007, appellant became sick and respondent started breaking articles lying in the house. Then, father of the respondent took the respondent to her parental home and she stayed there for about eight months. Appellant brought the respondent to his house and started residing separately from his parents on account of the weird actions of the respondent. However, behaviour of the respondent remained cruel. Respondent was shown to the doctor and it was found that she was suffering from schizophrenia. Respondent has deserted the appellant since 19.07.2009. 3. The respondent, in her reply to the divorce petition, admitted the factum of marriage with the appellant and the birth of the children, but denied other allegations levelled in the divorce petition. It was averred by the respondent that she had been thrown out of the matrimonial home in February, 2012. 4. On the basis of pleadings of the parties, issues were framed by the Family Trial Court. 5. Both the parties led their evidence before the Family Court to prove their case. 6. It was averred by the respondent that she had been thrown out of the matrimonial home in February, 2012. 4. On the basis of pleadings of the parties, issues were framed by the Family Trial Court. 5. Both the parties led their evidence before the Family Court to prove their case. 6. Learned Family Court vide judgment and decree dated 25.05.2018 dismissed the divorce petition filed by the appellant. Hence, the present appeal by the appellant. 7. Learned counsel for the appellant has submitted that the marriage between the parties had broken down irretrievably and the divorce petition filed by the appellant was liable to be allowed. In support of his arguments, learned counsel has placed reliance on judgment of the Hon'ble Supreme Court in Samar Ghosh Vs. Jaya Ghosh (2007) 4 SCC 511 , wherein, it was held as under: "95. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties." 8. Learned counsel for the respondent has submitted that, although, the plea had been taken by the appellant that the respondent was suffering from mental ailment, but had failed to establish the said fact. Respondent has filed a case under the provisions of the Protection of Women from Domestic Violence Act, 2005 and has also filed custody case claiming custody of her children and the said cases are still pending. 9. Although, the appellant had taken the plea that the respondent was suffering from some mental ailment, but he had failed to establish the said fact by producing any medical evidence in this regard. Appellant has placed on record only Mark-1. As per Mark-1 (a medical slip), respondent had been prescribed amoxicillin and anti-cold medicine. Hence, from the said slip, it cannot be said that the respondent was suffering from any mental ailment. 10. Appellant has placed on record only Mark-1. As per Mark-1 (a medical slip), respondent had been prescribed amoxicillin and anti-cold medicine. Hence, from the said slip, it cannot be said that the respondent was suffering from any mental ailment. 10. The fact that the appellant has levelled allegations against the respondent that she was suffering from some mental ailment and had failed to establish the same, rather amounts to mental cruelty to the respondent. 11. It is the case of the appellant that the respondent had deserted him, but the respondent has alleged that she had been thrown out of the matrimonial home. A suggestion was put to D.W.2 Prakash Sain, brother of the respondent, during his cross-examination wherein he stated that it was correct that Sanju had come to her parental home in the year 2012 and had thereafter stated that she had been thrown out of the matrimonial home. This suggestion by the appellant reveals that the respondent had come to her parental home in the year 2012. P.W.2 Shyam Lal, father of the appellant, has also stated in his cross-examination that there was contact between the parties from the year 2009 to 2012. In these circumstances, learned Family Court rightly came to the conclusion that the appellant had failed to establish the plea of desertion set forth by him. 12. In the facts and circumstances of the present case, learned Family Court, thus, rightly came to the conclusion that the appellant has failed to establish his case and has rightly decided the issues against the appellant and in favour of the respondent. 13. Judgment relied by learned counsel for the appellant fails to advance the case of the appellant, as it is based on different facts. Appellant cannot take benefit of his own wrongs. 14. No ground for interference by this Court is made out. Dismissed.