1986 Supreme(MP) 754

IN THE HIGH COURT OF MADHYA PRADESH
P. C. Pathak, J.
Saroj - Appellant
Vs.
Dashrath - Respondent
F. A. No. 84 of 1985 (I)
Decided On : 03-07-1986

Headnote:(1) Hindu Marriage Act, 1955 – S. 13 (a) and (b) – separate residence and False accusation proved – decree for divorce rightly passed.

       (2) Hindu Marriage Act, 1955 – S.25 – application under – should be filed before trial Court after disposal of divorce suit.

        Short Note

       1. The decree was sought by the respondent husband on the ground of cruelty and desertion. The case of the plaintiff is that the parties were married on 10 – 5 – 1978 and they lived as husband and wife at Indore. During the wedlock a child by name Meeraj was born to them. Thereafter, the relations became strained. The wife who has been employed as a teacher even from before the marriage, became indifferent to the house hold needs and would not cook the meals and would return to her parent’s house which is also in Indore. On opposition by the husband the wife used to quarrel with the husband. During the continuance of such strained relations her parents made an application u/s 100 of the Code of Criminal Procedure for issuing a search warrant for her production before the Sub – Divisional Magistrate. The police searched her out from the husband's house when he was out and produced before the S. D. M. who put her in Rescue Home and from there, she was set at liberty to go to her parents’ house. In that proceeding all sorts of false allegations and charges were levelled against the husband. After recording her statement, the learned S.D.M. did not find that her confinement was wrongful. However, since she wanted to keep herself away, from the husband, the aforesaid order was passed. That proceeding resulted in humiliation and mental agony. Since then the husband also made repeated efforts to bring her back for restitution of conjugal rights, but all in vain.

       2. The defence of the wife was that the husband always ill – treated her for more dowry. Therefore, in the interest of her safety of life, she bad no other option, but to extricate herself from the wrongful confinement in her husbands house and to go to her parents house.

       3. After recording evidence of both the parties, the Learned Trial Judge held that the wife is guilty of treating the husband with cruelty as also desertion. He, therefore, passed the decree for divorce.

       4. Held: At the hearing Learned Counsel for the appellant rightly did not challenge the findings of cruelty and desertion recorded by the Trial Court against the appellant. Even over wise I find there is sufficient evidence led by the husband to prove the charges. The separate residence by wife, away from her husband for more than statutory period is oat disputed. The facts and circumstances on record clearly goes to show that the Separate residences with a view to desert the husband permanently was as to put an end to the marital tic. Similarly there is ample proof on record to show that the wife made false accusation against the husband in the proceeding before the S.D.M. for issue of search warrant. The allegations were found to be false. In such a situation, one cannot escape concluding that the husband must have suffered lot of humiliations followed by mental agony, amounting to cruelty. The decree for divorce is, therefore, confirmed.

       5. Today, on behalf of the wife appellant, an application was made u/s 25 of the Act for permanent alimony Rs. 250/ – for herself and Rs. 150/ – for the Child. This application ought to have been made before the learned Trial Court after disposal of the divorce suit. However, considering the facts and circumstances of the case, interest of justice demands that this application should be sent to the trial Court for disposal in accordance with law, after affording reasonable opportunity to both the parties to file reply documents and oral evidence as they deem proper. Appeal dismissed.