Court:Madhya Pradesh High Court
Bench: JUSTICES A.K. Shrivastava & B.D. Rathi
Seema Vs. Rajesh Dua On 28 June 2013
Law Point:
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Family Courts Act, 1984 — Section 19 — Cruelty — Grant of divorce — Respondent-husband proved that appellant-wife was indulging in indecent manner with her Jija — Her behaviour towards husband and his family members was cruelsome — She also used to threaten his family members and husband to lodge false report against them and sending them to jail — Respondent cannot be reasonably expected to live with appellant — Judgment and decree passed by Trial Court affirmed..
JUDGEMENT
1. Being aggrieved from the impugned judgment and decree dated 23.12.2005 passed by the Principal Judge, Family Court, Gwalior in case No. 142-A/2003 filed under Section 13 of the Hindu Marriage Act on 14.7.2003, this first appeal has been preferred by appellant/non-applicant Smt. Seema under Section 19 of the Family Courts Act, 1984 on 20.1.2006, whereby the learned Principal Judge, Family Court has passed the decree of divorce in favour of respondent/husband Rajesh Dua against appellant/wife Smt. Seema.
2. It is an admitted fact that the marriage of Rajesh and Seema was solemnized on 19.5.2001 in accordance with the Hindu customary rites and ceremonies of the parties.
3. In Trial Court Civil Suit No. 142A/2003 was filed under Section 13 of the Hindu Marriage Act, 1955 by applicant/respondent Rajesh Dua against non-applicant/appellant for the relief of divorce on 14.7.2003. In brief the facts of the case before the Trial Court were that the marriage of applicant/respondent Rajesh Dua was solemnized on 19.5.2001 with non-applicant/appellant Smt. Seema at Gwalior in accordance with Hindu customary rites. From the very beginning her behaviour towards the applicant, his parents and with other members of the family was not cordial. She always used to misbehave with all the members. Just after three months from the date of marriage she went to her parental house and till today she did not return. It was also pleaded that whenever applicant telephonically asked her to come back, she bluntly refused. She has deserted the applicant. The non-applicant never performed her conjugal duties. She is a modern lady. She used to tell that she was not ready for this marriage even then marriage was solemnized against her will. She always used to go at the house of her Jijaji Gulshan Gulati and similarly Gulshan Gulati also used to come to meet with non-applicant Seema. It was noticed by applicant that the non-applicant was indulging in an indecent manner and found her in a compromising position with Jija Gulshan Gulati. Her character was not good. She always told that she has many boyfriends and girlfriends and they also do not believe in character. Whenever objection was raised, she threatened the respondent and his family members to implicate them in criminal prosecution in regard to demand of dowry and to send them in Jail. On 5.6.2001 when Gajendra Singh and Jagram friends of the non-applicant came to his house then instead of behaving respectfully, she refused to prepare tea and they were ill-treated by her. Due to all these reasons, it is not reasonably possible for him to live with her. In this way, this petition was filed for divorce on the ground mentioned under Section 13(1)(ia) of the Hindu Marriage Act, 1955.
4. In reply, the averments made in the petition by the applicant were denied. The factum of ill-treatment, mental agony and desertion has also been denied by appellant/non-applicant. On the contrary, it was alleged that she was always ill-treated by applicant/respondent, his parents and by family members. Infact when her father died then on 20.6.2003, she was sent to her parental home by Rajasthan Bus Service. Thereafter, she has never been called to come back nor applicant himself came to take her back to his house. Being an educated lady, she always performed all the duties devotedly towards all the members of the family and always behaved politely. Fact of indulging in an indecent manner with Gulshan Gulati has also been denied by her in paragraph 9 of her written statement. Lastly it was prayed that application be dismissed with costs.
5. The learned Trial Court framed necessary issues and after recording the evidence of the parties, passed a decree of divorce. In this manner, this appeal has been preferred by the appellant/wife before this Court.
6. It was submitted on behalf of the parties that mediation/conciliation proceedings took place but were not successful in this appeal also.
7. The contention of the learned Senior Counsel Mr. Bhardwaj for appellant is that the factum of cruelty has not been proved by the appellant/wife. It is also submitted that even if it is held that the appellant was cruelsome towards the respondent since then decree could not be passed, because to constitute cruelty, the conduct complained of should be grave and weighty so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with her other spouse. It must be something more serious than ordinary wear and tear of married life. This case has not been proved in the way mentioned above. Reliance has been placed on the judgment, passed in Naveen Kohli v. Neelu Kohli, I (2006) DMC 489 (SC)=II (2006) CLT 100 (SC)=III (2006) SLT 43=128 (2006) DLT 360 (SC)=AIR 2006 SC 1675 and also on Sanjeev Parashar v. Smt. Mithilesh Kumar, AIR 2004 MP 77.
