Madhya Pradesh High Court
Smt. Priyanka Tiwari vs Rahul Shankar Tiwari on 21 April, 2023
Author: Milind Ramesh Phadke
Bench: Ravi Malimath, Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
FIRST APPEAL No. 1563 of 2022
BETWEEN:-
SMT. PRIYANKA TIWARI, W/O RAHUL SHANKAR
TIWARI, D/O GAURI SHANKAR DUBEY, AGED 35
YEARS, OCCUPATION: SERVICE (TEMPORARY)
R/O NEAR THIRD GATE OF SAF BATTALION
ETAWAH ROAD, BHIND, P.S. DEHAT BHIND (M.P.)
....APPELLANT
(BY SHRI PRASHANT SHARMA - ADVOCATE)
AND
RAHUL SHANKAR TIWARI, S/O ARVIND KUMAR
TIWARI, AGED 30 YEARS, R/O JOHNTHEAM
CENTRAL ACADEMY SCHOOL KE PASS, SAF
PETROL PUMP KE PASS ETAWHA ROAD, BHIND
(M.P.)
....RESPONDENT
(BY SHRI MANISH NAYAK - ADVOCATE)
____________________________________________________________
Reserved on : 17.03.2023
Delivered on : 21.04.2023
____________________________________________________________
This appeal having been heard and reserved for judgment, coming
on for pronouncement this day, the Court passed the following:
JUDGMENT
2 The present first appeal under section 19 of the Family Courts Act, 1984 is directed against the judgment and decree dated 21.9.2022 passed by the Principal Judge, Family Court, Bhind in H.M.A. Case No.46A/2016 whereby the petition for divorce under Section 13 of the Hindu Marriage Act (for short "the HMA") by the respondent was allowed and the marriage solemnized between the parties on 13 th April, 2006 was dissolved and a decree for divorce was passed.
2. Being aggrieved by the aforesaid judgment and decree, the wife had preferred this appeal. The relevant dates and events necessary for adjudication of the present appeal are narrated as follows:
(a) On 30.4.2006 marriage was solemnized between the present appellant and the respondent-husband as per Hindu rites and rituals at Bhind, Madhya Pradesh and on 17.10.2007 one daughter namely Vashnavi was born out of wedlock. After the marriage, the respondent and his family members inflicted all sorts of cruelty on appellant, thus, being aggrieved by their cruel acts appellant raised her grievance before her parents, who advised her to be patient and try to safeguard the matrimonial relationship, if possible.
(b) The respondent since was not having good relations with his father, therefore, he was separated from the house and from 04.07.2007 he started to reside with the appellant in separate house wherein he continued his illegal demand of dowry and kept torturing appellant mentally and physically. Parents of the appellant have already given sufficient dowry to the respondent at the time of marriage however the respondent and his family members kept on continuously harassing and torturing the appellant in pursuit of their never ending greed of dowry.3
(c) The appellant/wife in order to safeguard the matrimonial relationship tried to bear with the cruel acts, however respondent and his family member continuously tortured appellant and in continuance thereof on 22-06-2008 appellant was beaten by the respondent and was forcefully sent to her parental house thereafter upon request of parents of appellant, the respondent/husband agreed to live with appellant/wife, however on 17-08-2009 respondent again physically assaulted the appellant and forcefully sent her in the clothes she was wearing, to her parental home and kept all jewellery and all other things with him and from that day appellant is residing in her parental house. Appellant and her family members tried to resolve the matter by counselling of the respondent and his family members but the results of said efforts were not fruitful.
3. Respondent/husband then filed an application under Section 9 of Hindu Marriage Act for restitution of conjugal rights however the same was dismissed due to non-presence of the respondent on dated 24-04-2009. After the dismissal of the application u/s 9 of the HMA, the respondent moved an application for restoration before the concerned court which was registered as Case No. 35/09. However the same was also dismissed vide order dated 19-01-2010. In the year 2011 respondent moved an application under Section 13 of the Hindu Marriage Act which got registered as Case no. 59/2010. However the same was dismissed vide order dated 29.06.2011 as the same was not pressed by the respondent. As the respondent had deserted appellant and even after making several requests to the respondent and his family members, the respondent did not agree upon to live with the appellant therefore appellant moved an application under Section 9 of the HMA before 4 competent court for restitution of conjugal rights and the same was decreed vide order dated 13-07-2012 in favour of appellant.
