Madhya Pradesh High Court
Dinesh Tripathi vs Smt.Vandana Tripathi on 15 February, 2018
Equivalent citations: AIR 2018 MADHYA PRADESH 84, (2018) 2 HINDULR 126, (2018) 3 DMC 81, (2019) 3 DMC 4.1
Author: Anjuli Palo
Bench: Anjuli Palo
1 FA No. 284/2007
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT
AT JABALPUR
First Appeal No. 284/2007
Dinesh Tripathi
Vs.
Smt. Vandana Tripathi
Present : Hon'ble Shri Justice S.K.Gangele, Judge
Hon'ble Smt. Justice Anjuli Palo, Judge
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Appellant present in person.
None for the respondent.
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Whether approved for reporting : Yes / No
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Law laid down :- -
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Significant Paragraphs : - -
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JUDGMENT
(15.02.2018) Per : Smt. Anjuli Palo, J :-
1. This appeal has been preferred by the appellant-husband under Section 19 of the Family Court Act, 1984 being aggrieved by the judgment and decree dated 14.03.2007 passed by the Principal Judge, Family Court, Rewa in Civil Suit No. 49-A/2005 whereby the suit filed by the appellant-
husband for decree of divorce was dismissed.
2. It is not in dispute that the marriage between the 2 FA No. 284/2007 appellant-husband and the respondent-wife was solemnized on 11.05.2003.
3. The appellant's case in short is that after marriage on 21.05.2003, the respondent went to her maternal house along with her brothers. She returned to her matrimonial house after 4-5 months. She started practicing witch-craft. The appellant provided her medical treatment. On 29.02.2004 at about 9:00 am, some unsocial elements came at his house to take him. The parents of the respondent wanted to sacrifice (bali chadhana) the appellant. They treated him badly. He was fed up with their cruel behaviour. On 06.09.2004, a petition was filed by him for divorce against the respondent. Due to compromise between them, the respondent came back to the appellant to reside with him. Thereafter, on 07.06.2005, she again left her matrimonial house. She tried to implicate the appellant and his family members in a false case. Therefore, the appellant filed petition under Section 13 of the Hindu Marriage Act.
4. In her reply, the respondent-wife denied the allegations and submitted that the appellant want to declare her lunatic (mentally unstable). She was tortured by the appellant and his family due to non-fulfillment of dowry demand. A report was 3 FA No. 284/2007 lodged against the appellant. On counseling from the police department, the respondent agreed to reside with the appellant. Thereafter, the appellant again harassed her due to which she was compelled to leave her matrimonial house. She lodged an FIR on 07.06.2004. The case is pending against the appellant. She was willing to fulfill her marital duties towards the appellant. Therefore, she prayed to dismiss the present petition.
5. Learned Trial Court found the testimony of the respondent reliable to establish that the appellant harassed the respondent and her family members for dowry. The respondent never behaved cruelly towards the appellant. The appellant himself withdrew the earlier petition for divorce and resided with the respondent-wife. In the light of the principle laid down in case of Devidas Vs. Gyanvati @ Sheelrani, AIR 1993 MP 14, the Learned Trial Court held that the appellant is not entitle to get a decree of divorce against the respondent. Therefore, the petition was dismissed.
6. Being aggrieved by the aforesaid judgment, the appellant has filed this appeal on the ground that the learned Trial Court has not taken into consideration the evidence adduced by him. The respondent-wife has violated all the conditions of their 4 FA No. 284/2007 compromise. She is habitual of using abusive language, physical assault and threaten to implicate the appellant in false case. She lodged a false report against him. The appellant was subjected to harassment as well as physical torture and deserted by the respondent. In view of the principle laid down in case of Savitri Pandey Vs. Premchand Pandey, (2002) 2 SCC 724, the appellant is entitled to get decree of divorce against the respondent.
7. Heard. Perused the record.
8. It is not in dispute that the appellant and respondent are husband and wife and their marriage was solemnized on 11.05.2003. It is also not in dispute that they are residing separately. The appellant stated that after their marriage, there was no physical relationship between them. He did not state any reason for that. Further, he stated that the respondent practiced witch-craft and her family members wanted to kill the appellant as sacrifice. In paragraph 18 of the cross- examination, the appellant submitted that the respondent used to wake up late. She did not perform her domestic duties. She used to go to her maternal house without informing him and also she used to abuse him.
9. All the allegations seem quite unnatural. Even then the 5 FA No. 284/2007 appellant entered into compromise with the respondent. Thereafter, they both were resided together for some time. Therefore, the learned Trial Court rightly placed reliance on the case of Savitri Pandey (supra) and held that the appellant condoned the cruel behaviour of the respondent, hence he is not liable to get decree of divorce against the respondent. Further, he himself admitted in paragraph 14 of his cross- examination that he provided medical treatment to his wife from Dr. Pradeep. Whereas, Dr. Pradeep found the respondent in normal condition. No documents with regard to her medical treatment has been submitted in support of his allegation against the respondent. He also did not submit any document with regard to complaint against his in-laws who wanted to kill him as a sacrifice to obtain hidden wealth.
