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Smt Kumkum Sharma vs Prashant Sharma on 27 April, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Miscellaneous Appeal No. 2523/2017

Smt. Kumkum Sharma D/o Late Shri Hari Narayan Sharma W/o
Shri Prashant Sharma, Aged About 36 Years, R/o 11-A,
Saraswati Vihar, 100 Feet Road, Jhotwara, Jaipur.
—-Appellant-non-petitioner
Versus
Prashant Sharma S/o Shri Somdutt Sharma, By Caste Brahmin,
Aged About 37 Years, R/o 1243/104, Riddhi Siddhi Apartment,
Rani Sati Nagar, Nirman Nagar, Jaipur, Presently R/o A-23,
Padmawati Colony, Nirman Nagar, Jaipur.
—-Respondent-Petitioner

For Appellant(s) : Mr. Sanjay Sharma
For Respondent(s) : Mr. Ashok Mehta Sr. Adv. with
Mr. Siddhant Jain

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

Judgment reserved on :: 25th April 2018

Judgment pronounced on :: 27th April 2018

Judgment

By the Court (Per Hon’ble G.R. Moolchandani, J.)

1. Aggrieved by the order dt. 21.04.2017 passed by

Family Judge No.3, Jaipur dissolving marriage of the appellant,

instant appeal has been preferred.

2. In nutshell, respondent petitioner brought a divorce

petition before the court below pleading that his marriage was

solemnized with appellant non-petitioner on 19.02.2009 at Jaipur,

right from his marriage, appellant non-petitioner was having a

perverse and quarrelsome nature and started scuffles with family
(2 of 12) [CMA-2523/2017]

members uttering that her marriage was a forced marriage since

her mother and sister coercively got her marriage done, she was

nurturing love affairs with somebody else and does not feel the in-

laws’ house to be of her own nor she will accord in-laws’ status to

her father-in-law and mother-in-law. She was reluctant to

observe festival, she would go away to the house of her mother,

her adverse utterances injured his feelings, she used to create

discontent intermittently and abandon in- laws’ home, initially she

yielded to come back but later she would often say that who has

called them to fetch her, she will stay there and none requires to

fetch her. Petitioner’s mother was hospitalized between

17.07.2009 to 21.07.2009 even sickness tidings could not yield

her to come back, she was of the view that whatever unpleasant

may befallen upon them, it won’t affect her and she failed to come

back even to know well-being of her mother-in-law, which caused

mental trauma to the petitioner, tantamounting cruelty. She was

epileptic and used to take medicines, even loitered to apprise

nature of medicines and would fight on these pretext, even the

disease was kept latent prior to marriage, which was essential to

be revealed for sake of marital fiduciary, she also lodged FIR No.

175/2010 with Mahila Police Station and later compromised.

Further on the basis of cruelty and desertion decree for dissolution

of marriage was sought.

3. Defendant Smt. Kumkum Sharma rebutting pleadings,

conversely pleaded that she never behaved alleged absurdity nor

stated that she was having love-affairs with somebody else, she

observed all festivals without fail and has further pleaded that she

does not suffer from alleged disease of epilepsy. On the contrary,
(3 of 12) [CMA-2523/2017]

she was harassed and maltreated by her in-laws, in fact petitioner

was addicted to alcohol and harassed her, he also spoiled salary

on consuming alcohol. She often asked to abandon bad habits but

he did not yield. Petitioner and his family members threatened

her to divorce. On 24.07.2011 she was given beatings and was

thrown out of the house, her apparels and jewellery were also

retained by her in-laws, ever since she is residing with her

widowed mother. Petitioner is not paying even a single penny for

her maintenance. By agitating false allegations, petitioner

wrongfully intends to seek divorce, non-petitioner is not residing

with her mother of her own accord since petitioner has ousted her

after giving beatings, so she has compelled to live alongwith her

mother. She never acted cruelly with her in-laws and has further

pleaded to dismiss the petition with grant of 25,000/- towards

monthly maintenance.

4. Upon pleadings of both the parties, learned Court below

framed following issues:-

(i) Whether non-petitioner has treated the petitioner with
cruelty ?

(ii) Whether non-petitioner has deserted the petitioner
since 20.07.2011 without reason ?

(ii-a) Whether non-petitioner is entitled to get ` 25,000/- per
month alimony from the petitioner for whole of her life ?

(iii) whether petitioner is entitled to get degree for
dissolution of marriage ?

