Smt. Mamta Tiwari vs Devendra Kumar Tiwari

Vijay Kumar Shrivastava, J.—This appeal is directed against the judgment and decree dated 30-9-1993 passed by the Additional Judge to the Court of District Judge Mahasamund, passed in Civil Suit No. 79-A/90, by which allowing the petition, decree of divorce has been granted. The marriage look place between appellant and respondent on 21-5-1989 in accordance with Hindu rites and out of their wedlock, a daughter was born, who is residing with the appellant. Sister of the respondent is married to brother of the appellant. Respondent filed a petition for divorce u/s 13(1)(ia) of the Hindu Marriage Act, 1955 (for short "the Act") for a decree of divorce on the ground of cruelty pleading that the appellant, after marriage came to live with respondent in her matrimonial house, where, her behaviour with her in-laws in the absence of respondent, was not proper. She very often, without taking any permission from his parents, used to go over to her parental house and on being questioned by the respondent, she used to threat that she would commit suicide by taking poison and will put the respondent and his family in trouble. She pressurized the respondent to leave his parents. She made false complaint against him, in her parental house regarding cruelty, on the demand of dowry. She also willfully left the house of respondent and continued to reside with her parents.

Appellant denied all the allegations leveled against her and pleaded that, her brother had come to take her to her parental house to celebrate the festival of Raksha Bandhan, therefore, she came to her parental house. But, respondent did not come to take her back, therefore, she herself had gone to her matrimonial house on 17-8-1989, where her in-laws mis-behaved with her and forcibly, sent her to her parental house. She had always been willing to live with her husband and is still ready to live with him. Neither she made any false allegation regarding demand of dowry nor mis-behaved with her in-laws. She has filed a petition for restitution of conjugal rights in order to live with her husband.

Both the parties, in support of their pleadings, adduced oral evidence. Learned trial Court held that behaviour of the appellant with respondent and his family members was not proper. She had been visiting her matrimonial house without permission. She was married to the respondent by making false statement regarding her educational qualification. She complained against respondent regarding cruelty on the demand of dowry, Appellant caused cruelty to the respondent and there is no chance of re-union of their relations.

Both the parties are heard, record of lower Court perused.

It is pleaded that the appellant, without taking permission with her in-laws was visiting her parental home and on being questioned by her husband, she was threatening that if any restriction is placed on her, in visiting to her parental house, she will consume poison and commit suicide and the respondent and his family will be in trouble. Parents of the respondent are not produced to support the respondent''s case. Devendra Kumar Tiwari (AW 1), in cross examination, deposed that the appellant threatened to commit suicide if she was not kept away from her in-laws, but no such pleading has been made by the appellant in his petition. Sukhchand Mohare (AW 2) deposed that respondent''s father Nagendra Prasad told him that they have not permitted the appellant to move alone and as a result of that, she told that if any restriction is imposed on her, she would consume poison. The said conversation was not made in presence of Sukhchand Mohare (AW 2), and Nagendra Prasad has not been examined to support the said conversation. Ramadhar Dubey (AW 4) deposed that Devendra Kumar Tiwari told him that the appellant has said if she will be forced, she will consume poison. Bhagwani Dhruv (AW 5) in his cross-examination deposed that Mamta Tiwari said that if she will not be allowed to meet her parents, she will consume poison. Surajdhar Dubey (AW 6) deposed that Devendra Kumar Tiwari appraised that if the appellant is forced, she will take poison.

It appears that appellant''s matrimonial house and parental house are not distantly situated, therefore, from time to time, she had been visiting her parental house which her husband and in-laws did not like and opposed the same. As a result of that, she expressed her view that if she will not be allowed to meet her parents, she will commit suicide. This is a natural phenomenon. Neither the husband nor her in-laws has right to restrict any woman to meet her parents.

Devendra Kumar Tiwari (AW 1), respondent deposed that father of the appellant appraised that the appellant is educated up to higher secondary, whereas in reality, she was educated only up to sixth Class. Evidence of respondent itself shows that no fraud has been played by the appellant, as he was not misled by the appellant.

