Chattisgarh High Court
Radhe Shyam Saraf vs Smt. Mamta Saraf on 8 July, 2005
Equivalent citations: 2005(4)MPHT46(CG)
JUDGMENT V.K. Shrivastava, J.
1. This appeal is directed against the judgment and decree dated 28-1-2000 passed in Civil Suit No. 50-A/99 by Vth Additional District Judge, Bilaspur, by which the petition filed by the plaintiff/appellant under Section 13 of the Hindu Marriage Act, for decree of divorce has been dismissed.
2. Appellant was married to respondent on 26-6-1989 and out of their wedlock one son named Raj was born. Appellant filed a petition for divorce against the respondent bearing case No. 58-A/96, for transfer of the said petition from Bilaspur to Jabalpur, respondent filed an application before Hon'ble the High Court of M.P. at Jabalpur and the said application was registered as M.C.C. No. 815/1996. On 24-4-1998 both the parties had joint meeting and they expressed before the High Court of M.P. at Jabalpur that they have agreed to live together. On 27-7-1998 Counsel for both the parties appeared and submitted that both the parties have decided to apply for grant of decree of divorce by mutual consent, therefore, M.C.C. No. 815/96 was dismissed by the High Court of M.P., as not pressed by the parties.
3. Appellant and respondent filed a joint application under Section 13B of the Hindu Marriage Act, 1955 for decree of divorce on mutual consent in the Court of VIIth Additional District Judge, Bilaspur, which was registered as Civil Suit No. 3-A/99. After a period of six months respondent withdrew her consent, consequently the said suit was dismissed on 6-3-1999. Thereafter, appellant filed a petition for divorce on the ground of desertion and cruelty.
Appellant also pleaded that on 1-11-1991 as per custom prevailing in their caste, divorce took place between the parties in presence of the witnesses. Respondent also received a sum of Rs. One lac towards all further maintenance and executed an affidavit in support of it. Respondent in her defence denied the plea of customary divorce and pleaded that document of divorce dated 1-11-1991 is a forged document. She received a sum of Rs. One lac towards her future maintenance which was granted by Judicial Magistrate First Class in Criminal Case No. 361/1995.
4. Learned Trial Court, after evaluating the evidence held that the defendant/respondent neither deserted her husband nor customary divorce took place between them. Learned Trial Court further held that defendant/respondent on 1-11-1991 lodged a false report against plaintiff/appellant regarding cruelty on the demand of dowry at Manila Police Station, Bilaspur, and as such, treated him with cruelty, but the cruelty committed by her has been condoned by the plaintiff/appellant, and in view of the same, dismissed the petition filed by plaintiff/appellant under Section 13 of the Hindu Marriage Act.
5. Both the parties are heard and record of Court below persued.
6. Section 29(2) of the Hindu Marriage Act reads as below :--
"Nothing contained in this Act shall be deemed to affect any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after commencement of this Act."
7. Section 3(a) of the Act defines custom & usage which reads as below :--
"3. Definition : In this Act, unless the context otherwise requires:--
(a) The expression "custom" and "usage" signify any rule, which having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:
Provided that the rule is certain and not in reasonable or oppose to public policy."
8. Learned Trial Court considered all the evidence adduced by both the parties at length and after due evaluation held that on 1-11-1991 no divorce took place between appellant and respondent.
