Rajasthan High Court - Jaipur
Lilawati vs Shyam Lal on 28 July, 2017
Bench: Ajay Rastogi, Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Miscellaneous Appeal No. 2912 / 2008
Smt..Lilawati W/o Shri Shyam Lal Chitodiya, R/o 6, Gandhi
Montessori Middle School, Dhan Nadi, Bhajan Gunj, Ajmer.
----Appellant
Versus
Shri Shyam Lal Chitodiya S/o Shri Ladu Ram Chitodiya, R/o 14/29,
Tilak Nagar, Dhola Bhata, Ajmer.
----Respondent
_____________________________________________________ For Appellant(s) : Mr.Veyankatesh Garg, Adv. For Respondent(s) : Mr.Reasham Bhargava, Adv. _____________________________________________________ HON'BLE MR. JUSTICE AJAY RASTOGI HON'BLE MR. JUSTICE ASHOK KUMAR GAUR Judgment Judgment reserved on : 19th July, 2017.
Date of Judgment : 28th July, 2017.
By the Court (Per Hon'ble Mr.Justice Ajay Rastogi):
Instant misc. appeal has been filed by the appellant-wife aggrieved by the judgment and decree dt.12.03.2008 whereby decree of divorce was granted to the respondent-husband dissolving their marriage on the ground of cruelty and desertion u/Sec.13 of the Hindu Marriage Act, 1955.
The facts giving rise to the present appeal, in nutshell, are that marriage of the appellant-wife with the respondent-husband was solemnized according to the Hindu rites & customs on 14.04.1982 at Ajmer. It may be noticed that there is no issue from this wedlock and the appellant-wife has left the matrimonial home (2 of 11) [CMA-2912/2008] and they are living separately indisputably, as borne out from the pleadings since 20.12.1989.
Prior to filing of the present Divorce Petition No.294/1999, the respondent-husband alleged that the appellant-wife left the matrimonial home and started living separately without any legitimate cause/justification since 20.12.1989 but when their differences & her uncalled for behaviour could not be reconciled, the respondent-husband filed Divorce Petition as Matrimonial Case No.14/1990 on the ground of cruelty. Since the statutory period of two years of separation was not completed and there was no allegation/ground of desertion, the Divorce Petition No.14/1990 came to be dismissed on 22.11.1991. Thereafter, fresh Divorce Petition was filed by the respondent-appellant on the ground of cruelty and desertion as Matrimonial Case No.23/1992 and the ld.Family Court while framing issues, framed Issue No.3 with regard to res-judicata, on the objection being raised by the appellant-wife in her written statement and while accepting the plea of res-judicata, dismissed the Matrimonial Case No.23/1992 vide its order dt.12.07.1995 against which no further recourse was adopted by the respondent-husband.
Thereafter, the respondent-husband moved a fresh Divorce Petition No.294/1999 on the ground of cruelty and desertion. Again an application was moved by the appellant-wife u/Sec.11 CPC seeking dismissal of the matrimonial case on the ground of res-judicata. Accepting the plea of res-judicata, the Matrimonial Case No.294/1999 came to be dismissed by the ld.Family Court vide its order dt.06.02.2001 and that came to be challenged by (3 of 11) [CMA-2912/2008] the respondent-husband before this Court in D.B.Civil Misc. Appeal No.442/2001 which was allowed by this court vide order dt.05.02.2007 and the parties were directed to appear before the ld.Family Court and after the parties recorded their attendance in compliance of judgment of this Court dt.06.02.2001, the appellant-wife failed to appear before the ld.Family Court, Ajmer on five consecutive dates and, as such, ex-parte proceedings were initiated against the appellant-wife and vide ex-parte judgment and decree, the Divorce Petition was allowed vide order dt.10.05.2007.
That against the ex-parte judgment and decree of divorce to the respondent-husband, the appellant-wife on 08.06.2007 moved application u/O.9 R.13 CPC for setting aside the ex-parte judgment and decree dt.10.05.2007 which was allowed on 28.01.2008 and the Matrimonial Case No.294/1999 was restored to its original number.
During the course of proceedings, the respondent-husband recorded the statement of his own and Ramesh Chand (his cousin brother) as AW-1 and AW-2 respectively. At the same time, the appellant-wife got herself examined along with Jeevan Ram and Nandkishore, who happens to be her neighbours as NAW-1, NAW- 2 and NAW-3 respectively.
