Ramesh vs Maya

Budihal R.B., J.—This appeal is preferred by the appellant/husband against the judgment and decree passed by the Senior Civil Judge at Chikodi dated 27.11.2014 in MC No. 103/2013.

The appellant herein filed a petition before the trial Court seeking dissolution of his marriage with the respondent under Section 13(i-a) & (ib) of the Hindu Marriage Act on the ground of cruelty and also on the ground of desertion.

The brief facts pleaded by the appellant herein before the trial Court are that his marriage with the respondent took place on 20.12.2011 at Narasobawadi Temple according to their custom and it was also registered in the Sub-Registrar''s Office at Chikodi. After marriage, the respondent came to the house of the appellant and lead marital life. As the appellant was serving in Military, he did not get leave. Therefore, he went back to attend to his job. Thereafter, however the parents of the appellant herein, were looking after the respondent with love and affection and also whenever the appellant was getting leave, he used to come to his native to lead marital life with the respondent. The respondent was not co-operating with the appellant. Even he had told to take her with him after getting quarters in his working place. Hence, he left her in his house along with his parents. It is also alleged in the petition that in his absence, the parents of the respondent used to come to his house and taking undue advantage of his absence, she has filed a complaint against him and his family members alleging that they were demanding dowry from her. The said complaint was given in Chikodi Police Station. Even though the appellant told the respondent to lead the life properly with him and even then, he made his efforts with the Panchas to take the respondent to his house to lead marital life, she was not ready and she filed a case seeking maintenance in Cril.Misc. 12/2013 in Miraj Court. Hence, he contended that because of these mental cruelty and also desertion by her, he sought the decree of dissolution of marriage with the respondent.

The respondent/wife appears in the case and has filed her objection statement denying all the allegations made in the petition, but admitted the marriage with the appellant taken place on 20.12.2011 and that after the marriage she has been to the house of the appellant to lead marital life. But, she has specifically denied that the appellant and his family members were treating her with love and affection. She contended that they were giving ill-treatment to her by abusing her in filthy language and insisting her to bring money from her parental place and also used to give physical and mental cruel treatment to her by suspecting her fidelity. They continued their ill-treatment to bring dowry amount. It is also alleged that the appellant by consuming alcohol used to assault her and insisting her to bring dowry amount. Because of all these reasons ultimately she filed a case under the Domestic Violence Act. After coming to know that she has filed such petition under the Domestic Violence Act, the present appellant filed MC No. 26/2013 seeking restitution of conjugal rights as against respondent herein. The said M.C. petition was dismissed for non-prosecution. Therefore, she has contended that there is mental and physical cruelty meted out to her by the appellant and his family members and there is no truth in the allegations made against her and sought for dismissal of the said petition.

To prove his case, the appellant herein has examined himself as PW. 1 and also got examined four witnesses on his side as PWs.2 to 5 and one document was produced as per Ex. P1. Respondent got examined herself as RW1 and one document was produced as per Ex. R1. The trial Court after considering pleadings and also evidence lead both oral and documentary, ultimately dismissed the petition filed by the husband, the appellant herein, holding that he has failed to make out a case as pleaded in his petition. Being aggrieved by the same and also challenging the legality and correctness of the judgment and decree passed by the trial Court, the appellant is before this Court.

We have heard the arguments of the learned counsel appearing for the appellant/husband and also the learned counsel appearing for the respondent/wife.

