Back
RAJASTHAN HIGH COURT
Dr. Vineet Kothari, J.
Smt.Dimple —Petitioner
versus
Subhash —Respondent
S.B. Civil Misc. Appeal No.2173 of 2011
Decided on 2.2.2016
Counsel for the Parties:
For the Petitioner:H.M.Saraswat, Advocate
For the Respondent:Dr. A.A.Bhansali, Advocate
IMPORTANT POINT
Mental cruelty committed by the either party to the matrimonial dispute cannot be measured in mathematical terms and cannot be quantified, therefore, it depends upon numerous factors like nature of allegations, the timing thereof, effect and publicity thereof etc, which can cause disturbance to the mental tranquility of either party to the matrimonial dispute.
Headnote:Hindu Marriage Act, 1955 — Section 13(ia) — Divorce decree granted by trial court in favour of husband on ground of cruelty — Appeal — Mental cruelty committed by either party could not be measured in mathematical terms and would depend upon numerous factors like nature of allegations, timing thereof, effect and publicity thereof which could cause disturbance to mental tranquility of either party to dispute — Appellant wife filed criminal case after four years of separation and family members of husband had to be in prison for 3-4 days — Though the case was pending trial court was conscious of cases that it had become tool of harassment in hands of females and turn out to be sheer abuse of process of law causing trial of mental cruelty — Appellant projected a latter alleged to have been written by husband of his sister-in-law as is it was love letter but failed to prove it — It a man of character had not done any illicit act of that nature it resulted in mental harassment, agony and cruelty — Marriage had broken down irretrievably as parties were living separately since last 14 years — No reason to interfere with decree granted by family court — Rs. 50 lacs order to be given towards maintenance of appellant wife and minor son of parties. (Paras 17 to 22)
Result: Appeal dismissed.
Dr. Vineet Kothari, J.—To live with a man (woman) you hate is a slavery but to be compelled to submit to his (her) embraces is a misfortune too great even for slavery itself.
2. The matrimonial acrimonies involving more of psychological and behaviour problems do not always fit in well within the framework of statutory provisions specially when the courts are dealing with the case like the one in hand, namely divorce decree granted under Section 13 of the Hindu Marriage Act, 1955 on the ground of mental cruelty and desertion by the appellant wife.
3. Dimple & Subhash, the parties to the present matrimonial dispute & belonging to the respectable Agarwal families of Swaroopganj & Abu Road, got married on 13/5/2001. Soon they fell apart and after they started living separately & the marriage broke down, a son – Harsh was borne to them on 22/2/2002. The usual litigation channels in such marriage dispute ensued and an FIR no. 83/2006 was filed after four years of separation on 5/6/2006 in Police Station Swaroopganj for the alleged offences committed by the husband under Section 498-A, 406, 109 IPC read with Section 323 IPC. The members of the husband family remained in custody for 3-4 days and the charge sheet against them was filed in the competent court on 12/12/2006 & that case is still pending trial. The husband filed the divorce petition under Section 13 of the Hindu Marriage Act, 1955 on 8/9/2008, inter alia, on the ground of cruelty and desertion, while in the same divorce petition no.1/10 (65/2008), the present appellant-wife-Dimple filed her counter claim under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights.
4. The Family Court of learned District Judge, Sirohi granted the divorce on the ground of cruelty committed by the wife- Dimple, while denying the ground of desertion by wife and also rejecting the counter claim filed by her under Section 9 of the Hindu Marriage Act for restitution conjugal rights.
5. The respondent-husband-Subhash has not filed any cross objections for establishing desertion in the present appeal filed by the appellant-wife-Dimple aggrieved by the grant of divorce decree on the ground of cruelty and rejection of her application under Section 9 of the Act for seeking restitution of conjugal rights.
6. Efforts were also made for reconciliation by this Court in Chambers as well as by the trained mediator in the Mediation Centre attached with this Court but the parties were unable to resolve their matrimonial dispute and, therefore, the present appeal was heard on merits.
7. The subsequent facts which have developed in the case after the marriage and the separation of the parties are that the respondent-husband is now said to be working in China for last more than 10 years and during the mediation talks he categorically stood by his stand to remain divorced & part ways from the appellant-wife, Dimple, but he expressed his willingness to pay her reasonable alimony for the maintenance of the appellant & son – Harsh, born out of this wedlock.
8. Assailing the judgment of learned District Judge, Sirohi dated 28/7/2011, Mr. H.M.Saraswat, learned counsel appearing for the appellant-wife, vehemently submitted that the learned court below has wrongly drawn the inference of any mental cruelty committed by the appellant-wife upon the respondent-husband merely because the cases under Domestic Violence Act and under Sections 498-A, 406, 109 IPC were filed by her due to the compelling circumstances and the facts arising by way of demand of dowry & physical mal-treatment given to her. Learned counsel Mr. H.M.Saraswat submitted that case under Sections 498-A & 406 IPC is still pending trial before the competent court & the orders for grant of monthly maintenance of Rs.1800/- have been made in her favour under the provisions of Domestic Violence Act and, thus, merely filing of criminal cases could not be said to be any mental cruelty committed by the wife-Dimple upon her husband-Subhash. The