The ld.Family Court on the pleadings of the parties, in all framed four issues for determination, which read ad infra:-
"1& vk;k vizkFkhZ;k us izkFkhZ dk nks o"kZ ls vf/kd vof/k ls fcuk fdlh ;qfDr ;qDr dkj.k ds ifjR;kx dj j[kk gS \ 2& vk;k vizkFkhZ;k dk O;ogkj izkFkhZ ds lkFk ;kfpdk esa of.kZr vk/kkjksa ij dzwjrkiw.kZ jgk gSA\ (4 of 11) [CMA-2912/2008] 3& vk;k tokcnkos esa vafdrkuqlkj izkFkhZ ds ehjk uke dh efgyk ls lEcU/k gS vkSj mls vius lkFk crkSj iRuh j[ks gq, gS] ;fn ,slk gS rks mldk ;kfpdk ij izHkko \ 4& vk;k izkFkhZ vizkFkhZ;k ds fo:} fookg foPNsn dh fMØh ikus dk vf/kdkjh gS \ 5& vuqrks"k |"
It was pleaded by the respondent-husband in his Matrimonial Application that after their marriage was solemnized according to the Hindu rites & customs on 14.04.1982 apart from the fact that there is no child from this wedlock the appellant-wife left the matrimonial home on 20.12.1989 and thereafter never turned up upto the date of filing of the application and he tried his level best to provide all medical care and treatment of one of the best Gynecologist but in fact she failed to discharge matrimonial relations for a sufficient long time and has deserted him for more than two years on the date of filing of the divorce petition.
It was further stated that a false criminal complaint was instituted against him u/Sec.494 IPC that he has remarried to another woman named Meera and residing with him which was factually incorrect and it was just to defame him in the society, which after the regular trial found to be false and he was acquitted by the ld.Trial Judge and in this regard, the appellant-wife in her written statement in para-7 has stated that the respondent- husband is residing with another woman named Meera as his wife and a criminal case has been instituted at her instance for the offence u/Sec.494 IPC before the competent court of jurisdiction and further stated in para-11 of the written statement that although she has left the matrimonial home on 20.12.1989 but (5 of 11) [CMA-2912/2008] reason was the demand of dowry from the respondent-husband of Rs.10,000/- which she and her family members are unable to fulfill.
On the statement which was recorded before the ld.Family Court, the appellant-wife in her cross-examination as NAW-1 admitted that she has instituted a case for demand of dowry and for solemnizing second marriage by the respondent-husband u/Sec.494 IPC, although, later on he was acquitted by the competent court of jurisdiction for the reason that the respondent- husband has threatened her witnesses.
Taking note of the statement of witnesses recorded by the parties in support of their case and the material which has come on record, the ld.Family Court decided all the issues in favour of the respondent-husband upholding that the appellant-wife has deserted the respondent-husband without any reason/justification from 20.12.1989 and instituted a false complaint against him u/Sec.494 IPC in which there was an order of acquittal by the competent court of jurisdiction and so also the fact that there was no demand of dowry of Rs.10,000/- as being pleaded by the appellant-wife in her statement as NAW-1 and finally granted decree of divorce to the respondent-husband vide judgment & decree impugned dt.12.03.2008 and accordingly their marriage solemnized as per Hindu rites & customs on 14.04.1982 was dissolved.
Counsel for the appellant-wife submits that although it could not be proved by her that the respondent-husband is residing with another lady named Meera but the fact is that she is residing as (6 of 11) [CMA-2912/2008] his wife and because of her witnesses being threatened by the respondent-husband the charge could not be proved and further deposed that the respondent demanded a sum of Rs.10,000/- as dowry from her but merely because she is unable to prove, that in itself could not be considered to be a mental cruelty being committed by her in granting decree of divorce under the judgment & decree impugned dt.12.03.2008.
Counsel further submits that as regard leaving matrimonial home on 20.12.1989 is concerned, although this fact is not disputed that she is residing separately since 20.12.1989 but it was only under the compelling circumstances that she left the matrimonial home and reason behind is demand of dowry and the respondent-husband is residing with another lady named Meera and the solitary reason could not be considered the cause of cruelty and the finding recorded by the ld.Family Courft on issue Nos.1, 2 & 3 is totally perverse and the judgment and decree impugned deserves to be quashed and set aside.