9. Ex. P-1 is the divorce deed said to be executed by both the parties and Ex. P-10 community register said to contain proceeding dated 1-11-1991 does not contain any recital regarding custom and customary divorce. Appellant to support the customary divorce tendered oral evidence of Ganesh Saraf (P.W. 2), Santosh Kumar Soni (P.W. 3). They stated in their evidence that divorce deed was written and signed by both the parties, thereafter they affirmed the same in community meeting whereas respondent herself (NAW 1), Brindavan Swami (NAW 2) and Vijay Kumar (NAW 4) have denied execution and affirmation of the same. Learned Trial Court accepting the evidence of Mamta (NAW 1), Brindavan Swami (NAW 2) and Arun Saraf (NAW 3) held that no mutual divorce, according to social custom, took place between appellant and respondent. Although Radheshyam (AW 1) said that customary divorce is valid and also gave example that earlier to it, daughter of Omprakash Soni also took customary divorce, only one or two instances are not sufficient and also a bare statement that customary divorce is valid, cannot prove the ingredients regarding validity of customary divorce as envisaged under Section 3(a) of the Act, Smt. Mamta (NAW 1), Brindavan Swami (NAW 2) and Vijay Kumar (NAW 4) have stated that no customary divorce is prevalent in their society. From the aforesaid evidence on record, it is apparent that learned Trial Court did not commit any illegality or irregularity in holding that no customary divorce took place between appellant and respondent on 1-11-1991.
10. Undisputedly on 1-11-1991 respondent left her matrimonial home and since then was living at Jabalpur in her parental home. On 24-4-1998 before High Court of M.P. at Jabalpur, both the parties were present in person. The Court recorded that both husband and wife had a joint meeting and to the happiness of the Counsel and the Court they have agreed to live together. Counsel for the parties, however, prayed for a grant of trial period. The prayer is allowed. The wife agrees to accompany the husband to Bilaspur. They shall report to this Court again on 27-7-1998. On 27-7-1998 the Court further recorded that the parties and their Counsel appearing stated that they do not wish to press this application as they have decided to apply for grant of decree of divorce by mutual consent.
11. Appellant's contention is that in spite of the Court's order respondent did not come to live with him whereas submission of respondent is that since 24-4-1998 to 27-7-1998 she lived with appellant at Bilaspur and they lived there like husband and wife.
12. Radheshyam (AW 1) deposed that since 1991 Mamta without any cause is living separate from him. In re-conciliation before Hon'ble the High Court of M.P. at Jabalpur, both the parties were directed to live for three months together as wife and husband, but after leaving the Court room, Mamta refused to accompany him and proposed that if she will be paid Rs. One lac she will get the marriage dissolved by mutual consent. Appellant accepted the proposal and gave Rs. One lac to Mamta. After three months both the parties apprised the Hon'ble High Court their decision regarding mutual consent. This evidence finds support from the evidence of Mamta (NAW 1) herself who in cross-examination admits that she left her parental home on 1-11-1991 alongwith her brother and father and lived at Jabalpur and she never returned back to in her matrimonial home since then. It is also not disputed that she received Rs. One lac from appellant.
13. Brindavan Swami (NAW 2), father of respondent-Smt. Mamta did not say a single word regarding re-union of appellant and respondent from 24-4-1998 to 27-7-1998. Vijay Kumar (NAW 4) the brother of respondent Mamta deposed that on 24-4-1998 High Court of M.P., advised both the parties and thereafter on 30-4-1998 Mamta accompanied with her husband Radheshyam left for Bilaspur. He further stated that from 24-4-1998 to 27-7-1998 she lived in Bilaspur in her matrimonial home. On 27-7-1998 they came from Bilaspur and stayed in Samrat Hotel at Jabalpur. On 27-7-1998 they apprised their decision and after hearing, they returned back to hotel, thereafter they returned back to Bilaspur and lived together for about eight days in the house of Munna uncle whereas Mamta (NAW 1) deposed that from 24-4-1998 to 27-7-1998 she lived at Bilaspur with appellant as his wife.
14. Evidence of Mamta (NAW 1) and her brother Vijay Kumar (NAW 2) are contradicting the version of each other and also not probable whereas the evidence of Radheshyam (AW 1) duly supported from the evidence of Mamta (NAW 1) herself was reliable and probable and was to be accepted. Therefore, it was proper that respondent since 1-11-1991 never joined the company of appellant.
