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Madan Mohan Sharma vs Smt Manju on 15 January, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
Judgment
D.B. Civil Miscellaneous Appeal No. 1246 / 2016
Madan Mohan Sharma son of Late Sh. Dwarka Prasad Sharma,
presently aged about 40 years, by caste Brahamin, resident of
Bajaria, Mantown, Sawai Madhopur, (Rajasthan).
—-Applicant/Appellant
Versus
Smt. Manju wife of Madan Mohan Sharma and Daughter of Sh.
Gopal Sharma, presently aged about 39 years, Working as Govt.
Servant (Teacher in Grade III), residing at Near Sriji Temple,
Laxmi Colony, Gangapur City, District Sawai Madhopur
(Rajasthan).
—-Non Applicant/Respondent

DB Civil Miscellaneous Appeal under
Section 19 of the Family Courts Act
against the judgment and decree
dated 21.01.2016 passed by Judge,
Family Court, Sawai Madhopur in
Matrimonial Case No.53/2013
(121/2012).

__
For Appellant(s) : Mr. H.P. Singh, Adv.

For Respondent(s) : Mr. D.K. Dixit, Adv.

__
HON’BLE MR. JUSTICE AJAY RASTOGI

HON’BLE MR. JUSTICE DINESH CHANDRA SOMANI
Date :: 15/01/2018

Per Dinesh Chandra Somani J.

The instant appeal has been preferred by the

appellant/husband under Section 19 of the Family Courts Act

against the judgment and decree dated 21.01.2016 passed by the

Judge, Family Court, Sawai Madhopur (hereinafter referred as “the

Family Court”) in Matrimonial Case No.53/2013 (121/2012),
(2 of 13)
[CMA-1246/2016]

whereby the petition filed by the appellant/husband under Section

13 of the Hindu Marriage Act for seeking divorce, was dismissed.

The skeletal material facts necessary for disposal of this

appeal are that on 08.10.2012, the appellant/husband has filed

petition under Section 13 of the Hindu Marriage Act (hereinafter

referred to as “the Act”) in the Court of learned District Judge,

Sawai Madhopur for seeking divorce on the ground of cruelty and

desertion, which was later on transferred to the learned Family

Court, Sawai Madhopur. The appellant submitted the petition with

averment that marriage of the appellant with the respondent was

solemnized according to Hindu rites and customs on 09.03.2003 in

Gangapur City District Sawai Madhopur. Thereafter, the

respondent/wife started living with the appellant/husband in

Bajaria, Sawai Madhopur. Out of the wedlock, the respondent gave

birth to two female children namely Ms. Shanu aged 8 years and

Ms. Peeu aged 6 years in Government Hospital, Sawai Madhopur,

who are presently living with the respondent/wife in Gangapur

City. The respondent/wife denied to give custody of both the

daughters to the appellant/husband.

The appellant/husband has also pleaded that the respondent

is B.A, S.T.C. and before the marriage, she was employed as a

para teacher in villager Naipur. After the marriage, the

respondent/wife was appointed as a permanent government

teacher and is presently posted in Raipur. The appellant/husband

is only 12th pass. It is also pleaded that the appellant and his

parents gave certain jewellery to the respondent/wife at the time

of marriage, which is with her and detail whereof is mentioned in
(3 of 13)
[CMA-1246/2016]

para 5 of the petition. The appellant/husband also pleaded that

after getting appointment as a permanent government teacher in

July-2007, the respondent/wife left the matrimonial home

alongwith the jewellery, all the clothes and daughters, saying that

she is going to join the service. Thereafter, the respondent/wife

never returned to the appellant in her matrimonial home i.e.

Bajaria, Sawai Madhopur. It is also pleaded that the

respondent/wife is continuously serving as a government teacher

since July, 2007 and is living with her parents in Gangapur city.

During this period, the appellant contacted the respondent several

times through telephone and requested her to come back to the

matrimonial home at Bajaria, Sawai Madhopur, but the

respondent/wife used filthy language and became aggressive

saying that she cannot spend the life with the appellant as he is

only 12th pass. The appellant wanted to talk to the daughters also

on telephone but the respondent/wife did not allow him.

