Rajasthan High Court - Jaipur
Meena Agarwal @ Pallavi Goyal vs Pradeep Kumar Goyal on 8 August, 2017
Author: Ajay Rastogi
Bench: Ajay Rastogi
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Miscellaneous Appeal No. 3485 / 2006
Meena Agarwal @ Pallavi Goyal W/o Shri Pradeep Goyal, D/o Shri
Ramgopal Agarwal Advocate, R/o Bhagirath Bhawan, Bad Pipal Ka
Ped, Oswali Mohalla, Kishangarh Madanganj, Ajmer.
----Appellant
Versus
Pradeep Kumar Goyal S/o Shri Suresh Chandra Goyal, R/o B-43,
Shakti Nagar, Tonk Road, at present residing at 12 Gordhan Nagar,
New Sanganer Road, Jaipur.
----Respondent
DB CIVIL MISC. APPEAL UNDER SECTION 19 OF THE FAMILY COURTS ACT AGAINST THE JUDGMENT AND DECREE DATED 19.9.2006 PASSED BY JUDGE, FAMILY COURT, AJMER IN MATRIMONIAL CASE No.117/2006.
_____________________________________________________ For Appellant : Mr. R. P. Garg with Mr. Ravi Kasliwal.
For Respondent : Mr. Lokesh Sharma with Mr. Rajendra Vaish.
_____________________________________________________ HON'BLE MR. JUSTICE AJAY RASTOGI HON'BLE MR. JUSTICE DINESH CHANDRA SOMANI JUDGMENT 08/08/2017 (PER HON'BLE DINESH CHANDRA SOMANI J.) The instant appeal has been preferred by the appellant-wife under Section 19 of the Family Courts Act against the judgment and decree dated 19.9.2006 passed by Judge, Family Court, Ajmer (hereinafter referred to as 'the Family Court') in Matrimonial Case (2 of 22) [CMA-3485/2006] No.117/2006, whereby the petition filed by the respondent- husband under Section 13 of the Hindu Marriage Act for seeking divorce, was allowed.
Skeletal material facts necessary for the disposal of the appeal are that the respondent-husband has filed petition under Section 13 of the Hindu Marriage Act (hereinafter referred to as the 'Act') for seeking divorce on the ground of cruelty with the averment that marriage between the appellant and the respondent was solemnized according to Hindu rites and customs on 3.12.1997 at Jaipur. Thereafter, the appellant-wife was living with the respondent-husband and his parents at B-39, Triveni Nagar, Jaipur. After marriage, the respondent-husband came to know that the appellant-wife is suffering from mental derangement and thus, the appellant used to cry and misbehave with her in-laws on very small things. The appellant is under influence of her parents. She used to shout, abuse, leave no occasion for quarrel and being aggressive. These were a recurring and continuous behavior by appellant-wife Meena with all members. It shows that the appellant-wife is suffering from mental disorder. The appellant- wife always reiterated that she is an educated woman and her father-Shri Ramgopalji and brother-Shri Mahesh are Advocates in Kishangarh and gave threats to respondent-husband to send him and his parents to Jail in a false case.
The respondent-husband also pleaded that the appellant-wife quarreled with the respondent-husband on petty matters and she used filthy language and gave threats to commit suicide also. When the respondent-husband complained to her parents with (3 of 22) [CMA-3485/2006] regard to her behavior, they simply said that the appellant is not at fault and the respondent-husband and his parents have to adjust.
It is also pleaded that from their wedlock a male child Rajat was born on 7.11.1999, then too the behavior of the appellant did not change. On 5.12.1999, the respondent-husband organised function and Pooja i.e. 'Jalwa Pujan' at Jaipur and a number of relatives, friends and neighbours including parents of the appellant were invited. In this public function, the appellant-Meena and her parents raised voice, quarreled, demanded the only house of Shri S. C. Goyal in favour of appellant-Meena and when the respondent refused to do so, they insulted, shouted and created chaos publicly and the function was disturbed and the image of the respondent's family was tarnished in front of all friends, relatives and neighbours.