4. In the appeal it was further averred that respondent has solemnized second marriage and out of the said marriage a male child namely, Om, was born. Thus the respondent, merely for the purpose of getting rid of appellant and to validate the second marriage, had levelled false allegations upon the appellant which are totally based on assumptions and presumptions, which amounts to harassment of appellant, thus, being constrained, she moved an application under Section 12 of the Protection of Women from Domestic Violence Act against the respondent which was decided vide order dated 28.9.2012 and relief under Sections 18, 19 and 22 was granted to the appellant. Thereafter the respondent-husband had filed an application under Section 13 of the HMA in which the judgment and decree for divorce was passed and the marriage was dissolved by the Family Court. Against the said judgment and decree, the present appeal is being filed by the appellant.
5. Learned counsel for the appellant vehemently argued that the judgment and decree passed by the learned Family Court is in total contravention of the facts and documents available on record, and therefore, the judgment and decree is not tenable in the eyes of law. It was contended that the learned Family Court ignored the aspect of the respondent-husband solemnizing second marriage with a lady namely Reena and out of the said wedlock a boy has born, but despite of this fact the learned Trial Court on the basis of some Aadhar Card produced by the respondent-husband, whereby the said lady was said to be the stepmother of respondent-husband held that the appellant has failed to 5 prove the factum of second marriage solemnized by the respondent- husband. Learned Family Court also ignored the fact that since respondent had left the appellant and was not inclined to live with her, application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights was filed by the present appellant before learned Family Court and same was decreed in favour of appellant-wife. Despite the same the Court did not compel the respondent-husband to live with her. Learned counsel for the appellant further submitted that there was no iota of evidence with regard to any kind of cruelty committed by the appellant rather it was the respondent-husband whose behaviour was cruel towards the appellant and he had deserted her. Thus, she was subjected to cruelty as even after the decree for revival of the matrimonial relationship the respondent denied to honour the mandate of the Court and in total disregard thereof he solemnized second marriage, despite existence of the present one and these facts were not considered by the learned Family Court and had passed the impugned judgment and decree. Learned Family Court also erred in not considering that the application under Section 9 of the HMA filed by the present respondent/husband was dismissed at its preliminary stage, which was filed as a mere eye-wash so that he may solemnize the second marriage. Thus, the impugned judgment and decree passed by the learned Family Court cannot be sustained in the eyes of law and is liable to be set aside. It was further argued that the present application under Section 13 of the HMA filed by the respondent/husband was barred by the principle of res judicata as on similar facts previously also he has filed the same application which had got dismissed. Thus, it was prayed that the impugned judgment and decree is per se illegal and deserves to be set aside.
66. Per contra, learned counsel for the respondent/husband submitted that no illegality has been committed by the learned Family Court in passing the judgment and decree as the grounds of cruelty and desertion both were found proved on the part of the present appellant. It was further argued that till the birth of the child on 17.10.2007 the situations were normal, but thereafter the appellant started misbehaving with family members and it became a daily routine wherein she used to indulge in some fight with the family members. Many times the appellant/wife used to say that she is an educated lady and is not dependent on anybody and she can maintain herself by doing job and whenever she was asked to take care of his ailing parents her behaviour used to become more cruel. Apart from this, whenever he used to give the appellant understanding, she used to threaten him that if he says anything to her she will commit suicide and thus used to harass him mentally.
7. It was further argued that whenever the respondent-husband tried to make her understand through near relatives, she used to tell them that she will not do the household work and that she will not even take care of ailing mother and for that the respondent-husband may keep maid and later on insisted him to live in some other house then only she will live with him and if he would compel her for doing anything she would involve the respondent-husband and his family members in some false case and upon such threatening for the sake of saving his marriage, respondent-husband on 4.7.2007 took a house on rent at Dev Nagar Colony Bhind and started living there. But, even after living separately there was no change in the behaviour of the appellant and even the appellant deprived him from his physical needs and whenever he used to approach her for having physical relations she used to say that if he 7 would compel her to do it she would scream and call the neighbours. Therefore, looking to the prestige of the family he stopped asking appellant regarding the same. Thus, behaviour of the appellant was cruel and both physically and mentally the respondent husband was harassed.
