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2003(1) JLJ 288
P.C. Agrawal, J.
Murarilal
Versus
Smt. Saraswati
First Appeal No. 135 of 1999; against the judgment and decree of Smt. Durga Dabar; VII ADJ, Gwalior, passed in Case No. 260-A of 1996 HMA;
Decided on : 29.1.2003.
The respondent wife treated the appellant and his mother with cruelty. She used to abuse and beat the mother and even the appellant. In December 1992, she brought a pesticide and threatened to commit suicide in case the mother of appellant was not shifted out of the house. Several times the respondent would lock the house and go somewhere to return only at 10 or 11 p.m. in night. She would not be available at home at time of his return from work. On asking, she would abuse him and say that he has no right to check her. In May 1994, the brother of respondent had taken her with him without consent of the appellant. She had taken with her, her own ornaments, clothes and even the ornaments of the mother of the appellant. When the appellant went to her parents house, the mother and brother of respondent fought with him, assaulted him and threatened to kill him. The appellant, with his relative Manohar Lal, tried twice to bring back the respondent but was unsuccessful. Her mother and brother proposed that the appellant would have to live there as a Gharjamai at Ranipur. The appellant had come to know that the respondent had some illicit relations with someone and thus she was not ready to come back to her marital home. [Para 3]
Held: Certainly, the concept of irretrievable marriage breakdown cannot be used as a magic formula to obtain a decree where grounds for divorce are not proved. ... The husband has utterly failed to prove his ground of cruelty and has given up in this Court the ground of adultery which was wholly unfounded. Thus, the appellant is not entitled to any decree of divorce. (2001) 4 SCC 250 followed. AIR 2001 SC 1709, (1993) 4 SCC 232, (1995) 2 SCC 7 and (1984) 4 SCC 90 discussed. [Para 16
(2) Hindu Marriage Act, 1955 -- S. 13(1) (ia) -- divorce petition by husband -- wife alleged to have ill-treated mother of petitioner -- mother not examined -- fact not proved. 1992(2) Vidhi Bhasvar 120 relied on. [Para 7
(3) Hindu Marriage Act, 1955 -- S. 13(1) (ib) -- wife alleged to have kept pesticide and threatened to commit suicide -- allegations cannot be accepted to have been proved on solitary evidence of petition when his mother has not been examined. [Para 8
(4) Hindu Marriage Act, 1955 -- S. 13(1) (ib) -- cruelty of locking house -- cannot be presumed when mother of petitioner was also residing therein -- non-examination of mother is fatal. [Para 9
(5) Hindu Marriage Act, 1955 -- S.13(1) (ib) -- ill-treatment with petitioner at in-laws‘ house denied by all members of house -- no neighbours examined -- finding is legal and valid. [Para 10
(6) Hindu Marriage Act, 1955 -- S. 13(1) (ib) -- divorce petition -- allegations of keeping as gharjamais‘ and illicit relations of wife with somebody else -- specifically denied by all witnesses of wife -- none of neighbours examined -- allegation rightly held not proved. [Para 11
(7) Hindu Marriage Act, 1955 -- S. 13(1) (ib) and 13(1) (a) (ia) -- police reports against wife lodged after petition -- also not proved -- allegation of illicit relations with named person neither pleaded nor put in cross-examination of any witness -- cannot be taken note of. [Para 12 & 13
(8) Evidence Act, 1872 -- S. 60 -- evidence of witnesses recorded by trial Court -- it has occasion to see their demeanour -- its appreciation of evidence and weight thereof -- cannot be lightly set aside. (2001) 3 SCC 179 and AIR 1951 SCC 120 followed. [Para 14
