Rajasthan High Court - Jaipur
Smt Kumkum Sharma vs Prashant Sharma on 27 April, 2018
Bench: Chief Justice, G R Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Miscellaneous Appeal No. 2523/2017
Smt. Kumkum Sharma D/o Late Shri Hari Narayan Sharma W/o
Shri Prashant Sharma, Aged About 36 Years, R/o 11-A,
Saraswati Vihar, 100 Feet Road, Jhotwara, Jaipur.
----Appellant-non-petitioner
Versus
Prashant Sharma S/o Shri Somdutt Sharma, By Caste Brahmin,
Aged About 37 Years, R/o 1243/104, Riddhi Siddhi Apartment,
Rani Sati Nagar, Nirman Nagar, Jaipur, Presently R/o A-23,
Padmawati Colony, Nirman Nagar, Jaipur.
----Respondent-Petitioner
For Appellant(s) : Mr. Sanjay Sharma
For Respondent(s) : Mr. Ashok Mehta Sr. Adv. with
Mr. Siddhant Jain
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE G R MOOLCHANDANI
Judgment reserved on :: 25th April 2018
Judgment pronounced on :: 27th April 2018
Judgment
By the Court (Per Hon'ble G.R. Moolchandani, J.)
1. Aggrieved by the order dt. 21.04.2017 passed by Family Judge No.3, Jaipur dissolving marriage of the appellant, instant appeal has been preferred.
2. In nutshell, respondent petitioner brought a divorce petition before the court below pleading that his marriage was solemnized with appellant non-petitioner on 19.02.2009 at Jaipur, right from his marriage, appellant non-petitioner was having a perverse and quarrelsome nature and started scuffles with family (2 of 12) [CMA-2523/2017] members uttering that her marriage was a forced marriage since her mother and sister coercively got her marriage done, she was nurturing love affairs with somebody else and does not feel the in- laws' house to be of her own nor she will accord in-laws' status to her father-in-law and mother-in-law. She was reluctant to observe festival, she would go away to the house of her mother, her adverse utterances injured his feelings, she used to create discontent intermittently and abandon in- laws' home, initially she yielded to come back but later she would often say that who has called them to fetch her, she will stay there and none requires to fetch her. Petitioner's mother was hospitalized between 17.07.2009 to 21.07.2009 even sickness tidings could not yield her to come back, she was of the view that whatever unpleasant may befallen upon them, it won't affect her and she failed to come back even to know well-being of her mother-in-law, which caused mental trauma to the petitioner, tantamounting cruelty. She was epileptic and used to take medicines, even loitered to apprise nature of medicines and would fight on these pretext, even the disease was kept latent prior to marriage, which was essential to be revealed for sake of marital fiduciary, she also lodged FIR No. 175/2010 with Mahila Police Station and later compromised. Further on the basis of cruelty and desertion decree for dissolution of marriage was sought.
3. Defendant Smt. Kumkum Sharma rebutting pleadings, conversely pleaded that she never behaved alleged absurdity nor stated that she was having love-affairs with somebody else, she observed all festivals without fail and has further pleaded that she does not suffer from alleged disease of epilepsy. On the contrary, (3 of 12) [CMA-2523/2017] she was harassed and maltreated by her in-laws, in fact petitioner was addicted to alcohol and harassed her, he also spoiled salary on consuming alcohol. She often asked to abandon bad habits but he did not yield. Petitioner and his family members threatened her to divorce. On 24.07.2011 she was given beatings and was thrown out of the house, her apparels and jewellery were also retained by her in-laws, ever since she is residing with her widowed mother. Petitioner is not paying even a single penny for her maintenance. By agitating false allegations, petitioner wrongfully intends to seek divorce, non-petitioner is not residing with her mother of her own accord since petitioner has ousted her after giving beatings, so she has compelled to live alongwith her mother. She never acted cruelly with her in-laws and has further pleaded to dismiss the petition with grant of 25,000/- towards monthly maintenance.
4. Upon pleadings of both the parties, learned Court below framed following issues:-
(i) Whether non-petitioner has treated the petitioner with cruelty ?
(ii) Whether non-petitioner has deserted the petitioner since 20.07.2011 without reason ?
(ii-a) Whether non-petitioner is entitled to get ` 25,000/- per month alimony from the petitioner for whole of her life ?
(iii) whether petitioner is entitled to get degree for dissolution of marriage ?
(iv) Relief.
5. Both the rival parties have produced themselves to prove their pleadings. Petitioner has produced himself as AW1, whereas non-petitioner has produced herself as NAW1 and her maternal aunt as NAW2.
