Madhya Pradesh High Court
Vijay Kumar Jain vs Smt. Kalpana Jain on 11 February, 1999
Equivalent citations: I(2000)DMC399
JUDGMENT S.C. Pandey, J.
1. This appeal has been filed under Section 28 of the Hindu Marriage Act, 1955 against the judgment and decree dated 6.7.1996 passed by the Second Addl. District Judge, Chhindwara, in Civil Suit No. 35-A/92. The Court below has dismissed the suit filed by the appellant under Section 13(1)(ia) of the Hindu Marriage Act (hereinafter referred to as the Act).
2. The appellant in his plaint stated that the parties belonged to the Jain community. Appellant married the respondent on 11.7.1989. A son by name Vikesh was born out of the wedlock on 13.6.1990 in village Kunda. It was further stated in the plaint that the respondent and the appellant used to reside together in their matrimonial home. From the very inception of the marriage, behaviour of the respondent was not proper with the appellant and the members of the family of the appellant. She was prone to disrespect the members of the family of the appellant and used to abuse them in filthy language. The respondent did not want to reside in the matrimonial home at Kunda and therefore the appellant who was working as a primary school teacher got himself transferred to village Chourai in order to lead a peaceful life with respondent. It was urged that on 4.6.1991, the respondent treated him with cruelty by slapping him in public and used abusive language. Even so the appellant went to Chourai in order to lead a happy married life. In para 5 of the plaint, it was specifically stated that there was no change in the attitude of respondent after they shifted to village Chourai and she always used to give trouble to the appellant even on very small differences and used to threaten that she would commit suicide and get the other members of the family involved, in a criminal case for demand of dowry and treating her cruelly. On 22.6.1991. the respondent admitted before respected persons that she was also at fault and promised that she will behave properly. Despite this fact, on 28.6.1991, the brother of the respondent as well as members of her family threatened the appellant and also attacked him. Accordingly, the appellant has filed an FIR at Police Station in village Chourai. It was claimed by the appellant that after 28.6.1991, the appellant was convinced that it was not possible to live with the respondent as she was not cooperating with him and, therefore, he filed the suit for divorce.
3. The respondent in her written statement denied the claim made by the appellant stating that the allegation made by the appellant to the effect that she misbehaved with the members of appellant's family were not correct. It was specifically denied that she ever misbehaved with the appellant or members of his family or abused them. She also stated that she never disrespected the members of the family of the appellant. It was also denied that after birth of the son, the appellant became more and more cruel. It was denied that the appellant resided at village Chourai for the purpose of leading happy married life with the respondent. It was claimed that the purpose for leaving village Kunda and residing at Chourai was that the appellant wanted to augment his income by doing business. It was stated that at Chourai there was a big market and therefore the appellant shifted from Kunda to Chourai and resided there on a rented house. Thereafter, it was alleged that the appellant turned the respondent out from his house without giving the respondent her belongings, ornaments etc., given to her by her father by way of dowry. It was denied that she had ever threatened the appellant or abused him. It was claimed in the written statement that the main aim of the appellant was to get a divorce from her somehow and therefore, he was making false allegations. She also denied that she ever had threatened the appellant to commit suicide or that she would get the members of the appellant's family involved in the criminal case relating to demand of dowry or cruelty.
4. It appears that after the written statement was typed, one line was added with ink by saying that the appellant was demanding Rs. 50,000/- by way of dowry. This allegation appears to be an after-thought as such an important fact could not have been omitted. She denied that she admitted before respected persons on 22.6.1991 that her behaviour was not proper. It was claimed that it was the appellant who had wielded knife and struck her brother. It was also claimed that the appellant wanted to kill the respondent by burning her and for this purpose, he has poured kerosene oil on her body. It was claimed that the respondent was an educated lady and was working in education department like appellant. She was aware of her marital rights and duties. It was claimed that the respondent wanted money by way of dowry and therefore he has filed the suit for divorce from the respondent. It was claimed that the appellant wanted to remarry on false ground, therefore, he was filed the suit for divorce.
