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Smt Savita vs Pankaj Meel on 24 May, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

D.B. Civil Miscellaneous Appeal No.849/2015

Smt.Savita aged about 32 years W/o Shri Pankaj Meel, D/o Shri
Banwari Lal Jat, by caste – Jat, R/o 47, Surya Nagar, Murlipura
Scheme, Jaipur (Raj.).
—-Appellant
Versus
Pankaj Meel aged about 34 years S/o Shri Ramlal Meel R/o Shri
Gulzari Lal Punia, Plot No.170, Shiv Nagar IInd, Murlipura
Scheme, Jaipur (Raj.).
—-Respondent

For Appellant : Ms.Namita Parihar
For Respondent : Mr.Anshuman Saxena

HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE G R MOOLCHANDANI

Judgment

Judgment reserved on : 16/05/2018
Judgment pronounced on : 24/05/2018

BY THE COURT (Per : Hon’ble the Chief Justice)

*****

1. The appellant is aggrieved by the judgment dated

13/02/2015 granting decree of divorce in favour of the respondent

holding that the evidence brings out that both spouses committed

acts of mental and physical cruelty against each other.

2. The facts in brief are that the respondent-husband filed

Divorce Petition No.464/2011 in the court of learned Judge Family

Court No.1, Jaipur City, Jaipur seeking divorce from the appellant-

wife u/S.13 of the Hindu Marriage Act, 1955 on the ground of

cruelty.

3. Respondent Pankaj Meel in his plaint has stated that

their marriage was solemnised according to Hindu rites on
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11/07/2008. After marriage the reception was organised on

12/07/2008 at Plot No.47, Surya Nagar, Murlipura Scheme,

Jaipur. The respondent has obtained a Bachelor’s Degree,

Master’s Degree followed by a Bachelor Degree in Education, MBA,

M.Phill and Ph.D. He is a Lecturer in Rajasthan Institute of

Engineering and Technology in Jaipur. After marriage, parents of

the appellant took the appellant with them at Baroda on

15/07/2008. On 16/08/2008 when he reached Baroda to fetch

her, the appellant told him that since birth she had lived in

Gujarat and her parents were residing in Baroda and she was

unhappy living with him in Jaipur and desired to live in Baroda.

She forced him to get a job in Baroda. The respondent counselled

the appellant telling her that he is the only son and he has to look

after his parents in Jaipur to which the appellant retorted that she

was not desirous of becoming a part of his family. That as time

passed the attitude of the appellant turned hostile. She started

using abuses and taunting such as calling him eunuch, of low

mentality and that he was not born to his parents. That she would

call his mother a prostitute. On 17/08/2009 he brought the

appellant to Jaipur. In November 2008 she quarreled with her

parents and insisted to go to Gujarat. Respondent’s father

informed the appellant’s father over the telephone about the

appellant’s attitude, and he took the appellant to Gujarat because

of some marriage in their family. After eight days the appellant

returned to Jaipur with her parents. He reached the bus stand to

bring the appellant and her parents to his house. On reaching the

bus stand appellant told respondent in anger why he reached late.

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She went back to Baroda. In January 2009 he reached Baroda to

fetch appellant. Initially she refused but on persuasion came to

Jaipur. On 03/08/2009 she fought with him and inflicted scratch

marks on his body. The next day i.e. on 04/08/2009 Jaipal Singh,

respondent’s paternal uncle visited the house. The appellant came

out of her room abusing generally and slapped respondent’s

mother in kitchen. On 05/08/2009 appellant’s father accompanied

by 5-6 relatives came to hold a meeting. Nothing fruitful emerged

at the meeting. Due to tension created by the appellant in the

family, on 13/08/2009 respondent’s father suffered a heart attack

and had to be admitted at Tongia Hospital, Jaipur. When he

brought his father back to the house the appellant fought. The

appellant lamented as to why his father did not die due to heart

attack. On 21/11/2009 appellant’s father visited the matrimonial

house without any prior intimation. He said that he would be

taking the appellant with him. The appellant packed her clothes in

three suitcases. She was in the family way at that time. The

respondent asked the appellant as to why she was carrying three

suitcases with her because as per her she was going to her

parental house for few days. He told her that the delivery should

take place in Jaipur. A male child was born on 16/02/2010.

