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2011 (3) JLJ 299
Shantanu Kemkar and Prakash Shrivastava, JJ.
Dinesh Nagda
v.
Shantibai
First Appeal No. 272 of 2006 (Indore): against the judgment of Additional District Judge, Manasa, District Neemuch, passed in Hindu Marriage Case No. 40 of 2005
Decided on : 20.10.2011.
Thus, on the basis of the aforesaid analysis, we hold that the grounds of cruelty is made out on account of the false prosecution of the appellant and his family members for offences under sections 498A and 494 of the IPC. The appellant and his family members including the female family members of the appellant had to face agony of the trial of the criminal case for long seven years. They had to suffer the humiliation during this period and ultimately the charges levelled against them could not be substantiated, resulting into their acquittal. [Para 16]
Another issue is about irretrievable breakdown of marriage. The record also indicates that it is a case of irretrievable breakdown of marriage. For all practical purpose the marriage has become dead. Undisputedly the respondent is living separately from the appellant for last about 16 years. [Para 18]
The respondent‘s plea that she is living separately on account of the second marriage of the appellant cannot be accepted because the respondent has failed to produce any reliable evidence establishing the second marriage of appellant with Radhabai ....The respondent has failed to establish any reasonable cause for living separately for last about 15 years. Thus, it is clear that the respondent has deserted the appellant and ground for divorce under section 13(l)(ib) of the Act is made out. [Para 20]
Held :
In view of the aforesaid analysis, the impugned judgment of the trial Court is set aside and the appellant is granted the decree of divorce on, the ground of cruelty under section 13(l)(ia) and desertion under section 13(l)(ib) of the Hindu Marriage Act, 1955. (1994)2. Supp. SCC 588, (1993)2 SCC 6, (1996)8 SCC 90, (2004)1 SCC 123, (1995)4 SCC 642, (2006)4 SCC 558, (2007)4 SCC 411, (2006)3 SCC 778 and (2010)4 SCC 393 followed. 2007(4) MPLJ 123, AIR 2007 (NOC) 1340 (M.P.), 2004(II) MPJR SN 27, II (2002) DMC 457 and AIR 2006 All. 7 relied upon. [Para 21]
(2) Practice -- mental cruelty -- difficult to establish by direct evidence -- necessarily a matter of inference to be drawn from the facts and circumstances of the case taken cumulatively. (1981)4 SCC 250, (1988)1 SCC 105, (1994)1 SCC 337, (2002)2 SCC 73, (2002)2 SCC 619 and (2002)5 SCC 706 followed. [Para 14]
¼1½ fganw fookg vf/kfu;e] 1955 && /kkjk 13¼1½ ¼ i d½ rFkk 13¼1½ ¼ i [k½ && ifr rFkk mlds dqVqafc;ksa dk feF;k vfHk;kstu && ekufld dzwjrk dh dksfV esa vkrk gS && iRuh fcuk fdlh U;k;ksfpr dkj.k ds fiNys 15 o"kZ ls i`Fkd jg jgh && vfHkR;tu dk vfHkokd~ LFkkfir && fookg lHkh O;kogkfjd izz;kstuksa gsrq lekIr && fookg ds vlq/kk;Z :i ls Hkax dk ekeyk && dzwjrk rFkk vfHkR;tu ds vk/kkj ij ifr dks fookg&foPNsn dh fMdzh iznku dh xbZA bl izdkj] iwoksZDr fo‘ys"k.k ds vk/kkj ij] ge vfHkfu/kkZfjr djrs gSa fd naM lafgrk dh /kkjk 498d rFkk 494 ds v/khu vijk/kksa ds fy, vihykFkhZ rFkk mlds dqVqafc;ksa ds feF;k vfHk;kstu ds dkj.k dzwjrk ds vk/kkj curs gSaA vihykFkhZ ds ifjokj dh efgyk lnL;ksa lfgr vihykFkhZ rFkk mlds dqVqafc;ksa dks yacs lkr o"kZ rd nkafMd ekeys ds fopkj.k dh ihM+k dk lkeuk djuk iM+kA bl dkykof/k ds nkSjku mUgsa vieku Hkksxuk iM+k rFkk varr% muds fo:) yxk, x, vkjksi izekf.kr ugha fd, tk lds] ifj.kkeLo:i os nks"keqDr gq,A ¼iSjk 16½ vU; fook|d fookg ds vlq/kk;Z :i ls Hkax ds ckjs esa gSA vfHkys[k Hkh minf‘kZr djrk gS fd ;g fookg ds vlq/kk;Z :i ls Hkax dk ekeyk gSA lHkh O;kogkfjd iz;kstu gsrq fookg lekIr gks x;k gSA fufoZokn :i ls] izR;FkhZ vihykFkhZ ls fiNys 16 o"kZ ls i`Fkd :i ls jg jgh gSA izR;FkhZ dk ;g vfHkokd~ Lohdkj ugha fd;k tk ldrk fd og vihykFkhZ ds nwljs fookg ds dkj.k i`Fkd :i ls jg jgh gS D;ksafd izR;FkhZ vihykFkhZ ds jk/kkckbZ ds lkFk nwljk fookg LFkkfir djus okyk dksbZ fo‘oluh; lk{; izLrqr djus esa vlQy jgh gSA ---------- izR;FkhZ fiNys 15 o"kZ ls i`Fkd :i ls jgus ds ds fy, dksbZ ;qfDr;qDr dkj.k LFkkfir djus esa vlQy jgh gSA bl izdkj] ;g Li"V gS fd izR;FkhZ vihykFkhZ dk vfHkR;tu dj pqdh gS rFkk vf/kfu;e dh /kkjk 13¼1½¼
¼iSjk 20½
vfHkfu/kkZfjr% iwoksZDr fo‘ys"k.k dks n`f"Vxr j[krs gq,] fopkj.k U;k;ky; dk vkf{kIr fu.kZ; vikLr fd;k tkrk gS rFkk vihykFkhZ dks fganw fookg vf/kfu;e] 1955 dh /kkjk 13¼1½¼