5. The Trial Court after full trial came to conclusion that the appellant was unable to prove his case and therefore dismissed the suit.
6. The main question for determination is if the appellant was able to prove the grounds of cruelty on which this divorce petition is filed. In this connection, it is important to consider the case of the appellant. The appellant P.W. 1 Vijay Jain has stated in his evidence that from the beginning of his marital life, attitude of the respondent was not proper. The reason for misbehaviour of the respondent appeared to be that the appellant was residing in the same house with the members of his family, therefore, he stated that the respondent was using filthy language and once stated that the appellant was totally spineless, for this purpose, and she used filthy language which is not used commonly by people of educated society. It was stated that from the very beginning the respondent and the members of her family at village Chourai wanted that the husband and wife should not live together at village Kunda. The respondent did not perform her marital obligations and did not do any work causing great tension to the appellant. In the year 1991 after two years of marriage the appellant was compelled to refer the matter to the Panchayat and before respected members of the community the respondent admitted that she will behave like an ideal wife, but she did not do so. On the other hand, she began to misbehave with the appellant. On 27.6.1991, the respondent at Chourai misbehaved with the appellant and began to abuse and quarrel with him. The neighbours of the appellant tried to intervene, but she did not listen to them. Therefore, the appellant shifted to the house of one Prahlad Chourasia. Some time after this, a neighbour came to Prahlad Chourasia and told the appellant that there was fire in his house and the child is weeping. Thereupon, father of child, appellant, and Prahlad Chourasia went to his residence at Chourai and found that the door was closed from inside. The respondent was not prepared to open the door, but somehow, persons present got the door opened. It was found that fire was burning in that room and the child was weeping. Thereafter, this witness stated that he had informed the Panchas about the incident and the Panchas tried to pacify the respondent, but she misbehaved again with him before Panchas. However, on 28.6.1961, the brother of the respondent came to the house of appellant and threatened him and tried to beat him, but on intervention of persons who were present at the spot, the appellant was rescued. The respondent thereafter went to the house of her parents after locking the door of her house. The appellant has lodged the police report about the incident which is marked as Ex. P1. In the cross-examination, this witness has denied that he had ever beaten the respondent and did not demand any dowry. He also stated that he never beat his wife or treated her cruelly on account of demand of dowry. He also denied that he shifted to village Chourai because he wanted to engage in business of Jaggery (Gur). All the other allegations made in the written statement were put to the appellant and he denied the same. In support of his statement, the appellant examined Purushottamlal (P.W. 2) who was an eye-witness to the incident regarding the slap given by the respondent to the appellant. This witness stated that at the bus stand he had seen the respondent slapping the appellant. The cross-examination of this witness shows that he is an independent witness and he is aged about 70 years. There is no reason to say that this witness is an interested witness and he would depose in Court of law in favour of the appellant. Therefore, there is sufficient corroboration to the statement of the appellant that the respondent had slapped the appellant. However, the evidence of the appellant is himself on record to the effect that he had not complained about this misdemeanour on her part. The evidence of P.W. 3 Rajkumar Jain who is also a teacher by occupation is to the effect that the respondent was in the habit of creating trouble at her matrimonial home. This witness appears to be a colleague of the appellant was trying to help the appellant. Much reliance cannot be placed on the testimony of this witness because his evidence is totally vague. However, one thing is proved by the evidence of this witness and it is also not much in dispute that the respondent and the appellant used to quarrel with each other. P.W. 4 Mahesh Kumar is the witness to the event of happenings at Kunda when the respondent had hurled abusive words at the appellant. P.W. 5 Kripa Sankar Soni is an important witness. He states that he was resident of village Chourai and that he had seen that the members of the family of respondent were abusing the appellant and the brother of respondent namely Pintu was threatening the appellant. The other witnesses examined by the appellant are of not much consequence and therefore it is not necessary to consider their evidence. However, from the evidence led by the appellant, it is proved that the respondent attempted to commit suicide. P.W. 9 Rameshwardas corroborates the statement of the appellant that soon after the event, the appellant had gone to his house at Chourai and told him that the respondent wanted to commit suicide by burning herself. At that time the respondent had stated that in fact, she was not trying to commit suicide, but trying to burn old papers. This witness says in many words that he had seen the old burnt papers at the spot. Thereupon this witness stated that he will not intervene the matter as he has already intervened by way of Panchayat. Evidence of this witness also shows that the terms of husband and wife were not good and, therefore, a Panchayat was called and both the appellant and respondent executed documents which is marked as Ex. C1. In this exhibit, the appellant had given an undertaking to the effect that he shall give respondent full safety whereas respondent has stated that she will try to make marital life happy. These documents were signed by both the appellant and the respondent and also signed by the Panchas at the spot.