The appellant/husband has further pleaded that the

respondent is under influence of her parents, who usually deny

her to live with the appellant. It is also pleaded that since

beginning, behaviour of the respondent/wife with parents of the

appellant is not good. Father of the appellant died in January-

2004, even then the respondent/wife used to scold the appellant

and his widow mother on petty matters and insulted them using

filthy language. The respondent/wife insulted the appellant and his

widow mother several times in presence of his friends using filthy

language. Once the respondent/wife threw a cup of tea upon the

appellant/husband in presence of his friends. The respondent used
(4 of 13)
[CMA-1246/2016]

to give threat to commit suicide by hanging or poisoning. It is also

pleaded that the respondent/wife has deserted the

appellant/husband for last five years and prayed to grant decree

of divorce in favour of the appellant dissolving the marriage

solemnized on 09.03.2003.

The respondent/wife filed her written statement admitting

the fact of marriage and giving birth to two daughters out of the

wedlock and denied all the allegations levelled by the

appellant/husband with regard to cruelty and desertion as pleaded

in the divorce petition. It is stated by the respondent/wife that the

appellant/husband himself has deserted the respondent/wife and

he never taken care of the respondent and the daughters. It is

also stated that the appellant used to give beatings to the

respondent/wife saying that she is fatty and not beautiful, as such

he does not like her and he will bring another wife. The

respondent/wife also pleaded that the appellant/husband himself

left the respondent to her parents house saying that he will take

her back as soon as he finds a job. It is also stated that the

appellant dislikes the respondent because she did not give birth to

a male child. The appellant/husband used to torture the

respondent on instigation of his mother. The respondent/wife is

always ready to live with the appellant. She considers the

appellant/husband to be god but the appellant never took care of

her and she prayed to dismiss the divorce petition filed by the

appellant/husband.

On basis of the pleadings of the parties, learned Family Court

framed the following issues :-

(5 of 13)
[CMA-1246/2016]

1. Whether the respondent has teated the appellant with

cruelty as mentioned in the petition so as to entitle him

for a decree of divorce?

2. Whether the appellant and respondent are living

separately since year 2007 so as to entitle the

appellant/husband for decree of divorce?

3. Relief?

In support of the divorce petition, the appellant/husband

filed affidavits of AW-1 Madan Mohan Sharma, appellant himself

and AW-2 Sitaram Sharma. Copies of the affidavits were provided

to the respondent/wife, who cross-examined the witnesses on

their affidavits. In defence, the respondent/wife filed affidavit of

NAW-1 Manju herself. Copy of the affidavit was provided to the

appellant/husband, who cross-examined the respondent/wife on

her affidavit.

The learned Family Court after evaluating and appreciating

the evidence available on record and after hearing both the

parties, arrived at the conclusion that the appellant/husband has

failed to prove that he was treated by the respondent/wife with

cruelty and has also failed to prove that the respondent/wife has

deserted the appellant/husband without any reasonable excuse

and, decided issue No.1 and 2 against the appellant/husband and

dismissed the divorce petition filed by him.

Feeling aggrieved with the impugned judgment and decree

dated 21.01.2016, the appellant/husband has filed the present

appeal.

(6 of 13)
[CMA-1246/2016]

Mr. H.P. Singh, learned counsel for the appellant/husband

submitted that the respondent/wife is living separately from July,

2007 and since then the parties are not living like husband and

wife. Learned counsel also submitted that behaviour of the

respondent/wife towards the appellant/husband is not like that of

a wife and she behaved cruelly with the appellant and his widow

mother.

Learned counsel also submitted that parties are living

separately for last 7 years and more therefore, there is no

possibility for them to live together in future because of the

disputes and difference in their educational qualification. Learned

counsel further submitted that the respondent/wife is not ready to

live with the appellant/husband as he is less educated person,

therefore, decree of divorce should have been granted in favour of

the appellant but the learned Family Court has ignored all the

prevailing circumstances and dismissed the divorce petition in a

casual manner, therefore, the impugned judgment deserves to be

interfered by this Hon’ble Court.

Learned counsel for the appellant also submitted that the

appellant/husband has established his case that behaviour of the

respondent/wife towards him and his mother was not normal,

rather she treated them with cruelty and the respondent is living

separately willfully without reasonable excuse, thus decree of

divorce should have been granted. But the learned Family Court

disbelieved the submissions of the appellant/husband without any

material on record to come to adverse conclusion and thereby

committed grave error. The learned Family Court overlooked all
(7 of 13)
[CMA-1246/2016]

the material placed before it by the appellant and passed the

impugned judgment, which deserves to be set aside.

Learned counsel for the appellant further submitted that it is

crystal clear that the appellant has strong prima-facie case in his

favour for a decree of divorce and prayed to quash and set aside

the impugned judgment passed by the Family Court and to grant a

decree of divorce allowing the petition for dissolution of marriage

filed by the appellant/husband.

