Back
2010 (3) GCD 2075 (Guj) (DB)
Hon’ble Mr. Justice Jayant Patel &
Hon’ble Smt. Justice Abhilasha Kumari
Rajendra Ratilal Dalal
Versus
Dharmisthaben Wd/o Rejendra R. Dalal & D/o Babulal Kamdar
First Appeal No. 969 of 2010—Decided on 09/08/2010
Hindu Marriage Act, 1955 (Central Act 25 of 1955) — Sections 12 and 13(1) — Decree — Dissolution of marriage and permanent injunction — Ground of cruelty and desertion — Challenge against not sustainable in view of cogent findings of desertion and cruelty against appellant by Family Court — There is also material on record that the appellant used to harass the respondent at her work place and misbehaved with her.
Held :
The findings of the Family Court that the appellant has treated the respondent with cruelty by harassing and pressurising her to transfer the Flat of the respondent in his name, and by pocketing the amount of Rs. 50,000/- towards compensation for the said Flat is, in our view, amply supported by material on record. It is evident that the respondent was compelled to leave her own Flat which she had purchased out of her own money before the marriage, due to the cruelty and harassment of the appellant. The material on record also points out to beatings given by the appellant to the respondent, which also resulted in a broken finger which has virtually been admitted by the learned Counsel for the appellant. The allegations of taking away the ornaments would, constitute mental cruelty and cause pain to any spouse. It is not possible for us to believe that the respondent would has left her own Flat, where the appellant and his mother was staying, had she not been subjected to physical and mental cruelty of such a degree, so as to compel her to do so. The finding of the Family Court that the respondent has not left the matrimonial house without any reasonable cause as the appellant has forced her to leave the flat and that the appellant has, therefore, deserted the respondent for a continuous period of not less than two years immediately preceding the date of the presentation of the petition not liable to be interfered with, as the same is well-founded and supported by material on record. [Para 13]
However, before parting with this judgment Court would like to make it clear that there is no conclusive evidence regarding the impotency of the appellant, or the assertion that the marriage has not been consummated. The finding of the Family Court on this point, therefore, cannot be endorsed. However, as the decree of dissolution of marriage has been passed by the Family Court under the provisions of Section 13(1) of the Hindu Marriage Act, on the ground of cruelty and desertion and not under Section 12 thereof, the same is not interfered with. Similarly, as the Family Court has recorded cogent findings on the ground of desertion and cruelty against the appellant and in view of the material on record that the appellant used to harass the respondent at her work place and misbehave with her, the permanent injunction granted by the Family Court restraining the appellant from harassing the respondent at her work place and misbehaving with her and also with the father and brother of the respondent, is justified and not interfered with.
[Para 16]
Law Laid Down :
In a petition for divorce to establish cruelty it is not necessary that physical violence should be used.
Smt. Abhilasha Kumari, J.—The present appeal is directed against judgment and decree dated 26-8-2009 passed by the Family Court No. 3, Ahmedabad, in Family Suit No. 211 of 2003, whereby, the marriage between the appellant-husband and respondent-wife (hereinafter referred to as ‘the appellant’ and ‘the respondent’ as they appear in this appeal respectively) has been dissolved with effect from the date of judgment, under the provisions of Section 13(1) of the Hindu Marriage Act,1955 (“The Hindu Marriage Act” for short) and a permanent injunction has also been granted against the appellant.
2. The impugned judgment and decree came to be passed in a Suit filed by the respondent wife before the Family Court, being Family Suit No. 211 of 2003, wherein she has prayed for a decree under Section 12 of the Hindu Marriage Act declaring that her marriage with the appellant as null and void on the ground that it has not been consummated, owing to the impotency of the appellant. Alternatively, a decree for dissolution of marriage under Section 13(1) of the Hindu Marriage Act was also prayed for.
3. In order to appreciate the issues involved, it would be necessary to briefly state the relevant facts, which are as under:
3.1 The marriage between the appellant and respondent was solemnised on 28-1-2000. The respondent is serving as Junior Accounts Officer in the Telephone Department whereas the appellant is working in a Private Firm. After the marriage the respondent started staying with the appellant in the joint family. However, it is the case of the respondent that the marriage has never been consummated due to the impotency of the appellant, and this state of affair has continued throughout. According to the respondent the appellant, apart from being unable to fulfil his marital obligations, has inflicted mental and physical cruelty on her, due to which she has been driven out of the house and has been living separately since 7/9 January, 2001 (except for 24-1-2001). She has, therefore, approached the Family Court by way of the above-mentioned Suit, praying for the relief of declaration that the marriage be declared as null and void under Section 12 of the Hindu Marriage Act. Alternatively, it was prayed that as the respondent has treated her with cruelty, a decree of divorce may be granted.
3.2 As far as the aspect of cruelty is concerned it was asserted by the respondent before the Family Court that the appellant has treated her with cruelty as his behaviour changed towards her after the marriage. The appellant started harassing her and forcing her to give Rs. 9000/- per month from her salary and also to transfer the Flat purchased by her before the marriage, situated at Himgiri Apartments, in his name. As the respondent did not agree to the same, she was subjected to physical and mental cruelty and torture and also had to endure beatings and false allegations. She has even broken one of her fingers due to the beating given by the appellant. As per the say of the respondent, she tolerated such behaviour even though the appellant was unable to consummate the marriage. On the proposal of the appellant and his mother, she agreed to live with them separately from the joint family at her Flat at Himgiri Apartments as the existing premises, where the joint family was staying, were small and were shared by the brother-in-law of the respondent and his family. However, the harassment continued and the appellant threatened that he would commit suicide, if she refused to transfer the flat. It is the case of the respondent that due to the harassment of the appellant, she was compelled to leave her own Flat, and to start residing with her parents. Even after her departure the appellant and his mother continued to reside in the Flat of the respondent at Himgiri Apartments. On 24-1-2001, the appellant came to the parental house of the respondent and apologized for his misbehaviour, asserting that he would treat her well, therefore, the respondent h
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