On the other hand, counsel for the respondent-husband refuted the submissions made by counsel for the appellant-wife and contended that the respondent-husband has been able to prove various acts of cruelty being practiced by the appellant-wife and sufficient evidence was brought on record with incriminating proofs that act of the appellant-wife has caused mental cruelty to the respondent-husband and she has leveled false & baseless allegations of dowry demand and staying with another lady named Meera and in absence of any tangible evidence, in rebuttal, the respondent-husband has been victimized and his image has been (7 of 11) [CMA-2912/2008] tarnished in the society and on the other hand, there is sufficient evidence on record regarding her desertion and also of mental cruelty which she committed on the respondent-husband & which has been considered by the ld.Family Court under the judgment & decree impugned dt.12.03.2008 which needs no further interference by this Court.
We have heard counsel for the parties and with their assistance carefully examined the material on record.
The relevant provision of Sec.13 of the Hindu Marriage Act, 1955 reads ad infra:-
"13. Divorce - (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party -
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or ........."
It is true that 'cruelty' has not been defined in the Act but is a relative term. It varies from person to person and there cannot be laid down any straight jacket formula and each case has to be examined on its own facts. The allegation and conduct of one particular case may not amount to cruelty in all the cases. It depends upon various factors which includes the status of the spouses and the atmosphere in which they live. Cruelty implies and means harsh conduct and of such intensity and persistence, which would make it impossible for the spouse to operate the marriage. Although the cruelty may not defined in the Act, but it is (8 of 11) [CMA-2912/2008] to be determined on the basis of proved facts and circumstances of the case.
It is indeed true that marriage is a sacred relationship between husband and the wife. In a traditional society like ours, when a boy marries a girl, he not only brings a wife to his home but also beings a daughter-in-law for the family. Thus, the behavior of a woman has to be seen both as a wife and as a daughter-in-law.
The respondent-husband in his application specifically stated that the appellant-wife has instituted a false criminal case against him u/Sec.494 IPC with the allegation that he is residing with another woman Meera having illicit relations with her which is without any factual basis and foundation and so also the fact that she left her matrimonial home since 20.12.1989 and deserted him without any valid cause and this was admitted by the appellant- wife in para Nos.7 & 11 of her written statement. It would appropriate to quote the relevant para Nos.7 & 11 of the written statement filed by the appellant-wife, which read ad infra:-
"7& ;g fd izkFkZuk i= dh pj.k la[;k&7 ¼ lkr½ xyr gksus ds dkj.k vLohdkj gSA tSlk fd Åij Hkh of.kZr fd;k tk pqdk gS fd izkFkhZ fdlh Hkh rjg ls vizkFkhZ;k ls rykd pkgrk gS rFkk ehjk uked efgyk dks og vius lkFk crkSj iRuh j[ks gq,s gSA bl rjg ls izkFkhZ Loa; LoPN gkFkksa ls ekuuh; U;k;ky; ds le{k ugha vk;k gSA 11& ;g fd izkFkZuk i= dh pj.k la[;k &11 ¼ X;kjg½ xyr gksus ds dkj.k vLohdkj gSA tSlk fd Åij Hkh fuosnu fd;k tk pqdk gSA fd vizkFkhZ;k viuh bPNk ls vius ihgj esa ugha jg jgh gS oju~ fnukad 20-12-1989 ¼ chl fnlEcj lu~ mUUkhl lkS uokalh½ dks izkFkhZ o mlds ?kj okyksa us vizkFkhZ;k ds lkFk ekjihV dj ?kj ls fudky fn;k gSA vizkFkhZ;k ds firk dk Hkh nsgkUr gks pqdk gS rFkk vizkFkhZ;k viuh o`} ekrk ds lkFk jg jgh gSA vizkFkhZ;k ds firk o lekt ds yksxksa us izkFkhZ o (9 of 11) [CMA-2912/2008] mlds ?kj okyksa dks dbZ ckj le>k;k fd og vizkFkhZ;k dks vius lkFk j[ks rFkk mls vuqfpr ekWx dks ysdj viekfur o izrkfM+r ugha djs ijUrq izkFkhZ o mlds ?kj okyksa us Li"V :i ls dgk fd tc rd ekWx iwjh ugha gks tkrh rc rd vizkFkhZ;k dks ?kj esa ?kqlus ugha nsaxsA vizkFkhZ;k vkt Hkh izkFkhZ ds lkFk jgus dks rS;kj gSA bl izdkj izkFkhZ us gh vizkFkhZ;k dk R;kx dj j[kk gSA"
