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Rajesh Pandey vs Smt. Suman Mishra on 20 December, 2017

HIGH COURT OF MADHYA PRADESH, JABALPUR

First Appeal No. 210 of 2013

Parties Name Rajesh Pandey, aged about 30
years, S/o Girdhar Gopal
Pandey, R/o Village Umari,
Police Station City Kotwali,
Tahsil Gurdh, District Rewa
(M.P.)

Vs.

Smt. Suman Mishra, W/o
Rajesh Pandey, D/o Bhagwat
Prasad Mishra, aged about 28
years, Occupation Teacher, R/o
27/72 Awasi Quarter PTS,
Rewa, presently residing at 302
Primary School Katra Goodar
Chitrakoot, District Karbi (U.P.)

Bench Constituted Hon’ble Shri Justice S.K.
Gangele

Hon’ble Shri Justice Anurag
Shrivastava
Judgment delivered by Hon’ble Shri Justice Anurag
Shrivastava
Whether approved for Yes/No
reporting
Name of counsels for For appellant:
parties Shri Atulanand Awasthy,
Advocate.

For respondent:
Shri Vinay Singh, Advocate.
Law laid down

Significant paragraph
numbers

JUDGMENT

(20.12. 2017)

This appeal under Section 28 of Hindu Marriage Act,
1955 has been preferred by the appellant against the
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F.A.No.210/2013 Rajesh Pandey Vs.
Smt. Suman Mishra.

judgment and decree dated 17.01.2013, passed by V
Additional District Judge, Rewa (M.P.) in Hindu Marriage
Appeal No.14-A/2012, whereby the petition under
Section 13 of Hindu Marriage Act, 1955 preferred by
appellant has been dismissed.

2. Appellant Rajesh Pandey, is husband of respondent
Smt. Suman Mishra. The marriage was solemnized on
10.05.2005 at Rewa. Appellant is in Defense Service
whereas respondent is working as Teacher in
Government School. It is averred by the appellant that
after the marriage the respondent lived at her marital
home for about 4 days only thereafter she went to her
parental home and did not return to join company of
appellant. Appellant and its family members went several
times to the parental house of respondent and at the
places where she was in service to bring her back but
she refused to join the company of appellant. She is
living separately from the appellant since the year 2005
and deserted him without any reason. She has deprived
the appellant from his conjugal rights and caused mental
and physical distress. Therefore, appellant filed a petition
under Section 13 (1) of Hindu Marriage Act for grant of
decree of divorce.

3. The respondent in her reply denied the averments
made in the divorce petition and pleaded that she has
never refused to live with the appellant. After the
marriage she lived for 10 days in her marital home.
Thereafter, when she was coming to her parental house
the appellant and his parents told her that unless and
until her father would give a car and Rs.10 Lacs in
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F.A.No.210/2013 Rajesh Pandey Vs.
Smt. Suman Mishra.

dowry, they would not allow her to live with appellant.
The respondent lived in her parental house for more than
1 year and appellant did not come there to take her
back. On several efforts and persuasion of parents of
respondent, the appellant and his parents consented to
keep the respondent with them. Than respondent came
to her marital home and lived there for 2 years. During
this period the appellant and her family members used to
harass and misbehave with her for demand of dowry. As
parents of respondent were not in a position to meet the
demand, the appellant refused to keep the respondent in
his house and sent her back to her parental home.
Thereafter the respondent is living in her parental house.
The appellant never came to meet her and never ask her
to live with him. Respondent has never refused to live
with appellant and still she is ready and willing to live
with him and resume her matrimonial life. Therefore, it is
prayed that petition filed for divorce be dismissed.

4. The trial Court framed issues whether the
respondent was practicing cruelty with appellant and
whether she has deserted him without any reasonable
cause. The parties adduced their evidence and by
passing the impugned judgment dated 17.01.2013 the
trial Court dismissed the petition answering the aforesaid
issues as not proved against the appellant.

