Smt. Baby vs Shailendra Kumar

Rajeev Kumar Shrivastava,J

[1] This judgment shall govern the disposal of First Appeal No.112/2008 (Smt. Baby Vs. Shailendra Kumar) and First Appeal No.74/2014 (Shailendra

Kumar Vs. Smt. Baby) as in both the cases, parties are same.

 [2] First Appeal No.112/2008 is preferred by the appellant (hereinafter referred to as “wifeâ€​) against the respondent (hereinafter referred to

as “husbandâ€​) challenging the judgment and decree dated 27/03/2008 passed by First Additional District Judge, Ambah, District Morena in Civil

Suit No.4-A/2007 (Hindu Marriage Act), whereby trial Court allowed the application filed by the husband under Section 9 of Hindu Marriage Act,

1955.

[3] First Appeal No.74/2014 has been filed by the husband against the wife challenging the judgment and decree dated 04/03/2014 passed by

Additional District Judge, Ambah, District Morena in matrimonial case No.03/2010, whereby petition filed by the husband under Section 13(d)([k) and

explanation II of Hindu Marriage Act has been rejected.

[4] As per both the appeals, commonly stated facts of the case are that the marriage of the appellant and respondent was solemnized on 21/04/1995.

The wife without any justified reason has deprived the husband from conjugal rights. Husband filed an application before the trial Court under Section

9 of Hindu Marriage Act which was allowed by the trial Court and wife was directed to reside with husband against which First Appeal No.112/2008

was filed by the wife before this Court. It is also the fact that the husband filed one petition under Section 13(d)([k) and explanation (II) of Hindu

Marriage Act for grant of divorce before the trial Court, which was disallowed and rejected by the trial Court on 04/03/2014 against which First

Appeal No.74/2014 has been filed by the husband.

[5] In First Appeal No.112/2008 filed by the wife, the contentions of learned counsel for the wife are that the husband filed application under

Section 9 of Hindu Marriage Act against the wife and thereby claimed decree of restitution of conjugal rights with the pleading that the marriage of

the appellant and the respondent took place on 21/04/1995 and the appellant is legally wedded wife of the respondent. It was also pleaded that the

wife had deserted the husband for about three years without any justified reason. Notice was given to the wife, despite she denied to reside with the

husband. In the petition, wife pleaded that she was being treated with cruelty by the husband and his family and dowry demand was being made and

she was tortured physically as well as mentally and the husband himself left the wife at her parental house. The wife got registered a case against the

husband under Section 498-A of IPC and she submitted that there is danger to her life in the house of the husband. After framing of issues, trial Court

recorded the evidence of the parties. Both the parties produced their witnesses before the trial Court. The trial Court allowed the application filed by

the husband under Section 9 of Hindu Marriage Act.

 [6] Learned counsel for the appellant-wife has submitted that the judgment and decree passed by the trial Court is contrary to settled principle of

law. The findings given by the Court below on issues No. 1 & 2 are based on misrepresentation made by the husband before the trial Court. The

husband treated her with cruelty and demanded dowry, which compelled the wife to get registered a case under Section 498-A of IPC against her

husband.

[7] Per contra, learned counsel for the respondent-husband opposed the appeal filed by the appellant wife and has submitted that no cruelty was done

against the wife and there was no demand of dowry by the husband.

[8] In First Appeal No.74/2014 filed by the husband, learned counsel for the appellant-husband has submitted that wife has deserted him from last

16 years without any reasonable cause. Before the trial Court, it was submitted by the appellant-husband that the respondent-wife was voluntarily

residing separately without any sufficient reason. Therefore, the husband is suffering from mental agony on account of pressure on the part of the

wife. The husband tried his best to restore the conjugal right, despite the decree already passed in favour of the appellant-husband, the wife denied to

reside with her husband without any justified cause. The husband has further submitted that without his consent, the wife had undergone for

hysterectomy and her intention was not to give birth of child. This act of the wife also comes within the purview of 'cruelty'. Therefore, the decree of

divorce was prayed for.

[9] It is further submitted that the wife has refrained herself to lead evidence in the case registered under Section 498-A, 323 read with section 34 of

IPC and Section 3/4 of Dowry Prohibition Act which has caused mental agony to the husband. The order passed by the trial Court is patently illegal,

without jurisdiction and contrary to its own record. The husband has always tried to live with the wife but the wife willfully deserted him. This reason

is itself sufficient to dissolve the marriage. Therefore, the appellant-husband has preferred this appeal for setting aside the impugned judgment and

decree dated 04/03/2014.

[10] Per contra, learned counsel for the respondent-wife has opposed the submissions of learned counsel for the appellant-husband and prayed for

dismissal of the appeal.

[11] Heard learned counsel for the rival parties and perused the record.

[12] It is pertinent to mention here that both the aforesaid appeals are being decided as per common findings given by this Court in the succeeding

paragraphs.

[13] On perusal of the record of both the appeals, it is apparent that application filed by the husband under Section 9 of Hindu Marriage Act was

allowed by the trial Court vide judgment and decree dated 27/03/2008 wherein, the trial court has observed that the wife was residing separately

without any justified cause and has deprived her husband from conjugal rights. It has also been observed on the evidence produced before the trial

Court that despite various efforts done by the husband, the wife denied to reside with the husband and evidence given by the wife before trial Court is

totally irrelevant and the wife is unable to establish that cruelty was done with her by the husband. The wife has also not proved the fact with regard

to cruelty by any documentary evidence.

[14] In the judgment and decree dated 04/03/2014 passed by the trial Court in matrimonial case No.03/2010, the trial Court has observed that husband

was unable to prove his case . The husband could not prove that his wife had ever denied to establish conjugal rights without any justified cause,

rather observed that dowry demand was made and cruelty was done against the wife by her husband. Therefore, there was sufficient cause available

with the wife for not residing with the husband.

[15] On perusal of the evidence produced by the husband before the trial Court, it is apparent that statement given by the husband that he tried to keep

his wife with him has not been proved, rather wife has stated that she was suffering from illness despite her husband neither came to see her nor got

treated her. On the basis of evidence produced by the parties before the trial court, it has not been established that the wife was residing separately

without any justified cause, rather it is proved that wife was ill and was willfully deserted by the husband. The evidence produced by the husband in

case No.3-A/2010 has rightly been analysed by the trial Court and in our considered opinion, the trial court has rightly rejected the application under

Section 13(d)([k) of Hindu Marriage Act filed by the husband by holding that the husband ill treated his wife and his behaviour towards his wife was

cruel.

[16] In the light of aforesaid discussion, First Appeal No.112/2008 filed by the wife is hereby allowed and judgment & decree dated 27/03/2008

passed by Additional District Judge, Ambah, District Morena in C.S. No.04-A/2007 (HMA) is hereby set aside andF irst Appeal No.74/2014 filed

by the husband is hereby dismissed and judgment & decree dated 04/03/2014 passed by Additional District Judge, Ambah, District Morena in Case

No.03/2010 is hereby affirmed.

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