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2016 Supreme(MP) 443
IN THE HIGH COURT OF MADHYA PRADESH
Alok Aradhe and Anand Pathak, JJ.
Sheel Kumari v. Asharam
First Appeal No.168 of 2002 (Gwalior) : against the judgment and decree dated 20.9.2002, passed by trial Court; Decided on 29.7.2016.
Prashant Sharma for appellant;
None for respondent.
.
Headnote:Hindu Marriage Act, 1955 -- S.13 -- dissolution of marriage on grounds of mental cruelty and desertion by trial Court -- appeal -- mental cruelty on basis of threat and abuses hurled by appellant to commit suicide established -- endeavour of appellant to implicate respondent in a criminal case for demand of dowry and desertion for more than 7-8 years and depriving him of matrimonial pleasure amounts mental cruelty -- trial Court rightly appreciated evidence for cruelty and desertion as proved -- no ground to interfere with decree -- appeal dismissed.
Held : Thus, the averment of mental cruelty on the principles as enumerated in the different pronouncements of the Supreme Court on the basis of threat and abuses hurled by the appellant to commit suicide are established. The endeavour of the appellant to implicate the respondent in a criminal case for demand of dowry and desertion for more than 7-8 years and depriving the respondent of the matrimonial pleasure amounts to mental cruelty in the present fact situation of the case and the trial Court has rightly appreciated the evidence by affirmatively answering the issue No.1 and 2 namely cruelty and desertion as proved. AIR 1975 SC 1534, AIR 2002 SC 2582, (2007)4 SCC 511, (2010)4 SCC 339, (2012)7 SCC 288, (2013)2 SCC 114, AIR 2014 SC 2881, (2013)5 SCC 226, (2014)16 SCC 34, AIR 1957 SC 176, AIR 1964 SC 40, (2002)1 SCC 308 and (2006)4 SCC 558 followed. AIR 2003 MP 271 relied on.
fganw fookg vf/kfu;e] 1955 & /kkjk 13 & ekufld dzwjrk rFkk vfHkR;tu ds vk/kkj ij fookg dk fo?kVu & vihy & vihykFkhZ }kjk vkRegR;k dkfjr djus ds fy, nh xbZ /kedh rFkk vi'kCnksa ds vk/kkj ij gqbZ ekufld dzwjrk LFkkfir & ngst dh ek¡x ds fy, izR;FkhZ dks ,d vkijkf/kd ekeys esa vkfyIr djus ds fy, vihykFkhZ ds iz;kl rFkk 7&8 o"kZ ls vf/kd vfHkR;tu rFkk oSokfgd vkuan ls mls oafpr j[kuk ekufld dzwjrk dh dksfV esa vkrk gS & fopkj.k U;k;ky; us dzwjrk rFkk vfHkR;tu ds fy, lk{; dks Bhd&gh fl} ds :i esa ewY;kadu fd;k & fMdzh esa gLr{ksi djus ds fy, dksbZ vk/kkj ugha & vihy [kkfjtA
vfHkfu/kkZfjr % bl izdkj] vihykFkhZ }kjk vkRegR;k dkfjr djus ds fy, nh xbZ /kedh rFkk vi'kCn ds vk/kkj ij ekufld dzwjrk ds izdFku lokZsPp U;k;ky; ds fofHkUu vf/kdFkuksa esa izxkf.kr fl}karksa ds vk/kkj ij LFkkfir gSaA ngst dh ek¡x ds fy, vkijkf/kd ekeys esa izR;FkhZ dks vkfyIr djus ds iz;kl rFkk 7&8 o"kZ ls vf/kd vfHkR;tu rFkk izR;FkhZ dks oSokfgd vkuan ls oafpr j[kuk orZeku ekeys dh okLrfod fLFkfr esa ekufld dzwjrk dh dksfV esa vkrk gS rFkk fopkj.k U;k;ky; us fook|d dz-1 o 2 vFkkZr~ dzwjrk rFkk vfHkR;tu dk ldkjkRed :i ls mrj nsdj lk{; dks fl} ds :i esa Bhd&gh vf/kewfY;r fd;k gSA , vkb vkj 1975 ,l lh 1534] , vkb vkj 2002 ,l lh 2582] ¼2007½ 4 ,l lh lh 511] ¼2010½ 4 ,l lh lh 339] ¼2012½ 7 ,l lh lh 288] ¼2013½ 2 ,l lh lh 114] , vkb vkj 2014 ,l lh 2881] ¼2013½ 5 ,l lh lh 226] ¼2014½ 16 ,l lh lh 34] , vkj vkj 1957 ,l lh 176] , vkb vkj 1964 ,l lh 40] ¼2002½ 1 ,l lh lh 308 rFkk ¼2006½ 4 ,l lh lh 558 vuqlfjrA , vkb vkj 2003 e-iz- 271 voyafcrA
Pathak, J. -- 1. This appeal has been preferred against the judgment and decree dated 20.9.2002 passed by trial Court whereby the marriage between the parties has been dissolved on the grounds of mental cruelty and desertion. In order to appreciate the controversy involved in this appeal few relevant facts need mention which are stated herein under.
