Rajasthan High Court - Jaipur
Smt Sudha Devi vs Vedprakash Saini on 17 May, 2018
Bench: Chief Justice, G R Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Miscellaneous Appeal No. 5082/2017
Smt. Sudha Devi W/o Shri Ved Prakash Saini and D/o Shri
Sitaram Chobdar, aged 31 Years, Caste Mali, R/o Maliyon Ki
Dhani, Tankari, Tehsil Nawalgarh, Distt. Jhunjhunu, Present
Address Mohalla Ganeshpura, Nawalgarh, Distt. Jhunjhunu (Raj.)
---Appellant-Defendant
Versus
Vedprakash Saini S/o Shri Prabhati Lal Saini, aged 30 Years,
Caste Mali, R/o Maliyon Ki Dhani, Tankari, Tehsil Nawalgarh,
Distt. Jhunjhunu
---Respondent-Plaintiff
For Appellant(s) : Mr. Shashi Kumar Shekhawat For Respondent(s) : Mr. Surya Prakash HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE G R MOOLCHANDANI Judgment reserved on :: 15th May 2018 Judgment pronounced on :: 17th May 2018 Judgment By the Court (Per Hon'ble G.R. Moolchandani, J.) This appeal is directed against the decree and judgment passed by Family Court, Jhunjhunu dated 05.08.2017, whereby Family Court, Jhunjhunu has decreed divorce petition preferred by plaintiff-respondent Vedprakash Saini under Section 13(1)(ia) of the Hindu Marriage Act 1955, dissolving the marriage between disputing couple.
Plaintiff-respondent has pleaded that appellant Smt. Sudha Devi and respondent Vedprakash Saini solemnized their (2 of 10) [CMA-5082/2017] marriage on 01.12.2002, defendant-appellant did not yield to cohabit and was sarcastic by taunting that he was not perfect of height and lacked perfect personality, this was objected by the respondent and he tried to convince defendant that physical stature was irrelevant for marital relations but behaviour of Smt. Sudha did not change, she would often leave to stay with her parental home, on 05.03.2005 plaintiff-respondent got selected in third Grade teacher, after selection he went to fetch her and brought her on 15.03.2005 to join matrimonial consortium, after staying for five days, she left asserting that Village 'Paunk' was a rural area, subsequently on behest of plaintiff-respondent, she got employed with same school as Vidhyrthi Mitra, where she served for three to four months but kept insulting plaintiff-respondent, three to four months later, she abandoned service and came back to her parental home at Nawalgarh, despite attempts, she did not join matrimonial consortium of plaintiff-respondent, it has been further pleaded that on 10.01.2011, when plaintiff got promoted to Senior Teacher Grade-Ist, he went to fetch her, she came along but did not permit to have physical relations and was sarcastic by saying that plaintiff was short of height, being dwarf. On 17.07.2011 defendant-appellant declined to live together and threatened to re-marry and has further made a prayer for annulment of marriage.
Defendant-appellant rebutting pleadings has countered that defendant-appellant never went to her parental home without consent of plaintiff-respondent rather plaintiff-respondent misbehaved and harassed her and made dowry demands, he would rebuke her and even took away entire salary, which was earned by the defendant-appellant having employed as a Vidyarthi (3 of 10) [CMA-5082/2017] Mitra, even machination was forged to eliminate defendant- appellant, overhearing and sensing it, she somehow managed to come back to her parental home to secure herself, allegations levelled against the defendant are baseless, she was maltreated by her in-laws, even a plan was made to kill her, which she overheard, she is very much agreeable to join matrimonial consortium.
Learned court below, after framing issues, recorded the evidence of both the sides.
Heard both the sides and perused the record, it evinces from the testimony of AW1 Ved Prakash Saini that he has accepted that prior to marriage 'Tilak and Lagan' ceremony was held, Single Bed, Black & White T.V., Small T.V., Chair, Almirah and Box were given in the marriage and a gold ring was also gifted alongwith a watch, he has further stated that on what date his wife went to her parental home is not known to him, he has also asserted that on 25.04.2008, when marriage of his brother Ramniwas had taken place, his wife Sudha Devi was present in the marriage, he has also stated that in the month of January 2011 and subsequently in the months of April and May 2011, whenever he went to fetch his wife, she came and stayed with him, he has further stated that on what date and on which month, he was taunted as dwarf by his wife, is not known to him, he has conceded that his height and his wife's height are similar.
