HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Miscellaneous Appeal No. 5082/2017
Smt. Sudha Devi W/o Shri Ved Prakash Saini and D/o Shri
Sitaram Chobdar, aged 31 Years, Caste Mali, R/o Maliyon Ki
Dhani, Tankari, Tehsil Nawalgarh, Distt. Jhunjhunu, Present
Address Mohalla Ganeshpura, Nawalgarh, Distt. Jhunjhunu (Raj.)
—Appellant-Defendant
Versus
Vedprakash Saini S/o Shri Prabhati Lal Saini, aged 30 Years,
Caste Mali, R/o Maliyon Ki Dhani, Tankari, Tehsil Nawalgarh,
Distt. Jhunjhunu
—Respondent-Plaintiff
For Appellant(s) : Mr. Shashi Kumar Shekhawat
For Respondent(s) : Mr. Surya Prakash
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE G R MOOLCHANDANI
Judgment reserved on :: 15th May 2018
Judgment pronounced on :: 17th May 2018
Judgment
By the Court (Per Hon’ble G.R. Moolchandani, J.)
This appeal is directed against the decree and judgment
passed by Family Court, Jhunjhunu dated 05.08.2017, whereby
Family Court, Jhunjhunu has decreed divorce petition preferred by
plaintiff-respondent Vedprakash Saini under Section 13(1)(ia) of
the Hindu Marriage Act 1955, dissolving the marriage between
disputing couple.
Plaintiff-respondent has pleaded that appellant Smt.
Sudha Devi and respondent Vedprakash Saini solemnized their
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marriage on 01.12.2002, defendant-appellant did not yield to
cohabit and was sarcastic by taunting that he was not perfect of
height and lacked perfect personality, this was objected by the
respondent and he tried to convince defendant that physical
stature was irrelevant for marital relations but behaviour of Smt.
Sudha did not change, she would often leave to stay with her
parental home, on 05.03.2005 plaintiff-respondent got selected in
third Grade teacher, after selection he went to fetch her and
brought her on 15.03.2005 to join matrimonial consortium, after
staying for five days, she left asserting that Village ‘Paunk’ was a
rural area, subsequently on behest of plaintiff-respondent, she got
employed with same school as Vidhyrthi Mitra, where she served
for three to four months but kept insulting plaintiff-respondent,
three to four months later, she abandoned service and came back
to her parental home at Nawalgarh, despite attempts, she did not
join matrimonial consortium of plaintiff-respondent, it has been
further pleaded that on 10.01.2011, when plaintiff got promoted
to Senior Teacher Grade-Ist, he went to fetch her, she came along
but did not permit to have physical relations and was sarcastic by
saying that plaintiff was short of height, being dwarf. On
17.07.2011 defendant-appellant declined to live together and
threatened to re-marry and has further made a prayer for
annulment of marriage.
Defendant-appellant rebutting pleadings has countered
that defendant-appellant never went to her parental home without
consent of plaintiff-respondent rather plaintiff-respondent
misbehaved and harassed her and made dowry demands, he
would rebuke her and even took away entire salary, which was
earned by the defendant-appellant having employed as a Vidyarthi
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Mitra, even machination was forged to eliminate defendant-
appellant, overhearing and sensing it, she somehow managed to
come back to her parental home to secure herself, allegations
levelled against the defendant are baseless, she was maltreated
by her in-laws, even a plan was made to kill her, which she
overheard, she is very much agreeable to join matrimonial
consortium.
Learned court below, after framing issues, recorded the
evidence of both the sides.