(4 of 12) [CMA-2523/2017]
6. PW1 Prashant Sharma has stated that his marriage was solemnized with defendant Smt. Kumkum on 19.02.2009, two to three days later to the marriage, she started uttering that she loves somebody else and ceremony of her marriage was under
compulsion, initially the utterances were thought to be airy but non-petitioner started leaving her matrimonial house without any reason to her parental home and often said that Deter calling her, whenever she wishes, she will come of her own. She avoided to celebrate festivals in her matrimonial home, he has further stated that when his parents were hospitalized, she left her matrimonial home, saying that since parents belong to her husband, so she does not care about their well-being. For eight to nine months non-petitioner did not return to her matrimonial home and lodged a false case for alleged demand of dowry with Police Station Mahila Thana (North), though they did not demand any dowry.
Prior to it, his sisters and Jija went to make non-petitioner understand to her parental home but she did not yield and ousted them by warning that they were not needed there and warned to desist from visiting again, a compromise was arrived at in respect of the same at Mahila Thana after that non-petitioner came back to them but kept threatening by saying that if she is asked not to visit her parental home, then they will be involved in false cases and would be made behind bars, she often threatened to jump from the terrace and warned that they will be entangled by leaving a script, she suffers of epileptic fits, factum of which was kept latent at the time of marriage, whenever she was asked not to leave her house for her parental home, she would scream in the balcony, he has further stated that he was employed with (5 of 12) [CMA-2523/2017] Vodafone Company and whenever female co-workers made phone-calls to him, she started quarreling on this count and from 24.07.2011 she is residing in her parental home of her own wish, she has treated him with cruelty, no more he wish to stay with her and seeks divorce.
In cross-examination, Prashant Sharma has stated that festival of "Gangor" is not celebrated in their family, so demand of new Saree was wrong. He has also stated that his parents used to get hospitalised every second or third day and he has not produced any evidence thereto. He has also stated that he is not aware about the dates on which non-petitioner would have threatened to jump from terrace, he has further stated that non- petitioner was got treated for her epileptic fits and she would not take medicine, he has further stated that he cannot say on which dates non-petitioner suffered of epileptic fits and has expressed his inability to produce any medical prescription in support of her epileptic fits. He has further stated that he never ousted his wife, his parents have also advised them that couple may live separately but with affection. A drastic utterance has also been made by this witness by saying that "he is not prepared to keep non-petitioner alongwith even if, she is prepared for the same". He has also stated that he lives separate from his parents and his parents have filed a case for domestic violence against his non- petitioner wife and his father gets pension but he has got no concern with it because he is living separate.
7. Non-petitioner NAW1 Smt. Kumkum Sharma has accepted that her marriage was solemnized with petitioner on (6 of 12) [CMA-2523/2017] 19.02.2009 and she resided with her husband for one and a half year and living separately from her husband since 24.07.2011 because her mother-in-law has lodged a case against her for the domestic violence, she has further stated that her behaviour with her in-laws was amicable and she treated her father-in-law and mother-in-law as if of her own parents, she has also said that her behaviour with her husband was befitting, she does not suffer from any disease nor sick of epileptic fits, she has further stated that her behaviour is normal but she cannot tolerate wrong. "She has also stated that she is ready to join matrimonial consortium of her husband" but her husband wants divorce, so as to marry somewhere else, she has further stated that her husband wants that she may reconcile for divorce settling with ten lakh in alimony. She is not employed anywhere, she has also stated that a compromise was arrived at Mahila Thana, later-on she went to her maritial home and has further negated allegations.
8. NAW2 Ms. Santosh Pareek, maternal aunt of non- petitioner has stated that her niece has constrained to live separate since 2011 because of cruelty and harassment perperated by her in-laws, her behaviour with her in-laws is amicable, her niece is not suffering of epilepsy, she nurtures good behaviour. She too has stated that her niece is prepared to join matrimonial consortium of her husband. Nothing abnormal has emerged from cross-examination of this witness and she has denied untoward allegations.
9. Scrutiny of the afore-discussed evidence discloses that petitioner has failed to adduce any positive evidence in respect of (7 of 12) [CMA-2523/2017] allegations of maltreatment and harassment or cruelty against her respondent wife, his statement that his parents were used to be admitted in hospital every second or third day and he failed to produce any document in support thereto, his ignorance as to on which dates his wife went away to her parental house in 2009 and expression of ignorance as to when and on what date his wife threatened to jump from the terrace, makes his testimony non- positive and pleading being not proved. He has himself asserted that he is living separate from his parents, then how she allegedly threatened her husband before his parents, is also doubtful.