He has candidly accepted that before marriage, he and his wife Sudha had agreed for the marriage, later, after consent of both the families, marriage was solemnized, this very assertion is enough to say that couple had seen each other, even prior to settlement of marriage and consent of the (4 of 10) [CMA-5082/2017] family members came subsequently, so to dislike on the basis of height, does not appear to be a reason for alleged sarcastic utterances and assertions to this effect, rather goes in vain and does not substantiate allegations levelled by the plaintiff- respondent, more so Vedprakash has himself asserted that he is not aware that on what date and on which month, he was taunted in alleged way, which makes his assertions and allegations non- tenable, he has also deposed that despite court orders he has not given any maintenance amount to his wife.
AW2 Ghasiram has also stated that to fetch Sudha, they went five times but the dates are not remembered, contrary to the pleadings, AW3 Smt. Sravani Devi, mother of groom, has stated that after marriage, Sudha indignantly said that she was got married in a poor family, which is not even a case of the plaintiff, it has also been stated by this witness Smt. Sravani that she got her daughter-in-law understood that after employment of her son, economic condition of their family will change. Sudha was even reluctant to stay in a katcha house, which tormented them and they thought since Sudha was a sibling of an affluent family and her father was a Bank Manager, so she will understand the reality and change later, evidence to this effect produced by Smt. Sarvani Devi is contrary to the pleadings, in cross- examination she has also stated that prior settling the marriage, they had been to see Sudha since Sudha was liked, so the marriage was performed, dowry was also given in the marriage. She has also stated that she has got no objection, if Sudha intends to join her husband. She has expressed her ignorance as to who had gone to fetch Sudha, she has also stated that in Village 'Paunk', Sudha had stayed with her son for five to six (5 of 10) [CMA-5082/2017] months, for how many times she went to her parental home, she cannot say, this witness has also stated that Sudha was not keeping well but recuperated after treatment, they also got her treated through 'dora' (a kind of black magic).
AW4 Prakash Jangid has stated that he had attended couple's marriage and was invited by Vedprakash, it was a "arranged marriage" and he was conveyed and complained by Vedprakash that his wife had taunted him being wheatish of complexion. Exaggerating pleadings this witness has stated that Sudha slapped before him, which has even not been pleaded by the plaintiff-respondent, this witness has stated that on 17.07.2011 he too had gone to fetch Sudha but behaviour of her parents was not amicable, kind of testimony, which has been stated by this witness, falsifies allegations and pleading of the plaintiff-respondent that he was threatened, maltreated, ousted or was daunted, since AW5 Uncle of Vedprakash has also stated that Sudha's parents didn't behave properly.
In her testimony, Smt. Sudha Devi has stated that she obeyed her spouse duty, her father spent six to seven lakh in the marriage, she was often beaten because Maruti car and a plot in Sikar was not given in the marriage, she was beaten by her husband and was kept starving. On truce, she came back to her husband's home, Vedprakash was addicted to liquor and on resistance, she was beaten and a dowry demand was also made, in July 2007 she was selected for B.Ed training and completed B.Ed in June 2008, study expenditure was borne by her father, it was not given by Vedprakash, whenever her in-laws came to fetch her, she was permitted to go, she was misbehaved and was threatened to be eliminated. Apprehending danger, she fled away (6 of 10) [CMA-5082/2017] to her parental home, she has also stated that she is always prepared to join marital consortium of her husband and had never wanted divorce, in cross-examination she has stated that at the time of her marriage, her husband was not employed in Government service but was selected subsequently, she has further stated that her matrimonial life was comfortable and she is staying away from July 2011, she has specifically stated that when she overheard planning being contemplated to eliminate her, she fled away to her parental home.
Testimony of NAW2 Sitaram, father of defendant- appellant, NAW3 Subhash Chandra, NAW4 Chiranjilal have also been adduced in support of the contentions of bridal side.