It is also averred that the respondent-husband has three married sisters-Smt. Anita, Smt. Rashmi and Smt. Neelima and they are living at their matrimonial home, but whenever they come at respondent-husband's home to celebrate festival etc., the appellant-wife always quarrelled and misbehaved with them, even went to their matrimonial home and used filthy language.
It is also averred that in the month of June, 2000, the appellant-wife after quarreling with her parents-in-law and without taking permission from them, left her matrimonial home and shifted to her maternal home at Kishangarh. The respondent- husband, his father and his other relatives went to Kishangarh and talked with her parents and also told them about the behavior of (4 of 22) [CMA-3485/2006] the appellant-wife with them. The parents of the appellant-wife felt sorry for the behavior of the appellant and assured them that she would not repeat the same. On being assured, the respondent's father and his relatives took the appellant to her matrimonial home i.e. Jaipur on 5.8.2000, but later the appellant- wife repeated the same behavior with the respondent-husband and his parents.
It is further averred that looking at the continuous quarrel, shouting and ill behavior of the appellant-wife, the parents of respondent-husband suggested him to live separately with the appellant. They shifted to a rented premises on 12.9.2000, but even then things did not improve and she was more aggressive and also started doing 'Marpeet' with the respondent-husband. The appellant-wife also gave beatings to her one year old child brutally, which shows her mental disorder. It is further pleaded that she also went to the house of her in-laws on and off and used to quarrel with parents of the respondent unnecessarily.
It is also averred that being harassed with this regular quarrel, the parents of the respondent-husband issued public notice in the local newspaper on 15.10.2000 for depriving from his property. When the parents of the appellant-wife came to know about this advertisement, they went to the matrimonial house of the appellant and quarreled with her parents-in-law and they also came to the house of the respondent and gave threats and gave beating to him. On 16.10.2000, the appellant-wife telephoned sister of the respondent and abused her and thereafter on 19.12.2000, she went to house of elder sister of the (5 of 22) [CMA-3485/2006] respondent and abused and misbehaved with her.
It is further pleaded that on 19.12.2000 itself, the parents and brother of the appellant came to respondent's house and after abusing and misbehaving with him and his parents, she left the house of the respondent and went to her parents' house without his permission and also took away her dowry articles. It is also averred that the conduct of the appellant-wife ruined goodwill of the respondent in the society and the same is unbearable for him. It was prayed in the petition that this conduct of the appellant amounts to mental cruelty and the decree for dissolution of marriage may be granted.
The appellant filed her written statement. In the written statement the appellant denied the allegations levelled by the respondent-husband with regard to the cruelty in his divorce petition. It has been stated by the appellant-wife in her written statement that soon after engagement, parents of the respondent raised their demand and asked the father of the appellant to spend 7 to 8 lacs in the marriage. Father of the appellant was not in a position to spend such a huge amount, still he spent 4 lac rupees in the marriage. As such from the day of marriage, mother-in-law and sisters-in-law started to harass the appellant. The respondent was the only son, still they have been given room in basement, whereas house of the parents of the respondent is double storeyed. When harassment of her in-laws still continued, then both of them decided to live separately. It has been further stated that appellant got pregnant and she has been forced by her mother-in-law and sisters-in-law for sonography test to find out (6 of 22) [CMA-3485/2006] the sex of the child and when in the sonography test it was found that in the womb it was female child, then her sister-in-law, who is a doctor, aborted the appellant.
It has also been stated that she never demanded any property and she never misbehaved with her in-laws and she never insulted or disrespected her in-laws and does not want divorce from the respondent. The allegations levelled in the divorce petition against the appellant with regard to suicide, using filthy language, demand of property, beating her son and mental derangement were totally false and baseless. It has also been stated that husband of sister-in-law of the appellant tried to outrage her modesty and when she made complaint about it to her husband and his parents, they gave beatings to her and threw her out of the house. The dowry articles are in possession of her in-laws. Lastly, it has been stated that the said divorce petition has been filed at the instigation of respondent's parents and sisters, as such the same should be dismissed with cost.
On the basis of pleadings of the parties, learned Family Court framed the following issues :
(1) Whether the non-petitioner has treated the petitioner with cruelty so as to entitle the petitioner for decree of divorce ?