We gave our anxious consideration to the submissions of

learned counsel, gone through the record made available to us

and relevant legal provisions.

In substance, the appellant/husband in his petition for

divorce has pleaded certain incidents, which according to him,

constituted cruelty within the meaning of Section 13(1)(i-a) of the

Act entitling him to claim dissolution of marriage against the

respondent/wife.

The first ground of cruelty alleged by the appellant/husband

is that the respondent/wife was appointed as permanent

government teacher in July, 2007 and since then she is living with

her parents in Gangapur City. During this period, the appellant

called the respondent/wife several times through the telephone

requesting her to come back to matrimonial home but she used

filthy language and became aggressive. The respondent/wife

taunted that she cannot spend life with the appellant, as he is 12 th

pass only. The respondent/wife did not give access to the

appellant to talk to their daughters on telephone. Respondent/wife

denied all the allegations. The allegations are general in nature
(8 of 13)
[CMA-1246/2016]

with no details. In this respect, the appellant/husband did not

produce any documentary evidence with regard to details of the

telephone calls allegedly made by him to the respondent/wife. In

respect of his contentions, the appellant examined AW-2 Sitaram,

who is his real brother and as such he is an interested witness.

The appellant did not examine any independent witness to

substantiate the allegations. The appellant has stated in his cross-

examination that he did not produce details of the phone calls

made by him to the respondent/wife. The appellant has also

stated that he does not remember the phone number of the

respondent. The appellant further stated that he never reported

the matter of respondent’s misbehave to the police. The appellant

admitted that the respondent/wife is much qualified than him,

therefore, he keeps inferiority complex.

AW-2 Sitaram admitted in his cross-examination that no

conversation took place between the appellant and the

respondent/wife since year 2007. The witness also stated that the

incidents of abusing and misbehave by the respondent, occurred

prior to year 2007.

The respondent/wife denied all the allegations in her affidavit

and deposed in her cross-examination that she is ready and willing

to give custody of the daughters to the appellant/husband, if he so

desires. The respondent/wife in her cross-examination has denied

the suggestion that she ever quarreled with her mother-in-law and

husband.

According to the pleadings and deposition of the appellant,

he made several phone calls to the respondent/wife after July,
(9 of 13)
[CMA-1246/2016]

2007 till the date of filing of the divorce petition (i.e. 08.10.2012),

then the respondent/wife became aggressive and abused him

using filthy language, whereas AW-2 Sitaram deposed that the

incidents of abusing and misbehave by the respondent occurred

prior to year 2007. From deposition of AW-2 Sitaram, it reveals

that he has no personal knowledge about the dispute between the

parties and he is a hearsay witness only.

The second ground of cruelty is about the respondent’s

behaviour with the appellant and his parents. The appellant

alleged that since beginning, behaviour of the respondent/wife

with the appellant and his parents is not good. After the death of

appellant’s father, the respondent/wife used to abuse and scold

him and his mother and thereby she insulted them. The appellant

has also alleged that the respondent used to insult the appellant

and his mother using filthy language in presence of his friends and

relatives and such type of her behaviour was recurring and

continuous. The respondent/wife denied the allegations. The

allegations are general in nature with no details. In this respect,

the appellant/husband did not examine his friends and relatives in

whose presence, the respondent/wife ever abused and insulted

the appellant and his mother. The appellant did not disclose the

names of his friends and relatives in whose presence, the

respondent has allegedly misbehaved, abused and insulted the

appellant and his mother. Even, the appellant did not examine his

mother to substantiate the allegations. The appellant/husband

neither made any efforts to examine his friends, relatives and

mother to substantiate the allegations nor offered any explanation
(10 of 13)
[CMA-1246/2016]

for not producing/summoning them in the Court for cross-

examination by the respondent/wife.

The third ground of cruelty alleged by the appellant is that

the respondent/wife used to abuse the appellant and insulted him

several times in presence of his friends. He also alleged that once

the respondent/wife threw a cup of tea upon the appellant in

presence of his friends. The respondent/wife denied the

allegations. The allegations are general in nature with no details.

In this respect, AW-2 Sitaram, real brother of the appellant

has corroborated the statement of the appellant but the appellant

did not examine any of his friends who witnessed the alleged

incident. Even the appellant did not examine any of his neighbour

to substantiate the allegation of the respondent’s misbehaviour.

The forth ground of cruelty alleged by the appellant is that

the respondent used to give threats of committing suicide by

hanging or poisoning. The respondent/wife denied the allegation.

