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2020 Supreme(All) 886
IN THE HIGH COURT OF ALLAHABAD
SHASHI KANT GUPTA, VIPIN CHANDRA DIXIT, JJ.
Smt. Neelam Devi – Appellant
Versus
Vikas Singh – Respondent
First Appeal No.305 of 2017
Decided on : 15-10-2020
Advocate Appeared:
For the Appellant : Arun K. Singh Deshwal
For the Respondent: Manoj Kumar Tripathi, Namit Srivastava, Naresh Chandra Tripahti
Point of law: mental cruelty is the conduct of other spouse which causes mental suffering or fear to matrimonial life of other. Cruelty postulates a treatment of party to marriage with such conduct as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious to live with other party. Cruelty has to be distinguished from ordinary wear and tear of family life
Headnote:
Family Courts Act, 1984 – Section 19 – Hindu Marriage Act, 1955 – Section 13 – Divorce – Cruelty - First appeal has been filed by defendant appellant under Section 19 of Family Courts Act, 1984 against the judgment and decree passed by Principal Judge, Family Court, Hapur in Case filed under Section 13 of Hindu Marriage Act, 1955 by which the divorce suit filed by plaintiff respondent was decreed.
Finding of the court:
Court find that the appellant-wife is not living separately on account of her own free-will. – The defendant appellant was always ready and is still ready to live with the plaintiff respondent but he refused to live with defendant-appellant. – The defendant appellant has herself not deserted plaintiff-respondent. – The plaintiff respondent has failed to establish that the defendant-appellant had committed cruelty or deserted him without there being any sufficient reasons. – It is a well settled law that no party can take benefit of his/her own wrong and since the husband is not ready to live with his wife, he cannot take benefit of his own wrong. – Allegations regarding quarrel by family members of the wife was already disbelieved by the Family Court at page-9 of the judgment and apart from this, the allegations of adultery by both the parties against each other was also disbelieved by the court below but still passed the decree of divorce without any cogent evidence on record. – The learned family court had also granted divorce on the ground that the wife had deserted her husband and used to live at her parental house, but failed to consider the evidence adduced by the wife regarding harassment for dowry and her willingness to live with the husband.
Result: – Appeal Allowed
JUDGMENT :
V.C. Dixit, J.
1. This first appeal has been filed by defendant appellant under Section 19 of Family Courts Act, 1984 (hereinafter referred as Act, 1984) against the judgment and decree dated 25.3.2017 passed by Principal Judge, Family Court, Hapur in Case No. 487 of 2011 (Vikas Singh Vs. Smt. Neelam Devi) filed under Section 13 of Hindu Marriage Act, 1955 (hereinafter referred as Act, 1955), by which the divorce suit filed by plaintiff respondent was decreed.
2. The divorce petition was filed by respondent husband with the allegation that his marriage was solemnized with the defendant appellant on 20.6.2002 in accordance with Hindu rituals without dowry at village Nayazpur Khaiya, Pargana and Tehsile Garh Mukteshwer, Ghaziabad, the parental house of the defendant appellant. After marriage the plaintiff respondent brought defendant appellant to his house at Garh Road, Kuvesher Chaupla, Pargana and Tehsile Hapur, Ghaziabad. He performed his obligations of being a husband and led a happy married life and fulfilled all genuine demand of his wife according to his status. Their daughter namely Km. Lavi was born on 1.1.2004. It is alleged that after two years of marriage the relationship of the parties strained and defendant started creating trouble asking to live separately with the family. It is further alleged that the defendant wife was not ready to do household chores and had starting quarreling with the plaintiff husband. It is further alleged that she started frequently visiting her parental house without plaintiff's permission. Apart from this she regularly talked on telephone to some unknown person and on being queried she used to quarrel. On 27.3.2010 when plaintiff was out of his house, the defendant was talking on telephone to some unknown person and on reaching home the plaintiff inquired with whom she was talking to, the defendant annoyingly threatened to murder him. On the very same day her father and brother came to the plaintiff's house to beat him and his mother. The father and brother took the defendant wife and Km. Lavi to her maternal home and while leaving removed Rs. 60,000/-and 20 tola' gold from plaintiff's house. It is further submitted that the wife had not performed her matrimonial obligations for last 6 years. It is further alleged that the wife had lodged a false case which was registered as Case Crime 23 of 2010 in Mahila Thana, Meerut which was subsequently withdrawn on the intervention of respected people and relatives. Parties agreed to pursue divorce by mutual consent. Divorce petition was filed under Section 13 B of Act, 1955 on 9.4.2010 which was registered as Case No. 176 of 2010 but the same was subsequently withdrawn on 16.8.2011 on the application filed by the defendant appellant. When the defendant appellant refused to live together, under compelling circumstances the present divorce petition was filed seeking divorce on the ground of cruelty.
3. The defendant appellant on being notice had contested the divorce petition by filing written statement denying the allegations of the divorce petition. It was stated that her father had spent Rs.15 lakhs and had provided all house hold articles at the time of marriage but the family of husband were not happy with the dowry furthermore they demanded a car and Rs. 2 lakhs cash. This illegal demand of dowry was not fulfilled by her father and as such the family members of husband had started abusing and harassing the appellant defendant. It is further alleged that the husband had an illicit relation with a married woman of the locality and was leading an adulterous life. When the illegal demand of dowry was not fulfilled she was beaten by the husband and his family members and was thrown out of the house along with her daughter Km. Lavi on 27.3.2010. She lodged a first information report in Mahila Thana which was registered as Case Crime No. 23 of 2010 under Sections 498A, 323 I.P.C and 3/4 Dowry Act. A meeting was held at the residence of broth