7. The narration of the aforesaid facts, shows that the appellant has led sufficient material on record for proving that the respondent and the appellant were not living happily together for a considerable time. From the circumstantial evidence on the record, it appears that the appellant had proved that it was the respondent who was not on good terms with the appellant. It was most probably on the ground that she was required to live at village Kunda with the members of his family, whereas she wanted that the appellant should live at village Chourai and help the members of her family. Otherwise there was no reason for the respondent to get herself transferred to village Chourai where here parents reside. Even at village Chourai, the respondent did not like that the appellant should live with her at a different place and, therefore, she used to quarrel with him. The bitterness of quarrel was to such a great extent that the respondent forget the ordinary norms of the behaviour between husband and wife and crossed the limit. She used to abuse her husband without any thought of the consequences. She also used to threaten the appellant that she would commit suicide and it appears that she actually tried to burn herself. The respondent was unable to prove what she alleged in the written statement. There is no evidence on record that the appellant demanded dowry even after 4 years of marriage. It cannot be said that her evidence is reliable as she was unable to examine an independent witness to prove her allegations. She was unable to produce any witness of this vicinity where the parties reside to prove that the quarrel originated on demand of dowry. The witness D. W. 3 N. Kumar Jain has tried to say that there was some demand of dowry but this witness is not very specific. Similar is the evidence of Indra Kumar (D.W.) who is the father-in-law of the appellant and father of the respondent, this witness, on the other hand, stated that the appellant had stated that he wanted to perform civil marriage, but it was he oppose the suggestion because the respondent was his lone daughter. It was stated by the witnesses that the appellant has demanded dowry of Motor Cycle, Colour T.V., Fridge etc. He also stated that father of respondent demanded Rs. 50,000/-, but evidence of this witness is not reliable because he is an interested witness. This witness, however, admitted that in his evidence that there was a Panchayat in village Chourai as claimed by the appellant, but denied any knowledge about it. This attitude of the father of respondent shows that he was not a truthful witness and he was trying to support his daughter. This witness denied that the appellant Vijay Kumar was required to leave Chourai, because of threat of his son. However, the fact remains mat Vijay (appellant) left Chourai soon after he lodged the police report on 28.6.1991.
8. The net result of the aforesaid discussion is that this Court is of the opinion that the appellant had placed sufficient material on record for proving his case regarding cruelty committed by the respondent upon the appellant. The learned trial Judge has not considered the facts that have been proved by the appellant. The appellant had proved that there was considerable bitterness in the attitude of the respondent when she left the village Kunda and thereafter at Chourai. She went to the extreme of threatening suicide at Chourai. This fact is established by clear and cogent evidence led on behalf of the appellant. The appellant had also proved that the respondent was in the habit of using filthy words and disrespected the appellant and his family members. She had also slapped the appellant at the Bus Stand of village Kunda and humiliated the appellant. These acts of the respondent were spread over period of more than 3 years cumulatively. These acts would definitely amount to cruelty within the meaning of Section 13(1)(ia) of the Act. The respondent herself made the circumstances too hard to cohabit with the appellant and made his life miserable. Therefore, the appellant is entitled to a decree of divorce.
9. The net result of the aforesaid discussion is that the appeal succeeds and the judgment and decree passed by the Court below is hereby set aside instead it is decreed that the marriage of the appellant and respondent shall stand severed from the date of this decree. No costs.