Sanjay Sharma vs Rajni @ Nirmala

This appeal has been preferred by the appellant Sanjay Sharma against the order of the learned Family Court No.1, Kota (Raj.), passed on

22.02.2017 whereby the learned Family Court rejected the petition of the appellant under Section 13 of the Hindu Marriage Act, 1955 (for short 'the

Act') seeking divorce from the respondent wife.

Brief facts giving rise to this appeal are that the appellant filed a petition under Section 13 of the Act against the respondent seeking divorce from

the respondent wife before the Family Court No.1, Kota. The petitioner got married with respondent on 04.12.1999 as per Hindu rites and rituals. A

daughter was born out of their wedlock. The respondent's behaviour towards the appellant and his parents was cruel since the very beginning. The

respondent without any reason used to quarrel with the appellant and his parents and threatened to involve them in false dowry case. She used to

insult them in front of neighbours and did not do household duties. On 31.10.2010, fed up from the respondent's cruel behaviour the appellant's parents

removed the appellant from their house after publishing a public notice in the newspaper. The appellant suffered from a severe disease. When he

asked the respondent to live with him, she denied and neglected him. The appellant wanted to keep the respondent along with him but the respondent

due to her stubbornness and cruel behaviour did not want to live with him. In spite of all this the appellant was regularly maintaining the respondent.

The respondent without any reason lodged case u/s 498A, 406 IPC and in the said he was acquitted. At last, the appellant had prayed for the

dissolution of their marriage.

In reply, the respondent wife had denied all the allegations levelled in the petition and stated that the appellant and his family members tortured her

for demand of dowry and threw her out of the house. Due to this, she further stated that the appellant and his parents were demanding dowry and

they deprived her from food and water supply. Also, when the respondent was pregnant, she was thrown out of the house due to the demand for

dowry. Since then, the respondent along with her child was residing with her parents and was dependent on them. If the appellant would change his

behaviour towards the respondent, she was ready to stay with him. The respondent's family gave the appellant dowry as per their capacity but their

demand kept on increasing and they demanded Rs.1,00,000/- and when it not given, they tortured the respondent mentally and physically, even when

she was pregnant. When the respondent's condition became extremely severe and pityful, she was made to run away from the house with her sister.

The respondent's parents, (out of the appellant's demand of dowry in the form of cash and hero honda) gave them Rs.40,000/- but they were not

satisfied and again asked for Rs.1,00,000/-. At that time, the respondent's brother took her away and after informing the appellant. The respondent

was living with her parents since then. Thus, on the basis of the above mentioned facts, the petition presented by the petitioner be dismissed.

Based on the petition and the replies from both the parties following Issues were framed by the trial Court.:-

Whether the behaviour of respondent towards the appellant was cruel.

Whether the respondent has deserted the appellant for more than two years without any bona fide reason.

Relief?

Appellant has examined himself as AW-1 and exhibited documents Exhibit 1 to Exhibit 12. The respondent examined herself as NAW-1, witnesses

as NAW-2 Ish Kumar, NAW-3 Priyanka.

Learned Family Court heard the arguments and dismissed the petition.

Learned counsel for the appellant submitted that the impugned order dated 22.02.2017 is illegal, arbitrary and against the material available on the

record. Learned counsel for the appellant submitted that the behaviour of the respondent's wife was very cruel with appellant and his family members.

She had lodged false case against the appellant u/s 498A and 406 IPC in which the appellant was acquitted from District Court as well as High Court.

Learned counsel for the appellant further submitted that the respondent wife had mentally harassed the appellant and his parents. She had

threatened to implicate them in false criminal cases. Learned counsel for the appellant further submitted that when appellant was ill, she had left him

alone. She had not fulfilled her matrimonial obligation. She had left the matrimonial home of her own will. She had deserted appellant since the year

2000. The learned Family Court in its order wrongly came to the conclusion that the appellant had not proved the issue of cruelty and desertion, so

appeal be allowed and decree of divorce be passed.

Learned counsel for the respondent submitted that there is no illegality and infirmity in order of the learned Family Court. He submitted that the

appellant had done cruelty with respondent and thrown her out of the matrimonial home. So, she had to live at her parental home and the appeal be

dismissed.

We have given our thoughtful consideration to the arguments advanced by both the parties, perused the impugned order and the material available

on record.

The appellant in his evidence before the learned Family Court clearly stated that respondent's wife had lodged a criminal case of dowry against the

appellant in which he was acquitted. Respondent in her cross-examination also admitted that she had lost the case before Sessions Court and High

Court. The appellant in his statement clearly stated that behaviour of respondent was cruel towards him and his parents. Learned Family Court

wrongly came to the conclusion that the appellant had failed to prove the ground of cruelty. The appellant in his statement exhibited the documents of

his illness and he had clearly stated that the respondent wife had left home when he was ill and she had not looked after him. So, this act of the

respondent also amounts to cruelty. Respondent in her statement stated that she had been living separately since May, 2000. She had not proved any

bona fide reason to live separately. So, learned Family Court had erred in deciding the issue of cruelty and desertion against the appellant.

In these circumstances, the appellant had succeeded to prove that the respondent had treated him with cruelty and had deserted him.

The appeal is accordingly allowed. Judgment and order dated 22.02.2017 passed by the learned Family Court in Civil Case No.135/2004 are set

aside. The petition for divorce filed by the husband u/s 13 of the Hindu Marriage Act, 1955 is decreed in favour of the appellant and against the

respondent and marriage of the parties solemnized on 04.12.1999 is dissolved by a decree of divorce on the ground of cruelty and desertion.