Rajasthan High Court - Jodhpur
Raj Talreja vs Smt. Kavita Talreja on 1 March, 2013
Equivalent citations: AIR 2013 RAJASTHAN 148, 2013 WLC(RAJ)(UC) 284 (2013) 2 DMC 592, (2013) 2 DMC 592
Author: Amitava Roy
Bench: Amitava Roy
DBCMA No.1432/2004
Raj Talreja v. Smt Kavita Talreja
1/13
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
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JUDGMENT
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D.B. CIVIL MISC. APPEAL No.1432 OF 2004
Raj Talreja v. Smt Kavita Talreja
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Date of Judgment: 01st March 2013
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PRESENT
HON'BLE THE CHIEF JUSTICE MR AMITAVA ROY
HON'BLE MR JUSTICE V.K. MATHUR
Dr Sachin Acharya, for the appellant
Mr Pradeep Shah }
Mr Deepak Menaria } for respondents
BY THE COURT {per Justice V.K. Mathur}:
This Civil Misc. Appeal under Section 19 of the Family Courts Act, 1984 and under Section 28 of the Hindu Marriage Act, 1955 has been filed against the judgment and decree dated 05.08.2004 passed by the learned Judge, Family Court, Udaipur in Civil Case No.56/2000, whereby the petition filed by the appellant husband under Section 13 of the Hindu Marriage Act for dissolution of the marriage has been dismissed.
2.Briefly stated the facts of the case are that the appellant- husband - Raj Talreja filed a petition on 22.03.2000 under Section 13 of the Hindu Marriage Act, 1955 (herein after referred to as "the Act of 1955") before the learned Judge, DBCMA No.1432/2004 Raj Talreja v. Smt Kavita Talreja 2/13 Family Court, Udaipur against the respondent wife - Smt. Kavita Telreja with the averments that their marriage was solemnized on 13.04.1989 at Udaipur as per Hindu rites and they lived together till the year 1997. Their son Sahil was born on 29.01.1990.
3.The petition for dissolution of marriage was filed by the appellant husband on the grounds that after the marriage the respondent wife started quarreling with his parents, her behaviour was harsh and cruel and she forced the petitioner to live separately from his parents. The petitioner constructed a new house, where they lived from 29.01.1999. The respondent wife used to go out of the home in the car and when enquired, she used to abuse him and also beat their son Sahil if he also wanted to go out with his mother. After shifting to the new house, they lived as husband and wife without any mental and physical relationship. The wife has completely deserted her husband from 1997.
4.The appellant further contended that his relations with his wife were not cordial right from the beginning and the wife was unable to fulfill her matrimonial obligations as there was natural defect in her private parts, which the appellant came to know when their son was born on 29.01.1990. The appellant spent thousands of rupees on the treatment of this disease known as Endrometrosis and if he had knowledge of this disease, he would not have married her. DBCMA No.1432/2004
Raj Talreja v. Smt Kavita Talreja 3/13 Whenever the appellant wanted to take her wife outside, she used to wear untidy clothes so that he may be mentally tortured.
5.It was also alleged that the respondent-wife compelled her husband to make her partner in the family business and for this reason, she has physically and mentally deserted him for over three years. This attitude of the respondent- wife is utmost cruelty to him.
6.It was further contended that the behaviour and attitude of respondent-wife is detrimental to their son Sahil, who is quite talented student and he apprehends his being adversely affected. The respondent-wife used to wear indecent, transparent dress even before servants and her extra-ordinary bold conduct has made him laughing target in the society.
7.It was also cited that in the year 1990 when his father suffered heart attack due to cruel conduct and misbehaviour of the respondent-wife and he went to attend his father, the respondent-wife threatened him on phone that he should immediately return, leaving his father in that condition, else she would commit suicide so that the husband may be jailed.