Marriage of appellant’s cousin brother was to be solemnised on

10/12/2010 at Jhunjhunu and on 09/12/2010 she told the

respondent to accompany her to the marriage but he told her that

upon leave being granted he would attend the marriage else she

would have to go alone; at this, the appellant got annoyed and

kept abusing his parents throughout the day. When he came to
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the house in the evening she fought with him and pulled his hair.

As his parents intervened the appellant bit his father on the thigh.

On 12/01/2011, she inflicted a ‘musli’ blow on the face of his

father. Ghasi Ram Poonia, a neighbour intervened and tried to

convince them but to no avail. On 22/04/2011, the respondent’s

family returned the dowry articles in presence of Ghasiram, Jaipal

Singh, Ram Singh, Sukhveer Singh and Gulzari Poonia. On

30/05/2011 at 9-9.30 p.m. the appellant physically assaulted him

and called the police and got him arrested on the same day. His

medical check was done at Kanwatia Hospital on 31/05/2011 and

thereafter he was granted bail.

4. In the reply filed appellant Smt.Savita denied the

assertions as made in the petition. She admitted holding a degree

in BCA as well as in MCA and employed as a Lecturer Computer

Science in NIMS University in Jaipur. She admitted that son

Shomanshu was born out of their wedlock and after marriage for

some time they lived under the same roof i.e. at Flat No.47 as

husband and wife during which period no dispute arose and hence

petition for divorce was filed on concocted grounds. The entire

delivery expenses was borne by her parents and neither her in-

laws came to meet the child nor expressed happiness. She came

to the matrimonial house on 17/08/2008 giving respect to her in-

laws and behaving with them in well manner. Her in-laws are un-

civilized persons. Bald allegations were levelled against her, which

she is bearing for a long time to maintain her married life. No ring

was given on her birthday nor her in-laws persuaded the

respondent to do so. When she told her-laws that she was in the
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family way they got annoyed and beat her saying as to from

whose permission she went out and whose child she has brought

in their house. She should abort the child otherwise they will not

allow her to live in the house. She informed her parents and they

tried to talk to his in-laws but despite this, on 08/08/2009 her in-

laws beat her by kicking on her abdomen. They called her a

prostitute and told her parents to take back their daughter with

them. Thereafter, her father and other relatives came to her

matrimonial house to resolve the issues, but her in-laws remained

adamant. They demanded money deposited in the name of the

appellant in a Fixed Deposit in the bank for purchasing a flat

threatening that in case the demand is not fulfilled, the

respondent will divorce her. Her father is engaged in the business

of money lending and when on 13/08/2009, her father asked one

loanee to return `2 lacs borrowed to him, he refused to return the

same. Resultantly, her father-in-law suffered heart attack. No

medical care was taken at the time of her pregnancy. Proper food

was also not given to her. Despite complaint made by her to his

parents, nothing fruitful came out. Rather, her in-laws stated that

it would be better if premature delivery is done so that unwanted

child may not be born in the family and saying this, she was

thrown out of the matrimonial house. Her parents then took her

with them to their house. On 16/02/2010 she gave birth to a male

child. She alleged that her in-laws used to tease her about the

legitimacy of the son born to her. On 10/10/2010, the respondent

and her in-laws beat her. When she asked the respondent to

accompany her to the marriage of her cousin brother he told her
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that upon half day leave granted he would accompany her but he