During course of evidence recorded in support of the respective allegation of the appellant-wife during cross- examination as NAW-1, being relevant for the present purpose, is quoted ad infra:-
";g lgh gS fd eSusa izkFkhZ ij ngst ekaxus o nwljh 'kknh djus dk eqdnek fd;k Fkk mlesa izkFkhZ cjh gks x;k ysfdu blus esjs xokgksa dks /kedk;k blfy, cjh gqvk gS & & & mlds ehjk ds lkFk uktk;t laca/k gSa & & & ;g xyr gS fd eSaus blds foHkkx esa Hkh >waBh f'kdk;rsa djds bldh csbTtrh dh gks vfirq eSaus lgh f'kdk;r dh gSa& &A"
No tangible evidence has come on record in support of both the allegations about demand of dowry and that the respondent- husband is residing with another woman Meera. On the contrary, after a regular trial, the respondent-husband was acquitted by the competent court of jurisdiction of the case instituted against him u/Sec.494 IPC at her instance and it was observed to be a false case instituted against him. As regards desertion is concerned, she has left her matrimonial home since 20.12.1989 and the explanation which was tendered/furnished by the appellant-wife was not acceptable even to the man of ordinary prudence and no evidence has come on record in rebuttal which could support the justification tendered by her.
Thus, the stand establishes from the material on record that false and baseless allegations were levelled against the respondent-husband by the appellant-wife of demand of dowry (10 of 11) [CMA-2912/2008] and residing with another woman named Meera and no tangible evidence has come on record in rebuttal which could defend the case of the appellant-wife.
The ld.Family Court has found as a fact that the allegations levelled against the respondent-husband implicating him in a case instituted u/Sec.494 IPC and of demanding dowry are totally false and baseless which the appellant-wife has failed to prove against the respondent-husband and that established to mental cruelty on part of the appellant-wife and that has certainly made the respondent-husband entitled to a decree of divorce on this ground alone.
That apart litigation is going on between the parties since 1990 and even from the material which has come on record & admitted by the appellant-wife, they are living separately since 20.12.1989 and almost 28 years have rolled by now. Otherwise also it is breakdown of their marriage and there is sufficient material available on record to cause mental agony to the respondent-husband. Making wild and false allegations against character of the respondent-husband is nothing but an attempt to tarnish his image in the society which amounts to mental cruelty and this what has been considered by the ld.Family Court while granting decree of divorce in favour of the respondent-husband so as to make out a case of cruelty practiced by the appellant-wife.
The evidence of respondent-husband appears to be reliable whereas the testimony of the appellant-wife is against her averments in reply which certainly not only belies her testimony but also renders her unworthy of trust. It also indicates that she (11 of 11) [CMA-2912/2008] has perjured herself and has indulged in blatant lies. The ld.Family Court has given cogent and valid reasons for relying upon the evidence of the respondent-husband while deciding issue Nos.1, 2 & 3 in favour of the respondent-husband. We have no hesitation to hold that act of the appellant-wife did constitute an act of cruelty to the respondent-husband and the finding of fact recorded by the ld.Family Court, in our considered view, thus liable to be sustained and does not call for interference.
In view of the foregoing discussion, the finding recorded by the ld.Family Court being based on proper and legal appreciation of the evidence on record, deserves to be upheld and affirmed and to hold that the decree of divorce granted by the ld.Family Court impugned dt.12.03.2008 deserves to be sustained and does not call for any interference by this Court and the instant misc. appeal deserves to be dismissed.
Consequently, the instant misc. appeal being devoid of merit and substance is hereby dismissed. No order as to costs.
(ASHOK KUMAR GAUR),J. (AJAY RASTOGI),J. Solanki DS, PS