Rajasthan High Court - Jaipur
Rajendra Prasad Pareek vs Smt. Krishna Devi Pareek on 9 February, 1987
Equivalent citations: AIR1988RAJ86, 1987(1)WLN326
JUDGMENT I.S. Israni, J.
1. This appeal is directed, against the judgment and decree dt. 5th Sept. 1985, passed by the learned District Judge. Jaipur city, Jaipur, under Section 28 of the Hindu Marriage Act, 1955 read with Section 96 of the C.P.C. in Civil Misc. (Marriage) case No. 73/83. Whereby the appellant's application under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') was dismissed and a decree for restitution of conjugal rights was passed in favour of the respondent.
2. The appellant filed an application under Section 13 of the Act, in which it was stated that the marriage of both the parties took place on 22nd Nov., 1978at Jaipur according to the Hindu rites and customs. It was further stated that the respondent lived with the appellant in his house at Jaipur up -- till April 1980. She left the house of appellant and went away with her father of her own desire. It was further asserted in the application that respondent Mst. Krishna Devi, is of incurably unsound mind and has been suffering from mental disorder, on account of which she becomes abnormally aggressive and irresponsible in her conduct. In that state of mental disorder she behaves cruely with the appellant and abuses him beats and bites him and also beats her own self. The non appellant respondent gets this mental disorder and fits 3 to 4 times in a month. The appellant got her medically treated but with no success. It was, therefore, stated that the mental disorder of the petitioner is of such a kind and to such an extent that the appellant cannot live with her. It was also stated that in May, 1980, the respondent got similar mental disorder and attack of fits, she gave beatings to the petitioner (appellant). Her father came to the house of the appellant in night and he also gave him beatings and the respondent went away with her father and also took away suit case containing golden jewellery, silver ornaments, clothes and also Rs. 10,000/- in cash. Since then the respondent is living with her father of her own sweet will and thus has deserted the appellant without any reason and has willfully neglected him. It was also alleged that respondent never served food to the appellant and whenever she was asked to prepare food she used to give beatings to the appellant. It was further alleged that she also misbehaved with the father of the appellant. Therefore, the appellant filed this appeal on the grounds of unsound mind, mental disorder, cruelty and desertion.
3. The respondent in her statement denied all these allegations and stated that she has been serving the appellant obediently as Hindu wife could do and whenever she went to her father's house, she went only with the permission of the appellant. It was also denied that she was suffering from mental disorder and of unsound mind and gave beatings to appellant during those fits or otherwise as alleged by the appellant. It was further alleged that she lived with the appellant untill 'Deepawali' of 1982 when on the next day the appellant left her at the residence of her father and thereafter appellant never cared to bring her back to his house. It was also denied that she took away any golden jewellery, silver ornaments and cash Rs. 10,000/- etc. as alleged in the application. It was further stated that the appellant has withdrawn from her society without any reasonable cause and therefore, the respondent is entitled to a decree of restitution of conjugal rights.
