Rajendra Prasad vs Chetna

N.K. Mody, J.—Being aggrieved by judgment and decree dated 15.2.2001 passed by Additional District Judge, Khachroad, District Ujjain in Civil Suit No. 30-A/98, HMA, whereby the suit filed by the appellant was dismissed, the present appeal has been filed.

Short facts of the case are that the appellant filed a petition for divorce u/s 13 of the Hindu Marriage Act on 15.7.1998 alleging that the marriage of the appellant took place with respondent on 13.5.1994. In the first year of marriage respondent lived with the appellant at his parental house for a period of 4 1/2 months and respondent went to her parental house for 10 times approximately. It was alleged that the appellant is the only son. Mother of the appellant is having fracture in her hand and father of the appellant is a patient of diabetes and blood pressure. It was alleged that the family of the appellant is from middle income group and appellant is financially not in a position to avail the facilities of engaging domestic servants. It was alleged that respondent never did any domestic work in the period of one year when she lived with the appellant. It was alleged that at the time of marriage parents of the respondent informed the appellant that respondent shall prove herself to be a good housewife but later on it came to know that respondent is not interest to perform the duties for maintaining the house. It was also found that respondent is non-vegetarian.

It was alleged that respondent went to Sagar for appearing in the examination of B.A. Part II and informed the appellant that after examination she will come beck. It was alleged that respondent lived at Sagar for a period of 2 1/2 months without the consent of the appellant.

It was alleged that father of the respondent Rajaram Malviya was transferred from Sagar to Ujjain as DYSP in the office of Lok Aayukt. It was alleged that on 1.6.1995 respondent went to Ujjain for her delivery, at that time a small function was arranged at Nagda, wherein the respondent wore the golden ornament, which was brought by her parents.

It was alleged that on 5.7.1995 respondent delivered a son at Pushpa Mission Hospital, Ujjain but no information was given in that regard to the appellant. After getting the information appellant came to Pushpa Mission Hospital on 9.7.1995 along with his mother. It was alleged that when the appellant reached to the hospital and met to the respondent, at that time respondent asked the appellant in presence of her mother ("Hindi matter omitted"). It was alleged that mother of respondent asked the appellant ("Hindi matter omitted"). It was alleged that the language of the respondent and her mother was the language, which was being used by the persons working in police department. It was alleged that when the appellant asked the respondent and her parents not to use the indecent language, then father of the respondent became angry. It was alleged that at that time Premnarayan Malviya, uncle of the respondent who is town inspector was called. It was alleged that after his arrival Premnarayan Malviya, T.I. caught the collar of appellant and said ("Hindi matter omitted"). It was alleged that father of the respondent told ("Hindi matter omitted"). It was alleged that thereafter appellant came back to Nagda with his mother and narrated the entire story to his father. It was alleged that father of the appellant wrote a letter to Phoolsing Sisodia (maternal uncle) of the respondent on 15.6.1996 and narrated the entire story.

Further case of the appellant was that on 23.7.1995 Station Officer and a Constable came to the house of appellant from Police Station Nagda and asked the appellant that T.I. Solanki has called the appellant at police station. It was alleged that when the Station Officer and the Constable came to the house of the appellant, at that time the neighbours were looking to the appellant with suspious eye. It was alleged that appellant and his father went to the police station, where T.I. Solanki informed that the father of the respondent has phoned from the office of Lok Aayukt and informed that appellant has stolen the mark-sheet and other certificates of respondent. It was alleged that T.I. Solanki was not knowing that appellant is married to the respondent. It was alleged that T.I. Solanki behaved with appellant as an accused. It was alleged that appellant informed T.I. Solanki that appellant is son-in-law of Shri Malviya and further informed that the respondent is his wife and mark-sheet and other documents of the respondent are lying at his residence. It was alleged that the facts which were stated by the appellant were narrated by the T.I. Solanki to Shri Malviya, father of the respondent upon which Shri Malviya asked T.I. Solanki that appellant is a thief. It was also said by Mr. Malviya that he is sending the warrant for his arrest. It was alleged that appellant brought mark-sheet and other documents at police station, which were sent by Shri Solanki T.I. to Ujjain through Constable Chandrabhan Singh Chouhan.

It was alleged that on 25.7.1995 father of the appellant wrote a letter to the father of the respondent, which was not replied.