Scrutiny and evaluation of entire evidence goes to reveal that marriage between the couple was an arranged marriage and both had seen and liked each other prior to marriage, so question of alleging 'He' partner being short of height or blackish of complexion, does not infuse reliance. Plaintiff- respondent has himself asserted that at many occasions, whenever he went to fetch Sudha Devi, she came and joined matrimonial consortium, even it has come in the evidence that Sudha Devi stayed at Village 'Paunk' for five to six months. Sudha Devi has pleaded that she was tortured and harassed for demand of dowry, even she overheard planning of her in-laws, talking to commit unpleasant upon Sudha Devi, which compelled her to fled away in order to save herself from the apprehensive jeopardy.
Bride abandons her parental house for marital consortium of her husband, expecting amicable atmosphere and security to her life and prestige. Admittedly, she has completed her B.Ed. during her marital bonds, which does also show that she (7 of 10) [CMA-5082/2017] toiled alot to keep her studies completed, even during marital bonds.
Imperative it is to provide secured atmosphere to a bride in a matrimonial house, since a lady, who joins the family of her husband won't feel secured to stay alongwith her groom, in absence of sense of security and grace over there, it emanates from the evidence that she was tortured and harassment was perperated upon her, even demands for Maruti car was made, mother of plaintiff-respondent stated that defendant-appellant belonged to a family of affluent class and her father was a Bank Manager and groom's family was not of that status. It has also come in the evidence that marital proposal was settled after the customary 'look ceremony' and the couple consented for the marriage, in furtherance thereto, nuptial was ceremonised, so assertions that subsequently taunts were hurled on account of short height of groom, infuses no faith rather post-marriage achievement of teaching job by the groom, appears to be a reason of discontent and disharmony, which cannot be attributed to 'She' spouse, since post-marriage job was achieved by Vedprakash and he was selected Teacher Grade-III, subsequently was promoted to Senior Teacher Grade-I and at both these occasions, when Vedprakash went to fetch Sudha Devi, she came and joined matrimonial consortium of her husband, which is an admitted position and has been so asserted by Vedprakash Saini in his evidence and Smt. Sudha Devi, while overhearing machination of unpleasant, sensing jeopardy to her life, compelled to leave her matrimonial house to rescue herself and this was the reason wherefore she constrained to live apart from her husband, which can never be treated to be a "desertion", even in the testimony, (8 of 10) [CMA-5082/2017] Smt. Sudha Devi and her other witnesses have specified that Smt. Sudha Devi is prepared to join matrimonial consortium of her husband.
Apex Court brought forth essential ingredients of "desertion" as ground of matrimonial relief in the case of Bipinchandra Jaisinghbai Shah V. Prabhavati AIR 1957 SC
176. The Hon'ble Apex Court in Savitri Pandey V. Prem Chandra Pandey (2002) 2 SCC 73, has observed as under :-
6. Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(i-a) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health.
Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other.
"Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case both the Trial Court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent. Concurrent findings of fact arrived at by the courts cannot be disturbed by this Court in exercise of powers under Article 136 of the constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly show that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the (9 of 10) [CMA-5082/2017] respondent which cannot be termed more than ordinary wear and tear of the family life.
8. "Desertion", for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts referring and circumstances of each case. After referring to a host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbai Shah V. Prabhavati held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion.
We, do not find that appellant-defendant would have deserted the matrimonial consortium of her husband intending permanent cessation of cohabitation, nor a positive evidence is there regarding alleged cruelty, if a spouse leaves the matrimonial house in order to secure her life, then temporary disassociation would never amount desertion.
In view of the afore-discussed facts and circumstances, the issue/s determined by the learned court below in respect of "desertion" and "cruelty" ought not to have been decided against the defendant-appellant.
Summing-up, we are of the view that plaintiff-
respondent has failed to prove his case, hence findings arrived at (10 of 10) [CMA-5082/2017] by the learned Family Court, are faulted and deserves to be set aside.
Thus, the appeal succeeds, as such judgment and decree impugned are set aside.
No cost.
(G R MOOLCHANDANI),J (PRADEEP NANDRAJOG),CJ db/ashwani/7