Madhya Pradesh High Court
Smt. Prabha Verma vs Rakesh Kumar Verma Judgement Given By: ... on 21 October, 2013
Author: Rajendra Menon
Bench: R.S. Jha, Rajendra Menon
1
HIGH COURT OF MADHYA PRADESH AT JABALPUR
First Appeal No : 181 Of 2002
Smt. Prabha Verma
V/s
Rakesh Kumar Verma
Present : Hon'ble Shri Justice Rajendra Menon.
Hon'ble Shri Justice R.S. Jha.
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Shri Anil Kumar Jain, learned counsel for the appellant.
Shri Neeraj Ashar, learned counsel for respondent.
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JUDGMENT
21.10.2013 Per Rajendra Menon, J :
This is appellant's appeal under Section 28 of the Hindu Marriage Act challenging the judgment and decree dated 21.12.2001 passed by the Additional District Judge, Rewa in Hindu Marriage Act Case No.100-A/1997 whereby a suit filed by the respondent husband for dissolution of marriage has been allowed.
2. Parties herein were married at Jabalpur on 4.2.1991 according to the Hindu custom prevailing at the relevant time. After the marriage, as certain dispute arose, the suit in question was filed by the respondent/husband in the year 1997. In the suit filed for dissolution of marriage under Section 13 it was the case of respondent husband that after the marriage was solemnized at Jabalpur the parties went to stay together in the husband's house at Rewa. The husband was working in 2 Baikuntpur and it is alleged that the marriage was fixed after father of the husband came to Jabalpur and saw a girl. It is said that the girl's father was working in the police department and at the time of fixing of marriage by impersonation some other girl was shown to the father, but in the marriage mandap the present appellant was presented for marriage. It is stated that when some protest was tried to be made, using his police power the appellant's father threatened the husband and his family members. It was further alleged that the wife is more than 15 years older than the appellant and marriage was solemnized by misrepresentation. Further allegations are made with regard to non-
consumption of marriage, strained relationship between the parties and it is stated that wife left the husband's house after 4-5 days and started living with her parents in Jabalpur. It was said that appellant was born and bought up in Jabalpur and she was not interested in staying with her husband in Rewa or a remote place like Baikunthpur. That apart, allegations were made against the appellant with regard to making false allegation of demanding dowry by the husband and his family members, causing injury to her. It is stated that she made a false complaint and tried to got all the family members and husband arrested and involved in a criminal case. It was stated that apart from misrepresentation the wife has deserted the husband and the act of making false complaint amounts to cruelty, on these grounds the suit in question was filed.
3. The wife denied the allegation and stated that all allegation are incorrect the husband and his family members were demanding dowry, even though at the time of marriage a sum of Rs.51,000/- and articles worth Rs.50,000/- was given it is stated that false case has been filed only for the purpose of seeking divorce.
4. It may be taken note of that parties have stayed together only for a few days after the marriage and based on the criminal complaint filed certain proceedings were initiated against the husband and his 3 family and an application filed by the appellant wife for restitution of conjugal rights under Section 9 of Hindu Marriage Act and further application for maintenance under Section 125 of CrPC have also been dismissed.
5. Be that as it may be. Based on pleadings of the parties the following issues were framed by the trial court, the issues framed were :
(I) Whether the respondent wife has left her husband's house and is living separately for a long period of time ? (this issue is answered in favour of husband and is held to be proved)
(ii) Whether the act of the respondent wife against her husband amounts to mental harassment and cruelty ? (this issue is answered in favour of respondent husband)
(iii) Whether the respondent wife left the house of her husband due to harassment and mental and physical cruelty by the husband and his family members ? (this issue is answered against the respondent wife by holding that she has failed to prove the fact)
(iv) Relief and cost ?