4. Learned counsel for the appellant Shri Bhandari at the out set frankly stated that he does not want to stress much on the issue number 1, which is regarding unsoundness of mind. He also stated in the same breath that however, he does not give up this issue completely. He, therefore, addressed the court on issue number 2, 4 and 4A regarding cruelty, desertion and restitution of conjugal rights respectively. He pointed out that Ex.1 dt. 7th Nov. 1982 was affidavit sworn in by the respondent in which she has admitted that she lived with the appellant up-till May, 1980 and went away with her father of her own sweet will at 11.00 p.m. in the night after beating the appellant. It is also stated in the affidavit that she gets mental fits and therefore, loses her capacity to think and understand properly. She has also admitted that whatever ornaments and cash she took away with herself are also with her. She has apologized for her misbehaviour and beatings etc. given by her to appellant. It is also stated therein that her father also apologized for beatings given by him to the appellant. It is further stated in the affidavit by the respondent that she and her father will not misbehave again with the appellant and will not commit any cruelty against him. Ex.2, is also of the same date i.e 7th Nov. 1982 which is stated by the appellant to be written in hand writing of the father of the respondent in which he has apologized for beating given by him to the appellant in May, 1980 and has further admitted that the respondent has been living since then in his house. It is, therefore, contended by the learned counsel for the appellant that cruelty committed by the respondent and her father Rampratap is proved by these documents. It is further contended that the respondent went away from the house of the appellant of her own desire in May, 1982 and lived in the house of her father till the application for divorce was filed on 31-5-1983 in the court. This according to the learned counsel for the appellant also proves desertion by the respondent. It is, therefore, contended that the learned trial court has erred in rejecting these documents which conclusively prove the issues regarding cruelty and desertion in favour of the appellant. He has pointed out that Kedar Nath, P.W. 1, oath commissioner, has proved the affidavit Ex. 1, which was attested by him, Rajendra Prasad P.W. 2, appellant has also proved the desertion and cruelty and also the instance of beatings given to him by the respondent and her father at night in the month of May, 1980. It is contended that it was not necessary to have mentioned Ex. 1 and Ex. 2 in the application for divorce as it is not the requirement of law to discuss the evidence in the application. It is further asserted that since no cross examination was done on Ex. 1 and Ex. 2 from the appellant, therefore, these documents should be taken to be proved as it was necessary for the respondent to have cross-examined the appellant on this point. Reference has been made to the case of Babulal Choukhani v. Caltex (India) Ltd. AIR 1967 Cal 205 and to the case of Jayalakshmi Devamma v. Janardhan Reddy AIR 1959 Andh Pra 272. In both the above mentioned authorities the proposition of law has been stated that if there is anything in statement of a witness which is disputed and the opponent avoid asking questions on those matters in cross examination, evidence in chief examination must be accepted unless of course there are inherent improbabilities. P.W. 3, Jugal Kishore, has stated that Ex. 2, was signed and given to the appellant in his presence along with Ex. 1, by the father of the respondent. P.W. 4, Dwarka Prasad, has stated that on 4th May, 1980, at night the respondent and her father gave beatings to the appellant and went away from his house. He states that Ramchandra, tenants, was also present at that time. P.W. 5, Ramchandra, and P.W. 6, Shiv Narain, also support this version. Learned counsel for the appellant, therefore, contends that ingredients of 'Animus Deserendi' are fully proved. He has drawn my attention to the case of Smt. Veena v. Makhanlal 1964 Hindu LR 261; (AIR 1984 NOC 187) (Delhi) and also to the case of Smt. Saroj Rani v. Sudarshan Kumar Chadha 1984 Hindu LR 713 : (AIR 1984 SC 1562) and to the case of Govanji v. Smt. Kaduva 1985 WLN (UC) 307 and to the case of Harbhajan Singh Monga v. Amarjeet Kaur. AIR 1986 Madh Pra 41. On the basis of these authorities it is further contended that marriage practically also stands completely broken and there is no chance whatsoever of the parties living together and therefore, on this ground also the divorce should have been granted to the appellant. He has also drawn my attention to the case of Madan Mohan Behl v. Smt. Vinay Behl 1978 Hindu LR 292 (Delhi) and to the case of Sudarshan Singh v. Smt. Kuldeep Kaur, 1976 Hindu LR (Punj & Har) 72. He has also drawn my attention to the case of Bharat Lal v. Smt. Ramkali Devi, AIR 1984 All 274.
In which according to the learned counsel for the appellant in the similar circumstance it was held that the desertion was proved against the wife and petition for divorce was granted. In the case of Smt. Rekha v. Nathuram, 1984 Hindu LR 355 (Punj & Har), it was held that if the wife fails to come back for two years it amounts to mental cruelty. In the case of Khajni v. Chhitar Mal, (1984) 2 DMC 430 (Punj & Har) it was held that when the wife always abuses the husband and turned him out of the house belonging to the husband and threatens to give poison in food to the husband, he deserves to get divorce on the ground of cruelty committed by the wife. In the case of Dr. Keshao Rao v. Smt. Nisha, (1984) 1 DMC 390 : (AIR 1984 Bom 413), it was held by Full Bench of the Bombay High Court that broad test that will have to be applied in interpreting Section 13(1)(ia) has to be whether the cruelty is of such type that the petitioner cannot reasonably be expected to live with the respondent or living together of the spouses had become incompatible. It is, therefore, contended by the learned counsel for the appellant that the application filed by the appellant deserves to be allowed on the ground of cruelty and desertion and, therefore, no decree for restitution of conjugal rights should have been passed by the trial court in favour of the respondent.
