Rajasthan High Court - Jaipur
Smt. Rajanti vs Phool And Anr. on 28 September, 1989
Equivalent citations: 1990(1)WLN422
JUDGMENT V.S. Dave, J.
1. This is one of the rarest of the rare cases where though the court is wanting to help the petitioner is unable to do so precisely for three reasons, one firstly, obstinacy of the parents in not realising the future of their daughter, secondly, the daughter, herself being in such a great influence of her father that she is unable to be persuaded for her own benefit despite the fact that court intended to secure a future for her and thirdly, the conflict between the law and conscious.
2. Rajanti, who is a divorcee, now has approached this Court udder Section 482, Cr.PC against the judgment dated 7-11-1986 passed by the Addl. Sessions Judge, Gangapur City camp Hindaun confirming the order of Judicial Magistrate, Hindaun dated 17th May, 1983.
3. The facts of this case have chequrred history, Smt. Rajanti filed en application under Section 125 Cr, PC against Dr. Phool as early as 15th June, 1979 alleging therein that both petitioner and non-petitioner are resident of village Kairwara, Police Station, Salimpur district Sawai Madhopur. They were married seven years earlier according to customs of the community and they lived together only for one year after marriage. The non-petitioner is now living with her parents since she was treated with cruelty and was deserted by her husband who used to say that he will marry again and she should go wherever she wants or may jump in a well. According to her, her husband is medical practioner and has good practice. He also possesses agricultural land and house etc having a monthly income of about Rs. 10,000/-. Hence, he should be directed to pay her maintainance.
4. This application was opposed to by non-petitioner, Dr. Phool. He admitted that they were married on 25-4-1971. His case is that she has made false allegations about cruelty and in fact it was she who bad deserted him and is living with her parents. His further case is that he is still a student her allegation about his income is highly exorbitant and is totally false. His parents are also financially very weak and with great difficulty they are giving him medical education. He raised some additional pleas and stated that he was a minor when he got married and in fact some of the relations induced his father for this marriage. According to him, the petitioner, Smt. Rajanti, and her father are not belivers of God (Nanstik) while he and his parents are religious minded persons and, therefore, immediately after marriage, there became some difference in the family in as much as petitioner's father bad even broken the statue of God Hanumanji. He has also been imprisoned in the past for his such activities and his daughter i.e. his wife is also going the same way. He further pleaded that he made several efferts to bring her but he was ill-treated and beaten by his in-laws to the extent that he had to gel himself treated by a Doctor. His further case is that when he had gone to Ajmer for his study in Medical College, she left his partners who are old aged persons and never returned. This reply was submitted as early as 10th June, 1981. Before this reply was filed, the court had directed to proceed ex-parte which order was set aside by order dated 28th May, 1981 on payment of cost of Rs. 60/-. An opportunity was given because the non-petitioner was under treatment at Tata Memorial Hospital, Bombay. Parties led evidence and the petition was dismissed on 17th May, 1983. Daring the course of trial, the evidence produced by the parties included some of the letters alleged to have been written by the Don-petitioner to the petitioner's family members: and herself. It is also pertienent to mention here that non-petitioner Dr. Phool filed a copy of the judgment of District Judge, Ajmer by which a decree of divorce had been granted in favour of the non-petitioner vide judgment dated 24th August, 1982. The learned Magistrate while rejecting the application held the present case to be a case of desertion by wife of her husband and also took note of the decree of divorce on the ground of desertion. She challenged the order of the learned Magistrate in appeal before Additional Sessions Judge, who held that no appeal is maintainable. A prayer was made to treat this as a revision but the learned Additional Sessions Judge holding that there is no legal point involved and, therefore, he refused to convert it as a revision petition and dismissed the same. How ever, for this short purpose, the case remained pending before the learned Additional Sessions Judge for almost 3.5 years. Thereafter, the present application has been filed.
5. Record of the case was called for because this Court wanted to go into the merits of the case particularly looking to the fact that the revisional court bad rejected the petition holding that correctness, constitutionality and propriety of the judgment of the trial court was not under challenge.
6. When this case came up for hearing on 28-4-1988, I intended to remand the case to the court of learned Additional Sessions Judge as the judgment has not been given on merits but the learned Counsel for the parties submitted that proceedings are very old and the entire matter should be decided in this Court else they Would unnecessary taxed who belong to backward class. A detailed order-sheet in this respect was drawn on 28-4-1988 regarding calling for the record. Thereafter, the record has been received and the case has been heard in detail.
7. It is submitted by learned Counsel for the petitioner that this is one of the rare case where when a person from backward class who has received education after his marriage and have become a Doctor therefore, refuses to live with an illiterate lady from the village who does not know the modern etiquettes. It is submitted that both the courts below have not taken note of the letters written by Dr. Phool to Dharm Singh, Hira Lal and the petitioner herself. It is further submitted that the trial court had become biased against the petitioner because an ex-parte decree of divorce has been passed against him on the ground of desertion. It is submitted that the decree passed has-been obtained by fraud and, therefore, should not have been given any weight. It is also submitted that beating being given to the petitioner is proved beyond any reasonable doubt and even is corroborated from the letters written by the husband. Initially, the dispute started with small matter but it went on increasing to the extent that she was thrown out of the house and then the non-petitioner who had become a Doctor was not ready and willing to keep the petitioner who was a villager. He was interested in getting himself remarried and that was the reason that he willfully neglected her throughout. It is again submitted that this fact is also borne out from the letters. Learned Counsel for the petitioner further submits that law has not been considered in true perspective and findings contrary to the ingredient of Section 125, Cr. PC have been given. It is submitted that non-petitioner is having very good practice as a Doctor and is earning about Rs. 10,000/- in a month, hence, he should be asked to maintain the petitioner despite the decree of divorce.