did not take leave and did not attend the marriage and when she

asked over the phone the reason of not attending the marriage,

she was subjected to beatings. Her father-in-law attempted to

commit rape upon her. He demanded a sum of `20 lacs

threatening that in case demand is not fulfilled they would kill her

child. On 12/01/2011 her child got seriously ill but he was not

brought to the hospital nor any money was given to her for his

treatment. Rather, she was subjected to beatings by ‘musli’ by her

in-laws and called the police. Police saw that her child was

vomiting and rather scolded her in-laws saying that how inhuman

persons they are and tried to advise them to take care of the child

but to no avail. A meeting was organised at the house of

Ghasiram Poonia at the instance of her father-in-law and Tau

Jaipalji, wherein it was resolved that Savita, daughter-in-law of

Ramlalji will stay in Flat No.47 but her father-in-law stated that

they will not allow her child to stay at the house. In such a

situation she was left with no other alternate except to leave the

child at her parental house for the day. The dowry articles were

also not returned to her. When she purchased Fridge and Cooler

on her own and brought them at the matrimonial house she was

subjected to maltreatment and beating. They also beat her child

aged 1½ years. Police also witnessed this incident; thereafter

arrested the respondent. In March 2009 when appellant’s father

retired, her in-laws built pressure upon her to bring her share

from her father otherwise they will kill her. On 23/05/2009 when

appellant’s father came to Jaipur, her in-laws started demanding
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dowry saying that the appellant is entitled to receive her share

from the property of her father. Threat was given that in case the

demand is not fulfilled the appellant will be divorced and they will

get the second marriage of their son performed so as to get the

dowry of `1 crore from this second marriage. On 24/05/2009, in

the presence of her father, her mother-in-law Kaushalya Devi

started maltreating her. On 07/06/2009 she returned to her

matrimonial house and on the very next day i.e. on 08/06/2009

when her parents were about to return to Baroda, the respondent

abused her by using the word ‘prostitute’ and demanded more

money. He demanded `50,000/- on the expenses incurred in the

premature delivery. When she refused to fulfill the demand, her

in-laws subjected her to beating. When she made complaint to her

parents, they returned from Phulera to Jaipur and tried to

convince her in-laws but they remained adamant on the demand

of dowry. On 28/06/2009 her father, Bhagirathji and Prashant

Meel also came to her matrimonial house to convince her in-laws

but they were insulted and were told that they will divorce this

prostitute. Presently she is residing at Flat No.47 along with her

son, which was purchased in the name of the respondent. on

18/10/2010 the patta thereof was got returned in the name of his

mother Kaushalya Devi depriving them from their inherited

property rights. A civil suit in this regard has also been instituted

in the competent court, wherein an injunction has also been

granted. She lived with the respondent in the matrimonial house

till 25/06/2011. On 25/06/2011 her in-laws shifted to Flat No.121,

Shiv Apartment at Vidhyadhar Nagar. On 09/07/2011 at the
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askance of her mother-in-law electricity connection of the house

wherein the appellant was living was got disconnected. She

instituted a case under the Domestic Violence Act. She apprised

her father and brother Ramesh vide letters dated 21/09/2009 and

23/09/2009; thereupon, her uncle Laxminarayan ji came to her

matrimonial house on 28/09/2009 and requested her in-laws not

to ill-treat her because she was pregnant and further requested

them to get her medical check up done but they refused to do so

saying that they do not have enough money to incur on the

medical treatment of this prostitute. Her father-in-law told her

uncle that he will kick her out. The respondent demanded `20 lacs

out of `1 crore received by her father after his retirement.

5. To prove his case respondent Pankaj Meel as PW-1 in

his statement stated that he was married to the appellant on

11.07.2008 as per Hindu Customs at Jhunjhunu and during the

wedlock a son named Somanshu was born. After marriage the

appellant went back to Baroda. On 15.08.2008 when he went to

Baroda to bring her back the appellant said that she is a literate

lady and wants to live at Baroda and also tried to persuade him to

live with her, whereupon he told her that his parents are very old

and he cannot live at Baroda leaving them alone. The appellant

returned with him to Jaipur. But said that she does not intend to

become a member of his family. She used to quarrel with his

parents and insisted to be sent her back to Baroda. She oftenly

used to abuse him calling him eunuch and his mother to be a

prostitute. In November the father of the appellant took her back

and eight days thereafter when he went to the home of his in-laws
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she started quarreling with him saying why he has come so late.