5. On the other hand, learned counsel for the respondent Shri Maloo, contends that paras numbers 3 and 4 clearly shows that the cruelty and desertion alleged to have been committed by the respondent is during the, alleged unsoundness of mind and mental disorder from which the respondent is said to suffer. It is pointed out that even in para 6 of the application it is stated that the respondent gives beating and abuses to the appellant when called upon to cook food etc., but it is clear from para 4 that incident alleged to have taken place in the month of May, 1980, also took place when the respondent was under spell of mental disorder and during that period she is alleged to have committed cruelty by giving beatings to the appellant and is alleged to have taken away the ornaments and cash amounting to Rs. 10,000/-
etc. It is pointed out that the marriage took place in Nov. 1978 and this incident is said to have taken place on 4-6-1980. The appellant in his reply dt. 21-7-83, to the application filed by respondent regarding maintenance during the pendency of the application for divorce that he earns Rs. 300/- per month only. It is, therefore, stressed that evidently the allegation of there being Rs. 10,000/- with the appellant which he says belong to him is absolutely false. A person who earns only Rs. 300/- per month cannot be accepted to run the house and also save Rs. 10,000/- in about one and half years time after marriage. It is, therefore, contended that the allegation of taking a way ornaments and cash amounting to Rs. 10,000/- is absolutely false as the allegation of respondent suffering from mental disorder and fits. Since the appellant did not produce any medical evidence to prove that the respondent was suffering from incurable or whatever type of mental disorder, the learned trial court rightly came to the conclusion that the respondent was not suffering from any kind of unsoundness of mind or mental disorder and decided the issue number 1, in favour of the respondent and against the appellant. It is, therefore, contended that since the allegations of mental disorder and unsoundness of mind does not exist and has been proved to be false the natural consequences of this is that the respondent never committed any cruelty with the appellant nor she ever deserted the appellant during the spell of alleged mental disorder and unsoundness of mind. It has been further contended that Ex. 1 and Ex. 2, have been denied to have been executed by the respondent and her father. It is contended that these documents have not been proved at all and the learned lower court has rightly disbelieved these documents. It is also contended that no medical evidence was produced to show that the respondent was given treatment when she suffered spells of mental disorder and unsoundness of mind. It is pointed out that P.W. 2, Rajendra Kumar, appellant has clearly admitted in his evidence that he had sexual relations with the respondent till she lived in his house. This, according to the learned counsel for the respondent shows, that question of respondent having animus deserendi does not arise. He has submitted that D.W. 2, Rampra tap and D.W. 3. Gulabchand, D.W. 4, Laxmi Naram and D.W. 5, Gappulal, clearly proved that respondent has been living in the house of his father after Deepawali 1982 and that the appellant himself came to leave her at the house of her father on next day of "Deepawali' 1982. He, therefore, contends that the alleged incident said to have been taken place on 4th May, 1982 is absolutely false and has been concocted to prove the period of two years necessary for having ground of desertion against the respondent.