(2) Whether this Court or only the Court at Ajmer has jurisdiction to decide the petition ? (3) Whether the petition is barred by limitation ? (4) Relief ?
(7 of 22) [CMA-3485/2006] In support of the petition, the respondent-husband examined as many as 8 witnesses. In defence, the appellant-wife examined as many as 7 witnesses.
The learned Family Court after evaluating and appreciating the evidence available on record and after hearing both the parties arrived at a conclusion that the respondent-husband has been able to prove that he was treated by the appellant with cruelty, therefore, the petition filed on behalf of respondent was allowed and it was ordered that the marriage between the parties be dissolved vide impugned judgment dated 19.9.2006.
The appellant-wife felt aggrieved with the aforesaid judgment dated 19.9.2006 and filed the present appeal.
Mr. R. P. Garg, learned counsel for the appellant-wife submitted that the learned Judge, Family Court has committed grave error of law while passing the impugned judgment, as the respondent could not prove cruelty by the appellant from his evidence, on the contrary, cruelty by the respondent is established from the evidence on record.
Learned counsel for the appellant also submitted that no medical evidence has been placed on record to prove that the appellant is suffering from mental disorder. Learned counsel also submitted that the learned Judge, Family Court did not appreciate the evidence of the appellant in right manner while deciding the divorce petition. Learned counsel further submitted that the programme of 'Jalwa Pujan' organised by the respondent was celebrated in a very happy atmosphere and the statements of (8 of 22) [CMA-3485/2006] witnesses of the respondent are contrary to each other on such aspect and, therefore, the allegations levelled by the respondent in the divorce petition are totally false.
Learned counsel for the appellant further submitted that it is not disputed that husband of the appellant is the only son and he is successor of the property and, therefore, it cannot be believed that appellant raised such type of unreasonable demand. Learned counsel also contended that due to demand of dowry, the appellant was tortured and harrassed by her parents-in-law and sisters-in-law despite of the fact that the appellant did all house- hold work and paid respect to her in-laws.
Learned counsel also contended that it would be unfair to the appellant-wife to conclude that she had exhibited such cruelty towards the respondent-husband and her in-laws that would justify the dissolution of her marriage. The allegations levelled in the petition are totally false, which has been made only to harass the appellant and members of her maternal family to create pressure on her to take divorce from the respondent. Learned counsel has vehemently contended that it is not possible to label the wife's allegations detailed above as a false or a vindictive action.
Per contra, Mr. Lokesh Sharma, learned counsel for the respondent-husband controverting the submissions made on behalf of the appellant-wife and reiterating the submissions made in the petition raised the grounds that there was a twinfold police enquiry one by the regular police station and other by the CID (CB), by the Officer of Dy. S.P. rank and it is revealed that all the (9 of 22) [CMA-3485/2006] complaints were found false and incorrect and had been consigned to record. Learned counsel for the respondent also contended that appellant-Smt. Meena in her cross-examination had categorically admitted the complaint and its fate and had further stated that she had made two or three more complaints after 21.12.2000 and as such false complaints of the appellant are sufficient to show cruelty against the respondent.
Learned counsel for the respondent also contended that from the evidence collected and material made available on record, learned Family Court has found the allegations made by the respondent prima-faice found to be true and took note that the behavior of the appellant regarding raising allegations, threatening, creating chaos, quarrelling, shouting publicly and creating tension to be made out.
We have considered the submissions made on behalf of learned counsel for the respective parties, gone through the record made available to us and relevant legal provisions.
The learned Family Court observed that the Issue No.2 has become redundant, as the petition has been transferred from Jaipur to Ajmer Court by order of the High Court. Learned Family Court has decided Issue No.3 against the appellant holding that the petition has been filed within limitation. Learned Family Court has decided the Issue No.1 in favour of the respondent-husband and against the appellant-wife and allowed the respondent's petition for dissolution of the marriage.
(10 of 22) [CMA-3485/2006] Learned counsel for the appellant did not make any submission with regard to Issue No.3 regarding limitation.
In substance, the respondent-husband in his petition for divorce, has pleaded certain instances, which according to him, constituted "cruelty" within the meaning of Section 13 (1) (i-a) of the Act entitling him to claim dissolution of marriage against the appellant.
