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).
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For Appellant(s) : Mr. H.P. Singh, Adv.
For Respondent(s) : Mr. D.K. Dixit, Adv.
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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),
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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
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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
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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 :-
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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.
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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
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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
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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,
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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
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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
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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
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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
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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/