9. The respondent-wife submitted that the appellant demanded dowry from her and her parents. For this reason he used to harass her and threatened her that he will perform second marriage. Therefore, she filed a complaint against the appellant in Mahila Police Station, Rewa. Offence under Section 498-A, 323/34 of IPC was registered against the appellant and his family members. The appellant also tried to declare her lunatic. The appellant used to beat the respondent 6 FA No. 284/2007 after tying her hands. One day, she was beaten by the appellant and his family members due to which she was unconscious. At about 9:00 pm, she was somehow able to escape and a rickshaw driver took her to police station.
10. Learned Trial Court considered the same and relied on the reports filed by the respondent. Ex. D/1 is the written complaint wherein it was mentioned by the respondent that she was subjected to cruelty by her husband and his family members. On 07.06.2005, she was beaten by the appellant and on getting an opportunity, she escaped herself. She was not able to walk properly. The report was lodged on the same day i.e. 07.06.2005. On this report, the SP had remarked to "act immediately" against the culprit.
11. We also rely on the written complaint of the respondent from the appreciation of the evidence produced by the parties. It clearly goes to show that after making certain allegations, the appellant wants to get decree of divorce. In fact, when his wife/respondent was staying with him, she was subjected to cruelty. She has not deserted her husband and subjected him to cruelty. It also shows that the appellant-husband might have been of the nature of expecting some extra high respect for him and his family members from his wife and her parents 7 FA No. 284/2007 and he was not satisfied with what he was actually getting. It can be gathered from the evidence that he wanted his wife to praise him. Therefore, he compelled his wife to write a letter against her parents. In the letter Ex. P/3, the respondent stated that due to regular threat from her parents, she left the appellant's house to save her husband from the harassment of her parents. The allegation of the appellant is very unnatural and unbelievable that the parents of the respondent wants to kill him while performing some witch-craft (bali puja) We do not find any convincing ground to accept the allegations made by the appellant.
12. In case of Subodh Gupta Vs. Neetu Gupta reported in AIR 2017 Chh. 196, it has been held as under:
"24. In Bipinchandra Jaisinghbai Shah Vs. Prabhavati {AIR 1957 SC 176}, history and development of a concept of "desertion" as a cause of action for grant of decree of divorce has been spelt out. Quoting English authors and Halsbury's Laws of England, the Supreme Court observed thus in para-10:-
"(10) What is desertion? "Rayden on Divorce"
which is a standard work on the subject at p.128 (6th Edn.) has summarised the case-law on the subject in these terms:- "Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting 8 FA No. 284/2007 party".
30. There is one more aspect of the case on which the appellant has pressed for decree of divorce on the ground of irretrievable breakdown of marriage. However, suffice it would be to refer to the Supreme Court's decision in the matter of Neelam Kumar (Supra) wherein it is held that if the party to marriage, by his own conduct brings the relationship to the point of irretrievable breakdown, he/she cannot be allowed to seek divorce on the ground of breakdown of marriage. That would simply mean giving someone the benefit of his/her own mistake. The Supreme Court also referred to its earlier decision in the matter of Vishnu Dutt Sharma Vs. Manju Sharma {(2009) 6 SCC 379}wherein it is observed that irretrievable breakdown of marriage is not a ground for divorce as it is not contemplated under Section 13 and granting divorce on this ground alone would amount to adding a clause therein by a judicial verdict, which would amount to legislation by Court. Even otherwise, in some cases, the Supreme Court has allowed decree on the ground of irretrievable breakdown of marriage by exercising power under Article 142 of the Constitution of India and not as a ground for divorce under Section 13."
13. We do not find that the respondent-wife willfully deserted her husband or her behaviour was cruel towards the appellant-husband. We also do not find the reason that the respondent filed fictitious complaint against the appellant and his parents. The complaint (Ex. D/4) filed by the respondent against the appellant clearly establish that she was harassed by her husband. She sustained injuries.
9 FA No. 284/2007
14. Therefore, in our considered opinion the learned Trial Court rightly appreciated the evidence on record in favour of the respondent and held that the appellant is not entitled to get decree of divorce. We are not inclined to interfere in the findings of the learned Trial Court. Accordingly, this appeal is dismissed.
15. No order as to costs.
(S.K.GANGELE) (SMT. ANJULI PALO)
JUDGE JUDGE
vidya
Digitally signed by
SREEVIDYA
Date: 2018.02.15 14:55:00
+05'30'