In November, 2009 he went to Baroda on the occasion of birthday

of the appellant and gifted her a golden ring. She again asked him

to live at Baroda and her father also insisted for the same, upon

which he declined to do so. The appellant again accompanied him

to Jaipur and once again started quarreling with him. She

scratched him with her nails. She was behaving in such a way only

to return back to Baroda. Looking to the seriousness of the issue

he called his uncle (tau) and when his uncle reached home his

mother was in the kitchen making tea where the appellant slapped

her calling her prostitute etc..

On 05/08/2009 they called appellant’s father and her

other family members. Appellant’s father again insisted upon him

to live with them at Baroda if he wants to live a happy life. Due to

such a tensed atmosphere his father suffered heart attack and

was rushed to Tongia Hospital. After discharge from hospital when

they came back to home the non-applicant lamented as to why his

father did not die due to heart attack. Despite all this she was

living with them. He further stated that on 21/11/2009 appellant’s

father visited their house and requested to take his daughter back

to Baroda for 10 days, whereupon respondent said that she is

pregnant and should deliver a child at Jaipur but she refused to do

so and went back to her paternal house. She again returned back

to Jaipur on 10.10.2010 along with her father and 10-15 other

persons. The appellant and her father gave beating to him and his

mother and threatened to kill them. On 10.12.2010, on the

occasion of marriage of her cousin, they insisted him to
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accompany her whereupon he stated that he would accompany

her if leave is granted to him, otherwise she should go alone.

When he returned to the house in the evening she hit him with

helmet, pushed his mother and father and also bit his father on

the thigh. She started quarreling saying that she would live here

only if they transfer their property in her name.

On 12.01.2013, when his Fufa Ram Singh came to

persuade the appellant she again insisted to live separately and

not with his parents. Thereafter she inflicted an injury with ‘musli’

(an iron small rod being used in the kitchen for crushing the

spices) on his father’s face. On 18.01.2011, their neighbor

Ghasiram also came to persuade her but she insisted that she

would live separately in half portion of their house and would not

allow her husband to talk to his parents. On 18.01.2011 she

shifted to said half portion of the house along with their son. The

respondent returned all dowry items on 22.04.2011. In the

evening of 30.05.2011 when he returned to the house the

appellant again started quarreling and abusing him. On the

asking of her father she got him arrested. That in these

circumstances he suffered mental cruelty and does not want to

live with the appellant. He stated that in support of his averments

he also produced the photos and medical reports on record.

6. In his cross-examination, PW1 stated that it is

wrong to say that non-applicant intends to live at Jaipur. It is also

wrong to say that on 03.02.2009 a quarrel took place between

them on the issue of FD ATM. The appellant does not intend to

live with him and wants to go back to Baroda and on account of
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this she scratched him with her nails. He denied that appellant

does not intend to go Baroda forcibly. He denied the suggestion

that there was understanding between the appellant and his

mother that in the morning the appellant and in the evening his

mother would cook the food.

7. Ramlal, father of the respondent as PW2 stated that in

August, 2008 his son got married with the appellant. Since

beginning appellant started calling his son to be eunuch and his

wife to be a prostitute. She oftently used to abuse them. He and

his brother always tried to persuade her but failed. On 03.08.2009

she scratched his son with nails. On 04.08.2009 when his brother

was at their home the appellant slapped his wife in the kitchen.

She called her father, who came to their house on 05.08.2009

along with 5-6 other persons. That he narrated the incident of 3 rd

and 4th August to her father who admitted to the guilt of his

daughter. Her father threatened them to send the entire family to

jail. He also suffered heart attack on 13 th August due to such a

tense atmosphere and when he returned back from hospital

appellant said why he did not die due to heart attack. (He has also

placed on record the documents regarding heart attack suffered

by him). On 01.11.2009 father of the appellant came to their

house and took her back with all personal clothes. In February,

2010 the appellant gave birth to a child in Ashoka Hospital and

when he and his son went to the hospital to meet the appellant’s

father demanded the money spent on her delivery whereupon he

given `20,000/- to him. In October, 2010, the appellant, her

father along with 15-16 other persons came to their house and
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abused them and also broke the gates. They also lodged a report