8.As per petitioner-husband, on 17.03.2000 the respondent-wife pressurized him that he should immediately terminate partnership of his parents from the business firms and add her name instead, threatened DBCMA No.1432/2004 Raj Talreja v. Smt Kavita Talreja 4/13 suicide and raised intense quarrel. In this manner, on 17.03.2000 the respondent-wife has ended their marital relation for ever. It was also contended that after filing of application for dissolution of marriage, the respondent-wife has lodged many fallacious cases against petitioner- husband and his parents.
9.In the reply, the respondent-wife rebutted the allegations of petitioner-husband and stated that their son Sahil is studying in Saint Paul's School, Udaipur under care of his mother. It was also stated that her father has good business of fruits in Delhi while petitioner-husband's father Bhiman Das had small grocery business in Udaipur. Upon marriage, her father gifted much money, out of which she bought a car and also aided the petitioner-husband in his business. It was denied that she ever misbehaved or acted in cruel manner with petitioner or his parents.
10.It was also stated by the respondent-wife that out of her money, in the year 1998 petitioner got constructed a house at Meera Marg, Udaipur and as whole business was being run upon her money, therefore, out of that they purchased two factories.
11.It was contended that upon demise of her mother, when she got money left for her, then petitioner and his parents turned greedy and they attempted to cause her death in different ways. It was denied that after 1997 there has not been physical relationship as husband and wife. It was DBCMA No.1432/2004 Raj Talreja v. Smt Kavita Talreja 5/13 stated that they had such intimate conjugal association uptil 1999 and she still resides in petitioner's house with their son. It was alleged that without valid reason, the petitioner himself has deserted her and their son.
12.As regard said disease, it was denied that she is at all suffering from any such incurable disease and alleged that merely for obtaining money by second marriage, the petitioner has levelled this allegation. It was contended that her father has been extending money for business of petitioner-husband and his parents and when turns come for repayment of the sum so advanced then this all quarrel has begun. Other allegations in the petition by the petitioner-husband was refuted.
13.In her additional statement, the respondent-wife stated that in August, 2000 with a view to harass and torture her, the petitioner-husband caused miscreant persons at the house. Even on 12.4.2001, petitioner-husband tried to expel her from the house by sending Nasir, Babu Lal, Pramod and other criminal persons, who tore her clothes, caused her injuries but even upon reporting the incident to Police, the petitioner with his political approach managed no action in the matter.
14.It was stated in the last that the respondent-wife is still committed to save the marriage and wants to live peaceful marital life with the petitioner-husband by forgetting all that happened.
DBCMA No.1432/2004
Raj Talreja v. Smt Kavita Talreja 6/13
15.The petitioner-husband filed rejoinder and refuted contention of respondent-wife about business of her father. It was stated that financial condition of petitioner's father was already sound, he himself is income-tax payer since 1984 and denied giving of money-jewellery by father of respondent-wife. It was also stated that house at Meera Marg was constructed by him by taking loan from Bank of Baroda. It was also stated that the factories were purchased by taking loan from Rajasthan Financial Corporation.
16.It was also stated that for third factory, land was procured by taking loan from the Bank and for machinery, loan was taken from Madhya Pradesh Financial Corporation. It was also denied that car was purchased by money of respondent-wife and stated that they have purchased different cars time-to-time through loan from Gujarat Lease Finance Company.
17.It was also stated that in view of conduct of respondent- wife, in meetings of the community, warning was given to her. The allegation of intention to second marriage for the purpose of money was also denied.
18.The petitioner-husband examined 04 witnesses and exhibited 148 documents while respondent-wife produced 05 witnesses in rebuttal.
19.The learned Judge, Family Court, on the basis of pleadings of the parties, framed the following issues for determination in the divorce petition:
DBCMA No.1432/2004
Raj Talreja v. Smt Kavita Talreja 7/13 a} Whether the behaviour of respondent-wife Smt Kavita with her appellant-husband Raj Talreja was cruel as alleged in the petition for divorce?
b} Whether the respondent-wife has deserted her appellant-husband for 2 years before filing the petition for divorce since the wife had, by her behaviour, created such a situation that the husband had to leave his home?
c} Relief.