8. It was further submitted that on 27.07.2008 when he had gone out for some urgent work, the appellant's parents came to their house and without informing the respondent-husband she took the entire jewellery which included one golden necklace of two tolas, One Sitarani of four tola, Four Gold Bangles of two tola, Brajbala of one tola, Bichiya and anklet of silver of 250 gram, Silver Kardhani of 250 grams and expensive clothes etc. and when the respondent husband came back to the house then the neighbours told him that appellant-wife had gone along with her parents and on the same day when the respondent went to the house of the appellant-wife he was not allowed to meet her by her parents and he was driven out of the house after abusing him and since then for the last eight years the appellant is living in the house of her parents without any reason and thus had deserted the present respondent-husband.
9. It was also argued that even when the mother of the respondent husband had suffered fracture in her spinal cord and was fighting with her ailment and during that period she was regularly being taken to Bhind Hospital Gwalior Kalyan Hospital, Birla Hospital etc., but the appellant did not care to come and visit her and what to talk about taking care of? Many times respondent-husband himself has gone to the house of the appellant, but every time he was driven out with inhumanly treatment.
810. It was further contended that in the year 2010 when the mother of the present respondent-husband died, neither the appellant nor anybody from her parents came even to pay condolences. It was also argued that the appellant-wife even did not allow the respondent-husband to meet his daughter Vashnevi and due to all these harassment the husband could not concentrate on his job and as he was not able to concentrate on his job, in the year 2009 itself his father disowned him from the family and even the disowning news was published in the daily newspaper, named "Daily Udgar" on 02.10.2009 due to which more frustration crept in.
11. It was also contended that on 10.9.2008 the respondent-husband had filed an application under Section 9 of the HMA, but due to continuous threatening of the family members of the appellant he could not remain present in the said matter due to which it got dismissed which some how he got restored, but again vide order dated 19.01.2010 the same was dismissed, and thereafter he moved an application under Section 13 of the HMA which was numbered as H.M.A.No.59/2010 which got dismissed on 29.06.2011 as not pressed.
12. During this entire period the respondent-husband tried his level best to bring the appellant/wife back, but instead of coming back the appellant filed an application under Section 9 of the HMA, which got decreed on 13.7.2012 ex parte and in consequence thereof the respondent-husband himself went to the house of the appellant to bring her back, but she refused to come back. Thus, he sent three legal notices dated 29.05.2015, 14.01.2016 and 02.02.2016 to the appellant, but even when she did not turn up, he was constrained to file the petition for divorce, which after due appreciation of the evidence, has been decreed by the Family Court. Thus, no illegality can be found in the aforesaid 9 judgment and decree and the appeal is without any substance and merits and therefore, deserves to be dismissed.
13. Heard the learned counsel for the parties and perused the record.
DISCUSSION
14. The Hindu Marriage Act, which governed the laws relating to the marriages between Hindus, contained a ground for divorce "cruelty" after solemnization of the marriage. The cruelty which is a ground for dissolution of the marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental or so as to give rise to a reasonable apprehension of such danger in the mind of a party.
15. According to this Court "cruelty" is the conduct in relation to or in respect of matrimonial obligation. It is the conduct, which adversely affects the spouse and can either be mental or physical intentionally or unintentionally. To judge whether or not something is mental cruelty or physical cruelty, the nature of the cruel treatment has to be examined and the mental impact as on the spouse and whether it causes the reasonable apprehension in the mind of that spouse would be harmful or injurious to live with other. Cruelty is ultimately a matter of inference which is to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse.
16. According to this Court, when dealing with such complaints of cruelty it is important for the court to not to search for a standard in life since cruelty in one case may not be cruelty in another case. What must be considered includes the style of life the parties are used to their economic and social conditions and cultural and human values to which they attach importance. The nature of allegation need not only be illegal 10 conduct such as asking for dowry, making allegations against the spouse in either the plaint or written statement filed before the Court in judicial proceedings may also be held to constitute cruelty. Reference be had to the matter of Hon'ble Supreme Court reported in V. Bhagat Vs. Mrs. D.Bhagat, AIR 1994 SC 710, Vijay Kumar Ramchandra Bhate Vs. Neela Vijaykumar Bhate, AIR 2003 SC 2462 and in a very recent judgment in the matter of Jaydeep Majumdar Vs. Bharti Jaiswal Majumdar, Civil Appeal No.3786-3787/2020 dated 26.2.2021 the Hon'ble Supreme Court had held that the allegation of adultery and defamatory complaint is an act of mental cruelty irrespective of whether the allegation is proved by court of law or not.