Devendra Kumar Tiwari (AW 1) deposed that he insisted the appellant to go along with him to his place of posting i.e., Amodi, but she refused and said that till his parents stay at Mahasamund, she will not go to any other place, and also said that if he will live separate from his parents, then she will live with him. According to his own statement, he was posted at other place i.e., Amodi, where he was living alone. When he was living separate from his parents, in these circumstances, why his wife will insist him to live separate from his parents.

Respondent pleaded that, appellant, in his absence falsely charged him regarding cruelty for demand of dowry in her parental house. Devendra Kumar Tiwari (AW 1) in his statement deposed that regarding false complaint, he has heard from others but neither he disclosed the name of those other persons, nor examined any of them.

In rebuttal, appellant Smt. Mamta Tiwari (NAW 1) in her examination deposed that without the consent of her in-laws, she never came to her parental house. She never forced her husband to live separate from his parents. She never threatened her husband or her in-laws that she will commit suicide by consuming poison. On 16-8-1989, she came to her parental house to celebrate Raksha Bandhan festival. Her husband and family members did not come to take her back, therefore, after a month she, accompanied with her brother had gone to her matrimonial house. But her in-laws mis-behaved with her and said that without bringing dowry, she can not live in their house. No specific pleading has been raised in her written statement regarding dowry. But, in written statement, she has clearly stated that she has not made any false complaint against her husband and in-laws. Devendra Kumar Tiwari (AW 1) in his statement clearly stated that after 15 August 1989, he did not come to take back his wife, Mamta Tiwari. In-laws of Mamta Tiwari, against whom she has charged in her statement, have not been examined to contradict the same allegations. Devsharanlal Upadhyay (NAW 3) in his statement has supported the fact that Manila Tiwari came to his house to celebrate Raksha Bandhan festival. No one from her matrimonial house came to take her back, therefore, after one month, she, accompanied with her brother Pradeep had gone to her in-laws'' house, but they refused to keep her and sent her to her parental house.

Shashi Bhushan Tiwari (NAW 2), to reconcile the dispute, convened a meeting in which Devsharanlal Upadhyay tendered apology to Devendra Kumar Tiwari, but he insisted to beg apology amongst five hundred people at a common place and left the place.

It is apparent that the evidence adduced by the respondent was contradictory and also material evidence i.e. of parents of the appellant and others have not been adduced. On the contrary, the evidence adduced by the appellant appears to be probable.

It is apparent that appellant and respondent are living separately since 15-8-1989. From the evidence of Devendra Kumar Tiwari (AW 1) it is also apparent that sister of Devendra Kumar Tiwari who is married to the brother of appellant is also living in her parental house since 15-8-1989, and has not returned to her matrimonial house. It is because of that, the brother of the appellant is not keeping the sister of respondent, therefore, respondent too is not interested to keep the appellant with him and it appears that, this is the root cause behind bringing suit for divorce against the appellant.

Appellant very specifically stated that she went to live with respondent and also has substantiated the same pleading by her own evidence. It is also admitted by Devendra Kumar Tiwari in his evidence that appellant has filed an application for restitution of conjugal rights. It appears that the appellant did not want to break the marriage tie and was always ready to live with her husband, but it is the respondent who has deserted his wife.

From perusal of the record, it is apparent that the trial Court did not made any endeavour to bring reconciliation between the parties as envisaged u/s 23(2) of the Act. The said provision is not directive in nature, but the language used in the Section cast a duly on the trial Court to endeavour to bring about reconciliation between the parties. Taking into consideration the nature and circumstances of the case it is evident that the wife is ready to join her matrimonial home. The fact pleaded by the husband, and evidence adduced arc not such in which it was not possible for husband and wife to live together. I am of the view that the behaviour of the appellant, if considered in the realm of the circumstances present in the case, does not come within the edifice of cruelty, therefore, on the ground of cruelty, as well as for non-compliance of Section 23(2) of the Act, no decree of divorce can be passed in favour of the respondent. In the result, the appeal succeeds. The impugned judgment and decree passed by the trial Court is set aside.