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498A Dismissed and Judicial Separation.

Madhya Pradesh High Court

Ganga vs Satish Sitole on 11/11/2003

JUDGMENT : A.K. Awasthy, J.

1. Appellant/defendant has filed this appeal under Section 28 of the Hindu Marriage Act against the judgment and decree dated 23.10.2001, passed by IXth Additional District Judge, Indore in Hindu Marriage Case No. 383/98, whereby the decree of judicial separation is passed by the learned Trial Court.

2. This appeal will also decide the counter Appeal No. 593/01 (Satish Sithole v. Smt. Ganga) filed by the respondent against the same judgment and decree,whereby the claim of the respondent against the petitioner for dissolution of marriage on the ground of cruelty and desertion was dismissed and the impugned decree of restitution of conjugal rights was passed.

3. Admitted facts of the case are that the marriage in between the appellant and the respondent was performed on 22.5.1992 at Mandleshwar according to the Hindu rites and customs and out of the wedlock the appellant had delivered one son Chetan on 28.2.1993. It is also the common ground that the respondent husband is teacher in the Education Department and he is living at Indore with his widow mother and brother.

4. The case of the respondent/petitioner is that after few months of the marriage the behaviour of the appellant/wife was insulting and offending towards the respondent and his family members and the appellant used to give threat to the petitioner that she will commit suicide or she will lodge false report about the demand of dowry against her husband. It is further alleged that the appellant wife used to neglect the domestic work and she used to pick up the quarrels unnecessarily. The petitioner has further alleged that on 21.8.1994 his wife has left the matrimonial house and since then in spite of repeated efforts by him the wife has refused to return to live with him in the matrimonial house;that the appellant/wife has lodged a false report against the petitioner and his family members in the police station at Mandleshwar on 20.10.1995 regarding demand of dowry and on account of the report by the appellant wife the police has submitted a charge-sheet against the petitioner and his family members for an offence under Section 498A, IPC, in the Court of Judicial Magistrate, First Class and on account of the false report by the appellant/wife the petitioner and his family members are being harassed and they are defamed in the society.
The petitioner has prayed for dissolution of marriage on the ground of cruelty and the desertion by the wife for more than two years.

5. The defendant has denied that her behaviour with his husband or his family members was cruel or she used to extend the threat of commission of suicide or lodging the false report against the petitioner and his family members. She has further denied that she has lodged false report against her husband and his family members. She has further pleaded that the petitioner was in habit of physically assaulting her for satisfying his greed of dowry and on account of the torture by the husband the report against the petitioner was lodged by her.
She has further pleaded that the petitioner was in habit of consuming liquor and he has ousted her from the matrimonial house and even at the time of the delivery of his son the petitioner has not taken care of his wife. The defendant has prayed that the petitioner has filed petition on the false grounds and as such the same be dismissed and the compensatory costs of Rs. 5,000/- be provided to the appellant/ wife.

6. The learned Trial Court, after framing the issues, has examined petitioner
Satish (P.W. 1), Lalaram (P.W. 2), Anil Deshmukh (P.W. 3) and from the opposite
side Smt. Ganga (D.W. 1), Chainsingh (D.W. 2) and Babulal (D.W. 3). The learned
Trial Court has concluded that the wife is guilty of the matrimonial offence of
cruelty and desertion, but the learned Trial Court has declined to dissolve the
marriage and has passed the impugned decree of judicial separation.

7. The appellant/husband in Appeal No, 395/01 has alleged that the learned
Trial Court has erred in not passing the decree of dissolution of marriage in
spite of its finding that the respondent wife has deserted her husband and
committed cruelty. The respondent/wife in counter Appeal No. 114/02 has assailed
the impugned judgment and decree on the ground that the learned Trial Court has
properly appreciated the evidence and erred in holding that the respondent wife
has deserted her husband or caused the mental cruelty to him. It is prayed by
the respondent/wife that the impugned judgment and decree be set aside and the
petition filed by the appellant be dismissed.

8. The first point to be seen is whether the petitioner has succeeded in
proving that his wife has committed cruelty and she has deserted him without any
reasonable cause? Satish (P.W. 1) has stated that his wife was not doing the
household work and she used to utter the filthy words and she was in habit of
insulting him and his family members. Satish (P.W. 1) has further stated that
his wife used to persuade him to live separately from his mother and brother and
she used to ask him to live with his father-in-law. Lalaram (P.W. 2) has stated
that the wife of petitioner Satish (P.W. 1) was in habit of quarrelling with her
husband on very small and petty matters. Anil Deshmukh (P.W. 3) has stated that
the wife of the petitioner used to say that the petitioner should live away from
his family members. Anil Deshmukh has admitted in para 5 of his cross-
examination that he has no knowledge about the differences between the
petitioner and his wife and he does not know whether petitioner used to
misbehave with his wife to persuade him to bring more dowry. Anil (P.W. 3) has
further admitted in para 4 of his cross-examination that from the years 1982 to
1999 he was living away from Indore. Consequently, it is clear that Lalaram
(P.W. 2) and Anil (P.W. 3) have not corroborated the statement of misbehaviour
of defendant with the petitioner and their statements are bald and sweeping. The
petitioner has not examined his mother or the brother to prove that the
behaviour of his wife towards the petitioner or his mother or the family members
was quarrelsome or insulting. The defendant Gangabai (D.W. 1) has denied that
she used to insult or abuse her husband or his family members and she used to
persuade the husband to live separately from his family. Consequently, from the
statements of Satish (P.W. 1), which are denied by Ganga (D.W. 1) it cannot be
inferred and not satisfied that the petitioner was treated with cruelty by his
wife Smt. Ganga (D.W. 1).