i d½ ds v/khu dzwjrk rFkk /kkjk 13¼1½¼ i [k½ ds v/khu vfHkR;tu ds vk/kkj ij fookg&foPNsn dh fMdzh iznku dh tkrh gSA ¼1994½2 lIyh- ,l lh lh 588] ¼1993½2 ,l lh lh 6] ¼1996½8 ,l lh lh 90] ¼2004½1 ,l lh lh 123] ¼1995½4 ,l lh lh 642] ¼2006½4 ,l lh lh 558] ¼2007½4 ,l lh lh 411] ¼2006½3 ,l lh lh 778 ¼2010½4 ,l lh lh 393 vuqlfjrA 2007¼4½ ,e ih ,y ts 123] , vkb vkj 2007 ¼,u vks lh½ 1340 ¼e-iz-½] 2004¼2½ ,e ih ts vkj ,l ,u 27] II ¼2002½ Mh ,e lh 457 rFkk , vkb vkj 2006 byk- 7 voyafcrA ¼iSjk 21½
¼2½ izFkk && ekufldrk dzwjrk && izR;{k lk{; }kjk LFkkfir djuk dfBu && vko‘;d :i ls ekeys ds rF;ksa rFkk ifjfLFkfr;ksa ls lafprr% vuqeku fudkys tkus dk ekeyk gSA ¼1981½4 ,l lh lh 250] ¼1988½1 ,l lh lh 105] ¼1994½1 ,l lh lh 337] ¼2002½2 ,l lh lh 73] ¼2002½2 ,l lh lh 619 rFkk ¼2002½5 ,l lh lh 706 vuqlfjrA
¼iSjk 14½
Shrivastava, J. -- 1. This first appeal under section 96 of the CPC is at the instance of the plaintiff-husband against the judgment dated 16.2.2005 passed by the Court of Additional District Judge, Manasa, District Neemuch in Hindu Marriage Case No. 40/2005, dismissing the suit for divorce.
2. The appellant-husband had filed the suit for divorce on 6.5.2004 pleading that his marriage was solemnised with the respondent 22-23 years back and a female child was born out of the wedlock. Sometime after the marriage, the respondent had started pressurising the appellant to shift to her parents place as the father-in-law of the appellant had no male issue. When the appellant denied, the behaviour of the respondent changed and she started fighting with the family members of the appellant on small issues. About 10 years prior to the filing of the suit, the respondent had left the appellant's place along with her daughter and had gone to her parents place. The father of the respondent had filed a false complaint, alleging bigamy and cruelty against the appellant and his family members for offence under sections 494, 497, 498, 102 and 201/34 of the IPC and the prosecution continued for seven years and ultimately they were acquitted on 5.11.2003. It was further pleaded that for last 9-10 years he had no marital relation with the respondent and respondent without justifiable reason was living separately, therefore, the decree for divorce was sought.
3. The suit was opposed by the respondent by filing the written statement and taking the plea that the appellant had contracted second marriage with a lady named Radhabai and had turned out the respondent from his house, therefore, she along with her daughter is living separately with her parents. Appellant has two issues from Radhabai. She also denied that her father was having no male issue by pleading that her father has an adopted son namely Lalit Kumar. She also pleaded that she had never pressurised the appellant to live with her parents. She denied any cruelty on her part and prayed for dismissal of the suit.
4. During the trial of the suit, the appellant had examined himself as PW1, his father Ratanlal as PW2 and Rajendra Singh as PW3. He had produced the documents EX.P-1 to P-6. The respondent had examined DW1 Suresh Chandra, Director of Bright Way Middle School, Neemuch, herself as DW2, Ganpatlal, father-in-law of Lalit as DW3, Lalit Kumar Nagda, the alleged adopted son as DW4, Bhuralal the father of the respondent as DW5 and Ganesh Lal Kiloriya, the notary as DW6. The respondent had filed the documents EX.D-l to D-16.
5. The trial Court, by the impugned judgment, found that the appellant failed to establish the ground of cruelty and desertion. The trial Court examined the question if Lait Kumar was adopted by Bhuralal and placed reliance upon the evidence relating to his adoption. The trial Court also examined the plela of the respondent that the appellant had contracted second marriage with Radhabai, but the trial Court did not record any definite finding in this regard. Thus, the trial Court dismissed the suit.
6. Learned counsel for appellant submitted that the plea of cruelty is proved from the evidence on record especially on account of the false prosecution of the appellant for different offences at the instance of the respondent. He also submitted that it is a case of irretrievable breakdown of marriage and since the respondent is living separately for last several years without any justifiable reason. therefore, plea of desertion is also established. In support of his submission, he has relied upon the several judgments of the Supreme Court and different High Courts.
7. Learned counsel for the respondent, supporting the judgment of the trial Court submitted that the behaviour of the respondent towards the appellant or his family members was never cruel and that the respondent is living separately since the appellant had contracted second marriage. He has also submitted that
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