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1992 Supreme(MP) 288
1992 JLJ 714
Gulab C. Gupta, J.
Indira Gangole (Smt.) v. Shailendra Kumar Gangole
F.A. No. 139 of 1991; against the judgment and decree passed by Shri Vinod Saxena, District Judge, Satna, in Civil Suit No. 36-A of 1986; Decided on 1.5.1992.
Ajit Singh for appellant; Fakhruddin for respondent.
Headnote:(1) Civil P.C., 1908 -- O. 6, R. 2 -- fact not pleaded -- cannot be permitted to be proved. [Para 5
(2) Hindu Marriage Act, 1955 -- S. 13 (1) (ia) -- divorce on ground of cruelty -- cruelty should be of such nature that it is impossible to live together.
The concept now appears to be that the cruelty should be of such a nature as to satisfying the Court that relationship between the parties has deteriorated to such an extent that it is impossible for them to live together, without mental agony, torture or disgrace. Now physical violence is not essential ingredient of cruelty. In spite of it, the burden of proof always remains on the party asserting cruelty. (1974) 1 SCC 58 and AIR 1975 SC 1534 followed. AIR 1985 Cal. 431, AIR 1984 Born. 413 and AIR 1988 Kerala 244 relied on. [Para 5
(3) Hindu Marriage Act, 1955 -- S. 13 (1) (ib) -- divorce on ground of desertion -- living separate must be accompanied by an intention to bring the relationship to permanent end -- house busy in studies cannot be supposed to have deserted the other spouse.
In the instant case, the desertion is said to be consisting of appellant‘s refusal to come to Satna and for no ostensible reason. It is respondent‘s own evidence that last time, when he went to Faizabad to bring the appellant back, she informed him that. she was pursuing her law studies and would not be able to joint him. It is not in dispute that the appellant has successfully completed her law studies, which indicates that the excuse was not fake, but real. In such a situation, she was not expected to give up her studies and join the respondent. AIR 1957 SC 176, AIR 1964 SC 40 and AIR 1972 SC 459 followed. [Para 7
¼1½ flfoy izfØ;k lafgrk] 1908 && vk 6] fu- 2 && rF; vfHkopfur ugha && lkfcr fd, tkus dh vuqKk ugha nh tk ldrhA ¿ iSjk 5À
¼2½ fganw fookg vf/kfu;e] 1955 && /kkjk 13 ¼1½ ¼i d½ && Øwjrk ds vk/kkj ij fookg&foPNsn && Øwjrk ,slh gksuk pkfg, fd lkFk jguk vlaHko gksA
vc /kkj.kk ;g izrhr gksrh gS fd Øwjrk ,slh iz—fr dh gksuk pkfg, ftl ls U;k;ky; dks ;g lek/kku gks fd i{kdkjksa ds chp laca/k bl ifjek.k rd fcxM+ pqds gS fd mu ds fy, ekufld ;a=.kk] ;kruk vFkok dyad ds fcuk lkFk jguk vlaHko gks pqdk gSA vc ‘kkjhfjd fgalk Øwjrk dh vko‘;d ?kVd ugha gSA mlds ckotwn] lcwr dk Hkkj ges‘kk Øwjrk dk iz[;ku djus okys i{kdkj ij jgrk gSA ¼1974½ 1 ,l lh lh 58 rFkk , vkb vkj 1975 ,l lh 1534 vuqlfjrA , vkb vkj 1985 dydRrk 431] , vkb vkj 1984 eqacbZ 413 rFkk , vkb vkj 1988 dsjy 244 voyafcrA ¿ iSjk 5À
¼3½ fganw fookg vf/kfu;e] 1955 && /kkjk 13 ¼1½ ¼i [k½ && vfHkR;tu ds vk/kkj ij fookg&foPNsn && i`Fke fuokl ds lkFk laca/k LFkk;h :i eas lekIr djus dk vk‘k; gksuk gh pkfg, && v/;;u esa O;Lr iRuh ds ifr dk vfHkR;tu fd;k] ;g vuqekfur ugha fd;k tk ldrkA
bl ekeys esa] vfHkR;tu vihykFkhZ }kjk lruk vkus ls bUdkj djus ds :i esa cuk gS] vU; dksbZ n`";eku djk.k ls ughaA Lo;a izR;FkhZ us ;g lk{; fn;k gS fd fiNyh ckj] tc og vihykFkhZ dks okil ykus ds fy, QStkckn x;k] mlus mls crk;k fd og fof/k dk v/;;u dj jgh Fkh rFkk mlds lkFk tkus esa vleFkZ FkhA ;g fooknxzLr ugha gS fd vihykFkhZ us viuk fof/k dk v/;;u lQyrkiwoZd iwjk dj fy;k gS] tks crkrk gS fd fn;k x;k dkj.k cukoVh ugha] vfirq okLrfod FkkA ,slh ifjfLFkfr esa] ml ls v/;;u NksM+ dj izR;FkhZ ds lkFk vkus dh izR;k‘kk ugha dh tk ldrh FkhA , vkb vkj 1957 ,l lh 176] , vkb vkj 1964 ,l lh 40 rFkk , vkb vkj 1972 ,l lh 459 vuqlfjrA ¿ iSjk 7À