(iv) Relief.

5. Both the rival parties have produced themselves to

prove their pleadings. Petitioner has produced himself as AW1,

whereas non-petitioner has produced herself as NAW1 and her

maternal aunt as NAW2.

(4 of 12) [CMA-2523/2017]

6. PW1 Prashant Sharma has stated that his marriage was

solemnized with defendant Smt. Kumkum on 19.02.2009, two to

three days later to the marriage, she started uttering that she

loves somebody else and ceremony of her marriage was under

compulsion, initially the utterances were thought to be airy but

non-petitioner started leaving her matrimonial house without any

reason to her parental home and often said that Deter calling her,

whenever she wishes, she will come of her own. She avoided to

celebrate festivals in her matrimonial home, he has further stated

that when his parents were hospitalized, she left her matrimonial

home, saying that since parents belong to her husband, so she

does not care about their well-being. For eight to nine months

non-petitioner did not return to her matrimonial home and lodged

a false case for alleged demand of dowry with Police Station

Mahila Thana (North), though they did not demand any dowry.

Prior to it, his sisters and Jija went to make non-petitioner

understand to her parental home but she did not yield and ousted

them by warning that they were not needed there and warned to

desist from visiting again, a compromise was arrived at in respect

of the same at Mahila Thana after that non-petitioner came back

to them but kept threatening by saying that if she is asked not to

visit her parental home, then they will be involved in false cases

and would be made behind bars, she often threatened to jump

from the terrace and warned that they will be entangled by

leaving a script, she suffers of epileptic fits, factum of which was

kept latent at the time of marriage, whenever she was asked not

to leave her house for her parental home, she would scream in the

balcony, he has further stated that he was employed with
(5 of 12) [CMA-2523/2017]

Vodafone Company and whenever female co-workers made

phone-calls to him, she started quarreling on this count and from

24.07.2011 she is residing in her parental home of her own wish,

she has treated him with cruelty, no more he wish to stay with her

and seeks divorce.

In cross-examination, Prashant Sharma has stated that

festival of “Gangor” is not celebrated in their family, so demand of

new Saree was wrong. He has also stated that his parents used to

get hospitalised every second or third day and he has not

produced any evidence thereto. He has also stated that he is not

aware about the dates on which non-petitioner would have

threatened to jump from terrace, he has further stated that non-

petitioner was got treated for her epileptic fits and she would not

take medicine, he has further stated that he cannot say on which

dates non-petitioner suffered of epileptic fits and has expressed

his inability to produce any medical prescription in support of her

epileptic fits. He has further stated that he never ousted his wife,

his parents have also advised them that couple may live

separately but with affection. A drastic utterance has also been

made by this witness by saying that “he is not prepared to keep

non-petitioner alongwith even if, she is prepared for the same”.

He has also stated that he lives separate from his parents and his

parents have filed a case for domestic violence against his non-

petitioner wife and his father gets pension but he has got no

concern with it because he is living separate.

7. Non-petitioner NAW1 Smt. Kumkum Sharma has

accepted that her marriage was solemnized with petitioner on
(6 of 12) [CMA-2523/2017]

19.02.2009 and she resided with her husband for one and a half

year and living separately from her husband since 24.07.2011

because her mother-in-law has lodged a case against her for the

domestic violence, she has further stated that her behaviour with

her in-laws was amicable and she treated her father-in-law and

mother-in-law as if of her own parents, she has also said that her

behaviour with her husband was befitting, she does not suffer

from any disease nor sick of epileptic fits, she has further stated

that her behaviour is normal but she cannot tolerate wrong. “She

has also stated that she is ready to join matrimonial consortium of

her husband” but her husband wants divorce, so as to marry

somewhere else, she has further stated that her husband wants

that she may reconcile for divorce settling with ten lakh in

alimony. She is not employed anywhere, she has also stated that

a compromise was arrived at Mahila Thana, later-on she went to

her maritial home and has further negated allegations.

8. NAW2 Ms. Santosh Pareek, maternal aunt of non-

petitioner has stated that her niece has constrained to live

separate since 2011 because of cruelty and harassment

perperated by her in-laws, her behaviour with her in-laws is

amicable, her niece is not suffering of epilepsy, she nurtures good

behaviour. She too has stated that her niece is prepared to join

matrimonial consortium of her husband. Nothing abnormal has

emerged from cross-examination of this witness and she has

denied untoward allegations.

