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2012 Supreme(MP) 36
2012(2) JLJ 254
S.K. Gangele and G.D. Saxena, JJ.
Ranjeet Kaur v. Surendra Singh Gill
First Appeal No.289 of 2010 (Gwalior) : against the judgment of
Third Additional Sessions Judge, Vidisha (M.P.), passed in
C.S. No.26-A/10; Decided on 13.1.2012.
D.D. Bansal for appellant;
Smt. June Choudhari with Santosh Agrawal and Miss Suneeta Choudhari for respondent.
Headnote:(1) Hindu Marriage Act, 1955 -- Ss.13(1)(ia) and 13(1)(ib) -- allegation of cruelty and desertion of wife -- no other independent evidence except self-serving testimony of husband -- utterly failed to prove any of the grounds of cruelty and desertion -- decree of divorce set aside.
Held : It is well settled that the standard of proof required in a case of cruelty or desertion need not be over-emphasised. Though strict proof of beyond reasonable doubt, as required in a criminal case is not necessary, the preponderance of probabilities at least should indicate that the appellant treated the respondent with cruelty and deserted him or that a matrimonial offence has been committed. In this case, except the self serving testimony of respondent that the appellant behaved cruelly towards him and that she deserted him, there is absolutely no other independent evidence adduced by the respondent to prove the same.
Viewed from any angle, the respondent has utterly failed to prove any of the grounds of cruelty and desertion urged by him for dissolving the marriage by a decree of divorce. The trial Court while granting the relief to the respondent has not given cogent and convincing reasons in support of its judgment and hence the same is hereby set aside. AIR 2011 SC 114, AIR 2010 SC 1042, AIR 2010 SC 1099, 2010(II) MPWN 70 (SC) and (1988)1 SCC 105 followed.
(2) Hindu Marriage Act, 1955 -- Ss.10 and 13A -- dispute between husband and wife -- slightest hope for reunion of the parties exists -- Courts duty-bound to make every endeavour to bring about reconciliation between them -- decree for judicial separation just and proper so as to make the parties enable to re-unite for the welfare of the child. AIR 2010 SC 1042 followed. [Paras 38 to 40
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¼iSjk 38 ls 40
Saxena, J. -- 1. This appeal is by the appellant-wife against the judgment dated 25th September, 2010 in C.S. No.26-A/10 of the Third Additional Sessions Judge, Vidisha (M.P.), granting a decree of divorce to the respondent-husband under section 13(1)(ia) of the Hindu Marriage Act, 1955.
2. The respondent-husband filed a petition under section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955, seeking dissolution of the marriage on the ground that the wife, i.e., the appellant herein, had deserted the respondent and thereby the matrimonial home since September, 1995. It is stated that the marriage was solemnised on 5th May, 1995 as per Hindu (Sikh rights) religion. On or before marriage, the appellant-wife was in a job (O.A. Grade III in District Industry Centre), Vidisha whereas the respondent-husband was working as Civil Engineer in a private sector at Gwalior (M.P.). The marriage was duly consummated and one son, namely, Sparsh was born out of their wedlock, who is at present living with his mother at her parental house, at Vidisha. On perusal of the pleadings of the parties, it appears that the marital relations were not cordial between both of them right from the beginning. Since the wife Smt. Ranjeet Kaur was in a Government service at Vidisha and was living with her mother and other relations, there was a pressure by her upon the respondent to shift his place to Vidisha and live with his wife at her parental house. Her husband was running his own business in a private sector living with his parents and family members at Gwalior. Under the circumstances, he was not in a position to shift him to Vidisha and live with her family members. For these reasons, the relations between the spouses became tensible that husband Surendra Singh Gill had to move a petition under section 13 of the Hindu Marriage Act before the Court of District Judge Gwalior, which was decided vide judgment dated 9th July 2001. Therefter, the husband moved a petition under section 9 of the Hindu Marriage Act for restituion of conjugal rights. However, at later stage, the said petition was withdrawn on 11th July 2007. On 18th October 2007 he filed the present petition under section 13(1)(ia) and (ib) of the Act on the ground of cruelty and desertion before the Court of District Judge, Vidisha. In divorce petition, the petitioner-husband levelled specific allegation of cruelty and willful desertion by appellant-wife from his company. By filing reply, those allegations were refuted by the non-petitioner-wife. She also alleged that the petitioner-husband developed a relationship with one lady officer and with malicious intention and object to marry with that lady officer, he has filed the instant divorce petition. Hence, the prayer for dismissal of the petition was made by the wife. After taking into consideration the ocular as well as oral and documentary evidence on record, the learned trial Judge granted a decree in favour of the respondent-husband holding that cruelty as well as desertion are well proved by the material on record.
3. While dealing with the matter, the trial Judge framed the following issues for consideration :
(i) Whether the non-petitioner after marriage committed cruelty with the petitioner-husband?
(ii) Whether the non-petitioner has deserted the petitioner continuously for a period of two years or more immediately without reasons before filing of the petition?
(iii) Whether the petition of divorce in thelight of the decisions in Civil Case No.227-A/2000 and the order of withdrawal under Order 23 rule 1 of CPC 1860 in Civil Case No.23-A/2006 pending between the same parties by the Courts competent is not maintainable?
OR
Whether in the changed circumstances and on new grounds and cause action arose, the present divorce petition is not maintainable?
(iv) Relief and cost?
(v) Whether because the petitioner filed the divorce petition on malicious grounds, hence the non-petitioner is entitled to get compensation of Rs.25,000/- from th