15. It is not disputed that both the parties gave intimation to Hon'ble High Court that they will file application for divorce on mutual consent and thereafter they also filed the petition for mutual divorce and that application was dismissed by the Court after six months due to withdrawal of consent by respondent. It is also not in dispute that she lodged a report on 1-11-1991 against appellant and the appellant was convicted by the Trial Court. Appellant earlier to this petition, had filed application for grant of divorce on the ground of cruelty and desertion and the same was got dismissed due to filing of the application of divorce by mutual consent.
16. Respondent has admitted that on 1-11-1991 she signed the stamp paper. The said stamp paper, said to be divorce agreement is Ex. P-1. Execution of that document has been proved by Radheshyam (AW 1) and Santosh Kumar (AW 3). To confirm the said document community meeting was held and the proceeding was recorded in register Ex. P-10. On 1-11-1991 respondent left her matrimonial home and it is established that since then till now she never joined the society of appellant and lived with him. On 1-11-1991 she lodged a false criminal complaint before the Police Station against the appellant as a result of which appellant was prosecuted and convicted. She expressed her willingness before the Hon'ble High Court to end her martial tie by obtaining a divorce on mutual consent and thereafter, application for mutual consent has been filed by her, i.e., Ex. P-8 and the same was dismissed by the Court vide order dated 6-3-99 due to withdrawal of consent by respondent. It is also acceptable that towards divorce by mutual consent respondent took a sum of Rs. One lac from the appellant towards maintenance. From all these factors, it is clear that she left her matrimonial home on 1-11-1991 to end her marital tie and since then staying at Jabalpur in her parental home and accordingly it was proved that she without having sufficient reason deserted appellant since 1991.
17. Appellant's contention is that learned Trial Court has held that appellant was treated cruelty by respondent, but the Court below wrongly held that cruelty has been condoned by him. On the contrary, respondent stated that from 24-4-1998 to 27-7-1998 she lived with her husband and discharged the marital relation which proves that the appellant has condoned the cruelty.
18. Section 23(1)(b) of the Hindu Marriage Act reads as below :--
"Where the ground of the petition is the ground specified in Clause (i) of Sub-section (1) of Section 13, the petitioner has not in any manlier been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty."
19. It has already been held earlier that after deserting the appellant since 1-11-1991 respondent never turned up to live with appellant and the fact that she as a result of re-conciliation proceeding lived with her husband from 24-4-1998 to 27-7-1998, has not been proved, therefore, it can not be held that the appellant in any way condoned the cruelty caused by her, set apart when evidence is there to show that the signing the divorce deed on 1-11-91 left her matrimonial home and lodged a false report in Police Station against appellant as a result of which appellant was prosecuted and punished, it is not possible for victim of such incidents to condone the cruelty caused to him.
20. Learned Court below to record the finding that the appellant condoned the cruelty took shelter that appellant gave his consent to take back respondent before Hon'ble the High Court. As a result of conciliation proceeding, if consent has been given by a party it does not mean that party giving consent has condoned serious cruelties which not only destroyed his family life but destroyed the prestige of whole of his family in the society. It appears that the learned Trial Court without considering all the facts and without proper appreciation of evidence committed error; in recording the finding that appellant condoned the cruelty caused to him by the respondent.
21. It is established that since 1-11-1991 respondent has left the appellant after signing divorce deed on the same date and thereafter on the same date she lodged a false report against the appellant and consequently appellant was prosecuted and punished. Respondent entered into compromise with the appellant for mutual consent and also recovered Rs. one lac for her maintenance and thereafter, withdrew her consent which shows that she only wants to harass the appellant by hook or cook. From all these circumstances, it appears that both the parties are not interested to keep the marital tie intact and when it has been proved that respondent deserted appellant since 1-11-1991, respondent caused grave cruelty to appellant and the cruelty has never been condoned by the appellant, only remedy remains is to dissolve the marriage.
22. In the result, the appeal succeeds, the impugned judgment and decree passed by the Trial Court is set aside and instead it is decreed that the marriage solemnized on 26-6-1989 between the appellant and respondent is hereby dissolved.