20.The learned Judge, Family Court, on the basis of evidence adduced by both the parties, came to the conclusion that the petitioner-husband by oral as well as by documentary evidence has not been able to prove issue No.1, which was decided against the petitioner-husband. The issue No.2 was also decided against him as per evidence available on the record.
21.After hearing arguments from both the sides, the learned Judge dismissed the petition vide its judgment dated 05th August 2004. Having been aggrieved of the impugned judgment and decree passed by learned Family Court, the present appeal has been filed by the appellant-husband Raj Talreja.
22.In the present appeal, the point for consideration is as to whether the learned Judge, Family Court committed any illegality in dismissing the petition moved by the appellant- husband for dissolution of the marriage?
23.Having heard the learned counsel for the parties, this Court is of the opinion that the present appeal filed by the DBCMA No.1432/2004 Raj Talreja v. Smt Kavita Talreja 8/13 appellant-husband is without any merit and the same deserves to be dismissed for the following reasons.
24.As to the first issue whether the appellant-husband has successfully proved cruelty on the part of respondent-wife, which can furnish a ground for divorce; the learned Judge, Family Court on the basis of evidence adduced by both the parties came to the conclusion that the husband, by oral as well as documentary evidence, was not able to prove issue No.1, which was, therefore, decided against the appellant- husband.
25.We have carefully perused the petition filed by the appellant-husband, the impugned judgment of the learned Judge, Family Court as also the evidence adduced by both the parties.
26.The learned counsel for the appellant-husband pressed the fact that the respondent-wife used to quarrel with parents of the husband and behaved with them in a cruel manner, the wife used to take their car and stayed out of the house for hours together, gave beating to their son Sahil and wore transparent clothes in front of servants. The wife also refused to carry out her marital obligations and had not disclosed before her marriage that she was suffering from Endrometrosis.
27.The learned counsel for the appellant-husband also pressed the fact that the respondent-wife filed baseless and false criminal cases against the husband. It is contended DBCMA No.1432/2004 Raj Talreja v. Smt Kavita Talreja 9/13 that this behaviour and acts of the respondent-wife amounts to mental cruelty.
28.The learned counsel for the appellant-husband, in support of above submissions, relied upon following judgments:
2001 (3) WLC (Raj) 743 - Narendra v. Indu 2002 (1) WLC (Raj) 717 - Rakesh Sharma v. Surbhi Sharma 2002 (2) SCC 73 - Savitri Pandey v. Prem Chandra Pandey (2005) 2 SCC 22 - A. Jayachandra v. Anil Kaur (2006) 2 SCC 558 - Naveen Kohli v. Neelu Kohli (2007) 4 SCC 511 - Sumar Ghosh v. Jaya Ghosh 2007 (3) DNJ (Raj) 1177- Alka Dadich v. Ajay Dadich (2008) 7 SCC 734 - Satish Sitole v. Ganga 2010 (1) WLN (Raj) 122- Anita Jain v. Rajendra Kumar Jain
29.In rebuttal, learned counsel for the respondent-wife cited following decisions:
AIR 1975 SC 1534 - Narayan Ganesh Dastane v. Sucheta Narayan Dastane 1988 (1) SCC 105 - Shobha Rani v. Madhukar Reddi 1994 (1) SCC 337- V. Bhagat v. D. Bhagat 2010 (4) SCC 339 - Manisha Tyagi v. Deepak Kumar 2010 (4) SCC 476 - Ravi Kumar v. Julmi Devi
30.For the purpose of considering allegation of cruelty, as a ground for divorce, Hon'ble Supreme Court in N.G. Dastane v. S. Dastane- AIR 1975 SC 1534 observed as under:
"... whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a DBCMA No.1432/2004 Raj Talreja v. Smt Kavita Talreja 10/13 reasonable apprehension that it will be harmful or injurious for him to live with the respondent."
