Praveen Maben vs Mrs. Nalini Maben

Appellant has filed this appeal against the judgment and decree dated 24.01.2008 passed in Civil Suit No. 133-A/07. By the aforesaid

judgment and decree, the trial Court dismissed the suit filed by the appellant for dissolution of marriage under Section 10 of The Divorce Act,

1869.

The appellant pleaded in the plaint that marriage between the appellant and the respondent was solemnized in accordance with rituals of

Christian religion. After marriage, a daughter Km. Jhalak was born from their wedlock in January, 1981 at Jabalpur. Subsequent to marriage, the

appellant filed petition for nullity of marriage under the provisions of Indian Divorce Act, 1869. He came to know that the respondent suppressed

the fact about her mental status at the time of solemnization of marriage. The trial Court dismissed the suit. Against the aforesaid judgment and

decree, a first appeal was filed before this Court. It was registered as First Appeal No.413/1997.

The appellant withdrew the appeal filed before the High Court mentioning the fact there was a compromise between the appellant and the

respondent.

The appellant pleaded that inspite of withdrawal of appeal, the respondent did not come back to live with the appellant. His daughter was aged

about 21 years and he tried to find out suitable match for his daughter, but he could not succeed because, the persons used to inquire that why the

mother was living separately. Thereafter, the daughter of the appellant had gone to Australia for studies and for that purpose an education loan was

taken. The appellant had tried his best to pursue the respondent to come back to live with him, but, the respondent did not return back. At present

the appellant has been running an educational institution. The respondent used to contact Mrs. Usha Patel, school peon and inquire about the

character of the appellant. She leveled allegations that the appellant had relationship with female staff of the school. She also telephoned the

daughter and leveled allegations against the character of the appellant. The respondent has been living separately without any reason. The act of the

respondent amounts to mental cruelty.

The respondent in her written statement denied the pleadings of the appellant. She pleaded that earlier a suit was filed for declaring the marriage

as nullity, which was dismissed on merits. Hence, the second suit on the same ground is not maintainable. The respondent admitted the fact that a

daughter namely Jhalak was born in January, 1981 from the wedlock of the appellant and the respondent. She specifically denied the fact that she

is not willing to live with the appellant. She further pleaded that she is in great affection to her daughter. She further pleaded that the appellant is not

willing to keep the respondent with him. The appellant never treated the respondent properly as a wife after the date of marriage. He practiced

cruelty.

The appellant in his evidence deposed the same facts as pleaded by him in his plaint. He further deposed that the respondent made reckless

allegations about the character of the appellant. She made inquiry from the Peon of the school. She also instructed my daughter that whether I was

living with any female or not. The respondent tried to paint me as a characterless person. It is not possible for me to bear the agony and the future

of my daughter is also affected. In his cross- examination, he further deposed that the respondent lived with him up to 1992 and thereafter, she left

the matrimonial home without any reason. She did not look after the daughter.

Smt. Usha Patel, who was working as Peon in the school tendered her evidence. She deposed that respondent made number of phone calls to

her and inquired that how many lady teachers were working in the school. Whether the appellant used to come during vacations to the school or

whether he had relationship with some lady teacher. The respondent had suspicion about the character of the appellant. Another witness Mr.

Rajesh Raikwar, who was working as rickshaw puller, deposed that he was working as an employee in the school. The respondent did not come

with the appellant in spite of best efforts, she did not come when the daughter was going to Australia. Another lady Smt. Kamla Namdev deposed

the same facts that the respondent used to inquire about the character of the appellant and she leveled allegations about the character of the

appellant.

Jhalak Mebin, who is the daughter, deposed in favour of the appellant. She deposed that the respondent used to go frequently to the house of

her father. She told me that she did not like my father and her brothers forced her to marry with my father. The respondent/my mother did not ask

me about the well being of my father. She always inquire me about the money. My father had withdrawn the appeal in a hope that my mother will

live with him, however, she did not return back to live with my father. My father sent me to Australia. In December, 2004 I returned to Jabalpur

for one and a half months, but, my mother did not come to Jabalpur. She telephoned me and asked me that whether my father had illicit

relationship with any other lady or not. It shocked me. In her cross-examination, she deposed that my father used to send my mother an amount of

Rs. 3000/- per month. She denied the fact that appellant does not want to live with the respondent. The behaviour of the mother is not proper. She

does not want to live with the appellant. She does not care about my father.