Heard both the sides and perused the record, it evinces
from the testimony of AW1 Ved Prakash Saini that he has
accepted that prior to marriage ‘Tilak and Lagan’ ceremony was
held, Single Bed, Black White T.V., Small T.V., Chair, Almirah and
Box were given in the marriage and a gold ring was also gifted
alongwith a watch, he has further stated that on what date his
wife went to her parental home is not known to him, he has also
asserted that on 25.04.2008, when marriage of his brother
Ramniwas had taken place, his wife Sudha Devi was present in the
marriage, he has also stated that in the month of January 2011
and subsequently in the months of April and May 2011, whenever
he went to fetch his wife, she came and stayed with him, he has
further stated that on what date and on which month, he was
taunted as dwarf by his wife, is not known to him, he has
conceded that his height and his wife’s height are similar.
He has candidly accepted that before marriage, he
and his wife Sudha had agreed for the marriage, later, after
consent of both the families, marriage was solemnized, this
very assertion is enough to say that couple had seen each
other, even prior to settlement of marriage and consent of the
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family members came subsequently, so to dislike on the basis of
height, does not appear to be a reason for alleged sarcastic
utterances and assertions to this effect, rather goes in vain and
does not substantiate allegations levelled by the plaintiff-
respondent, more so Vedprakash has himself asserted that he is
not aware that on what date and on which month, he was taunted
in alleged way, which makes his assertions and allegations non-
tenable, he has also deposed that despite court orders he has not
given any maintenance amount to his wife.
AW2 Ghasiram has also stated that to fetch Sudha,
they went five times but the dates are not remembered, contrary
to the pleadings, AW3 Smt. Sravani Devi, mother of groom, has
stated that after marriage, Sudha indignantly said that she was
got married in a poor family, which is not even a case of the
plaintiff, it has also been stated by this witness Smt. Sravani that
she got her daughter-in-law understood that after employment of
her son, economic condition of their family will change. Sudha
was even reluctant to stay in a katcha house, which tormented
them and they thought since Sudha was a sibling of an affluent
family and her father was a Bank Manager, so she will understand
the reality and change later, evidence to this effect produced by
Smt. Sarvani Devi is contrary to the pleadings, in cross-
examination she has also stated that prior settling the marriage,
they had been to see Sudha since Sudha was liked, so the
marriage was performed, dowry was also given in the marriage.
She has also stated that she has got no objection, if Sudha
intends to join her husband. She has expressed her ignorance as
to who had gone to fetch Sudha, she has also stated that in
Village ‘Paunk’, Sudha had stayed with her son for five to six
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months, for how many times she went to her parental home, she
cannot say, this witness has also stated that Sudha was not
keeping well but recuperated after treatment, they also got her
treated through ‘dora’ (a kind of black magic).
AW4 Prakash Jangid has stated that he had attended
couple’s marriage and was invited by Vedprakash, it was a
“arranged marriage” and he was conveyed and complained by
Vedprakash that his wife had taunted him being wheatish of
complexion. Exaggerating pleadings this witness has stated that
Sudha slapped before him, which has even not been pleaded by
the plaintiff-respondent, this witness has stated that on
17.07.2011 he too had gone to fetch Sudha but behaviour of her
parents was not amicable, kind of testimony, which has been
stated by this witness, falsifies allegations and pleading of the
plaintiff-respondent that he was threatened, maltreated, ousted or
was daunted, since AW5 Uncle of Vedprakash has also stated that
Sudha’s parents didn’t behave properly.
In her testimony, Smt. Sudha Devi has stated that she
obeyed her spouse duty, her father spent six to seven lakh in the
marriage, she was often beaten because Maruti car and a plot in
Sikar was not given in the marriage, she was beaten by her
husband and was kept starving. On truce, she came back to her
husband’s home, Vedprakash was addicted to liquor and on
resistance, she was beaten and a dowry demand was also made,
in July 2007 she was selected for B.Ed training and completed
B.Ed in June 2008, study expenditure was borne by her father, it
was not given by Vedprakash, whenever her in-laws came to fetch
her, she was permitted to go, she was misbehaved and was
threatened to be eliminated. Apprehending danger, she fled away
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to her parental home, she has also stated that she is always
prepared to join marital consortium of her husband and had
never wanted divorce, in cross-examination she has stated that
at the time of her marriage, her husband was not employed in
Government service but was selected subsequently, she has
further stated that her matrimonial life was comfortable and she is
staying away from July 2011, she has specifically stated that when
she overheard planning being contemplated to eliminate her, she
fled away to her parental home.