17. In another case in the matter of Virendra Vs. K. Meena decided in Civil Appeal No.3253/2008 on 6 th October, 2016 the Hon'ble Supreme Court has held that in a Hindu society a son is expected to take care of his parents in old age and that a wife should not try to force him to leave them without any justifiable reason.
18. In another case in the matter of Samar Gosh Vs. Jaya Gosh decided in Civil Appeal 151/2004 passed on 26th of March, 2007 the Hon'ble Supreme Court discussed about what may constitute mental cruelty and in that context the word "may" and "can" were discussed. In the given case therein denying sex for a considerable period without any physical problem or valid reason may amount to mental cruelty. Thus the use of the word "may" or "can" underscores the indeterminate nature of what constitute cruelty.
19. In judging the conduct of a party what has to be seen is whether the conduct complained of has been cruel to such an extent that the wronged party cannot be reasonably asked to put up with that conduct 11 and not whether it creates the reasonable apprehension in the mind of the spouse that it would be harmful or injurious for her to live with the other. Thus in the above context, now let us see the evidence which has been brought by the parties on record.
20. Since the divorce petition was filed by the husband, the statement of husband is required to be discussed first. As per the statement of the respondent/husband his marriage with the appellant took place on 30.4.2006 as per Hindu customs and rites at District Bhind and thereafter on 17.10.2007 the baby girl Vashnavi was born out of the wedlock. Till the birth of the child they were living happily, but after her birth the behaviour of the appellant drastically changed. She lost interest in the household work. She used to go out without informing anybody and used to say that she is an educated lady and is not dependent on anybody and she can maintain herself by doing some job. She stopped taking care of his parents and even compelled him to stay away from the home.
21. As per the statement of respondent-husband it also reflects that whenever the respondent husband used to try and convince her he got threatening from the appellant that if he compels her to do anything she would commit suicide and due to the irrelevant behaviour of the appellant wife he went to stay in a rented premises at Dev Nagar Colony Bhind. There the wife denied to consummate and whenever he showed his interest for the same she used to go to other room and used to say that if he forced her to do it, she would shout and would call the neighbours and he being a sensible man and for the sake of the prestige of the family did not force himself upon her.
1222. The statement also reveals that on 20.07.2008 when he had gone out for attending some urgent work, in his absence the parents of the appellant came to his house and the appellant along with her parents took all the jewellery and expensive clothes and went away. As and when the respondent-husband came to the house the neighbours told him about both the incidents. He immediately rushed to the house of the appellant, but he was driven away.
23. The statement of the respondent-husband also reveals that in the year 2008 his mother got her spine fractured due to which she was hospitalized for almost 18 months, but the appellant did not care to even come and see his mother and due to her continuous mental torture the respondent-husband got so mentally disturbed that he could not do his job and other duties properly which resulted in disowning of him by his own father and on 2.10.2009 a notice to that effect was published in a daily newspaper.
24. In the year 2010, when the mother of the respondent-husband died, the appellant or her parents did not even care to come and pay condolences. From the statement it is also revealed that the appellant had filed an application under Section 9 of the Hindu Marriage Act and had got a decree for restitution of conjugal rights on 13.07.2012, but even thereafter she did not get the said decree executed or made any efforts to come and live with the respondent-husband and even she did not care to reply to the legal notice dated 29.5.2015, 2.2.2016 and 14.1.2016 sent by the respondent-husband to her. Thus, the respondent- husband was constrained to file the present divorce petition on the ground of mental cruelty and desertion.
1325. So far as the statement of appellant-wife is concerned, she had stated that the allegations which have been leveled against her by the husband are not correct and she had never asked the respondent- husband to leave the house and live separately and had never said no to do the household work. She had never misbehaved with the parents of the appellant and had never deprived the respondent-husband from the enjoyment of married life.
