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MADHYA PRADESH HIGH COURT
Ajit Singh and N.K. Gupta, JJ.
Shikha Tamrakaar v. Rohit Kumar Tamrakaar
First Appeal No.605 of 2008 (Jabalpur) : against the judgment and decree dated 20.8.2008, passed in R.C.C. No.226-A/2007 by
Principal Judge, Family Court, Bhopal; Decided on 19.12.2013.
Held : It was duly proved that the appellant deserted her husband for more than two years before filing of the petition and, therefore, the trial Court would have given a decree of divorce on the basis of the ground “desertion”.
It is apparent that no demand of dowry was made either by the respondent or his parents. The appellant was not ousted on 26.4.2007 and, therefore, she had no reason to leave the house of the respondent. Under such circumstances, it would be apparent that the respondent proved the fact that the appellant deserted him since 4.3.2005 without any reasonable cause.
The appellant was quarrelsome with her husband and his parents, she was not making the meals etc. for her husband and family members, she forced her husband to reside away from his parents, for such separation she gave a threat to commit suicide, thereafter, she deserted the respondent without any reason on 4.3.2005. The respondent tried to resolve the matter but the appellant did not try to resolve the matter and continued to desert the respondent. She propagated amongst the family members and Society of Tamrakaar Samaj that the father of the respondent tried to commit rape upon her and after considering the consolidated effect of the overacts done by the appellant, it would be apparent that the appellant had done the cruelty with the respondent and his parents and, therefore, if a decree of divorce is passed by the learned Principal Judge, Family Court, Bhopal against the appellant on the ground of cruelty then it is based on the cognate evidence and considering the conduct of the appellant. The appellant could not establish any ground to show that any interference can be done in the decree and judgment passed by the trial Court. (2007)4 SCC 511 followed.
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Gupta, J. -- 1. The appellant (wife) has preferred the present first appeal against the judgment and decree dated 20.8.2008 passed by the Principal Judge, Family Court, Bhopal in R.C.C. No.226-A/2007 whereby a decree of divorce was passed in favour of the respondent (husband).
2. The facts of the case in short are that the respondent-husband has moved a petition under section 13 of the Hindu Marriage Act to get a decree of divorce in his favour on the basis of ground of cruelty and desertion for more than two years. It was pleaded that the marriage of the respondent and the appellant took place on 29.4.2004 but soon after the marriage the appellant started misbehaving with the respondent and his parents. She wanted to live separately. In the month of August the appellant went to her parents house at Sironj on the occasion of Raksha Bandhan. Again when she came back she started quarreling with the respondent and his family members. She was not ready to prepare meals etc. She was consuming time by talking on phone and mobile with her family members and unknown persons and when she was prohibited to do so, her behaviour was quarrelsome with the parents of the respondent. She was often giving a threat that she would get the parents of the respondent in police custody in a case of dowry cruelty. She gave threat for 2-3 times that either she would consume poison or she would commit suicide by burning. On 3.2.2005 she tried to pour kerosene upon her and to commit suicide. Under such circumstances, the respondent started living with the appellant in a separate house which was taken on rent. The appellant and her relatives publicized a wrong fact against the father of the respondent that he tried to commit rape upon the appellant. On 4.3.2005 the appellant went to Sironj with her brother and thereafter, she did not come back and deserted the respondent, therefore, it was prayed that the decree of divorce may be passed.
3. In reply the appellant denied all the allegations made in the petition. On the contrary she alleged that a demand of Rs.5 lacs and a motor cycle was made by the respondent and his parents. Since the respondent had started a business and from the income of that business it was not possible for the respondent to live with his parents and, therefore, respondent himself arranged a separate residence for the respondent and appellant. The respondent also directed the appellant to fulfil the conditions of his parents. The appellant resided with the respondent upto 27.4.2007 and thereafter, she was forced to leave the house due to assault upon her by the respondent and, therefore, on 27.4.2007 she went to Sironj with her minor child and thereafter, she had lodged an FIR at Mahila Police Station, Bhopal. She tried to cooperate with the respondent and his parents but, due to cruelty of the respondent and his parents she could not live with the respondent and, therefore, it was prayed that the petition may be dismissed with exemplary cost of Rs.25,000/-.
4. The learned Principal Judge, Family Court after framing issues recorded the evidence adduced by the parties and after hearing the learned counsel for the parties passed a decree of divorce in favour of the respondent on the basis of the ground of “cruelty”.
5. The learned counsel for the parties heard at final hearing by us.
6. In the present case, neither party proved any document in its favour. The case is dependent upon the oral evidence of the witnesses produced by the parties. It is a case of oath against oaths and, therefore, it was for the trial Court to assess that whose statement on oath was correct. The appellant could not rebut the allegations made by the respondent and the statements given by respondents Rohit Tamrakaar (PW1) and Ramesh Prasad (PW2) could be believed. The respondent had raised so many allegations about the behaviour of the appellant but, in reply the appellant relied upon her FIR and an allegation that she was being harassed for dowry demand an
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