The first limb of cruelty alleged by the respondent is that after marriage, the respondent came to know that the appellant is suffering from mental derangement and thus, she used to cry and misbehave with her in-laws on very petty matters. During arguments, learned counsel for the respondent did not make any submissions on this ground. The learned Family Court has observed that the appellant is attending the Court regularly, she is highly educated and is mentally sound. She understands the things very well and nothing was observed to indicate that the appellant is suffering from mental derangement and mentioned this fact in the impugned judgment also.
The second ground of cruelty is that the parents, brother and sisters of the appellant used to provoke the appellant against the respondent and the appellant is under influence of her parents. The appellant denied the allegations and stated that members of her maternal family used to come on festivals only for courtesy visits and they never provoked her against the respondent and/or his family members. This ground of cruelty is general in nature with no details. In this respect, the respondent-husband did not (11 of 22) [CMA-3485/2006] examine any independent witness to substantiate the allegation. The witnesses examined by the respondent are AW.1-Pradeep Kumar (respondent himself), AW.5-Suresh Chandra (his father), AW.6-Smt. Shyamlata (his mother), AW.7-Dr. Dinesh Agarwal [his brother-in-law (Bahnoi)] and AW.8-Smt. Anita Agarwal (his sister), who are interested witnesses. AW.2-Bhagwan Sahay and AW.3- Hemchandra Gupta are neighbours of the respondent, and AW.4- Neeraj Soni is friend of the respondent, who gave no evidence in this regard.
The third ground of cruelty alleged by the respondent is that the appellant used to shout, abuse and leave no occasion to quarrel and became aggressive with the respondent and his family members. The appellant-wife quarreled with the respondent- husband on petty matters and used filthy language. The appellant- wife denied all these allegations. The allegations are general in nature with no details. Though AW.5-Suresh Chandra and AW.6- Shyam Lata, father and mother of the respondent corroborated the statement of the respondent, but AW.2-Bhagwan Sahay and AW.3-Hemchandra Gupta, who are neighbours of the respondent gave no evidence to substantiate the allegation. Another witness AW.4-Neeraj Soni, who is friend of the respondent and used to remain with the respondent and the appellant, also gave no evidence to substantiate the allegations levelled by the respondent.
The fourth ground of cruelty is again about the appellant's behavior with the respondent. The respondent has alleged that at several times in aggression, the appellant had beaten the (12 of 22) [CMA-3485/2006] respondent and such type of her behavior was recurring and continuous. The appellant denied the allegations. The respondent produced no evidence in support of the allegation.
The fifth ground of cruelty alleged by the respondent is that whenever she was advised to speak gently and quietly, then she came out of the house and shouted, gathered persons on the street and used to scandalize the respondent and his family members. AW.2-Bhagwan Sahay and AW.3-Hemchandra Gupta, who are neighbours of the respondent, spoke nothing to substantiate the allegation levelled by the respondent. AW.4- Neeraj Soni, who is friend of the respondent, is also silent about this allegation. The allegations are general in nature with no details and without any corroboration by any independent witness.
The sixth ground of cruelty is that the appellant-wife used to go to her parents' house without seeking permission of the respondent and his parents, which is denied by the appellant-wife. This allegation is also of a general nature, with no details except the instance of June, 2000.
The seventh ground of cruelty is that after the birth of son Rajat from the wedlock, the respondent-husband organized function i.e. 'Jalwa Pujan' on 5.12.1999 at Jaipur and good number of relatives, friends and neighbours were invited. In this function, the appellant and her parents raised voice, quarreled and demanded to transfer the only house of father of the respondent in favour of the appellant and when the respondent refused to do so, they insulted, shouted and created chaos publicly and (13 of 22) [CMA-3485/2006] disturbed the function, which tarnished their image in front of all friends, relatives and neighbours.
