Chattisgarh High Court
Smt. Sunita Mishra vs Prashant Mishra on 8 July, 2005
Equivalent citations: 2005(4)MPHT58(CG)
JUDGMENT V.K. Shrivastava, J.
1. This appeal is directed against the judgment and decree dated 23-4-2003 passed in Civil Suit No. 61-A/2003 relating to Prasant Mishra v. Smt. Sunita Mishra, by Vth Additional District Judge, Durg (CG) vide which a decree for judicial separation has been granted in favour of the plaintiff.
2. Parties are Hindus. Marriage was solemnized between the parties on 4-2-1999 at Dalli Rajhara, Tehsil Balod, Distt. Durg, according to Hindu rites. Appellant lived with her husband/respondent till 20-2-1999 and thereafter respondent left India for States where he is employed. Appellant after staying for some time in her matrimonial house, left for her parental house. She lived in her matrimonial house along with her in laws from 18-3-1999 to 25-4-1999 and from 5-5-1999 to 24-5-1999 and thereafter she was living in her parental house. On 30-3-2000 respondent returned back from States. During the above period father of the appellant wrote some letters to parents of the respondent alleging false imputations. After reading those letters respondent came to know about the matter and tried to contact the appellant, but the parents of the appellant did not allow him to talk with appellant. Therefore, in the second week of April, 2000 respondent approached the family conciliation centre and with the aid of family conciliation centre, compromise took place between the parties on 20-4-2004. Thereafter, appellant accompanied with respondent went to Bombay to obtain Visa, stayed there and after taking Visa came back to Durg. From the date of marriage till 2-5-2000 appellant did not allow herself to discharge her matrimonial obligations towards the respondent and whenever respondent urged for intercourse she denied saying that she will become unpious and if forced, she will commit suicide. On 3-5-2000 when she was asked to go to States along with respondent, she denied and returned back her Bethrowal ring. Therefore, on the ground of cruelty petition under Section 13 of the Hindu Marriage Act (for short, "the Act") for decree of divorce has been filed by the respondent.
3. On the other hand, appellant in her reply stated that on the demand of dowry she was subjected to cruelty by her in- laws. Respondent after marriage did not make any effort to take her to States. Neither he got his passport prepared nor obtained any Visa. She being a Hindu woman was ashamed to initiate for physical relationship and it was for the respondent to initiate for cohabitation, but respondent never initiated and tried to maintained physical relation with her. She is still ready to go to States along with respondent, but despite knowing the fact that appellant has passport and Visa he did not take her to States.
4. Both the parties to support their case, led oral evidence and tendered various documents. Learned Court below held, the appellant's refusal to sexual intercourse with respondent and giving and taking back of Bethrowal ring to be mental tortures. Learned Lower Court further held that respondent in his evidence has accepted that if the appellant is ready to maintain physical relation, he is ready to keep her, therefore taking into consideration this fact passed a decree of judicial separation with direction that if during the period of one year, resumption of cohabitation between the parties does not take place, respondent can file fresh application for grant of divorce.
5. Respondent filed cross appeal and pleaded that her admission to keep the appellant in deposition was in fact a typographical error, therefore, when the cruelty was proved and marriage remained unconsumated, the only option rests with the Court was to grant a decree of divorce. Further, respondent has contended that a period of one year has lapsed since passing of the said decree of judicial separation and no resumption of cohabitation between the parties took place, therefore, on that additional ground also respondent is entitled for grant of divorce.
6. Both the parties are heard at length and record of Lower Court perused.
7. On 24-4-2000 both husband and wife entered into an agreement as a result of the effort of reconciliation. Both the parties signed the agreement (Ex. P-10) in which it has been written that respondent and in-laws had forgiven the wrong/mistake committed by the appellant and permitted her to live with them and following are the conditions agreed by both the parties :--