2. The respondent entered into the wedlock with the appellant in 1998 at village Manora, District Vidisha as per Hindu rites out of which two children were born. The respondent filed a petition under section 13 of the Hindu Marriage Act, 1955 inter alia on the ground that his wife intermittently used to prolong her stay at her parental home. She used to insist respondent to live at her parental home at village Manora, to which the respondent did not agree.
3. It was pleaded that after some years, the behaviour of appellant became more and more aggressive and around 1992 she left her matrimonial home and despite persuasion by the respondent, she did not join the matrimonial home. The respondent by a notice dated 15.7.1992 asked the appellant to join the matrimonial home, pursuant to which she returned to her matrimonial home for some time and in February 1994 she again left the matrimonial home without even informing the respondent and took away ornaments with her. She also made a complaint at Police Station Gyaraspur on the basis of which a criminal case was registered. Eventually, the respondent was convicted by the trial Court in 1999 and was sentenced to undergo imprisonment for one year. Against aforesaid judgment, the respondent preferred an appeal and was acquitted vide judgment dated 28.7.2001.
4. It was further pleaded that at the insistence of the appellant, part of some land has been transferred in her name as well as in the name of their children. It was also pleaded that since February 1994 no cohabitation had taken place between the parties which amounts to mental cruelty to respondent and since 1994 the appellant has deserted the respondent, therefore, it was impossible for the respondent to live with his wife. In the aforesaid factual background, the respondent filed the petition for dissolution of marriage.
5. The appellant filed written statement and contested the case. She denied the status of the applicant as unemployed but admitted her stay at village Manora with her parents. Rest of the allegations in the petition were denied by her. In the special pleadings, she mentioned about the misbehaviour and ill treatment meted out to her by the respondent and his parents. It was averred that the demand of dowry was being made by her husband and in-laws, therefore, she left the matrimonial home to save her life as she apprehended danger to her life. It was also averred that due to sentence awarded to the husband for one year by the Court, her husband consistently threatened her with dire consequences, therefore, she left the matrimonial home. It was further pleaded that appellant is ready and willing to join the matrimonial home provided her husband treats her well. It was also pleaded that the petition seeking divorce has been filed with an intention to remarry.
6. The trial Court after framing the issues recorded the evidence of the parties. The respondent as well as one Nandkishore was examined on behalf of respondent whereas the appellant examined herself. After careful scrutiny of material on record, the trial Court came to the conclusion that the respondent has proved the grounds of mental cruelty and desertion and allowed the petition.
7. Learned counsel for the appellant submitted that the trial Court has committed illegality in passing the impugned judgment and decree because the report was lodged whereupon the conviction was recorded, does not amount to cruelty nor does it create any ground for divorce because FIR was registered by the police authority and prosecution was carried by the State authority, therefore, it cannot be a ground for divorce. Further a