31.In the present matter, in our considered opinion, the alleged acts do not come under the definition of mental cruelty. Such acts, which are ordinary wear and tear of life, cannot be said to be of such a nature so as to cause in the mind of the appellant-husband Raj Talreja a reasonable apprehension that it will be harmful or injurious for him to live with respondent-wife Kavita. It is also pertinent to note that the wife is still living in the house of her husband along with her son Sahil.
32.The contention of the learned counsel for the appellant- husband that the wife was suffering from Endrometrosis before her marriage, is belied by the fact that the respondent-wife gave birth to their son Sahil and as per statement of NAW1 Kavita Talreja whenever her husband Raj Talreja visited their house, he had intercourse with her and fulfilled the marital obligations, which has not been controverted by the appellant-husband. In our opinion, this fact cannot be dubbed as mental cruelty.
33.As regard the filing of false criminal cases against the appellant-husband by respondent-wife under sec.498A IPC, in which case Final Report was submitted, it is on record that the appellant had filed a case under secs.107, 116 CrPC against his wife, as per Ex.80 and another case was filed by Raja Sahu, domestic servant of husband vide Ex.81. DBCMA No.1432/2004
Raj Talreja v. Smt Kavita Talreja 11/13 In this context, a perusal of Ex.84, which is injury report of wife Kavita, shows that she suffered 9 injuries on her person by sharp-edged weapon. In the above situation, we cannot draw an inference that the criminal complaint filed by the respondent-wife was false and out of malafide and this does not amount to mental cruelty.
34.Having perused the evidence of AW1 Raj Talreja, NAW1 Smt Kavita Talreja and other witnesses and the material on the record as also findings recorded by the learned Jduge, Family Court; we find no reason to interfere with the finding on the issue of cruelty. The decisions cited by the learned counsel for the appellant-husband are not applicable to the facts and circumstances of the present case.
35. As regard allegation of desertion, it is not proved that the respondent-wife is living separately from her matrimonial home without any just and proper cause and it is apparent from undisputed submission by respondent-wife Kavita and their son NAW4 Sahil, who is a competent witness that she is still living in the house of appellant- husband with their son. It can also not be said, from the evidence adduced by the parties, that the wife had by her behaviour created such a situation that the husband left the house. Her husband often visits their house and she fulfills her marital obligations. In the facts and circumstances of this case, we find no reason to consider interference on issue No.2 DBCMA No.1432/2004 Raj Talreja v. Smt Kavita Talreja 12/13 also.
36.As regard contention on behalf of appellant-husband regarding irretrievable breakdown of the marriage, this cannot be a ground for grant of decree of divorce in absence of any statutory recognition as ground of divorce under sec.13 of the Hindu Marriage Act. Hon'ble Supreme Court, in the case of Vishnu Dutt Sharma v. Manju Sharma - 2009 DNJ SC 221, observed as under:
"11. On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as it would be amending the Act, which is a function of the legislature.
12. Learned counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts. Hence, we do not find force in the submission of the learned counsel for DBCMA No.1432/2004 Raj Talreja v. Smt Kavita Talreja 13/13 the appellant. Had both parties been willing we could, of course, have granted a divorce by mutual consent as contemplated by Section 13B of the Act but in this case the respondent is not willing to agree to a divorce."
37.Therefore, in view of above law laid down by Hon'ble Supreme Court, on the ground of irretrievable breakdown of marriage, decree of divorce cannot be granted. Moreover, in the present case also, the respondent-wife stated that she is still committed to save the marriage and wants to live with the appellant-husband by forgetting all that happened.
38.In the light of above discussion, we are in agreement with the conclusion arrived at by the learned Family Court and are unable to accept claim of the appellant-husband.
39.In the conclusion, we find this appeal of the appellant- husband Raj Talreja to be devoid of any merit and hence, the same is hereby dismissed. No order as to costs.
[V.K. MATHUR],J. [AMITAVA ROY],C.J. mma