Testimony of NAW2 Sitaram, father of defendant-
appellant, NAW3 Subhash Chandra, NAW4 Chiranjilal have also
been adduced in support of the contentions of bridal side.
Scrutiny and evaluation of entire evidence goes to
reveal that marriage between the couple was an arranged
marriage and both had seen and liked each other prior to
marriage, so question of alleging ‘He’ partner being short of height
or blackish of complexion, does not infuse reliance. Plaintiff-
respondent has himself asserted that at many occasions,
whenever he went to fetch Sudha Devi, she came and joined
matrimonial consortium, even it has come in the evidence that
Sudha Devi stayed at Village ‘Paunk’ for five to six months. Sudha
Devi has pleaded that she was tortured and harassed for demand
of dowry, even she overheard planning of her in-laws, talking to
commit unpleasant upon Sudha Devi, which compelled her to fled
away in order to save herself from the apprehensive jeopardy.
Bride abandons her parental house for marital
consortium of her husband, expecting amicable atmosphere and
security to her life and prestige. Admittedly, she has completed
her B.Ed. during her marital bonds, which does also show that she
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toiled alot to keep her studies completed, even during marital
bonds.
Imperative it is to provide secured atmosphere to a
bride in a matrimonial house, since a lady, who joins the family of
her husband won’t feel secured to stay alongwith her groom, in
absence of sense of security and grace over there, it emanates
from the evidence that she was tortured and harassment was
perperated upon her, even demands for Maruti car was made,
mother of plaintiff-respondent stated that defendant-appellant
belonged to a family of affluent class and her father was a Bank
Manager and groom’s family was not of that status. It has also
come in the evidence that marital proposal was settled after the
customary ‘look ceremony’ and the couple consented for the
marriage, in furtherance thereto, nuptial was ceremonised, so
assertions that subsequently taunts were hurled on account of
short height of groom, infuses no faith rather post-marriage
achievement of teaching job by the groom, appears to be a reason
of discontent and disharmony, which cannot be attributed to ‘She’
spouse, since post-marriage job was achieved by Vedprakash and
he was selected Teacher Grade-III, subsequently was promoted to
Senior Teacher Grade-I and at both these occasions, when
Vedprakash went to fetch Sudha Devi, she came and joined
matrimonial consortium of her husband, which is an admitted
position and has been so asserted by Vedprakash Saini in his
evidence and Smt. Sudha Devi, while overhearing machination of
unpleasant, sensing jeopardy to her life, compelled to leave her
matrimonial house to rescue herself and this was the reason
wherefore she constrained to live apart from her husband, which
can never be treated to be a “desertion”, even in the testimony,
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Smt. Sudha Devi and her other witnesses have specified that Smt.
Sudha Devi is prepared to join matrimonial consortium of her
husband.
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
(9 of 10) [CMA-5082/2017]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
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.
We, do not find that appellant-defendant would have deserted the
matrimonial consortium of her husband intending permanent
cessation of cohabitation, nor a positive evidence is there
regarding alleged cruelty, if a spouse leaves the matrimonial
house in order to secure her life, then temporary disassociation
would never amount desertion.
In view of the afore-discussed facts and circumstances,
the issue/s determined by the learned court below in respect of
“desertion” and “cruelty” ought not to have been decided against
the defendant-appellant.
Summing-up, we are of the view that plaintiff-
respondent has failed to prove his case, hence findings arrived at
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by the learned Family Court, are faulted and deserves to be set
aside.
Thus, the appeal succeeds, as such judgment and
decree impugned are set aside.
No cost.
(G R MOOLCHANDANI),J (PRADEEP NANDRAJOG),CJ
db/ashwani/7