9. Scrutiny of the afore-discussed evidence discloses that

petitioner has failed to adduce any positive evidence in respect of
(7 of 12) [CMA-2523/2017]

allegations of maltreatment and harassment or cruelty against her

respondent wife, his statement that his parents were used to be

admitted in hospital every second or third day and he failed to

produce any document in support thereto, his ignorance as to on

which dates his wife went away to her parental house in 2009 and

expression of ignorance as to when and on what date his wife

threatened to jump from the terrace, makes his testimony non-

positive and pleading being not proved. He has himself asserted

that he is living separate from his parents, then how she allegedly

threatened her husband before his parents, is also doubtful.

10. Prashant Sharma has also stated that he cannot say the

date precisely, when his parents were allegedly threatened to be

killed by his wife by giving injections, his statement that his wife

sustained epileptic fits but he is not in a position to state its exact

date, also suggests that the allegations have been levelled without

any corroborative testimony. No testimony has also been given

that Smt. Kumkum was sick of epileptic disease prior to her

marriage and this fact of disease was kept latent, had it been

correct then Smt. Kumkum would have certainly remained on

medicines but nothing to this effect has been proved. On the

contrary, Prashant Sharma has stated that she was not taking

medicines, though Prashant Sharma has asserted that she was

under treatment he has also said that he has not filed any

document in support of her epileptic treatment, which makes his

testimony doubtful and the pleadings without having been proved.

11. Smt. Kumkum Sharma has stated that she was

subjected to demand of dowry by her in-laws and a compromise
(8 of 12) [CMA-2523/2017]

had taken place in that respect. On the contrary Prashant Sharma

has asserted that his parents has lodged a case against her wife

for Domestic-violence and this aspect is also admitted by Smt.

Kumkum Sharma that reason of her staying away from her marital

home was that her mother-in-law had lodged a Domestic-violence

case against her.

12. Prashant Sharma has been eloquent by saying

that he is not prepared to retain his wife. On the other side

Smt. Kumkum Sharma has stated that she is prepared to

join matrimonial consortium of her husband. Smt. Kumkum

Sharma has also stated that her husband never come to fetch her.

13. He has stated that demand of a Saree during the

“Gangor” festivity was unbecoming on the part of her wife, which

too traditionally may not be graceful because festival of “Gangor”

is commonly celebrated in Rajasthan by brides and newly wedded

brides to seek long life and benediction to their male spouse/s so

aspiration to wear new Saree or to demand a new Saree on such

occasion, may not be termed to be unbecoming, even on this

count testimony of respondent-petitioner has remained non-

positive.

14. Petitioner husband has failed to establish allegations of

cruelty against his non-petitioner wife, so issue to this effect has

rightly been adjudicated by court below against the petitioner.

15. So far as, ground of “desertion” is concerned, this too

has not been legally proved by the petitioner. Smt. Kumkum has

categorically stated that she was harassed by her in-laws and their

behaviour was not becoming, they used to demand dowry and she
(9 of 12) [CMA-2523/2017]

lodged a case against her husband as well. She has also stated

that she is not suffering from any disease. Her husband

demanded a Car and mother-in-law compelled her to earn and her

husband did not come to fetch her before registration of case, in

cross-examination she has also stated that a compromise had

taken place at Mahila Thana and she had been to her matrimonial

home, she has also categorically negated a suggestion that “it is

wrong that she is residing her mother without consent of her

husband”, though incohesiveness has also appeared in her cross-

examination but it is an admitted position that parents of Prashant

Sharma have admittedly lodged a case against Smt. Kumkum

Sharma for Domestic-violence, this aspect has also emerged from

the testimony of Smt. Kumkum Sharma since she has also stated

that the cause of living separate was a Domestic-violence criminal

case lodged by her mother-in-law against her.

16. Prashant Sharma has asserted that he is not ready to

keep his wife alongwith though living separate from his parents.

On the contrary Smt. Kumkum has stated that she is prepared to

join marital consortium of her husband, even NAW2 Ms. Santosh

Pareek, maternal aunt of Smt. Kumkum Sharma, has accepted

that her niece Kumkum is ready to join matrimonial consortium of

her husband.

17. Petitioner has levelled allegations of infidelity, ailment

of epilepsy and alleged cruelty, which he has miserably failed to

corroborate and establish, even learned court below has decided

issue no.(i) pertaining to cruelty against petitioner Prashant

Sharma.