5. It is argued by the learned counsel for the
appellant that from testimonies of the appellant and his
witnesses it is established that the respondent lived with
the appellant only for a few days thereafter she went to
her parental house and did not return back. Despite,
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F.A.No.210/2013 Rajesh Pandey Vs.
Smt. Suman Mishra.

repeated efforts of appellant and his father she was not
inclined to live with appellant and has willfully deserted
him. In the trial Court the respondent has led no
evidence in rebuttal. The trial Court on erroneous
appreciation of evidence disbelieved the appellant and
dismissed the petition for divorce.

6. Heard arguments and perused the record.

7. It is not disputed that the marriage of appellant
and respondent was solemnized on 10.05.2005 at PTS
Quarter, Rewa (M.P.) which is the parental house of
respondent. It is also not disputed that the appellant is in
Defense Service whereas the respondent is working as
School Teacher. The appellant Rajesh (PW-1) deposed
that after the marriage respondent lived with him in her
matrimonial house only for 4 days and returned to her
parental house. Appellant also accompanied her to her
parental house and lived there for about 10 days than he
went to join his service. Thereafter, the respondent did
not return to her matrimonial house.

8. Appellant (PW-1) further deposed that in the
month of October, 2005 his father Girdhar Gopal Pandey
(PW-2) and Raj Dhar Pandey (PW-3) went to Rewa to
take back the respondent but her father refused to send
her to her matrimonial house. At that time respondent
was in service at Betul. Appellant went to Betul and
called on respondent at her school and tried to bring her
back to her matrimonial house but she did not agree to
it. In the year 2007 appellant came to Jabalpur on
transfer and remained there till 2009. During this period
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F.A.No.210/2013 Rajesh Pandey Vs.
Smt. Suman Mishra.

also he went to Betul and met the respondent and asked
her to come to his house and live with him but she was
not willing to live with appellant. Later on, respondent
joined a Public School in Chhattisgarh, which was a
residential school. She was living there. It is categorically
denied by the appellant that the respondent was
subjected to cruelty for demand of dowry.

9. The statement of appellant is corroborated by his
father Girdhar Gopal Pandey (PW-2) and witness Raj
Dhar Pandey (PW-3). They both have deposed that in
the month of October, 2005 they went to paternal home
of respondent to bring her back and persuaded her
father to send her to matrimonial home but her father
was not agree and stated that his daughter is not ready
to live with appellant. In cross-examination para 10 of
PW-2 it is suggested on behalf of respondent that when
PW-2 and PW-3 visited Rewa they again made demand
of Rs.2 Lac and car as dowry from father of respondent
and refused to take back the respondent unless the
demand was fulfilled. This suggestion was denied by PW-

2. Thus, it is evident that in the month of October, 2005,
PW-2 and PW-3 came to paternal home of respondent to
bring her back.

10. Other documents the legal notices (Ex.P/1 and P/2)
also show that the appellant was trying to persuade the
respondent to join him and resume her marital life.

11. In rebuttal of appellant’s evidence, the respondent
has adduced no evidence. She did not enter into witness
box to controvert the allegations levelled against her.

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F.A.No.210/2013 Rajesh Pandey Vs.
Smt. Suman Mishra.

There is no evidence to establish that the appellant and
his relatives used to make demand of dowry and
practiced cruelty with the respondent. There is no
evidence to show that the respondent herself had ever
tried to return her marital home and live with the
appellant. It appears that she was in service at Betul and
Chhattisgarh and living there. No reasonable cause has
been shown by her to live separately from the appellant.
On the basis of evidence on record, it is established that
respondent had willfully deserted the appellant and was
not prepared to return to her matrimonial home. She is
living separately from the appellant since month of June,
2005. The trial Court on erroneous appreciation of
evidence has disbelieved the uncontroverted testimonies
of appellant and his witnesses.

12. Consequently, the appeal is allowed. The impugned
judgment and decree passed by trial Court is set-aside.
The marriage of appellant and respondent dated
10.05.2005 is hereby dissolved and a decree of divorce is
granted in favour of appellant on the ground of
desertion.

13. The parties have to bear their own costs. A decree
be prepared accordingly.

(S.K. Gangel) (Anurag Shrivastava)
Judge Judge

Vin**

Digitally signed by
VINOD SHARMA
Date: 2017.12.21
00:32:32 -08’00’

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