about this incident. In December, 2010 when the respondent

returned from college she hit him with helmet and when his wife

intervened the appellant gave beating to her also. When he tried

to intervene she bit him on his thigh. In January, 2011 when his

sister’s husband (jijaji) and his wife were sitting the appellant

started abusing them and also inflicted a blow with ‘musli’ on his

face which resulted in bleeding. On 18.01.2011, appellant’s father

pressurised him and his son that she would live separately and

also insisted upon his son not to contact his parents. On

30.05.2011 appellant scratched his son with nails and made a

false report to the police and got his son arrested. She threatened

them that with the help of ‘Gundas’ she would throw them out

from their house. The appellant is presently living in their house.

Due to cruel behaviour of the appellant they have separated our

son.

8. With respect to the cross-examination of this witness

we find that except for giving suggestions as per her written

statement, no serious attempt has been made to discredit the

witness and needless to state the suggestions made by the

appellant have been denied by the witness.

9. Guljari Lal, a neighbour, who appeared as PW3 deposed

that he resided near the house of the parties. Often as he passed

by the matrimonial house of the parties he heard appellant

abusing her in-laws. He had witnessed the incident where

appellant accompanied by 15-16 persons came to the house

where the couple resided and abused the in-laws of the appellant.

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One day appellant hit her husband with a helmet and when his

father heard, he tried to intervene. But refrained from doing so.

During cross-examination he admitted that he was present at

some meetings held between the parties and denied the general

suggestions made to him.

10. Appearing as defence-witness appellant deposed facts

as pleaded by her in her written statement. She denied the

suggestions put to her with respect to the incident pleaded by the

respondent in the petition seeking divorce.

11. Appellant examined one Bhagirath Meel who is the

father-in-law of the elder sister of the appellant. As per him,

dowry was the sole reason behind the dispute between the

parties. As per him, after appellant’s father retirement,

respondent’s family demanded more money. He attended various

meetings to resolve the issue but failed. General suggestions

made to the witness during cross-examination have been denied

by him. Hanuman Singh a family friend appeared as DW3. His

testimony only brings out that he was a part of the team which

tried to mediate but failed.

12. Prashant Meel a relative of the appellant appeared as

PW4 and said that at the time of marriage appellant’s parents

spent nearly `30 lacs. As per him, on 03/08/2009 appellant’s

father rang from Baroda requesting him to reach the appellant’s

house immediately because appellant had informed her father that

she was being beaten. When he reached the matrimonial house he

saw that the respondent and his mother were beating the

appellant. He deposed that he attended 8-10 meetings held
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towards reconciliation at which meetings the respondent and his

father admitted to their guilt and assured not to repeat the

behaviour. As per him, after appellant gave birth to a child her

father informed him. He reached the hospital. Information of the

birth was given to the respondent and his father. They did not visit

the hospital. That respondent and his parents used to call the

appellant as a prostitute and used to raise issue of legitimacy of

the child born. At the meeting held at Ghasi ji Punia’s house it was

decided that a fixed deposit in the name of the appellant would be

given to the respondent’s father who would return the jewelry to

the appellant. The settlement was reduced in writing.

Respondent’s father did not accept the cheque which was returned

by Mr.Punia that it was decided that couple will live in the same

house by having a separate kitchen.

13. Relevant would it be to highlight that general

suggestions given to the witness in cross-examination have been

denied by him.

14. Banwari Lal, father of the appellant deposed as DW5

and deposed facts in support of his daughter. General suggestions

made to her during cross-examination have been denied by the

witness.

15. The learned Judge Family Court has returned a finding

that the evidence establishes both the parties indulging in mutual

bickering and inflicting cruelty against each other. In cases of the

kind oral depositions of the parties tends to be full of

exaggerations. In the instant case no bickering cross-examination

of any witness as cause of handicap for the reason we have our

basis to mass of oral evidence giving the rival version. But we
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want to highlight certain facts which in our opinion would clinch

the issue.