6. From the material available on record it is seen that in support of his contention the plaintiff husband examined himself namely Shri Rakesh Kumar Verma as PW-1, his mother as PW-2 and his uncle as PW-3. Certain letters and documents pertaining to criminal case were also filed. However, inspite of giving various opportunities as the appellant wife did not appear and did not lead any evidence, nor cross- examined the witness of the plaintiff husband, the suit has been decided based on evidence that have came on record.
7. Learned counsel appearing for the appellant took us through the material available on record and his first contention was that an ex- parte proceedings have been held without granting due opportunity of 4 leading evidence to the appellant wife and, therefore, the entire judgment and decree passed in the manner done without granting due opportunity to lead evidence to the appellant wife is illegal, the second ground canvassed was that the allegation of cruelty, mental harassment and desertion by appellant wife is not established and, therefore, the judgment and decree warrants interference.
8. Per contra learned counsel for respondent husband took us through various order-sheets and argued that suit was pending since 1997 and upto 28.7.2001 it was being adjourned due to delaying tactics adopted by the appellant wife. It is stated that at every stage she was delaying the matter without any just cause or reason, her witnesses were not present and matter was proceeded with. He invites our attention to order sheet dated 28.11.2001 and 27.11.2001 and argued that it was the appellant's counsel, who stated that the appellant does not want to lead evidence and now appellant cannot blame the court for the act committed by appellant in delaying the proceedings, finding the appellant to be negligent in leading evidence and delaying the matter for more than 5 years, the court proceeds to close evidence of the appellant, therefore, it was argued that no error is committed. That apart, taking us through the evidence and material that came on record learned counsel argued that in decreeing the suit the court below has not committed any error warranting interference.
9. We have heard learned counsel for the parties and perused the record. The following questions arise for consideration in this appeal :
1. Whether the trial court was right in proceeding in the matter by rejecting prayer of the appellant to lead the evidence ?
2. Whether the findings recorded by the trial court is proper and is based on due appreciation of evidence available on record ?5
3. Whether on the facts and circumstances of case dissolution of marriage can be said to be proper and upheld by this Court ?
10. So far as the first question is concerned, records indicate that the suit in question was filed on 13.10.1997. Thereafter, defendant wife was served and she appeared through her counsel on 28.11.1997, proceedings commenced in the matter and on various dates the case was adjourned at the instance of defendant wife, as she was filing various applications. In the meanwhile, she also filed Civil Revision before the High Court, as a result proceedings were stayed by the High Court in Civil Revision No.185/1997 and between the year 1998 to 19.01.2000 the matter was stayed by the High Court and finally on 19.01.2000 the Civil Revision was dismissed by this court. From 23.3.2000 upto 19.04.2000 none appeared for the appellant. It was only on 10.05.2000 that the husband brought to the notice of court the order passed by the High Court on 19.01.2000 with regard to dismissal of Civil Revision. Accordingly, the matter was fixed for evidence on 05.11.2001 the appellant appeared along with her advocate Shri Brijendra Mishra. It is seen that on 05.11.2001 the case was fixed for evidence of parties. On that date in the morning one Shri Laxmishankar Tiwari, Advocate and Shri Brijendra Mishra, Advocate appeared for the appellant, Shri Laxmi Shankar Tiwari Advocate informed the court that some Advocate is coming from Jabalpur and, therefore, case be taken up at 1 o'clock in the afternoon, counsel's prayer was allowed and when case was taken up at 1 O'clock none appeared upto 3.15 pm. Thereafter Shri Brijendra Mishra appeared and sought for adjournment on the ground that senior counsel was busy in the high court and he will not come today and a prayer for adjournment is made. This prayer was rejected and the court informed the counsel that unnecessarily time shall not be extended, three witnesses of the plaintiff/respondent were present in the court, they were examined. After examination of witnesses the counsel for appellant 6 informed the court that he does not want to cross-examine the witness of plaintiff and he also stated that the appellant has closed her evidence and does not want to lead any evidence. Accordingly, evidence of appellant was closed and case was fixed for final argument on 8.11.2001. From 8.11.2001 upto 28.11.2001 the case was adjourned from time to time because neither the appellant or