The allegation is general in nature with no details. The appellant

did not produce any specific evidence in support of the allegation.

A bare perusal of pleadings of the parties, reveal that almost

all the grounds of cruelty taken by the appellant/husband in his

petition for dissolution of marriage are stale. The allegations are

general in nature with no details i.e., when and where the

incidents took place, who witnessed the incidents and what was

the background of such incidents. The allegations of cruelty

levelled by the appellant/husband are vague. Mere plea of the

appellant/husband that behaviour of the respondent/wife towards

him and his parents was cruel and rude, does not establish the
(11 of 13)
[CMA-1246/2016]

cruelty as defined by Hon’ble Apex Court in case of Samar Ghosh

versus Jaya Ghosh reported in (2007) 4 SCC 511.

As discussed above, the alleged misbehaviour of the

respondent/wife is not found to be proved by reliable evidence to

persuade the Court to grant decree of dissolution of marriage.

The next ground of dissolution of marriage taken by the

appellant/husband is that the respondent/wife has deserted him

and they are living separately since year 2007 so as to entitle him

for decree of divorce. The respondent wife has denied the

allegation of desertion levelled by the appellant. Indisputably, the

respondent/wife was appointed as permanent government teacher

in Gangapur City in the month of July, 2007 and, since then, the

parties to the lis are living separately. Case of the

appellant/husband is that he made several phone calls to the

respondent/wife to come back to the matrimonial home but she

did not return and is living with her parents, thereby she deserted

the appellant since then. The respondent/wife denied averments

of the appellant and stated that the appellant/husband himself has

deserted her, because he dislikes her and wants to marry with

another lady, whereas she is ready and willing to live with him.

In this respect, the appellant has admitted in his cross-

examination that he never took care of his daughters since the

year 2007. The appellant also deposed that the respondent/wife

did not seek her posting as per his wish, rather she took posting

as per wishes of her parents. The appellant in his cross-

examination has admitted that government servant cannot leave

his headquarter without permission of his officer. Admittedly, the
(12 of 13)
[CMA-1246/2016]

respondent/wife is serving as a teacher with Rajasthan

Government and is posted at Gangapur City and because of that

she is living at place of her posting, which is sine qua non for a

government job and is a reasonable excuse for the respondent to

live away from her matrimonial home.

It reveals from the statement of the appellant that prior to

July-2007, the respondent was posted as para teacher in Village

Naipur and she was living there. It also reveals that the appellant

used to visit the respondent/wife in village Naipur once in three

days. It also reveals that village Naipur is 60 KMs away from his

residence and the present place of posting i.e. Gangapur City is 70

KMs away, but since 2007 the appellant/husband never went to

Gangapur City to take care of the respondent/wife and the

daughters. This is not the case of the appellant that it is not

possible for him to live with the respondent/wife due to nature of

his work, rather he stated that he is unemployed.

To amount to a matrimonial offence, desertion must be

without reasonable cause and, without consent and wish of the

petitioner, but there is no material on record to prove the

allegation that the respondent/wife would have willfully deserted

the appellant/husband.

In view of the above, it is proved that the respondent/wife

has not withdrawn from the society of the appellant/husband and

she is living at the place of her posting, which is basic requirement

of her job and is a reasonable excuse for her to live away from her

matrimonial home and the appellant/husband has failed to prove

that the respondent/wife has withdrawn from the society of the
(13 of 13)
[CMA-1246/2016]

appellant and has willingly deserted him.

In view of the discussions made above, the

appellant/husband has utterly failed to prove both the grounds i.e.

cruelty and desertion by the respondent/wife so as to entitle him

to get decree of divorce against the respondent/wife.

Learned counsel for the appellant also contended that a

decree for dissolution of the marriage ought to have been passed

because this is a case of irretrievable breakdown of the marriage,

as the parties are living separately for more than seven years and

there is no possibility of their reunion. We are in complete

disagreement with the contention, because irretrievable

breakdown of marriage, by itself, is not a ground for dissolution of

marriage under the Hindu Marriage Act, 1955.

The learned Family Court has evaluated and appreciated the

evidence available on record in right perspective and came to a

right conclusion that the appellant/husband has failed to prove

that he was treated by the respondent with cruelty and has been

deserted by her without any reasonable excuse and dismissed the

petition accordingly. We do not find any illegality or impropriety in

the impugned order, which call for our interference. We find no

substance in the appeal.

Consequently, the appeal is dismissed. No costs.

(DINESH CHANDRA SOMANI),J. (AJAY RASTOGI),J.

Manish/

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