8. I have considered the rival contentions and have perused the entire record. There are three aspects of this matter, one is the evidence regarding ill-will between the parties which is borne out from the letters and transpires in the conduct, secondly, a decree of divorce by Matrimonial Court and its effect and lastly, despite all hurdles, court's sincere efforts in persuading the petitioner to negotiate the matter to her advantage.
9. So far as the evidence is concerned, the entire trend of cross-examination by the non-petitioner is ill-temper of the non-petitioner and also that so far as the non-petitioner is concerned, he was not willing to marry the, petitioner. So far as the latter aspect is concerned, it is belied by the letters but the former one is corroborated. It appears that Rajanti is little hot-headed and had no control on her tongue as a result of which she went in confrontation with the members of his family and her husband tesulting in breaking of the relations and they have started living separately. Rajanti (PW 1) has been cross-examined at length. It is borne out from her cross-examination, that she did live at her husband's place but she was in a great mental torture, and in that state of mind, if there was a mental cruelty, she left her husband' soon but it cannot be said that she deserted her husband voluntarily. It may legitimately be inferred from a complete perusa[ of her statement that she has virtually become a revolt but the question is who is responsible for that.
10. In Ex. P. 1, which is a letter addressed to Dharam Singh who is a nephew of the petitioner. In this letter he has stated that his aunt wants to go to Danalpur but she should not be permitted to go there and particularly she should not be allowed to take ornaments. He has mentioned about the ornaments which she had been wearing. Regarding that also, he had written in the letter that if she wants to go to her parents, they should also be kept here only. He has referred to some incidents where there was some incident about the ornaments in the past. His anger is apparent in this letter where he used the following two sentences:
vxj tkos rks ekrkth ls dg nsuk fd mlds ihNs ,d dkyh eVdh QksMs+ A eq>s le> ugh vkrk fd og vius&vki dsk D;k le>rh gS \ Another letter Ex P. 2 is written by him to his own father where he has mentioned about a second marriage soonafter he gets service. He has stated that he will non even name his wife i.e. the petitioner, Rajanti, and see will remember this throughout her life. Ex.P3 is a letter which has been written to the petitioner by him. This is a detailed letter which discloses the conflicts which were going on in the mind of the non-petitioner due to the family circumstances. This letter indicates his extreme love for her and sympathy towards her but at the same time an anger towards her behaviour with his parents. This letter has an admission that she used to be beaten by his parents but the cause was her lack of control on her tongue A perusal of these letters shows that they intended to live together but the other members of the family were coming in way and he himself has mistrust towards her which widened the gulf between two.
11. The trial Court, in the instant case, had relied upon a decision of the District Court dated 24-10-82 where in a decree of divorce had been granted in favour of the petitioner on the ground of desertion. During the course of arguments, it was also submitted that proceedings for setting aside the decree were also taken which matter has also been decided. Since I could not lay my hands on any of the papers concerning the proceeding of divorce, I found it essential to get the case listed for 'to be mention' so that the parties could be asked to place the same on record as the same would have binding effect in these proceedings. Learned Counsel for the respondents placed on record the photo-stat copy of the order of the trial Court passed on 24-8-82 and that of the order passed in an application u/O. 9, Rule 13 CPC on 4-2-89. I have perused both these orders and it is clear from the order dated 24-8-82 that a decree or divorce had been granted on the ground of desertion on the part of the petitioner who for no reasonable cause had withdrawn herself from the company of the respondent She had left the house of her husband without his permission and at the time when he required her presence most as he had sufferred serious illness. Against this judgment, an application under Order 9 Rule 13 CPC had been filed wherein the learned Judge, Family Court, Ajmer held that the petitioner had the knowledge of the order and the ex-parte decree of divorce dated 24-8-82 on or before 17-5-83 because she has mentioned about the same decree in an application but the application under O. 9 Rule 13 CPC was filed after five years on 28-4-88 and all this period of five years has not been explained. The application was thus, dismissed as barred by limitation.
12. In view of the aforesaid, therefore, I am bound by the finding: arrived at by the matrimonial Court that the petitioner had withdrawn herself from the company of the respondent without any reasonable cause and it was not the respondent who neglected or refused to keep the petitioner. This ex-parte order may be right or wrong and may be that there is evidence on: record of this case to the contrary yet it is not legally permissible for me to look into that. There is no legal bar that maintenance can be refused only on the ground of divorce because even a divorce is entitled to maintenance under Section 125 Cr.PC and in the instant case looking to the position in which the parties are placed, I would have very much liked to grant her maintenance as she is fighting for survival but at the same time law does not permit the same because of the finding of the matrimonial court. Finding is a technical difficulty in my way. I called the parties in person also to find out if some compromise could be arrived at and I learnt that though there is a decree of divorce, yet some other cases are pending between the parties. It was suggested to them that decree of divorce having become final, it would be in the interest of all the concerned to pass a peaceful life separately and for that, the husband may pay a reasonable amount, the interest of which may help the petitioner in maintaining herself The husband made an offer of depositing upto Rs. 20,000/- in her name n case all the cases are withdrawn by either side and that she could easly get about Rs. 200/- p.m. for maintaining herself. But she was not willing to compromise the matter and to me it appears because of influence from her father who was present in the Court and has made litigation as a prestige issue. I can only bemoan that I failed in my endevour to help a lady who really reserves maintenance which legally I could not grant in accordance with law as it exisis today.
13. In the result, this miscellaneous application under Section 482, Cr. PC fails and is here by dismissed.