26. In cross-examination in para 21 the respondent-husband had stated that whenever the appellant did not use to cook the food then he or his brother used to cook the food as his mother was ill and when they started living in a rented premises then appellant sometimes used to cook food and at other times he used to cook food.
27. With regard to depriving him from pleasures of married life, it was mentioned therein that he had not complained of the same to any police officials and it is only in this matter that he has narrated the said fact. Further in para 25 it has been stated that for execution of the decree passed under Section 9 of the HMA the appellant had not filed any execution, but after passing of the said decree he had sent legal notice to the appellant, but she did not even care to reply to the same and had not came to live with him. In para 26 he submits that the appellant/wife had filed an application under the Domestic Violence Act against him in the Court at Bhind in which Rs.20,000/- was directed to be deposited and direction with regard to her accommodation was also passed and in that context he had arranged for living of the appellant at Barua Nagar, Bhind, but she did not come to live there. In para 27 of his cross-examination he admits that in the case under section 125 of Cr.P.C. an award of Rs.2000/- for daughter Vaishnavi and Rs.1500/-
14for the present appellant was ordered and since he could not submit the amount towards the maintenance in the execution proceedings the Court had directed him to be sent to jail, but when he deposited the amount, warrants was recalled. In para 30 of his cross-examination he had denied the allegations leveled by the appellant/wife that he had contracted a second marriage and out of the said wedlock he is having a son, rather had specifically stated that he had not contracted a second marriage. In para 33 of the cross-examination he admits the fact that he does not know in which class his daughter is studying as the appellant/wife is not letting him to meet his daughter. In para 36 of his cross-examination questions were asked with regard to second wife Reena Tiwari by showing him some photographs to which he has specifically stated that she is his stepmother and also denied that he along with his second wife were attending some rituals in the marriage of his cousin.
28. On behalf of the respondent-husband statements of PW.2 Pushpendra Tiwari were recorded who is the neighbour of the appellant/wife wherein he has stated that marriage of appellant and respondent took place on 03.04.2006 and he remained present in all the rituals and on 17.10.2007 a daughter was born out of the said wedlock. He has stated that grandmother of the appellant was also being harassed by her daughter-in-law i.e. mother of appellant and the appellant also did the same thing and her behaviour was similar to that of his mother. Prior to the marriage the appellant and her family members were told that mother of the respondent is suffering from Arthritis and therefore, she may be required to take care of her, but her behaviour with her mother-in-law from the starting was not proper and she bluntly refused to take care of her and threatened the respondent that if she would be 15 compelled, she would commit suicide. Thereafter just within one or two days of the marriage father of the appellant took her back where she remained for months and when she did not return till July, 2008 that he got arranged rented premises for the appellant and the respondent at Dev Nagar Colony, Bhind where appellant returned and stayed there but there also the appellant used to fight with the respondent on trivial issues, due to which the Panchayat of the family members was called where she was given understanding, but she refused to pay any heed to them.
29. In the year 2009 mother of the respondent-husband got her spine fractured due to which she was continuously on bed and was taken to various hospitals and later-on died in the year 2010, but neither during her illness nor after her death that anybody came to see her or pay condolences to the respondent and such type of inhuman behaviour he has not seen in the entire life. In his cross-examination no such material came on record which could support the case of the appellant and he stood to his version of examination-in-chief.
30. Another witness Akhilesh Kumar Tiwari PW.3 on behalf of the respondent-husband who had made similar statements as that of PW.2 Pushpendra Tiwari had stated that due to irrelevant behaviour of the appellant a Panchayat was called at the house where the appellant was given two suggestions, but she refused to listen to any of the suggestions.
31. Likewise PW.4 Rajveer Baghel has been examined on behalf of respondent/husband and had endorsed the very version of the respondent-husband with regard to the harassment which the appellant 16 used to commit with him of which he has a witness to the incident of the date on which the appellant has left the house along with her parents.