The respondent herself turned as a witness. She deposed the same facts as pleaded by her in the written statement. She stated that the appellant

filed case for nullity of marriage against her on false grounds. It was dismissed. Thereafter, appeal was filed; that was also dismissed. The appellant

poisoned my daughter and other family members against me. I tried my best to return to the house of the appellant, however, he had not agreed. I

still want to live with the appellant. In her crossexamination, she deposed that I was forced to live with my father and my brothers at Jhansi. She

admitted the fact that the appellant used to send Rs. 3000/- per month to her. She admitted the fact that her daughter was studying in Australia. In

the year 2004-05, the appellant tried to marry the daughter but she did not chose the groom. She has more freedom and that freedom was not

available after marriage. She further admitted the fact that she does not know that what her daughter has been doing at present. Another witness

Saloman Brown, brother of the respondent, deposed that the appellant has been running an educational institution. The appellant did not treat the

respondent/his sister properly. Hence, the respondent was living at Jhansi with her father and mother. The appellant did not want that the

respondent would live with him. He further deposed that appellant had illegal relationship with school teachers. No other witness has been

examined on behalf of the respondent.

The trial Court has held that the suit is maintainable. The trial Court held that the respondent had not deserted the appellant. However, the trial

Court has held that the appellant has failed to prove the fact of cruelty. Hence, he is not eligible to get a decree of divorce.

Section 10 (1) (ix) and (x) of the Divorce Act, 1869 prescribes desertion and cruelty to cause a reasonable apprehension in the mind of the

petitioner/appellant that it would be harmful or injurious to live with the respondent. The aforesaid Section reads as under:

Grounds for dissolution of marriage - (1) ....

(ix) has deserted the petition for at least two years immediately preceding the presentation of the petition; or

(x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or

injurious for the petitioner to live with the respondent.

In the present case, the appellant has proved the fact that he had withdrawn the earlier appeal filed by him for declaring the marriage null and

void. Thereafter, he had tried to pursue the respondent to live with him. However, the respondent did not return back to live with the appellant.

Apart from this, the daughter of the appellant and the respondent deposed in favour of the appellant. She has stated that since 1992, the

respondent did not come back to the house. I used to go to meet the respondent at Jhansi and she inquired me that how much amount the

appellant was earning and whether I had brought the cheque or not. The respondent did not inquire about the health of the appellant. Although the

appellant became ill, however, she did not come to see the appellant. She further deposed that when I returned back from Australia in 2004, I

went to Jhansi to talk to my mother. In spite of that, the respondent did not come back to live with the appellant. Same facts have been deposed

by the appellant and other witnesses, who were the employees in the school of the appellant. The respondent appeared herself and also examined

her brother in her support.

From the evidence of the daughter of the appellant and respondent namely Km. Jhalak Maben, this fact has been proved that the respondent

has been living separately from the appellant since 1992. Efforts were made by the daughter and the appellant to take her back. In spite of that, the

respondent did not return back to live with the appellant. There is no reason to disbelieve the evidence of the daughter. Normally, a daughter does

not depose against her own mother. Apart from this, there is evidence that the respondent leveled allegations about the character of the appellant.

In our opinion, the trial Court has overlooked the aforesaid evidence and wrongly held issue No.3 against the appellant. On the basis of evidence

on record, in our opinion, the appellant has proved the fact that the respondent has been living separately for last many years i.e. more than two

years and she has deserted the appellant. Hence, the appellant is entitled a decree of divorce on the ground of Section 10(1)(ix) & (x) of the

Divorce Act, 1869.

The respondent leveled allegations about the character of the appellant. She inquired the same from the employees of the appellant and from

her daughter. Hence, this fact has been proved that the respondent caused cruelty to the appellant and there is reasonable apprehension in the mind

of the appellant that it would be injurious to live with the respondent. Hence, in our opinion, the appellant is entitled for decree of divorce under

Section 10(1)(ix) & (x) of the Divorce Act, 1869.

Consequently the appeal filed by the appellant is hereby allowed. The impugned judgment and decree passed by the trial Court is hereby set

aside. A decree of divorce is granted in favour of the appellant. The marriage solemnized between the appellant and the respondent is hereby

dissolved.

No orders as to costs.