Madhya Pradesh High Court
Smt.Vaijanti vs Rakesh on 30 July, 2014
1 First Appeal No. 321/2006
(Smt. Vaijanti Vs. Rakesh)
30/07/2014
Shri Anmol Khedkar, Advocate for appellant.
Shri Anand Bhardwaj, Advocate for respondent. Pleads
no instructions.
Head.
Per Justice S.K.Palo.
Aggrieved by the judgment and decree dated 19/7/2006 passed by the Principal Judge of Family Court, Gwalior in Case No. 205A/2004 H.M.A, non-applicant wife has filed this appeal under Section 19 of the Family Court Act,1984.
2. It is not disputed that the marriage of the applicant was performed at Gwalior with non-applicant in the year 1984 by observing Hindu rites.
3. The case of the appellant before the Family Court in brief is that;
Immediately after the marriage, relations of non- applicant with the family members of the applicant was not good. She has been quarreling with the members of the applicant's family. Somehow 2-3 years passed by. In the year 1991 she left her matrimonial home and went to live at her maternal home. When the applicant went to bring her back she refused to come.
2 First Appeal No. 321/20064. He filed an application under Section 9 of Cr.P.C, 1973 for calling the non-applicant to live with him, a search warrant was issued. The non-applicant lived with the applicant for about 4-5 years. During this period she used to visit her maternal home without informing the applicant. During this period there was no peace in the home. She was pressuring the applicant to live with her, at her maternal home. But the applicant did not agree to do so. The applicant went to the non-applicant's parental house to bring her back many times with some members of his society. But all efforts brought no result. On 2nd June, 2002, the applicant had gone to bring the non-applicant. She refused to come, she abused the applicant and told him that she does not want to live with the applicant.
5. Non-applicant wife denied all these averments and has stated that she had been living in the matrimonial house performing all her obligations. In April 2003 the applicant himself beaten her and demand Rs. 50,000/- and a motor- cycle and was forced her to leave the house because she could not fulfill the demands. Non-applicant's parents are not financially sound. Brother of the non-applicant has been supporting her for her maintenance. Applicant's behavior towards non-applicant was indifferent and he used to beat her. Because of this cruel behavior, she was forced to leave the house. Even now, she wants to live with the applicant 3 First Appeal No. 321/2006 and wants to lead a family life. But the applicant casting false aspertions, filed this petition. She has no knowledge about any proceedings drawn by the applicant under Section 9 of the Hindu Marriage Act. The applicant demanding the dowry, treated her with cruelty and also pressurized her to compromise.
6. On these averments, the learned trial Court, after framing issues and adducing evidence, pronounced the impugned judgment allowed the application under Section 13 of the Hindu Marriage Act and passed a decree of divorce in favour of the applicant.
7. Non-applicant / appellant has filed this appeal on several grounds. It is pleaded that applicant / respondent himself did not want to live with the appellant because of demand of dowry. Their relations were strained since 1984 -
85. After fulfilling his demand, the appellant and respondent lived together till April 2003. The father of the appellant passed away when the appellant was a minor. Elder brother of her father nurtured her and performed her marriage with the respondent. The appellant has no issue. The respondent did not want to live with her and wants to enter into a second marriage by obtaining a decree of divorce on false grounds.
8. The appellant first time pleaded that, in fact, the respondent wanted marry with Vishan Devi daughter of Ramsiingh Village Kherva, District Gwalior and because of 4 First Appeal No. 321/2006 this he thrown out her from the house. The appellant is illiterate woman, she only puts her thumb impression. Therefore, she has not aware of report Ex. P/1 to P/3. Therefore, she could not place all these facts in the written statement. The written statement was never read out to her. Till 1997 she was being treated at Mundra Nursing Home by Dr. Nirmla Haritwal, whereas in the pleading, the respondent alleged that since 1991 she left her matrimonial home. During this appeal the efforts made for settlement by mediation failed.
9. Heard counsel for the appellant and perused the record.
10. The issues framed by the learned trial Court was regarding cruelty, desertion as alleged by the respondent and other issues framed on the contention of the appellant are regarding demand of dowry and the respondent treating her with cruelty.
11. In the cross examination, the appellant has admitted that she was taken for treatment by the respondent only once to Government Hospital 7 -8 years back. This treatment was being done for she was not conceiving a child. Regarding demand of dowry, there has been no report. Besides, the non-applicant / appellant has not examined any witness in her support. On the other hand, the applicant Rakesh has examined himself, his brother Umesh, 5 First Appeal No. 321/2006 his cousin Govind Singh, his friend Madhav Ram and relative Mukundilal in his support.
12. Not lodging any report regarding demand of dowry and about so called treatment of cruelty with her was disbelieved by the learned trial Court. In the year 2003 their marriage was almost 22 years. The allegation of demanding dowry after 22 years is itself does not inspire confidence in the statement of the non-applicant. The non-applicant has not even examined her brother, who she said is supporting her financially. On the other hand, the applicant has proved that he had visited the non-applicant / appellant's home to bring her back and she refused to go. This indicates that applicant / respondent tried to bring her and the non- applicant appellant refused. Which can be deemed to be "desertion" "cruelty" on the part of the non-applicant.
13. The learned trial Court has analyzed the evidence in its right perspective and has come to the right conclusion. This is evident from the report lodged by the appellant which are marked as Ex. P/1 to P/3. There is no chance of their living together.
14. Marriage today is no longer a celestial bond it used to be a few decades back. Realising the futility of retaining a bond legally which has in fact become a bondage and source of agony, the law-makers have provided a way out by 6 First Appeal No. 321/2006 enabling parties to seek dissolution of marriage on certain specified grounds.
15. "Desertion" and "cruelty" are two separate grounds for divorce. The appellant wife living separately, has failed to prove that the husband refused to keep her. On the other hand, respondent has proved his case.
16. In view of above facts and circumstances, we deem it proper not to interfere with the judgment and decree passed by the learned trial Court.
17. Consequently, appeal fails and is hereby dismissed.
(S.K. Gangele) (S.K.Palo)
JUDGE JUDGE
dcs/-