The appellant denied the allegation and pleaded that the function of 'Jalwa Pujan' was performed peacefully and in happy atmosphere. It is an admitted fact that many relatives, friends and neighbours including parents of the appellant were invited in the function and parents of the appellant also attended the same. In support of the allegation, the respondent examined himself, his father-Suresh Chandra (AW.5), his mother Smt. Shyamlata (AW.6), his brother-in-law Dr. Dinesh Agarwal (AW.7) and his sister Smt. Anita Agarwal (AW.8), who are interested witnesses. In addition to above, respondent examined AW.2-Bhagwan Sahay and AW.3-Hemchandra Gupta, who are neighbours and AW.4- Neeraj Soni, is friend of the respondent. AW.2-Bhagwan Sahay resides 3-4 houses away from the respondent. This witness did not depose with regard to the alleged incident. AW.3-Hemchandra Gupta, is also a neighbour of the respondent, who spoke nothing in the examination-in-chief about the alleged incident, but in cross-examination, the witness stated that he alongwith his family members attended the function of 'Jalwa Pujan' organized by the respondent and returned happily. He heard nothing about any dispute at the function. AW.4-Neeraj Soni deposed that he attended the function of 'Jalwa Pujan'. Mother of the appellant told the mother of the respondent to transfer the house in favour of the appellant, then altercation took place and tension was created. In cross-examination, the witness deposed that he attended the function of 'Jalwa Pujan' in afternoon as such he did not know (14 of 22) [CMA-3485/2006] what happened earlier to that. The witness also stated that the said incident of quarrel with regard to transfer of property took place in the evening on that day, whereas AW.6-Shyamlata in her cross-examination has stated that the function of 'Jalwa Pujan' was performed in happy atmosphere and in reply to the suggestion, she deposed that the function was started at 11:00 am and lunch was organized. The witness also stated that the appellant raised the demand to transfer the house in her name, firstly in the morning and again at the time of lunch. In such circumstances, the statement of AW.4-Neeraj Soni cannot be relied upon. According to the respondent, good number of relatives, friends and neighbours were present in the function when the alleged demand was made and the appellant and her relatives created chaos, but the respondent did not produce any independent relative or neighbour to substantiate the allegation.
The eighth ground of cruelty alleged by the respondent is that whenever sisters of the respondent came at his house, the appellant-wife always quarreled and misbehaved with them. Sometimes, the appellant went to their matrimonial home and used filthy language and also quarreled with them. The appellant denied the allegation. The allegations are general in nature with no details. The respondent did not produce the members of in- laws of his sisters, except AW.7-Dr. Dinesh Agarwal, who happens to be brother-in-law of the respondent. Neither any neighbour nor any other relative has been examined to substantiate the allegation. In this way, the respondent did not produce any independent evidence to substantiate the allegation. This (15 of 22) [CMA-3485/2006] allegation is also of general in nature with no specific details, except the details of 19.12.2000, since when the parties are living separately.
The ninth ground of cruelty is that in the month of June, 2000, the appellant, after quarreling with her parents-in-law and without taking permission of them, left her matrimonial home and went to her maternal home at Kishangarh. Thereafter, the respondent, his father and other relatives went to Kishangarh and talked to her parents. Parents of the appellant felt sorry for the behaviour of the appellant and assured them that she would not repeat the same. On being assured, the respondent's father and other relatives brought back the appellant to her matrimonial home on 5.8.2000. The appellant denied the allegations and stated that the respondent and his family members used to torture her and gave beatings for not satisfying their demand of dowry and when the appellant told all the things to her father and brother, then her brother Mahesh came to Jaipur and had a talk with respondent and his family members and brought the appellant to Kishangarh with him, because the respondent did not give any satisfactory response. The appellant admitted that on 5.8.2000, the respondent, his father and relatives came to Kishangarh. The appellant also stated that the respondent and his family members felt sorry for their misdeeds and assured that they would not repeat the same, then parents of the appellant sent her back to her matrimonial home. The respondent-husband did not produce any witness, who took part in the meeting held at (16 of 22) [CMA-3485/2006] Kishangarh on 5.8.2000, which would have been the best possible evidence to substantiate the allegation levelled by the respondent.
