Rajasthan High Court - Jaipur
Satish Kumar Rathore vs Smt Pinki Rathore on 1 December, 2018
Author: G.R. Moolchandani
Bench: Chief Justice, G R Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Miscellaneous Appeal No. 4024/2014
Satish Kumar Rathore S/o Shri Ramnaraian, aged 34 years, by
caste Rathore, Resident of Yadav Mohalla, Ramganjmandi,
District Kota
----Appellant-Plaintiff
Versus
Smt Pinki Rathore Daughter of Shri Rameshchandra Indora, by
caste Rathore, Resident of Indora Namkeen Bhandar, Kala Khet,
Mandsaur, Madhya Pradesh.
----Respondent-Defendant
For Appellant(s) : Mr. Amit Jindal
For Respondent(s) : Mr. Arun Sharma
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE G R MOOLCHANDANI
Judgment reserved on :: 28th November 2018
Judgment pronounced on :: 1st December 2018
Judgment
[per Hon'ble G.R. Moolchandani, J.]
Appellant Satish Kumar Rathore has brought instant appeal against the judgment and decree dated 02.12.2014 passed by learned Family Court, Kota in Civil Case No.451/2011, whereby learned court below has dismissed the petition seeking annulment of marriage under Section 13 of the Hindu Marriage Act.
The pleadings discloses that petitioner Satish Kumar filed a petition for annulment of marriage reciting that the petitioner solemnized his marriage with defendant Smt. Pinki Rathore on 30.01.2005 and two children namely son Nakul and daughter Prachi were born, defendant Pinki was habitual of (2 of 12) [CMA-4024/2014] abandoning the matrimonial house and was accustomed to hurl disgraceful utterances and complaining trifles to the police. On 12.04.2009 while plaintiff was on duty, defendant went away to Mandsaur alongwith her father and took away cash worth ₹80,000/- alongwith jewellery, leaving son Nakul Rathore there.
Plaintiff visited Mandsaur after birth of his daughter but she refused to join matrimonial consortium and denied permission to meet and witness his daughter. On 10.05.2010 court below dismissed the petition preferred by the plaintiff under Section 9 of the Hindu Marriage Act seeking restitution of conjugal right because of a compromise arrived at between the couple. Defendant has levelled false allegations against the plaintiff and she is not residing with plaintiff since 30.03.2011 thus has neglected and deserted the plaintiff.
Defendant Smt. Pinki Rathore, while accepting factum of marriage has denied allegations of cruelty and desertion and has counter pleaded that after going to parental house she agreed to join matrimonial consortium, perceiving that plaintiff and his family members would mend and would change their attitude towards the defendant but they started demanding one lakh rupees from the parents of the defendant and perperated beatings, which constrained respondent to call her father, who too was maltreated and by the intervention of police, defendant could leave for her parental home, she is very much prepared to discharge her nuptial obligations, it has further been pleaded that defendant was tortured and harassed by her husband and by his parents. She was not provided with proper clothings, food and medicines, even expense towards her child delivery were borne by (3 of 12) [CMA-4024/2014] her parents and by causing torture, plaintiff had intended to extract more dowry from his in-laws. Case for the same is sub- judice against the plaintiff, she has not left the matrimonial house of her own accord but has been constrained to abandon it and is ready to join matrimonial consortium, the suit deserves to be dismissed.
Examining bilateral pleadings, learned court below framed following issues :-
(i) Whether attitude of the defendant has remained cruel ?
(ii) Whether without justifiable reason the defendant has deserted matrimonial company of plaintiff since 30.03.2011?
(iii) Relief.
Plaintiff appellant Satish Kumar Rathore and defendant respondent Smt. Pinki Rathore have recorded their respective testimony in support of their pleadings.
Heard both the sides and gone through the written- submissions, it has been urged by learned counsel for the appellant that respondent is habitual of abandoning the house of the appellant without consent and without any reason, she is quarrelsome and often disobey reasonable say of husband plaintiff, even she lodged a false FIR for the alleged offence under Section 498A of IPC, which was not found correct and appellant has been acquitted by the trial court, as such has maligned image of the appellant and a copy of the judgment is already on the record pertaining to acquittal of the appellant husband, appellant tried his best to reconcile and preferred an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights, upon compromise, petition was withdrawn. Respondent (4 of 12) [CMA-4024/2014] has again deserted appellant without any justifiable reason and has thus perperated curelty and desertion, she even never informed about birth of baby Prachi and has not permitted appellant to meet his newly born baby, so marriage be annulled and judgment passed by learned trial court be reversed. In support of submissions, appellant has relied upon the judgment 2015 (1) WLC (SC) Civil 150 K.Srinivas v. K.Sunita.