Gulah C. Gupta, J. -- 1. This is defendant's appeal under section 28 of Hindu Marriage Act (hereinafter referred to as the Act) against the judgment and decree of divorce passed by Shri Vinod Saxena, District Judge, Satna on 25.7.1991 in Civil Suit No. 36-A/1986 on the ground of cruelty and desertion. The appellant challenges legality of the same and prays for setting aside the decree and dismissal of the suit filed by the respondent.
2. There appears to be no dispute that the parties were married on 29.1.19X4 in accordance with Hindu Law and thereafter lived at Raipur and Satna for some time. The respondent/husband in his application before the trial Court submitted that after their marriage on 29.1.1984, the parties lived at Satna for few days. Both of them thereafter went to Raipur together, where the appellant was left alone for some time with the respondent's parents. The parties again went on holiday to Puri. Thereafter, the appellant went hack to her parents home at Faizabad and did not return either to Raipur or Satna to live with the respondent.
## It was also submitted that the respondent's sister was to he married on 9.4.1984 and, therefore, he requested the appellant to come to Raipur to join him in the marriage, hut she did not do so. It was further alleged that on 19.7.1984, the respondent, in the company of his mother and grandmother, went to the appellant's house to bring her back to Satna. She accompanied him to Satna, after a great deal of persuasion. After staying about 12 days at Satna, she went back to her parents on the pretext that her brother was coming from U.S.A.. She had thereafter never returned. The respondent wrote several letters to the appellant wife to persuade her to come back, but without any effect. Thereafter, the appellant work a letter on 29.10.1984 and accused respondent's mother and grandmother or hatching a conspiracy to burn her alive. Since the appellant had designated respondent's mother and grandmother as devil incarnate by making raise allegation, she was accused or cruelty. Since she had refused to come hack to Satna to live with him, the appellant was also accused of desertion. The appellant, in her written statement, admitted that she was married and lived at Satna and Raipur, but denied that she had done anything, which may amount to cruelty. She, on the contrary, alleged that she had been ill- treated by the mother-in-law and grand-mother-in-law. on her first visit to Raipur, because she had not brought enough dowry. She offered to come back unconditionally and live with the respondent. The learned District Judge, on consideration of evidence adduced by the parties. held that the appellant was guilty of cruelty and also desertion and, therefore, passed the impugned judgment and decree.
3. The submission of the learned counsel for the appellant is that even if everything contained in the. plaint is accepted as true, it would not amount to cruelly or desertion, as understood in law. It is further submitted that the letter (Ex. P/8) is said to be containing allegation amounting to cruelty, but that allegation is neither cruelly nor it shows anything intentionally done by the appellant. The letter, if at all, contains an awful tale of the appellant's exploitation. As against this, the learned counsel for the respondent submitted that the allegation regarding demand of Rs. 10,000/- as dowry made by the appellant in her statement, docs not find place in the written statement and hence it is apparent that it was a false statement intended to cause strain to the respondent. This also shows that the appellant was used of making false statement. It is, therefore, submitted that the judgment is just and proper and needs no interference, by this Court.
4. From the material on record. it is apparent that the respondent was employed as a clerk in Allahahad Bank at Satna at the time of his marriage in the year 1984. The appellant is a daughter of a retired Post Master. Respondent Shail
