Kailash Bihari Jaiswal vs Smt. Bhagwati Jaiswal

V.K. Shrivastava, J.—This appeal u/s 28 of the Hindu Marriage Act, 1955 (for short, "the Act") is directed against the judgment and decree dated 13-12-1995 passed by 1st Additional District Judge, Bilaspur, in Civil Suit No. 41-A/1991 by Which the suit for decree of divorce filed by the Appellant, has been dismissed.

Facts material for disposal of this appeal, in brief compass, are that Appellant and Respondent were married to each other in accordance with Hindu rites in May, 1983 at village Faraswani. After marriage Respondent lived with her husband at village Faraswani and out of their wedlock a female child namely Vijay Laxmi was born. During her stay, she treated Appellant and his family members with cruelty and on being advised, she used to threat that she would file an application u/s 498A of the I.P.C. and u/s 125 of the Code of Criminal Procedure, making complaints besides demand of dowry. Even in Panchayat she was advised by the village elders to live like a decent wife, but she failed to adhere to the command of the elderly persons. She made false complaints to higher officials and thereby lowered the age old reputation of the Appellant. She also initiated maintenance proceedings. Therefore, Appellant on the ground of cruelty filed an application for grant of divorce u/s 13(1)(ia) of the Act. He further pleaded that after reconciliation when Respondent was leading marital obligation with Appellant she on 13-10-1993 treated the Appellant with cruelty.

Respondent vehemently opposed the application and pleaded that when she was living in her matrimonial house she was very often abused and assaulted by the Appellant and his parents. Even her tooth was broken. When the Appellant was posted at village Karankapa at that place also Appellant in presence of village people assaulted and drove her out from his house and despite advised by villagers, he refused to keep her. On valid and substantial ground she initiated maintenance proceeding and made complaints. During pendency of the trial as a result of intervention of the Court in reconciliation proceeding Appellant kept the Respondent as his wife, for about six months during this period out of their marital relation, Respondent conceived and delivered a male child.

Both the parties in support of their respective case, adduced oral and documentary evidence. Learned trial Court meticulously appreciated the whole evidence and held that no cruelty was caused by the Respondent against the Appellant, therefore, dismissed the petition.

Appellant to prove cruelty examined himself as AW/1 and to support his statement examined Bheeshm Prasad (AW/2), Kanhaiyalal (AW/3), Janki Bai (AW/4) and Gopi Ram (AW/5). To contradict the evidence of Appellant, Respondent examined herself as NAW/1 and examined witnesses Bajrang Prasad Jaiswal (NAW/2), Pradeep Kumar Mehta (NAW/3) and Easwar Prasad Kashyap (NAW/4). Appellant Kailash Bihar (AW/1) in his statement has deposed that Respondent during her stay at matrimonial house, was using filthy languages, behaving in quarrel manner and was threatening him and his family members to implicate in case u/s 498A of the IPC. He has also deposed that her behaviour was abnormal, but his witness Bheeshm Prasad (AW/2) who is in relation brother of the Appellant has stated in examination-in-chief that their marital relation for four to five years was good and thereafter some dispute arose and that was solved by villagers and thereafter both of them maintained cordial relation. Afterwards Respondent complained that she was being assaulted by father of the Appellant. He has not witnessed any incident. From the evidence of Kanhaiyalal (AW/3), it appears that the whole reason of dispute was due to visit made by Respondent to her parental house. Jankibai (AW/4) and Gopiram (AW/5) have been produced only to support that incident which took place after reconciliation proceeding.

To contradict the evidence of Appellant, Bhagwati Bai (NAW/1) has deposed that her husband very often assaulted her and even broke her tooth. Her father-in-law also assaulted her with club. Her mother-in-law also assaulted. In community meeting her father-in-law also admitted the fact of beating. After community meeting during Holi festival, she was given poison. She also narrated the incident which took place at Karankapa where Appellant kept her and denied the relationship of husband and wife. Village people advised Appellant to keep the Respondent, but he refused to keep her. Village people advised her father to take back her, otherwise, Appellant will beat, therefore, her father took her to his house. She also referred various community meetings in her statement and advice which was given to Appellant to keep her. Bajrang Prasad Jaiswal (NAW/2), an independent witness has stated in his evidence that in community meeting on enquiry it was found that the Appellant''s father assaulted Respondent with club and also snatched all her armaments and as a result of assault by Appellant one of her tooth was broken. It was also found that she was administered poison. Pradeep Kumar Mehta (NAW/3) has deposed in his statement that as per the direction of community meeting he took the Respondent to village Karankapa where Appellant refused to keep her. Thereafter, they left the Respondent there and came back. Easwar Prasad Kashyap (NAW/4) has also deposed that on the complaint of Respondent, community meeting was held where Appellant was advised to keep Respondent properly. From the statements of Bajrang Prasad Jaiswal (NAW/2), Pradeep Kumar Mehta (NAW/3) and Easwar Prasad Kashyap (NAW/4) it is also clear that the Appellant to obtain permission to contact remarriage made an application to his community where it has been rejected.

Applying the principal of prepoderance of probabilities, it is evident that the evidence tendered by the Respondent is acceptable and the evidence adduced by the Appellant does not inspire confidence. Therefore, till reconciliation proceeding it was not proved that Respondent treated Appellant with physical or mental cruelty.

Section 23 of the Act reads as below;

Decree in proceedings.-(1) In any proceeding under this Act, whether defended or not if the Court is satisfied that,-

(b) where the ground of the petition is the ground specified (***) in Clause (i) of Sub-section (1) of Section 13, the Petitioner has not in any manner been necessary to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty, the Petitioner has not, in any manner, condoned the cruelty.

From bare reading of the aforesaid provision, it reveals that if the ground of cruelty has been taken for divorce, in that case if husband or wife as the case may be, condoned the cruelty then he or she as the case may be, is not entitled for decree of divorce. Here in the instant case, after reconciliation proceeding for about six months Appellant and Respondent lived as husband and wife and enjoyed the marital relation as a result thereof Respondent conceived and delivered a male child. This circumstance itself proves the fact that whatever cruelty, if any, was caused by the Respondent against the Appellant, that was condoned by the Appellant, and therefore, the ground of cruelty that existed prior to reconciliation proceeding does not confer entitlement for decree of divorce.

After reconciliation proceeding, Appellant to establish cruelty has stated one incident that on 13-10-1993 when both husband and wife were sleeping in a room wife/Respondent after opening the lock of the box locked the room from inside with that lock. This incident does not suggest or proves any cruelty caused by the wife/Respondent, but subsequent conduct of the Appellant that as a result of this incident Respondent was forced to live in her parental house, can be accepted as cruelty caused to Respondent by the Appellant. Bhagwati Bai (NAW/1) in her statement has explained the circumstances under which she was compelled to live in her parental house. She has specifically stated that after compromise Appellant for some time kept her properly, but thereafter Appellant and his family members started beating and forcing her to sign on blank paper and when she refused she was beaten and driven away from the house. The statement does not appear to be incredible. Therefore, after reconciliation proceeding, no cruelty has been caused by the Respondent, therefore, Appellant was not entitled for decree of divorce on subsequent events also.

Learned trial Court, after minutely appreciation of the evidence correctly held cruelty not proved in favour of the Appellant and correctly dismissed the application.

I do not find any reason to interfere with the judgment and decree passed by the trial Court. Therefore, the appeal deserves to be dismissed and is accordingly dismissed with costs.