Per contra, it has been urged by learned counsel for the respondent Smt. Pinki that there is no infirmity or flaw in the judgment impugned since learned trial court has not faulted, respondent was given beatings and was demanded more dowry, she was not permitted to speak and to visit her parental house and was kept confined for years together and was permitted for short visits elapsing couple of years, respondent is innocent, she even tried her level best to reconcile. Considering and perceiving that appellant will mend his temparament, she resumed matrimonial consortium by reconciling during the pendency of Section 9 application preferred by the appellant and stayed in her matrimonial house but appellant did not mend and kept repeating thrashings and abuses and was even maltreated, which compelled respondent to summon her father for rescue, who too was maltreated and subjected to filthy abuses, appellant did not pay any penny for her subsistence nor visited to meet with his newly born she child, even child-birth expenses were borne by father of the respondent. Respondent Smt. Pinki is an ideal bride and is always prepared to discharge her matrimonial obligations, she will be forlorn and ruined, if the matrimonial bonds are snatched, learned trial court while deciding the matter pertaining to Section (5 of 12) [CMA-4024/2014] 498A of IPC, has taken note of compromise arrived at between the couple during pendency and reconciliation of petition under Section 9 of Hindu Marriage Act and has not "Honourably" acquitted the appellant. Matrimonial bonds are to be kept intact, respondent is ready to join her matrimonial house and she only wants graceful nutial relations, finding of learned trial court does not warrant interference and appeal deserves to be dismissed.
Perusal and scrutiny of the evidence discloses that couple has admitted that they resided comfortably and peacefully without any discord for about four to five years of the marriage.
A.W.1 Satish Kumar Rathore, while admitting aforediscussed aspect, has stated that his behaviour with his wife was befitting and the behaviour of his spouse was also good, they resided in matrimonial consortium for five years, during this period his spouse visited twice to her parental house after a gap of one and half years respectively. He has further stated that he was detained in connection with alleged crime under Section 498-A of IPC and has accepted that the couple regained matrimonial consortium after a mutual compromise arrived at between the parties during pendency of application preferred under Section 9 of Hindu Marriage Act for restitution of conjugal rights and has admitted Ex.5, compromise arrived to this effect, in cross- examination, he has stated that his wife had left the house for Mandsaur under the superintendence of police, he has also stated that after compromise, his wife stayed with him but he did not demand dowry, he has further stated that four to five months ahead of birth of baby Prachi, his wife left for Mandsaur, (6 of 12) [CMA-4024/2014] he has further admitted that he did not visit after the birth of baby Prachi, since all were informed except him.
Smt. Pinki, who too has testified solely, has stated that behaviour of her husband, in initial two years of marriage was good, subsequently discord took place, since she was not permitted to visit her parental house nor was permitted to speak with them, she has further stated that demand for additional dowry amount was raised more often, on denial beatings were given, she has also stated that her husband was sceptical and often quizzed as to what relations does she maintain with son of her aunt (Bua), and has stated that her husband instead of fetching her, left her in her parental house.
Baby Prachi was born on 03.06.2009 but neither her husband nor anyone from in-laws' family visited for fourteen months, she has further stated that she lodged a case under Section 498-A of IPC and her husband filed a case under Section 9 of the Hindu Marriage Act, a compromise took place, in pursuance to which, she was taken by her husband and she stayed in her husband's consortium for eight months, during this period behaviour of her husband was sarcastic, he used to taunt, while her grand-mother felt sick, she was not permitted to connect telephone and on her death she was permitted to stay there for twelve days only, after twelve days she went to her husband's home, her husband being sceptical expressed doubt and posed an query that as to what relations she was nurturing with her brother and her brother's father-in-law and started giving beatings, so she contacted her brother on telephone, resultantly her brother, uncle and father came with two police cops, her son Nakul was taken (7 of 12) [CMA-4024/2014] away by her Sasur, eversince she is residing with her parental house, Nakul has not been given to her. She is forced to stay with her parental house for last four years and her husband has not come to fetch her.
She has further stated that she is not agreeable to give divorce to her husband, "she has got two kids where will she go, Nakul has already been snatched, she has got a daughter only and has also stated that her behaviour with her husband was ever good."
In cross-examination nothing abnormal has appeared, in the cross, it is averred that after compromise she joined marital consortium of her husband and has denied having not been given information of the birth of baby Prachi to her husband, she has further stated that her husband always suspects her character, she has clarified that she never approached by her husband to fetch and has stated that Nakul has been retained by her husband, uttering dictum that "accord divorce, take Nakul".
Repeated endevours for mediatory re-conciliation have been made but have remained unfruitful.
It evinces from the testimony of Satish Kumar Rathore that the couple has resided together comfortably without any discord for four to five years of their marriage, Satish Kumar himself asserted that behaviour of his wife was good and during the period of five years after the marriage his wife visited twice to her parental house, which is itself indicative that Smt. Pinki was not permitted to visit her parental house frequently, he has also admitted that he did not visit to meet his wife and her new born baby-Prachi.