her counsel advanced final arguments but went on filing various applications seeking time for cross- examination of witnesses and raising various objections. The learned court dealt with the matter and on 28.11.2001 found that on one reason or the other the appellant is some how trying to get the matter delayed. The case is pending since 1997 and has been adjourned on various dates. A detailed order was passed by the court on 28.11.2001 indicating the non-cooperative attitude of the appellant and her counsel and thereafter finally arguments were heard after rejecting all the prayer made by the appellant for adjournment, the matter decided. On a close scrutiny of order-sheets available on record it is clear that appellant was not at all interested in defending the matter properly, she was trying to delay the proceedings at every stage and even when the case was listed for evidence instead of co-operating and leading evidence she was trying to delay the matter on one pretext or another by filing applications and seeking adjournments. On the facts and circumstances of the case the learned court below had no option but to proceed in the matter after closing the evidence, when the counsel for appellant stated that he does not want to cross-examine the witness and further made a statement that the appellant does not want to lead any evidence, when this was done by the appellant counsel Shri Brijendra Mishra, the appellant appeared along with another counsel on 28.11.2001 and stated that Shri Brijendra Mishra Advocate was not her counsel and he had no instructions. Considering all these factors a detailed order was passed on 28.11.2001 and the learned court found that the appellant was represented by Shri Brijendra Mishra Advocate and another Advocate Shri Laxmishankar 7 Tiwari and they had been represented her on the basis of vakalatnama submitted. Finding the statement made by the appellant with regard to representation by an unauthorized person being unsustainable, the prayer was rejected.
11. Having analyzed the proceedings in detail we are of the considered view that appellant was not cooperating in the proceedings of the court, she was only delaying the matter and without any reasonable cause she had delayed the proceedings for more than 5 years, that being so, the court has not committed any error in proceeding with the matter, accordingly, the question No.1 is answered by holding that the trial court did not commit any error in rejecting prayer of appellant to adduce evidence, as appellant was not at all interested in adducing the evidence before trial court on 8.11.2001 or on 24.11.2001 and 27.11.2001. Records indicate that appellant was not even present in the court neither did she file any application or affidavit for adducing her evidence under Order 18 Rule 4 CPC. It is a case where only a prayer is made for leading evidence but the appellant who was present in the court to show her willingness to record evidence nor did she take any positive step to lead evidence. Accordingly, in proceeding with the matter and closing right of the appellant to lead evidence, court has not committed any error warranting interference. The appellant has not shown before us any justifiable reason to say that the appellant was genuinely interested in giving evidence. Accordingly, her conduct only shows that she was somehow delaying the proceedings.
12. So far as question Nos. 2 and 3 are concerned it is seen from the evidence and documents that have come on record that appellant after her marriage stayed with her husband only for few days, she thereafter came to her parents place in Jabalpur and started living with them. That apart, she had filed various complaints against husband and in-laws and it was found that father of appellant was a police officer, he 8 had misused his powers and some false criminal complaints and case were lodged and registered, appellant has also made a false allegation of demand of dowry and her conduct does not show that she is interested in living with her husband. All these factors have been considered by the court and it has been found that a ground of dowry or cruelty and mental harassment is made out. Accordingly, as the decree passed is based on the evidence and material available on record we see no reason to interfere into the matter. Accordingly question Nos.2 & 3 are answered by holding that learned court has passed the order based on the documents and evidence available on record and after due consideration has recorded a proper finding that desertion and cruelty by appellant is proved and in decreeing the suit the court below has not committed any error warranting interference. That apart, it is seen that after marriage which was solemnized on 4.2.1991 the parties have lived together only for few days and are living separately since then.
13. Under such circumstances we see no reason to interfere into the matter, the appeal is, therefore, dismissed.
(RAJENDRA MENON) (R. S. JHA)
JUDGE JUDGE
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