Learned counsel for the appellant submitted that though the appellant was treating the respondent with love and affection and even though his family members were also treating her properly and the appellant has given her assurance that after getting quarters in the Military, he will take her along with him, the respondent/wife was not co-operating with the appellant and she was not properly behaving with the parents of the appellant. Learned counsel further made the submission that making false allegations, she used to file criminal cases against the appellant and his family members. One complaint was filed by making allegations that the appellant and his family members are demanding dowry amount. She has also filed a petition under the Domestic Violence Act and because of all these criminal proceedings, the appellant was mentally disturbed and there is mental cruel treatment to the appellant. Learned counsel further submitted that when the respondent/wife refused to give social company to the appellant, he has filed a M.C. case under Section 9 of the Hindu Marriage Act. Hence, learned counsel submitted that all these things clearly go to show that the appellant was willing to lead happy marital life with the respondent herein. When the respondent refused to lead marital life with the appellant, as there is no other way for him, he filed a petition before the trial Court. Learned counsel also submitted that in the oral evidence of the appellant and other witnesses examined on his side, they all clearly deposed about the conduct of the respondent/wife that she was not co-operating and she herself used to pick up quarrel with the family members of the appellant in his absence. Hence, the learned counsel submitted that these materials on record is not properly appreciated by the trial Court and the trial Court wrongly came to the conclusion that the appellant has not established his case. Learned counsel further made the submission that the dismissal of the petition holding that the husband has not proved his case and there is possibility of re-conciliation between the couples is not just. He further submitted that, now also the appellant is ready to take his wife back. Hence, he submits, this matter requires consideration and the same is to be admitted.

Per contra, the learned counsel for the respondent/wife during the course of his argument submitted that the respondent was subjected to cruel treatment by the appellant as well as his family members. There is specific contention by the wife that the appellant used to come to the house drunken and used to assault her by insisting her to bring dowry amount. Even the family members of the respondent/wife went to the house of the appellant and requested the appellant and his family members to treat her with respect. In spite of that they continued their ill-treatment to the respondent/wife. Therefore, she was forced to file a criminal case under the provisions of Domestic Violence Act. Learned counsel further submitted that, even the petition filed by the appellant seeking restitution of conjugal rights was not ended on merits of the case and it was dismissed for non-prosecution, for which he has not taken any action. Hence, he submitted that these aspects of the matter were properly appreciated by the trial Court and no illegality has been committed. Hence, he prayed for rejection of the same.

We have perused the grounds urged in the appeal memorandum, pleadings of the parties presented before the trial Court, so also the judgment and decree passed by the trial Court and other materials produced in the case. The marriage between the couples is admitted and after marriage, the appellant took her to his house is also admitted. But with regard to the grounds on which the present appellant is seeking decree of divorce i.e. under Section 13(i-a) for the cruelty meted out to him and the 2nd ground under Section 13(ib) for desertion by his wife, firstly, there is no specific pleadings in the petition. So far as desertion is concerned, we do not find any pleadings presented by the appellant before the trial Court that wife deserted him continuously for a period of two years prior to presentation of the petition and that she deserted him without any sufficient grounds. In the absence of such pleadings and any amount of evidence by the appellant, it will not prove his case. Foundation of the case is pleadings of the parties. These aspects are properly considered by the trial Court. It is no doubt true that the appellant herein has filed a petition in MC No. 26/2013 under Section 9 of the Hindu Marriage Act, seeking restitution of conjugal rights as against respondent wife. But in his pleadings he has submitted that he has intention to lead happy married life and therefore has withdrawn the said petition. But during the course of evidence as well as in the pleadings presented by the wife, it is brought to the notice of the Court that it was not withdrawn, but it was dismissed for non-prosecution. Even after dismissal of the said petition, if the appellant was really interested to take the wife to lead marital life, he could have filed an application in the said petition seeking restoration, which he has not done. Even looking to the allegations so far as the appellant seeking divorce is concerned, there is no acceptable and satisfactory evidence placed on record by him. Even he has not established the fact that the wife used to give cruel treatment to him. But on the contrary the material clearly goes to show that the appellant and his family members subjected her to hardship, both mentally and physically. These aspects of the matter were taken care of by the trial Court and it has extensively considered each and every aspect of the matter and ultimately came to the conclusion to dismiss the petition. So far as the contention of the appellant that he is serving in the Military and he assured the wife that after getting quarters he will take her along with him, it was also discussed at length by the trial Court and it observed that if the appellant was really willing, he could have produced some documents to show about allotment of quarters earlier and also to show about subsequent application made by him before the concerned authority in the Military seeking re-allotment of the quarters. No documents were produced to prove the said aspect. This was also taken care by the trial Court by discussing the evidence on record. Therefore, looking to the entire materials placed on record we do not find any illegality in the judgment and decree passed by the trial Court nor any perversity or capricious view taken by the trial Court. There is no merit in the petition. Hence, the appeal is rejected at the admission stage.