6. I have heard learned counsel for both the parties and also gone through the evidence, and documents on record. It is significant to note that even though the appellant came to know about mental unsoundness and disorder of the respondent soon after marriage he continued to live with her. Even according to the appellant, uptill May, 1980 no medical treatment was given to her regarding this illness. Even though in the application the appellant states to have given her medical treatment but without any success. There is no such evidence on record. In his statement the appellant has stated that since the brother of the respondent was a Doctor, therefore, the treatment was given to her by him. The trial court, therefore, rightly called Dr. Surendra Kumar Pareek, and examined him as C.W.I. He has stated in his statement that the respondent suffered from no kind of mental disorder and unsoundness of mind and he never treated her for this disease. It was contended by the appellant that respondent has insulted his father by calling him drunkard in the written statement. The respondent in his statement has stated that the father of appellant did take alcohol and this was denied by the appellant. Neither father of appellant nor any other member of his family has come in the witness box to prove that the respondent suffered from mental unsoundness and disorder. The father of appellant Sualal, was called by the trial court and examined as C.W. 2, in which he had admitted that he did obtain permit for purchasing alcohol while there was prohibition in Rajasthan and in that application he had stated that he took alcohol. This shows that no insult has been caused to the father of appellant. Keeping in view his above mentioned statements it may be pointed out that even though it was not necessary to discuss the evidence in the application for divorce filed in court but it was quite natural to have made a mention of Exs. 1 and 2 in the same which was not done by the appellant. Apart from this even when notice Ex. 3 dt. 5-5-1983 was sent to the respondent nor mention of these documents was made in the notice also. P.W. 1, Kedar Nath, is the oath commissioner who even though required to keep the register of the affidavit attested by him does not keep any such register. He has also stated that he did not know respondent but she was identified by one Shri G. K. Upadhyay, Advocate, who has not been produced as a witness. The respondent and her father in their statements have totally denied the execution of these documents. Learned counsel for the appellant, contends that the respondent has evendenied her signature on vakalatnama and written statement filed by her and, therefore, no reliance can be placed on her denial or the execution of the affidavit by her. The respondent admittedly is an uneducated lady and is not used to come to court and give evidence, in such circumstances, merely because she has denied her signature on vakalatnama and written statement it cannot be taken into consideration to hold that the signature alleged to have been made by her on affidavit stands proved. The appellant himself admits that even he has not seen her reading and writing. Both these documents show that they have been properly drafted to put admissions in the mouth is of the respondent and her father. When the respondent is not suffering from any mental disorder, no incident could have taken place on 4th May, 1980 as alleged by the appellant. Therefore, question of respondent and his father giving any affidavit and letter Bxs 1 and 2 respectively apologising for the said incident and promising not to misbehave again does not arise. The law quoted by the learned counsel for the appellant is of no help to him. In the case of Lachman Kriplani v. Meena Kriplani, AIR 1964 SC 40 in which their Lordships of Supreme Court have laid down necessary ingredients of animus deserendi which I do not find to exist in this case. P.W. 2, appellant does not say in his statement that P.W. 4 and P.W. 6 were also present at the time of the alleged incident took place on 4th May. 1980. It may be pointed out that no divorce can be granted on the ground that marriage is irretrievably broken as there is no mention of such ground for divorce in the Act. In the law cited by the learned counsel for the appellant on this point it will be seen that in each case one or the other ground for divorce is proved to exist and a remark has been made by the various courts that the marriage is also irretrievably broken and, therefore, divorce deserves to be granted. But in this case, I do not find that the appellant has succeeded in proving either cruelty or desertion against the respondent and there is no reason to disbelieve the evidence produced in support of the assertion of respondent that she lived with the appellant till 'Deewali' 1982. The appellant has built up his whole case on the ground of mental unsoundness and disorder and on account of which cruelty and desertion is said to have taken place. The allegation of the appellant that she committed cruelty with him by heating even when called upon to cook food etc. does not find place in any of the statements of the witnesses produced on behalf of the appellant. The respondent is keen and wants to come and live with her husband and admittedly the parties had conjugal relations till they lived together and. therefore, it cannot be said that the marriage has irretrievably broken. In the case of Gurmal Singh v. Smt. Ajit Kaur, 1979 Hindu LR 157 (Pu'nj & Har) desertion was alleged against the wife but the court held that since she was willing to go and live with her husband, decree of divorce cannot be granted to the husband. The learned trial court has discussed the evidence in detail and, therefore, I do not want to burden this judgment with further discussion of the evidence.
7. In the result, the appeal of the appellant is hereby dismissed with costs.