It was alleged that the behaviour of the respondent was cruel to the appellant. Apart from this respondent deserted the appellant. Respondent joined the services in February 1998 with Bank of Baroda, Branch Petlawad, District Jhabua without any consent or information to the appellant. With the aforesaid allegations, it was prayed that a decree of divorce be passed in favour of appellant.

Respondent filed written statement, wherein it was not disputed that the marriage of the appellant took place with the respondent. It was also not disputed that respondent has delivered a son. Rest of the allegations on the basis of which divorce petition was filed by the appellant were denied by the respondent. It was prayed that the petition filed by the respondent be dismissed. On the basis of pleadings of the parties, learned Trial Court named the issues and recorded the evidence. After hearing the parties learned Trial Court dismissed the petition filed by the appellant against which, the present appeal has been filed, which is pending since last seven years.

On 21.11.2002 case was listed for reconciliation on 28.11.2002. On this date the case was adjourned to 2.12.2002. On this date it is mentioned in the order sheet that the parties are trying to resolve their disputes by mutual discussions. On 5.12.2002 Counsel for the parties informed that reconciliation is not possible between the parties, therefore re-conciliation proceedings were closed. Thereafter the case came up for hearing on 30.10.2007 since parties came to the conclusion that reconciliation was not possible, therefore, it were arguments which were to be heard. However this Court again directed that parties should remain present for reconciliation. Again an effort was made on 30.10.2007, 29.11.2007 and 11.12.2007 but the attitude of the respondent was not at all submissive. On 11.12.2007 the mother of the appellant who is an old lady was present in the Court and complained that on the last date of hearing father of the respondent came to the Court along with number of persons and threatened the appellant for dire consequences. In the circumstances, arguments heard finally on merits on that issue in presence of parties and case was reserved for final judgment.

Mr. D.D. Vyas, learned Counsel for the appellant submits that enough evidence is on record to show that the attitude of the respondent towards the appellant was cruel. Learned Counsel submits that apart from this, respondent has deserted the appellant since last more than 12 years. It is submitted that after delivery of son respondent never lived with the appellant. It is submitted that appellant has not seen even the face of his son. Learned Counsel submits that apart from the fact that learned Court below committed error in dismissing the petition as the ground of cruelty and desertion was not proved, appellant is also entitled for a decree of divorce on the ground that the marriage was irretrievably broken.

Mr. Manoj Manav, learned Counsel for the respondent submits that learned Court below rightly decreed the suit filed by the appellant as none of the grounds was proved. Learned Counsel further submits that the respondent is ready and willing to live with the appellant as a good wife.

From perusal of the record it is evident that appellant has examined himself as AW-1, Smt. Shakuntala Bai a neighbour AW-2, Smt. Kiran Sen another neighbour AW-3, Mohanlal ASI AW-4, Sagarmal AW-5, Bapulal Parmar (father of the appellant) AW-6, and Safuddin AW-7 and appellant has also filed the copy of the letter dated 15.6.1996, 25.7.1995 as Exs. P/10 and P/11 written by the father of the appellant to Phoolsingh Sisodia and father of the respondent.

In defence respondent has examined herself as NAW-1, Sachin Malviya brother of the respondent NAW-2, Anchal Sisodia NAW-3, Satish Verma NAW-4 and Phoolchand maternal uncle as NAW-5. The parents of the respondent were not examined. The copy of the letters narrates the entire story of the incidents, which took place between the two families. The letters were duly proved by the father of the appellant. It appears that the appellant is working in LIC, while respondent is in the employment of Bank of Baroda. Apart from this the father of the respondent was DYSP, while the father of the appellant was a teacher. It appears that the family of respondent is financially sound in comparison to appellant. It also appears that the respondent is suffering with the superiority complex.

In the fact and circumstances of the case there was no justification on the part of learned Court below in refusing the decree for divorce keeping in view the evidence adduced by the appellant. However, undisputedly the parties are living separately since 1995. Lot of efforts were made by this Court to reconcile. Respondent was also asked to remain present with her son, so that, the appellant can be pursued to live together. But inspite of that respondent did not turn up with her son. Apart from this the attitude of the respondent at the time of initiating the proceedings of reconciliation was also not submissive. Keeping in view the settled position of law and keeping in view the fact that appellant and respondent are living separately since last more than 10 years this Court is of the view that marriage of the appellant with the respondent is irretrievably broken.

In view of the above, this appeal is allowed. The judgment and decree passed by the learned Court below is set aside. A decree of divorce is granted in favour of appellant holding that marriage solemnized between the parties on 13.5.1994 stands dissolved.

No order as to costs.