Madhya Pradesh High Court
Smt. Mamta Tiwari vs Satyanarayan Tiwari on 12 May, 2003
Equivalent citations: II(2003)DMC637
JUDGMENT A.K. Awasthy, J.
1. The appellant/wife has filed the appeal Under Section 28 of the Hindu Marriage Act against the judgment and decree dated 26.9.1997 passed by the IVth Additional District Judge, Jabalpur in Civil Suit No. 7-A/1997 wherein the marriage was dissolved on the ground of desertion by a,decree of divorce.
2. The admitted facts of the case are that on 18.5.1994, the marriage between the parties was solemnised at Satna according to Hindu rites and customs and the appellant/wife left the matrimonial house on 24.6.1996.
3. That the case of the respondent/petitioner is that after the solemnisation of the marriage, the appellant/wife refused to do the domestic work and she started insulting her husband and his family members. That on 20th June, 1994 the appellant/wife went back to her parents' house and after considerable persuasion by the husband she came back to the matrimonial house. Respondent/ husband has averred that ultimately in the last week of December, 1994 the appellant/wife has left the matrimonial house and in spite of the repeated efforts by the respondent/husband and his family members she refused to return and join the matrimonial house. It is alleged that the appellant/wife used to say that she did not like the town of Jabalpur and she broke her bangles before her husband and took oath that if she is pursuaded to live with the husband, then she will commit suicide. The respondent has prayed that his wife has without rhyme or reasons left the matrimonial house for more than two years and her behaviour is cruel and as such the marriage be dissolved by a decree of divorce Under Sections 13(l)(ia) and (ib) of the Hindu Marriage Act.
4. The appellant/defendant has denied that she insulted or misbehaved with her husband or his family members. It is denied that the appellant has left the matrimonial house without any reason. The appellant has pleaded that the respondent/husband was in the habit of quarrelling and ill-treating the appellant/ wi^e and he used to pressurise the appellant and his family members for the demand of 50,000/- rupees.
5. Learned Trial Court has examined the applicant Satyanarayan and his witness Praveen Kumar (A.W. 2) and the appellant Mamta and her witness Hiralal (N.A.W. 2), and the marriage was dissolved only on one ground that the appellant/ wife has deserted her husband for more than two years.
6. The appellant has assailed the impugned judgment and decree challenging that the learned Trial Court has not properly assessed and evaluated the evidence on record and the decree passed on the ground of desertion is against the evidence and law applicable in the case. The respondent has not filed the counter appeal against the finding of cruelty by the learned Trial Court.
7. Satyanarayan (A.W. 1) has stated that few days after the marriage his wife had started quarrelling with the respondent/husband and she left the house saying that she will never come back to live with her husband. Satyanarayan (A.W. J.) has further stated that he went to the village of his wife to bring her back but she said that she will like to die instead of rejoining the matrimonial house and the Mangal Sutra was torn and thrown by her. Praveen Kumar (A.W. 2) has stated that the wife of the respondent did not return back after December, 1994 and the respondent told him that he went to fetch his wife but she has refused to come back to live with him. This fact is not in dispute that the appellant/wife has left the matrimonial house in the month of December, 1994 and this petition is filed after two years, i.e. on 2.1.1997. Now the stage has come to discuss whether amicus dessircndi exists in the act of the appellant/wife in,living separately for more than two years.
8. Appellant Mamta (N.A.VV. 1) has stated that her husband has refused to keep her in the matrimonial house. Mamta (N.A.W. 1) has further stated that the cash, scooter and other articles were taken in the dowry by the husband. Hiralal (N.A.W. 2) has stated that the appellant was physically assaulted by her husband and he was not prepared to keep his wife in his house. From paragraph 4 of the cross-examination of Satyanarayan (A.W. 1), it is clear that he has written letters to his wife in which it was narrated that the appellant should not make any attempt to come to the matrimonial house. These three letters were filed by the appellant/ wife and the learned Counsel for the respondent has not denied that these letters were written by the respondent/husband to his wife. The contention of the learned Counsel for the respondent is that the date of writing these letters is not mentioned therein and these letters were written before the appellant/wife has left the matrimonial house. Learned Counsel for the respondent has relied on the case Bhavna Manohar Advani v. Manohar Advani, I (1992) DMC 286=1992 MPLJ 40, wherein it is held that burden lies on the wife to prove that on the ground of ill-treatment it was impossible for her to live with her husband. From the text of the letters it is clear that the appellant in so many words and very emphatically made it clear to his wife that he will in no case resume the matrimonial relations and she should not think of coming to the matrimonial house. These letters written by the husband/respondent corroborates the statement of Mamta (N.A.W. 1) and Hiralal (N.A.W. 2) that the respondent/husband refused to accept his wife in his matrimonial house. Consequently it cannot be said that the wife was living separately with her husband with intention to leave her husband. On the other hand it is clear that on account .of the refusal of the respondent/husband and his arrogant behaviour, the appellant/wife was forced to live separately from her husband. Respondent cannot get the benefit of his own wrong and in view of Section 23(l)(a) of the Hindu Marriage Act decree of divorce on the ground of desertion was wrongly granted. Learned Trial Court has not properly appreciated the effect of the letters written by the respondent to his wife asking her to live separately and not to keep any relations with him.
9. Consequently I hereby set aside the impugned judgment and decree. The appeal is allowed. Petition filed by the respondent is hereby dismissed. Parties to bear their own costs of the appeal.