10. Prashant Sharma has also stated that he cannot say the date precisely, when his parents were allegedly threatened to be killed by his wife by giving injections, his statement that his wife sustained epileptic fits but he is not in a position to state its exact date, also suggests that the allegations have been levelled without any corroborative testimony. No testimony has also been given that Smt. Kumkum was sick of epileptic disease prior to her marriage and this fact of disease was kept latent, had it been correct then Smt. Kumkum would have certainly remained on medicines but nothing to this effect has been proved. On the contrary, Prashant Sharma has stated that she was not taking medicines, though Prashant Sharma has asserted that she was under treatment he has also said that he has not filed any document in support of her epileptic treatment, which makes his testimony doubtful and the pleadings without having been proved.
11. Smt. Kumkum Sharma has stated that she was subjected to demand of dowry by her in-laws and a compromise (8 of 12) [CMA-2523/2017] had taken place in that respect. On the contrary Prashant Sharma has asserted that his parents has lodged a case against her wife for Domestic-violence and this aspect is also admitted by Smt. Kumkum Sharma that reason of her staying away from her marital home was that her mother-in-law had lodged a Domestic-violence case against her.
12. Prashant Sharma has been eloquent by saying that he is not prepared to retain his wife. On the other side Smt. Kumkum Sharma has stated that she is prepared to join matrimonial consortium of her husband. Smt. Kumkum Sharma has also stated that her husband never come to fetch her.
13. He has stated that demand of a Saree during the "Gangor" festivity was unbecoming on the part of her wife, which too traditionally may not be graceful because festival of "Gangor" is commonly celebrated in Rajasthan by brides and newly wedded brides to seek long life and benediction to their male spouse/s so aspiration to wear new Saree or to demand a new Saree on such occasion, may not be termed to be unbecoming, even on this count testimony of respondent-petitioner has remained non- positive.
14. Petitioner husband has failed to establish allegations of cruelty against his non-petitioner wife, so issue to this effect has rightly been adjudicated by court below against the petitioner.
15. So far as, ground of "desertion" is concerned, this too has not been legally proved by the petitioner. Smt. Kumkum has categorically stated that she was harassed by her in-laws and their behaviour was not becoming, they used to demand dowry and she (9 of 12) [CMA-2523/2017] lodged a case against her husband as well. She has also stated that she is not suffering from any disease. Her husband demanded a Car and mother-in-law compelled her to earn and her husband did not come to fetch her before registration of case, in cross-examination she has also stated that a compromise had taken place at Mahila Thana and she had been to her matrimonial home, she has also categorically negated a suggestion that "it is wrong that she is residing her mother without consent of her husband", though incohesiveness has also appeared in her cross- examination but it is an admitted position that parents of Prashant Sharma have admittedly lodged a case against Smt. Kumkum Sharma for Domestic-violence, this aspect has also emerged from the testimony of Smt. Kumkum Sharma since she has also stated that the cause of living separate was a Domestic-violence criminal case lodged by her mother-in-law against her.
16. Prashant Sharma has asserted that he is not ready to keep his wife alongwith though living separate from his parents. On the contrary Smt. Kumkum has stated that she is prepared to join marital consortium of her husband, even NAW2 Ms. Santosh Pareek, maternal aunt of Smt. Kumkum Sharma, has accepted that her niece Kumkum is ready to join matrimonial consortium of her husband.
17. Petitioner has levelled allegations of infidelity, ailment of epilepsy and alleged cruelty, which he has miserably failed to corroborate and establish, even learned court below has decided issue no.(i) pertaining to cruelty against petitioner Prashant Sharma.
(10 of 12) [CMA-2523/2017]
18. 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 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 (11 of 12) [CMA-2523/2017] 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."
19. Admittedly, a criminal case of domestic violence is there against Smt. Kumkum Sharma and she too has registered a cruelty case against her in-laws. Smt. Kumkum is vocal enough in asserting that she is prepared to join matrimonial consortium of her husband and her aunt has also stated likewise. She has even said that she joined marital consortium of her husband and stayed alongwith them. Under umbrella of formidable allegations and atmosphere of jeopardy and on ousting, abandoning the marital home by staying at a protective mother's home, can never be termed to be intentional abandonment and cessation of inclination to cohabit and staying away of non-petitioner/appellant, could not be termed to be "desertion" in the given situation, in light of evidence available on the record and in these circumstances, adjudication of issue no.(ii) in favour of petitioner husband is obviously erroneous since it ought to have been decided against the petitioner, so finding to this effect is modified and is decided (12 of 12) [CMA-2523/2017] against the petitioner. Resultantly, petitioner is not entitled to seek relief prayed for.
20. In the result, this appeal is hereby allowed and the judgment and decree dated 21.04.2017 passed by learned court below, is set aside and petition seeking dissolution of marriage is dismissed.
No cost.
(G R MOOLCHANDANI),J (PRADEEP NANDRAJOG),CJ db/ashu/ashwani/9