^^¼1½ eSa vius ifr iz'kkUr feJk ds lkFk jgrs gq, muds lHkh funsZ'kksa ,oa vkKk dk ikyu d:axh A vius ifr ds lkFk Hkfo"; esa fdlh izdkj dk Ny o diV ugha d:axh] u gh fdlh Hkh izdkj ds >wM dk lgkjk ywaxh A ¼2½ ifr Jh iz'kkUr feJk dh vk;&O;; ds laca/k esa fdlh Hkh izdkj dh n[kyankth ugha d:axh A muls dHkhj vkxjk ¼jk/kkLokeh½ esa ;k ek;ds okyksa dks iSls nsus ds fy, ncko ugha Mkywaxh A ¼3½ ;g fd eSa vius ifr Jh iz'kkUr feJk ;k llqjky ds fdlh Hkh lnL; ls laca/k j[kus ds fy, ncko ugha Mkywaxh A ¼4½ eSa jk/kkLokeh er ekuus ds fy, vius ifr ,oa llqjky ds fdlh Hkh lnL; ij vius firkth dh rjg ncko ugha Mkywaxh] u gh dHkh vkxjk ¼jk/kkLoleh½ tkÅxh A ¼5½ vius LoHkko ds vuqlkj viuh fdlh ckr dks euokus ds fy, Hkfo"; esa dHkh Hkh vkRegR;k] ngst rFkk ekufld ,oa 'kkjhfjd izrkM+uk laca/kh fdlh Hkh izdkj dh /kedh ugha nwaxh u gh dHkh vU; >wBs vkjksi fdlh ij yxkkÅaxh A ¼6½ eSa vius llqjky ds lHkh jhfr&fjoktksa ,oa /kkfeZd laLdkjksa dk lEeku ,oa ikyu djrs gq, Hkfo"; esa fcuk vuqefr ds ek;ds ugha tkÅaxh ,oa nkEiR; o x`gLFk thou dk iw.kZr% ikyu d:axh rFkk ifjokj ds lHkh lnL;ksa ds leku Lrj ij jgwaxh A ;fn eq>s vlqfo/kk gqbZ rks eSa LosPNk ls llqjky NksM+ nwaxh] ftls LospNk ls rykd le>k tkos A vkt ds ckn ;fn eSa ;k esjs ek;ds okyksa }kjk vkjksi yxk;s x;s rks mUgsa >wBk le>k tk;s] D;ksafd igys Hkh yxk;s x;s vkjksi >wBs Fks] ftuds fy;s eSaus ,oa esjs firkth us i= fy[kdj ekQh Hkh ekax yh gS A**
8. In the said agreement nowhere it is mentioned that the appellant at any time denied the request of respondent to have intercourse with her or while initiation to cohabit or while maintaining physical relation, she denied on the pretext that she will become unpious or she will commit suicide. Therefore, from Ex. P-10 it was established that no such incident ever took place and whatever cruelty has been caused to respondent, the same has been condoned by the respondent.
9. Prashant Mishra/respondent (A.W. 1) in his statement admits that on 21-2-1999 when he left for States till then he had no dispute with the appellant. Further he admits that from 5-2-1999 to 20-2-1999 no dispute ever took place which may bring the parties for divorce.
10. From the aforesaid evidence, it was clear that from 5-2-1999 to 20-2-1999 there was no dispute between the parties, therefore, the question of physical or mental cruelty does not arise. After reconciliation and execution of agreement Ex. P-10 appellant lived with respondent from 26-4-1999 to 2-5-1999. Prashant Mishra/respondent (AW 1) in his evidence at Para 9 deposed that in Bombay he tried to cohabit with appellant, but she, on the pretext that she follows Radhaswamy faith, denied to cohabit with him. Some dispute took place and he left. When he came back he saw appellant sitting at window, therefore, he feared and thereafter did not try to cohabit with appellant. He further deposed at Para 11 that her passport and Visa was ready, therefore, he tried to take her to States, but she denied. Here it is apparent that if the appellant had refused to cohabit with him, despite agreement Ex. P-10 or indirectly threatened to commit suicide, in that case no one could dare to take such a woman with him to States and if respondent, despite all these facts, was willing to take his wife along with him, it means no such incident took place or he further condoned the cruelty, if any, caused to him.
11. Ex. D-1 is a letter written by the father of respondent Dr. R.S. Mishra (AW 3) who in his deposition admits that he has written this letter on 10-5-2000. Ex. D-1 clearly shows that there was no dispute between the parties, therefore, father of respondent sent a letter proposing the appellant to go to States. Ex. D-2 is also not disputed. On 24-5-2000 (Ex. D-2) father of the appellant intimated that the appellant is ready to go to States, therefore, arrangement for ticket may be made. From these communications, it is apparent that till 10-5-2000 husband and wife were not in any inimical terms. If on 2-5-2000 appellant for want of mental preparation denied to accompany the respondent for the time being, that does not amount to cruelty, on the contrary the behaviour of husband who willfully thereafter did not take her or make arrangement for taking her to States, amounts to cruelty on the appellant.
12. Smt. Sunita Mishra/appellant (NAW1) in her statement deposed that when they returned from Bombay, stayed in Lodge where her in-laws told that presently her husband would go and they will sent her later on. Till then the relation with her husband was cordial. She still wants to live with her husband. In cross-examination she has denied the suggestion that whether her husband attempted to make physical relation she denied and threatened him to jump from the hotel. In cross-examination she has also stated that when they came back to Durg, her in-laws told her that her ticket is not confirmed, therefore, for the present, she should go to Dalli. There is not an iota of evidence in her statement to suggest that she ever denied to cohabit or ever threatened to commit suicide. Her statement is natural and also finds support from the aforesaid evidence of the respondent and was reliable.
13. From the evidence on record, it was proved that the appellant did not behave with respondent with such cruelty which may entail respondent to get decree of divorce. For a divorce, either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties. Decree of judicial separation means, a decree of judicial separation reached to its finality. Therefore, the decree for judicial separation passed by the Lower Court which is under challenge in this appeal does not give any right to respondent for grant of divorce against the appellant.
14. From the aforesaid discussions, it is apparent that learned Court below erred to hold cruelty in favour of respondent. In the result, the appeal is allowed. The cross appeal is dismissed. Decree passed by the Lower Court is set aside.