The tenth ground of cruelty is that looking to the continuous misbehavior of the appellant-wife, the parents of the respondent asked the parties to live separately from them, so they shifted to a rented house on 12.9.2000, but even then things did not change and she was more aggressive and gave beatings to the respondent. It is also alleged that she used to call her father, brother and other relatives, who threatened to send the respondent and his family to jail. It is also alleged that despite living separately in other house, the appellant used to go to the house of the respondent's parents in Triveni Nagar, Jaipur and quarreled with them and threatened to commit suicide. The appellant-wife denied the allegations levelled by the respondent. In this respect, none of the neighbours of the house of the respondent has been examined to substantiate the allegations. The allegations are general in nature, with no details.
The eleventh ground of cruelty is that being harassed with the regular cruelty, the parents of the respondent-husband issued public notice in newspaper on 15.10.2000 depriving the respondent from their property. The parents of the appellant came to the house of respondent's parents and quarreled with them. They also went to the house of the respondent, where they abused him, gave beatings and threatened to kill him. The appellant denied the allegations. In this respect, the respondent narrated the incident in his deposition recorded by the learned Family Court. In support of his statement, the respondent (17 of 22) [CMA-3485/2006] examined AW.2-Bhagwan Sahay and AW.3-Hemchandra Gupta, who are neighbours of the respondent.
According to AW.2-Bhagwan Sahay, 5-6 years ago in the night, father of the respondent called him telephonically saying that the relatives of his daughter-in-law are about to come and there is apprehension of quarrel. When he went to the house of respondent's father, the main gate of his house was locked. Some persons standing outside the house told the witness that some relatives have come from outside, therefore, he did not go inside and went to the house of Dev Sahab. Dev Sahab told the witness that parents of the appellant called him that life of their daughter (the appellant) is in danger and asked him to register a case with the police, but the witness refused to do so. The witness also stated that he stayed there for some time, but no one came there till then. The witness also stated that on the next day, he came to know that the matter was resolved peacefully. The witness also stated that after some days, he went to the house of his neighbour Shekhawat on his call, then he told the witness that the appellant and her parents came to the house of the respondent's parents. The witness further stated that he enquired from the appellant about the problem, if any, then she told that the property should be transferred in her favour and interference of respondent's sisters should be stopped. The witness also deposed that they tried to resolve the matter, but they were not in the mood of settlement, then the witness returned to his house. Thereafter, he came to know that divorce petition has been filed.
(18 of 22) [CMA-3485/2006] In cross-examination, the witness stated that he never saw the relatives of the appellant coming to her matrimonial home.
According to AW.3-Hemchandra Gupta, in the month of October, 2000, father of the respondent informed him telephonically that the appellant and her family members broke the lock and are trying to enter in his house and prayed for help. Thereafter, the witness and father of the respondent went to the house of Shekhawat, where the meeting was going on regarding transfer of property in favour of the appellant, but father of the respondent refused to do so. Thereafter, the witness returned to his home. The witness also stated that whenever he asked the parents of the respondent about the problem, if any, then they used to say that the appellant does not like their daughters and sons-in-law. The appellant has been cross-examined at length by learned counsel for the respondent, but no question has been asked or suggestion was made to the appellant about the alleged incident of 15.10.2000. It is admitted fact that neither any complaint has been filed by the respondent nor by his parents for the alleged incident.
The twelth ground of cruelty alleged by the respondent is that on 19.12.2000, the appellant went to the house of Smt. Anita, elder sister of the respondent, and abused and misbehaved with her. On the same day, the parents and brother of the appellant came to the respondent's house, who abused and misbehaved with him and thereafter the appellant left the house of the respondent and went to her maternal home without his permission. The appellant denied the allegations levelled in the (19 of 22) [CMA-3485/2006] petition and submitted that on 19.12.2000, respondent's brother- in-law (Bahnoi) Shri Mahesh Lashkari came to the house of the respondent in his absence, misbehaved with the appellant and attempted to outrage her modesty. She tried to save herself and cried, then Shri Mahesh Lashkari ran away from there, giving a threat to see her in future. After some time, Mahesh Lashkari returned with his wife, respondent and respondent's parents, who abused and gave her beatings and threw her out of the house and threatened for dire-consequences. In support of the counter allegation, the appellant examined herself and her father NAW.7- Ram Gopal Agarwal. To rebut the allegation levelled by the appellant, the respondent did not produce his brother-in-law Shri Mahesh Lashkari in the witness box to face the cross-examination by the counsel for the appellant.