32. In the examination-in-chief of the appellant/wife under Order 18 Rule 4 of the CPC the contentions as made in the written statement were raised and except for admitting the date of marriage with the respondent, date of birth of their daughter, she refused the allegations levelled against her in toto. She denied the allegation as of her cruel behaviour towards the respondent/husband and his family members as also threatening the appellant for committing suicide if she was compelled to do any kind of household work or if he asked to take care of his parents. She also denied that she had compelled the respondent- husband to leave the house and live in some other rented premises and she had also refused to admit that she had ever lived with the respondent/husband in the house of Dev Nagar Colony, Bhind .
33. It was also denied that on 20.7.2008 she had left the house in absence of the respondent-husband along with her parents and had taken all the jewellery and expensive clothes with her, rather had made allegations that on 22.06.2008 the respondent-husband had driven her out of the house after physically assaulting her and then on 28.12.2008 the respondent again brought her back home where she lived with him till 18.8.2009, when the respondent got the application under Section 9 of the Hindu Marriage Act rejected and then it was on 18.8.2009 in the night that she was driven out and since then she is living with her parents.
34. Thereafter she tried number of times to convince the respondent to take her back, but of no avail. She had also stated that when she received the information of death of her mother-in-law she along with 17 her parents had gone to pay condolences, but she was not allowed to enter the house. Later-on also she had tried to approach the respondent- husband but he did not let her in and by abusing her and her father she was asked to leave and thereafter the respondent-husband never came to take her back. It was also contended that since there was no regular income of respondent-husband and his father may not be compelled to pay the maintenance amount, a false notice was got issued in his daily newspaper of disowning the respondent by his father.
35. It has also been denied that after procuring the decree under Section 9 of the Hindu Marriage Act for restitution of conjugal rights and after getting its information on 20.7.2012 the husband-respondent had come to take her back and she had refused to go with him. The matter in fact was that the applicant had contracted the second marriage and out of that second marriage he is having a son and since he is not able to give legal name to his son he has filed the present divorce petition. It was also stated that the address given by the present respondent-husband of Village Chakarnagar is false. In reality he is living in Bhind with his second wife and son and is working as Principal in Jonthiyam School, Etawa Road, Bhind and is also imparting coaching of English to the students and if he files an affidavit to the effect that he had not contracted second marriage and there is no son born out of the wedlock and is not able to get second wife and will not have relation with her, then only she is ready to live with him.
36. From the statements of the appellant this fact also emerges that she had filed an application under Domestic Violence Act before the Judicial Magistrate First Class Court in which there was an order against the present respondent husband to give her proper 18 accommodation and pay Rs.30,000/- as compensation but till date neither the accommodation has been provided nor the compensation has been given to her. In her statement she has also stated that she had submitted some photographs of the respondent along with his second wife Reena Tiwari, who were appearing in some marriage of cousin of the respondent/husband where they are participating in some rituals. In cross-examination though she admits that Panchayat was called, but solution as contended by the respondent husband came out in that panchayat. In para 30 of his cross-examination she admits that the application under section 9 of the Hindu Marriage Act filed by the respondent/husband was got rejected by him at that time she was living with respondent husband. In the said para she further admits that she has also moved an application under section 9 of the Hindu Marriage Act which was decreed, but denied this fact that it was just a paper decree but she admits that at no point of time she was inclined to live with the husband and further says that through the Women and Child Development Department she tried to get the decree executed but had not produced any record to that effect.
37. Another witness DW.2 Mithelesh Dubey who happened to be maternal aunt of the appellant had stated that appellant was harassed by her in-laws when she was living with the respondent. She further stated that the appellant had never lived with the respondent husband in the house of Dev Nagar Colony, Bhind rather she was living with the respondent at her in-laws house and she had also alleged that the respondent had contracted a second marriage and is having son and he had number of times seen the respondent along with second wife and son on motorcycle at Bhind. She also further stated that appellant had not brought any jewellery from the house of the appellant, rather she 19 was driven out of the house and she along with her husband had gone to the house of the respondent to give him understanding according to which the appellant was brought back home by respondent, but again in the year 2009 she was driven out and since then she is living at her parents house. She also tried to support the version of the appellant that at the time of death of mother-in-law, appellant had gone to pay condolence, but she was not allowed to come in by the respondent and with regard to Article D.1, the photographs she made allegations that she is the second wife of the respondent and had seen the respondent husband along with her at Kundleshwar Mandir and market. But, in cross-examination she admits that she had not gone to the place the photographs had been taken nor she had seen the second marriage taking place of the respondent husband. She also does not know the date on which she had seen them in the temple.