¼1½ fganw fookg vf/kfu;e] 1955 && /kkjk 13¼1½¼d½¼i[k½ && Øwjrk ds vk/kkj lkfcr ugha && vlq/kk;Z fookg ds vk/kkj ij ifr fookg&foPNsn dh fMØh dk gdnkj ughaA izR;FkhZ iRuh&vihykFkhZ rFkk mldh ekrk ls Øwj O;ogkj djrh FkhA og ekrk rFkk vihykFkhZ dks Hkh vi‘‘kCn dgrh rFkk ihVrh FkhA fnlacj 1992 esa og ,d dhVuk‘kd ykbZ rFkk vihykFkhZ dh ekrk ?kj ls ckgj ugha fudkyh tkus dh n‘kk esa izR;FkhZ us vkRegR;k djus dh /kedh nhA vusd ckj izR;FkhZ ?kj esa rkyk yxk dj pyh tkrh Fkh rFkk jkf= dks 10 ;k 11 cts rd gh ykSVrh FkhA og vihykFkhZ ds dk;Z ls ykSVus ds le; ?kj ij miyC/k ugha gksrh FkhA iwNus ij og mls vi‘‘kCn dgrh Fkh rFkk dgrh Fkh fd vihykFkhZ dks mls jksdus dk vf/kdkj ugha gSA ebZ 1994 esa izR;FkhZ dk HkkbZ mls vihykFkhZ dh lEefr ds fcuk vius lkFk ys x;k FkkA izR;FkhZ vius lkFk vius vkHkw"k.k] oL= rFkk vihykFkhZ dh ekrk ds vkHkw"k.k rd ys xbZ FkhA tc vihykFkhZ izR;FkhZ ds ekrk&firk ds ?kj x;k rc izR;FkhZ dh ekrk rFkk mlds HkkbZ us vihykFkhZ ds lkFk >xM+k fd;k] ml ij geyk fd;k rFkk mls ekjus dh /kedh nhA vius ukrsnkj euksgjyky ds lkFk vihykFkhZ us nks ckj izR;FkhZ dks okil ykus dk iz;kl fd;k fdarq og vlQy jgkA izR;FkhZ dh ekrk rFkk mlds HkkbZ us izLrko fd;k fd vihykFkhZ dks ogk¡ jkuhiqj esa ?kj&tekbZ dh Hkk¡fr jguk iM+sxkA vihykFkhZ dks Kkr gks x;k Fkk fd izR;FkhZ ds fdlh ds lkFk voS/k laca/k Fks blfy, og vius llqjky vkus dks rS;kj ugha FkhA ¿ iSjk 3 vfHkfu/kkZfjr % fuf‘pr :i ls fookg ds vlq/kk;Z fo?kVu dh ladYiuk ogk¡ fMØh vfHkizkIr djus ds fy, tknqbZ uqL[ks ds :i esa iz;qDr ugha dh tk ldrh tgk¡ fookn&foPNsn ds fy, vk/kkj lkfcr ugha gksaA --- ifr viuk Øwjrk dk vk/kkj lkfcr djus esa iw.kZr% foQy jgk gS rFkk mlus bl U;k;ky; esa tkjdeZ dk vk/kkj] tks iw.kZr% fujk/kkj Fkk] R;kx fn;k gSA bl izdkj] vihykFkhZ fookg&foPNsn dh fMØh dk gdnkj ugha gSA ¼2001½4 ,l lh lh 250 vuqlfjrA , vkb vkj 2001 ,l lh 1709] ¼1993½4 ,l lh lh 232] ¼1995½2 ,l lh lh 7 rFkk ¼1984½4 ,l lh lh 90 foosfprA ¿ iSjk 16 ¼2½ fganw fookg vf/kfu;e] 1955 && /kkjk 13¼1½¼id½ && ifr }kjk fookg&foPNsn dh vthZ && iRuh }kjk vthZnkj dh ekrk ds izfr vfHkdfFkr nqO;Zogkj && ekrk dh ijh{kk ugha dh xbZ && rF; lkfcr ughaA 1992¼2½ fof/k HkkLoj 120 voyafcrA ¿ iSjk 7 ¼3½ fganw fookg vf/kfu;e] 1955 && /kkjk 13¼1½¼i[k½ && iRuh }kjk dhVuk‘kd j[kk tkuk rFkk vkRegR;k djus dh /kedh fn;k tkuk vfHkdfFkr && ;kph dh ekrk dh ijh{kk ugha dh xbZ rc ,dek= ;kph ds lk{; ij vfHkdFku lkfcr gksus dh ckr Lohdkj ugha dh tk ldrhA ¿ iSjk 8 ¼4½ fganw fookg vf/kfu;e] 1955 && /kkjk 13¼1½¼i[k½ && ?kj esa rkyk yxkus dh Øwjrk && /kkj.kk ugha dh tk ldrh tc ;kph dh ekrk Hkh mlh ?kj esa jgrh Fkh && ekrk dh ijh{kk ugha dh tkuk ?kkrd gSA ¼5½ fganw fookg vf/kfu;e] 1955 && /kkjk 13¼1½¼i[k½ && llqjky esa ;kph ds lkFk nqO;Zogkj dk izR;k[;ku ?kj ds lHkh lnL;ksa }kjk && iM+kSfl;ksa dh ijh{kk ugha dh xbZ && fu"d"kZ oS/k rFkk fof/kekU; gSA ¿ iSjk 10 ¼6½ fganw fookg vf/kfu;e] 1955 && /kkjk 13¼1½¼i[k½ && fookg&foPNsn dh vthZ && ?kj&tekbZ ds :i esa j[kus rFkk fdlh vU; ds lkFk iRuh ds voS/k laca/kksa ds vfHkdFku && iRuh ds leLr lkf{k;ksa }kjk fofufnZ"Vr% izR;k[;ku && fdlh iM+kSlh dh ijh{kk ugha dh xbZ && vfHkdFku lkfcr ugha gksuk Bhd gh vfHkfu/kkZfjrA ¿ iSjk 11 ¼7½ fganw fookg vf/kfu;e] 1955 && /kkjk 13¼1½¼i[k½ rFkk 13¼1½¼d½¼id½ && iRuh ds fo:) iqfyl fjiksVZ vthZ ds i‘pkr~ nkf[ky && lkfcr Hkh ugha && ukfer O;fDr;ksa ds lkFk voS/k laca/kksa ds vfHkdFku dk u vfHkokd~ fd;k x;k] u fdlh lk{kh dh izfrijh{kk esa gh mBk;k x;k && ml ij /;ku ugha fn;k tk ldrkA ¿ iSjk 12 ,oa 13 ¼8½ lk{; vf/kfu;e] 1872 && /kkjk 60 && fopkj.k U;k;ky; }kjk lk{khx.k dk lk{; vfHkfyf[kr && mls vusd gko&Hkko ns[kus dk volj feyrk gS && mlds }kjk lk{; dk foospu rFkk mldk vf/keku && vdkj.k mldh mis{kk ugha dh tk ldrhA ¼2001½3 ,l lh lh 179 rFkk , vkb vkj 1951 ,l lh 120 vuqlfjrA ¿ iSjk 14
1. By impugned judgment and decree, the trial Court dismissed the petition for divorce under S. 13 of the Hindu Marriage Act, 1955 (Act for short) by the husband against the Hindu wife and allowed counter claim for recovery of Stridhan of the respondent wife from the appellant husband.