The thirteenth ground of cruelty is that after leaving matrimonial home on 19.12.2000, brother of the appellant sent a complaint to Chief Minister and others imputing false allegations. The police came to the house of the respondent and made enquiries, which tarnished the image of the respondent and his parents in society. It is an admitted fact that the appellant herself did not lodge any report against the respondent or his parents with the police. It is not the case of the respondent that he or his family members were harassed by the police.
In the case of Haumantha Rao Vs. S. Ramani reported in AIR 1999 SC 1318, Hon'ble Apex Court has held that the representation made by parents of wife to Women Protection Cell for reconciliation of estranged spouse does not amount to mental (20 of 22) [CMA-3485/2006] cruelty upon husband, particularly in absence of evidence of the husband or his family members were harassed by the opposite party.
A bare perusal of pleadings of the parties, reveal that almost all the grounds taken by the respondent in his petition for dissolution of marriage are stale or isolated. It is an admitted fact that out of the wedlock, the appellant gave birth to a son on 7.11.1999. In June, 2000 the appellant went to her maternal home leaving her matrimonial home. Thereafter the matter was resolved on 5.8.2000 and the appellant returned to her matrimonial home with the respondent and his parents. The instances prior to 5.8.2000 are founded on general allegations, with no details, such as who witnessed the incidents or what are the background of such incidents. To us, the incidents occurred prior to 5.8.2000 cannot be made ground of petition for dissolution of marriage because the respondent-husband and his parents deemed to have condoned the alleged acts of the appellant. So far as the instances alleged to occur after 5.8.2000 are concerned, the same being isolated and does not constitute an act of cruelty.
In view of above, the allegations levelled by the respondent- husband are vague. Mere plea of the respondent-husband that behaviour of the appellant-wife towards him, his parents and his sisters and his brothers-in-law was cruel and rude does not establish the cruelty as defined by Hon'ble Apex Court in the case of Samar Ghosh Vs. Jaya Ghosh reported in (2007) 4 SCC
511. As discussed above, the alleged misbehavior of the (21 of 22) [CMA-3485/2006] appellant-wife is not found to be proved by reliable evidence to persuade the Court to grant decree for dissolution of the marriage.
From the documentary evidence produced by the appellant- wife, it reveals that parties belong to Agarwal community. Agarwal Samaj Sewa Samiti published a magazine in the year 2004 regarding members of the community with their brief introduction. In the magazine, details of family members of the respondent was also published and a copy whereof has been produced by the appellant. According to the details published in the magazine, the respondent has been introduced as 30 years old unmarried person. It can safely be inferred that the details published in the magazine, have been provided by the members of the concerned family. It is not the case of the respondent that he or his family members did not provide the information published in the magazine. It is also pertinent to note that the parties are living separately since 19.12.2000 and the respondent has filed the divorce petition on 2.1.2001 i.e. within 15 days only. In these circumstances, it appears that the respondent-husband has filed the petition against the appellant-wife for dissolution of marriage to get rid of her. That being the position, the finding of learned Family Court with regard to Issue No.1 is liable to be quashed and set aside.
It appears to us from perusal of the evidence that the respondent-husband has failed to make out any case of cruelty against the appellant-wife.
(22 of 22) [CMA-3485/2006] Before parting with, we would like to observe that after a long litigation, the parties would realize their obligations against each other as also towards their grown up son Rajat, being his parents. The parties should give quite burial to their past deeds and bitter experiences and should start living together to settle their son in his life. Such reunion would be in the interest of members of both the families and will bring peace, harmony and happiness.
In view of foregoing discussions, the appeal succeeds and is hereby allowed. The impugned judgment and decree dated 19.9.2006 passed by the Judge, Family Court, Ajmer in Matrimonial Case No.117/2006 is quashed and set aside. As a result, the petition filed by the respondent-husband under Section 13 of the Hindu Marriage Act seeking dissolution of marriage is dismissed. As a consequence thereof, the marriage between the parties is held to subsist. No order as to costs. (DINESH CHANDRA SOMANI)J. (AJAY RASTOGI)J. A.Arora/-
(Reserved)