Indian Kanoon - Search engine for Indian Law

Per: Justice Anuradha Shukla Appellant/husband is aggrieved by the judgment and decree dated 05.07.2016 , passed by learned Principal Judge, Family Court, Katni in Hindu Marriage Case No.76A/2014, whereby the divorce petition filed by the respondent/wife was allowed on the ground of desertion and the appellant/husband was directed to pay Rs.6,00,000/- to the respondent - wife as a cost of streedhan within 2 months, failing which to pay additional interest @ 8% per annum.

3. After the dismissal of her first divorce petition and also the first appeal, the respondent-wife filed the second divorce petition on the grounds of cruelty regarding demand of dowry and dowry harassment. The averments regarding cruelty involved the impotency of husband, forcing the wife to enter into physical relationship with the worker of the house and an apprehension about facing some unpleasant conditions of the colour of cruelty. Besides these, the ground of desertion was also raised claiming that NEUTRAL CITATION NO. 2025:MPHC-JBP:44215 3 FA-610-2016 she was forced out of matrimonial house for not meeting the demands of dowry. A request for divorce was accordingly made with an additional request for return of streedhan including cash amount of Rs 4 lakh.

6. In this first appeal, appellant is assailing the judgment and decree on the grounds that they are contrary to facts, evidence and the law applicable; it was ignored that the earlier suit filed by the wife was dismissed and wife could have filed a fresh divorce petition only if there was any change in circumstances with the passage of time and a new cause of action to file a fresh divorce petition arose. Accordingly, it was no open for the respondent- wife to rely upon the same grounds, still the trial Court erred in law in passing the impugned decree and allowed a sum of Rs.6,00,000/- to be paid as value of streedhan. It was ignored that the right to sue for streedhan was available even at the time of filing the earlier divorce petition registered as 13A/2005, but she failed to seek this relief and now, on account of constructive res-judicata provided in explanation (iv)(1B) of Section 11 CPC and the provision of order 2 Rule 2 CPC, any claim for such relief in a subsequent proceeding she was not entitled to any decree for payment of amount of streedhan. It was also ignored that ground of desertion was not available as respondent-wife herself had left the matrimonial house and the learned trial Court was in error in placing burden of proof on the appellant- husband to prove the efforts made for bringing her back. Only on the basis of testimony of the father of appellant-husband, who had deposed in favor of respondent-wife, the trial Court passed the impugned decree, but it was ignored that the appellant had strained relationship with him on account of NEUTRAL CITATION NO. 2025:MPHC-JBP:44215 5 FA-610-2016 his second marriage and therefore, his testimony should not have been accepted as a gospel truth. The trial Court was also in error in drawing its own presumption regarding customary practice in Hindu of giving gifts at the time of marriage and without any convincing evidence, it assumed that articles worth Rs.6,00,000/- were given in streedhan. Accordingly, the impugned judgment and decree are challenged on the aforesaid grounds.

18. Appellant has also assailed the money part of the impugned judgment and decree whereby he was directed to pay Rs.6 Lakhs against the value of streedhan. From the evidence available on record of trial Court it is evident that no receipts of items given in marriage as streedhan were proved in evidence on behalf of respondent/wife. Only the list of items marked as Ex.P/2 was produced in evidence, but that was not signed by appellant/husband or any of his family members acknowledging the receipt of said items. We cannot ignore here that respondent-wife did not stay even for a month in her matrimonial house and left it in June 2004 for not to return. Thus, the fate of this marriage in the light of allegations that were being made by respondent-wife was very much predictable when she left the matrimonial house, still no efforts were made to preserve the receipt of items given to the groom side in marriage or the photographs relating to the cash amount. Despite there being absence of reliable evidence trial Court allowed the request of respondent-wife and directed the appellant-husband to pay Rs.6 Lakhs. This finding of trial Court appears to be based upon unilateral appreciation of oral evidence given by respondent/wife and not considering the evidence given by appellant-husband in the rebuttal, therefore, it does not deserve to be upheld. Accordingly, we set-aside the money part of impugned NEUTRAL CITATION NO. 2025:MPHC-JBP:44215 12 FA-610-2016 judgment and decree where under appellant/husband was directed to pay Rs.6 Lakhs to respondent-wife.