(8 of 12) [CMA-4024/2014] Compromise during pendency of section nine petition and resumption of marital consortium is also an admitted position.
On the contrary testimony of Smt. Pinki shows that her husband maltreated her and he was sceptical towards her character, she was often quizzed abnormally as if she was nurturing unacceptable and illegitimate relations, she has also stated that her husband daunted that she could procure custody of her son Nakul, if yields to accord divorce, which is obviously unacceptable being inhumane.
Lodging of criminal FIR under Section 498-A of IPC is also not in dispute, Smt. Pinki has stated that she is inclined to join matrimonial consortium of her husband, she has got two kids, where will she go in event of untoward and she has stated to be agreeable to join marital consortium amicably.
Appellant Satish has filed copy of the judgment dated 11.09.2015 pertaining to criminal case no. 451/2012 whereby trial court has given "benefit of doubt" to the accused appellant but the body of the judgment reciting testimony of Smt. Pinki, ratifies unbecoming and cruel behaviour of her husband and demand of dowry, rather trial court has given weigh to the factum of compromise arrived at between the parties, during the pendency of petition in relation to restitution of conjugal rights.
Degree of proof in criminal cases, it much higher than that of civil suit, moreover appellant Satish Kumar Rathore has been extended benefit of doubt and has not been acquitted honourably, so relevance of acquittal order is not of much support to the appellant in view of peculiar evidence appeared and discussed.
(9 of 12) [CMA-4024/2014] Supreme Court in Shobha Rani vs. Madhukar Reddy AIR 1988 SC 121 has observed:-
"Section 13(1)(ia)F uses the words "treat the petitioner with cruelty". The word "cruelty" has not been defined. Indeed it could not have been defined. It has been used in relation to human conduct or. human behaviour. It is the conduct in the relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical the Court will have no problem to determine it. It is a question of fact and degree. If it is menial, the problem presents difficulty. First, the inquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment on the mind of spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, the cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then impact or the injuries effect on the other spouse need not be inquired into or considered, in such cases, the cruelty will be established if the conduct itself is proved or admitted.
It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaints about the treatment of cruelly by the partner in life or relation, the Court should not search for standard in life. A sat of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in paralled with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents. Because as Lord Denning said in Sheldon vs. Sheldon (1966) 2 All ER 257, 259 "The categories of cruelty are not closed". Each case may be (10 of 12) [CMA-4024/2014] different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty."
The Apex Court in Savitri Pandey Vs. Prem Chandra Pandey (2002) 2 SCC 73, has observed as under:-
"6 Treating the petitioner with "cruelty" is a ground for divorce under Section 13 (1) (i-a) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case both the trial court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent. Concurrent findings of fact arrived at by the courts cannot be disturbed by this Court in exercise of powers under Article 136 of the Constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly shows that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life.
(11 of 12) [CMA-4024/2014]
Supreme Court brought forth essential
ingredients of "desertion" as ground of matrimonial relief in the case of Bipinchandra Jaisinghbai Shah Vs. Prabhavati AIR 1957 SC 176.
8 "Desertion", for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbhai Shah v. Prabhavati held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion."
Learned Family Court has dealt with the lis and evidence thoroughly and has examined the evidence in right perspective. Examination of the evidence is enough to indicate that respondent defendant is not willfully staying away from the matrimonial consortium of her husband, rather she has been forced to stay away from her matrimonial home since she has been maltreated, beaten and was not regularly permitted to visit her parental house.
The couple has initially resided without any discord comfortably for four to five years of their marriage, her male child (12 of 12) [CMA-4024/2014] has been kept away from her custody, appellant-plaintiff has not visited during her female child's birth and has even admitted this fact.
Plaintiff-appellant has miserably failed to establish allegations of cruelty and desertion rather testimony of respondent-defendant reflects creditworthy capable to infuse faith.
In totality, appellant has failed to establish grounds of cruelty and desertion. Entire evidence reveals that defendant-respondent has been subjected to such conditions that has compelled and constrained her to stay with her parental house. Smt. Pinki has been maltreated, suspected of chastity associated with sceptical dictum indicting her character, which have fairly been explained and proven by respondent Smt. Pinki.
Therefore, learned trial court has rightly dismissed the petition seeking relief for annulment of marriage.
For the reasons dealt hereinbefore, we find no infirmity in the findings of learned trial court and concur with the same.
Resultantly, appeal fails and is dismissed accordingly. (G R MOOLCHANDANI),J (PRADEEP NANDRAJOG),CJ db-tn Powered by TCPDF (www.tcpdf.org)