(10 of 12) [CMA-2523/2017]

18. Apex Court brought forth essential ingredients of

“desertion” as ground of matrimonial relief in the case of

Bipinchandra Jaisinghbai Shah V. Prabhavati AIR 1957 SC

176. The Hon’ble Apex Court in Savitri Pandey V. Prem

Chandra Pandey (2002) 2 SCC 73, has observed as under :-

“6. Treating the petitioner with cruelty is a ground for
divorce under Section 13(1)(i-a) of the Act. Cruelty
has not been defined under the Act but in relation to
matrimonial matters it is contemplated as a conduct
of such type which endangers the living of the
petitioner with the respondent. Cruelty consists of
acts which are dangerous to life, limb or health.
Cruelty for the purpose of the Act means where one
spouse has so treated the other and manifested such
feelings towards her or him as to have inflicted bodily
injury, or to have caused reasonable apprehension of
bodily injury, suffering or to have injured health.
Cruelty may be physical or mental. Mental cruelty is
the conduct of other spouse which causes mental
suffering or fear to the matrimonial life of the other.
“Cruelty”, therefore, postulates a treatment of the
petitioner with such cruelty as to cause a reasonable
apprehension in his or her mind that it would be
harmful or injurious for the petitioner to live with the
other party. Cruelty, however, has to be distinguished
from the ordinary wear and tear of family life. It
cannot be decided on the basis of the sensitivity of
the petitioner and has to be adjudged on the basis of
the course of conduct which would, in general, be
dangerous for a spouse to live with the other. In the
instant case both the Trial Court as well as the High
Court have found on facts that the wife had failed to
prove the allegations of cruelty attributed to the
respondent. Concurrent findings of fact arrived at by
the courts cannot be disturbed by this Court in
exercise of powers under Article 136 of the
constitution of India. Otherwise also the averments
made in the petition and the evidence led in support
thereof clearly show that the allegations, even if held
to have been proved, would only show the sensitivity
of the appellant with respect to the conduct of the
respondent which cannot be termed more than
ordinary wear and tear of the family life.

8. “Desertion”, for the purpose of seeking divorce
under the Act, means the intentional permanent
forsaking and abandonment of one spouse by the
other without that other’s consent and without
reasonable cause. In other words it is a total
repudiation of the obligations of marriage. Desertion
(11 of 12) [CMA-2523/2017]

is not the withdrawal from a place but from a state of
things. Desertion, therefore, means withdrawing from
the matrimonial obligations i.e. not permitting or
allowing and facilitating the cohabitation between the
parties. The proof of desertion has to be considered
by taking into consideration the concept of marriage
which in law legalises the sexual relationship between
man and woman in the society for the perpetuation of
race, permitting lawful indulgence in passion to
prevent licentiousness and for procreation of children.
Desertion is not a single act complete in itself, it is a
continuous course of conduct to be determined under
the facts referring and circumstances of each case.
After referring to a host of authorities and the views
of various authors, this Court in Bipinchandra
Jaisinghbai Shah V. Prabhavati held that if a
spouse abandons the other in a state of temporary
passion, for example, anger or disgust without
intending permanently to cease cohabitation, it will
not amount to desertion.”

19. Admittedly, a criminal case of domestic violence is there

against Smt. Kumkum Sharma and she too has registered a

cruelty case against her in-laws. Smt. Kumkum is vocal enough in

asserting that she is prepared to join matrimonial consortium of

her husband and her aunt has also stated likewise. She has even

said that she joined marital consortium of her husband and stayed

alongwith them. Under umbrella of formidable allegations and

atmosphere of jeopardy and on ousting, abandoning the marital

home by staying at a protective mother’s home, can never be

termed to be intentional abandonment and cessation of inclination

to cohabit and staying away of non-petitioner/appellant, could not

be termed to be “desertion” in the given situation, in light of

evidence available on the record and in these circumstances,

adjudication of issue no.(ii) in favour of petitioner husband is

obviously erroneous since it ought to have been decided against

the petitioner, so finding to this effect is modified and is decided
(12 of 12) [CMA-2523/2017]

against the petitioner. Resultantly, petitioner is not entitled to

seek relief prayed for.

20. In the result, this appeal is hereby allowed and the

judgment and decree dated 21.04.2017 passed by learned court

below, is set aside and petition seeking dissolution of marriage is

dismissed.

No cost.

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

db/ashu/ashwani/9

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