2. Parties were married on 5.5.1992 and cohabited in Gwalior. They had Ku. Puja, born in December 1993, as an offspring.
3. As per petition, the respondent wife treated the appellant and his mother with cruelty. She used to abuse and beat the mother and even the appellant. In December 1992, she brought a pesticide and threatened to commit suicide in case the mother of appellant was not shifted out of the house. Several times the respondent would lock the house and go somewhere to return only at 10 or 11 p.m. in night. She would not be available at home at time of his return from work. On asking, she would abuse him and say that he has no right to check her. In May 1994, the brother of respondent had taken her with him without consent of the appellant. She had taken with her, her own ornaments, clothes and even the ornaments of the mother of the appellant. When the appellant went to her parents house, the mother and brother of respondent fought with him, assaulted him and threatened to kill him. The appellant, with his relative Manohar Lal, tried twice to bring back the respondent but was unsuccessful. Her mother and brother proposed that the appellant would have to live there as a Gharjamai at Ranipur. The appellant had come to know that the respondent had some illicit relations with some one and thus she was not ready to come back to her marital home. Hence, the petition.
4. The respondent has denied all such allegations. She has claimed that in her marriage a fridge, a Bajaj Super Scooter, a Sofa-set, double-bed, Cooler, gold ornaments of 3 tolas, Rs. 40,000/- in cash and other domestic utensils, etc. were gifted. However, after their marriage, appellant started demanding Herohonda, Colour TV and Rs. 50,000/- more as dowry and on non-fulfilment of such a demand he started neglecting the respondent. The claim of the appellant that the respondent treated him or his mother cruelly is denied. According to her, all such allegations are false. She never brought pesticide neither threatened to commit suicide nor insisted for shifting the mother of the appellant somewhere else. On other hand, the appellant himself had tried to push her neck and was saved by the neighbours. Appellant has illicit relations with one of his office colleagues named Ikka and wanted to marry with her. His mother had also supported him. The allegation that the respondent used to lock the house and go somewhere and abuse the appellant or his mother and that the brother of respondent had taken her away with her ornaments or ornaments of the mother are denied. In the year 1996, the appellant himself had taken respondent to her parent's house on the pretext that her mother was sick and left her there and had returned back to Gwalior. When the respondent and her mother came to Gwalior, the appellant locked the house and would not let them enter. The appellant had never attempted to bring her back. He never went with Manohar Lal to her parent's house. Appellant himself had left the respondent at her parent's house and is not ready to take her back. He has kept her Stridhan which she is entitled to get back. She has claimed Rs. 2,000/- per month as maintenance allowance. She has counter-claimed return of her Stridhan.
5. Trial Court did not find proved any ground for divorce. She held that the appellant himself was to blame and was guilty of cruelty and adultery. Thus, no decree for divorce was given. However, counter-claim for return of Stridhan was allowed.
6. The appellant had pleaded specific acts of the respondent to prove his allegation of cruelty against the respondent. I proceed to examine each of them one by one.
7. Firstly, according to him, the respondent ill-treated h
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