16. In para 15 of the petition seeking divorce the

respondent pleaded that on 09/12/2010 when he returned home in

the evening his wife injured his mother and when his father

intervened she bit him on right thigh. Ramlal as PW2, respondent’s

father has corroborated this version. In support of the version he

has placed on record a photo of his right thigh as also the medical

prescription. With respect to this incident appellant has pleaded

that on said date her father-in-law attempted to rape her by

removing his pant. She managed to free herself from her clutches.

It is apparent that same incident took place on 09/12/2010 and it

is difficult for the Court to believe that her father-in-law would

attempt to rape his daughter-in-law and that too when his wife

was present in the house. In this connection, it would be relevant

to highlight that in her examination-in-chief the appellant has not

uttered a word on oath that her father-in-law attempted to rape

her. This raises a finger of doubt about the correctness of her

version in her pleadings. It brings out a false allegation of serious

nature being made by the appellant against the respondent’s

father.

17. We find that in para 19 of the petition respondent

pleaded facts pertaining to he being booked in the police station

implicated in a case after he was beaten and he being arrested at

the behest of the appellant and her father. In examination-in-chief

he deposed too this incident which took place on 30/05/2011.

Arrest Memo dated 30/05/2011 and proceedings initiated under

Section 107/116 Cr.P.C. establish the same but we have the
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respondent’s medical examination report when he was examined

at Kanwatiya Hospital, Jaipur on 31/05/2011 as an outdoor patient

which shows that respondent was the victim of an assault. It also

assumes importance to note that in her written statement the

appellant stated that she was subjected to beating many times

before 30/05/2011 but during cross-examination stated that for

the first time she was beaten on 30/05/2011. It is also relevant to

note that in her reply the appellant claimed dowry demands when

she came to her matrimonial house in Jaipur after marriage but in

her statement on oath deposed that dowry demand was made

over telephone when she was in the house of her parents.

Concerning no injury suffered by her on 12/01/2011, when as per

the written statement filed the appellant claimed to be injured by

‘musli’ by her father-in-law we find that in cross-examination she

admitted that she was not injured by a ‘musli’ and said that the

reason was because she warded off the attack. This once again a

variation in what the appellant pleaded and what she deposed.

Pertaining to the incident dated 12/01/2011 a photograph and

police report as well as the injury report dated 13/01/2011 show

injury with a blunt object given on the face of the respondent-

husband and tends to establish the version of the respondent.

18. Assuming the witnesses of the appellant are to be

believed, it would be a case where even the witnesses of the

respondent who have been believed to be truthful witnesses would

lead to the conclusion that both parties were in mutual

recremation with each other and were inflicting cruelty, both

mental and physical upon each other. Though irretrievable break
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down of marriage is not a ground for divorce but the judgments

reported as 2006 (2) Mh.L.J. 307 : Madhvi Ramesh Dudani Vs.

Ramesh K.Dudani, 2007(4) KHC 807 : Shrikumar Vs. Unnithan Vs.

Manju K.Nair, (1994) 1 SCC 337 : V.Bhagat vs. D.Bhatgat and

(2006) 4 SCC 558 : Navin Kohli Vs. Neelu Kohli provide that the

concept of cruelty has been blended by the courts with

irretrievable break down of marriage. The ratio of law which

emerges from the said decisions is that where there is evidence

that the husband and wife indulge in mutual bickering, leading to

remonstration and therefrom to the stage where they target each

other mentally, insistence by one to retain the matrimonial bond

would be a relevant factor to decide on the issue of cruelty, for the

reason, the obvious intention of said spouse would be to continue

with the marriage not to enjoy the bliss thereof but to torment

and traumatize the other. The marriage between the parties was

rocky from the very beginning. Evidence brings out that rather the

two sharing each other company for a happy married life, the days

were spent in turbulence.

19. Accordingly, the appeal is dismissed and the impugned

judgment is affirmed.

(G R MOOLCHANDANI), J. (PRADEEP NANDRAJOG), CJ

Anil Goyal-PS

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