38. DW.3 Raghvendra Shukla who happens to be a maternal uncle of the appellant stated the similar facts as has been stated by the DW.2 Mithlesh Dubey and had supported the case of the appellant. In his cross-examination he admits that with regard to the second marriage of the respondents no complaint was ever made nor any panchnama has been prepared. Along with the statement he had also submitted Aadhar Card of Reena Twari, wherein she has stated to be married wife of Arvind Tiwari (father of the respondent) and is living at Ater Road, Ward No.1 Nawada Bhind Road. Thus, on the basis of the above statements the parties have tried to prove their cases.
39. From the statements it appears that the parties were living separately from August, 2008 till August, 2009. From the statements the respondent husband has tried to demonstrate that on 20.7.2008 the 20 appellant had left the house at Dev Nagar along with jewellery with her parents and since then she is living with her parents without any reason, whereas the appellant had tried to demonstrate that on 22.6.2008 the respondent had driven her out of the house and had again brought her back on 28.12.2008 where she lived till 17.8.2009 on which date she was again driven out by the respondent. From Ex.D.3 which is an application under Section 13 of the HMA on the basis of which HMA Case No.59/2010 was registered at the behest of respondent-husband it is reflected that on 10.9.2008 the respondent/husband had filed an application under Section 9 of the Hindu Marriage Act which got dismissed on 24.4.2009 for want of prosecution and for its restoration of application dated 19.1.2010 was also got dismissed. Thus, the statements of the appellant/wife that since they had started living together, the said application under Section 9 of the Hindu Marriage Act filed by the respondent husband got dismissed by him, is not correct, and therefore, this fact of the appellant cannot also be believed that on 17.8.2009 she was again driven out of the house by the respondent and if that has been so he would not have applied for restoration of the application under Section 9 of the Hindu Marriage Act which admittedly got dismissed on 19.1.2010 i.e. after she was driven out of the house on 17.8.2009.
40. So far as the allegations leveled by the appellant/wife with regard to the respondent-husband having contracted second marriage and having a son out of the said wedlock is concerned, in absence of any concrete proof only on the basis of photograph Ex.D.1 and in contrast of an Aadhar card of said lady Reena Tiwari which bears the name of Arvind Tiwari the father of the respondent/husband, as her husband, cannot be said to be a genuine proof of the respondent/husband having 21 contracted second marriage. Thus, the allegations were baseless. Even the statements in regard of contracting second marriage by the respondent-husband of DW.2 and DW.3 are not reliable and in this regard it had rightly been held by the Trial Court that if appellant wanted to prove the factum of second marriage of respondent/husband she could have produced the birth certificate of the son which they are alleging to be that of respondent/husband and then they could have moved a complaint before the competent Court etc. or could have reported the matter to the police. Thus, according to this Court all these allegations come under the purview of mental cruelty as has been held by the Hon'ble Supreme Court in the case of Vijay Kumar (supra).
41. So far as the decree under Section 9 of the HMA passed in favour of the appellant is concerned there is nothing on record to show that the appellant had at any point of time tried to execute the said decree and even tried to live in a company of the respondent after passing of the decree, rather it appears that after passing of the decree under Section 9 of the HMA, legal notices were sent by the present respondent-husband to the appellant to which neither she replied nor came to live with him. Thus, it can be said that the appellant herself had on her own accord deserted respondent-husband.
42. So far as the contention of the appellant that the present petition under Section 13 of the HMA is hit by the principle of res judicata, it is observed that since the earlier application under Section 13 of the HMA was not decided on merit, rather it was withdrawn it will not act as a res judicata so far as the present application is concerned.
2243. Thus, on account above discussion, this appeal has no force. The judgment and decree passed by the learned Trial Court appears to be wholly justified and is accordingly upheld.
44. The appeal being devoid of merit, is accordingly dismissed. No order as to costs.
(RAVI MALIMATH) (MILIND RAMESH PHADKE)
CHIEF JUSTICE JUDGE
Pawar/-
ASHISH PAWAR
2023.04.25
11:43:41
+05'30'