9. The learned Counsel for the appellant husband has argued that the
defendant has lodged a false report against the petitioner and his family
members about the demand of dowry and as such it should be held that the
defendant is guilty of causing the mental cruelty with the petitioner. From the
copy of the judgment dated 7.2.2003 passed by the III ACJM Indore in Criminal
Case No. 1613/96 it is clear that the defendant/wife has lodged a report in the
police to the effect that the gold and silver ornaments along with cash were
given in her marriage to her husband and, thereafter, the petitioner and his
family members used to demand T.V., motorcycle, etc., and the petitioner and his
brothers and sisters used to torture her for the demand of dowry; that after
investigation the charge-sheet was filed against the petitioner and his three
brothers and the learned Trial Court, after framing the charge against the
petitioner and his brothers, has acquitted the petitioner and his brothers from
the offence punishable under Section 498A of the IPC.

10. Ganga (D.W. 1) has stated that her husband, his brothers, sister and
mother started demanding T.V., motor cycle and the cash and his husband was in
habit of beating her after consuming liquor. Ganga (D.W. 1) has further stated
that the medical treatment was not provided to her by her husband and his family
members even at the time when she was seriously ill and the petitioner used to
say that he will perform second marriage and taken divorce from her. It is not
in dispute that the petitioner has approached the Court and got the search
warrant issued against his wife. Normally, sensible husband makes an attempt to
see that the dignity and the respect of his wife is protected and the behaviour
of the petitioner husband to approach the Court in bring back his wife from her
maternal house on the basis of the search warrant speaks about unfair attitude
of the husband towards the wife. This unbecoming and uncalled for step by the
husband of sending the police to her wife’s house to resume matrimonial relation
certainly corroborates the allegation of Smt. Ganga (D.W. 1) that the behaviour
of his husband with her was cruelsome.

11. Chainsingh (D.W. 2) has stated that he is Mausa of Ganga (D.W. 1) and in
the year 1995 he went to the house of petitioner Satish to persuade him to keep
his wife, but Satish has ousted him from the house. Chainsingh (D.W. 2) has
further stated that Ganga (D.W. 2) used to complaint that her husband is making
the demand for the scooter and ill-treating her and as such her child has become
weak and ill. Babulal (D.W. 3) has deposed on oath that after six months of the
marriage the petitioner started beating his wife and he used to demand T.V. and
the cash from the family members of his wife. Babulal (D.W. 3) has further
stated that he went to the house of the petitioner and found that Ganga (D.W. 1)
was lying unconscious and she was taken to the hospital. Babulal (D.W. 3) has
further stated that he has gone to the house of the petitioner to request him to
keep Ganga (D.W. 1), but he has refused and said that he will never keep his
wife with him. There is nothing in the cross-examination of Chainsingh (D.W. 2)
and Babulal (D.W. 3) to doubt the veracity of their statements.

12. After the investigation the police has submitted charge-sheet against the petitioner and his family members and the learned Judicial Magistrate, First Class has framed the charge. The fact that the petitioner was acquitted is not an evidence of the fact that the false report was lodged by the respondent wife against the petitioner and his family members. On the other hand, from the statements of Ganga (D.W. 1) and his witnesses Chainsingh (D.W. 2) and Babulal (D.W. 3) it appears that prima facie the case of torture to the wife by the petitioner for the dowry was made out. In the circumstances it will not be proper to level the charge of mental cruelty against the defendant wife on the ground that she has made the report in the police station against the petitioner and his family members and on account of the police report the petitioner and his family members had to face the trial under Section 498A of the IPC.

From the aforesaid discussions it is clear that the learned Trial Court has erred in holding that the respondent/wife is guilty of the matrimonial offence of causing cruelty to her husband.

13. From the statements of Ganga (D.W. 1) and her witnesses Chainsingh (D.W.2) and Babulal (D.W. 3) it is clear that the petitioner has refused to keep Ganga (D.W. 1) with him in the matrimonial house. It is also proved that the behaviour of the petitioner towards his wife was offending and the petitioner has not cared to bring his wife back to the matrimonial house. The act of the husband to bring back his wife to the matrimonial house by issuing the search warrant is not an evidence that the husband was willing and ready to keep his wife in the matrimonial house. The personality and the dignity of the wife should be respected specially by the husband. Consequently, it is also not proved that the defendant/ wife was living separately from her husband with intention to snap or forsake the relationship with her husband. The animus deserendi in separate living of the spouse is not proved.

14. Consequently the learned Trial Court has erred in holding that the respondent/wife is guilty of deserting her husband. In the aforesaid circumstances, the learned Trial Court has also erred in passing the impugned decree of judicial separation.

15. In the result, the appeal filed by the appellant/husband is dismissed and his prayer for dissolution of marriage is rejected. The appeal filed by the respondent/wife for the dismissal of the petition is hereby allowed and the impugned judgment and decree are hereby set aside. Parties to bear their own costs of this appeal.

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