8. On the other hand, learned Counsel appearing for respondent/husband argued in support of the impugned judgment and submitted that the learned Trial Court on the basis of evidence has found that the behaviour of the appellant/wife towards the respondent/husband was cruelsome, it is also found proved that she always used to behave in disrespect manner. She threatened to lodge a false report against the applicant and family members. It is also found proved that she was indulged in an indecent manner with her Jija Gulshan Gulati. It is also submitted that by all means and from all the corners of the case, it has been proved that applicant/respondent cannot live with his wife. Therefore, the decree of divorce has rightly been passed by the learned Trial Court and hence this appeal be dismissed with costs.
9. To prove the case, witnesses Rajesh Dua (AW1), Gajendra Singh Bhadoriya (AW2) and H.C. Dua (AW3) were produced by the applicant and to rebut the case witness NAW1 Smt. Seema, NAW2 Girish Soori and NAW3 Smt. Shanti Devi were produced by non-applicant. After appreciation of evidence, from the statement of abovementioned witnesses, Trial Court has passed a decree of divorce in favour of applicant/respondent-husband.
10. Rajesh Dua (AW1) stated in para 6 that it was admitted by non-applicant Seema that her character was not good. She and her girl friends do not believe in character. All these were the old-fashioned talks. In para 7 it was stated that Seema used to go at the house of Gulshan Gulati without permission and similarly Gulshan Gulati also used to come at her house and after entering into the room they behaved in an indecent manner. It was also stated that whenever he told Seema not to meet with Gulshan Gulati then she threatened that if he obstructs her then she would lodge a report against him in regard to demand of dowry and assault and send him and his family members in jail.
11. It was also stated in paragraph 8 that non-applicant used to reside with her Jija Gulshan Gulati at his house situated at Taraganj. One day he went to house of Gulshan Gulati to call her back to his house, he found her in a compromising position with Gulshan Gulati. It was also stated that by seeing above scene he had been full with the state of sorrow and hate. It was also stated that at that time he thought whether Seema is my wife or she is wife of Gulshan.
12. He also stated about all other facts which were pleaded in the divorce petition. The statements in regard to the factum of indulging in an indecent manner with Gulshan Gulati have been fully corroborated and supported by the statement of his father H.C. Dua (AW3). Statements of these witnesses have not been challenged even by asking a single word in cross-examination by appellant/non-applicant Seema. Not only this, Smt. Seema (NAW-1) has not denied these allegations.
13. Smt. Seema (NAW1) has not stated anything in regard to allegations (objectionable relation with Gulshan Gulati and ill-treatment with the friends of her husband) made against her as mentioned above. On the other way, in cross-examination these allegations were put forth by way of suggestion although these allegations were denied, but it makes no difference because very important witness Jija Gulshan Gulati has not been examined in the Court by the appellant. Therefore, unrebutted testimony of these witnesses is fully reliable. In these circumstances, it is crystal clear that appellant Smt. Seema indulged in an indecent manner with her Jija Gulshan Gulati.
14. In paragraph 15 of the judgment, it has rightly been held by the Trial Court that appellant has made objectionable relation in an indecent manner with Jija Gulshan Gulati against the will of her husband. In this way, respondent/husband was mentally tortured by her.
15. Rajesh Dua (AW1) stated in para 9 that his friends Gajendra Singh and Jagram when came on 5.6.2001 at his house, it was requested to prepare tea but she refused to prepare tea for them. It was also told by her almost in a crying manner that she was not his servant. This fact was also proved by Gajendra Singh Bhadoriya (AW2) and in cross-examination of these witnesses, not a single sentence was asked to refute.
16. Learned Trial Court has rightly come to the conclusion in para 14 of the judgment that most of the time she resided at the house of her sister (wife of Gulshan) when she came to attend date of hearing in Court. Similarly, in para 18 of the judgment it has rightly been held that on 20.6.2003 she was not sent to her father’s house by respondent, but in fact she herself went to her father’s house along with her sister on 14.1.2003 when her father died.
17. All the findings given by the learned Trial Court are based on the proper appreciation of evidence.
18. The term “cruelty” has not been defined in the Hindu Marriage Act, 1955. Cruelty may be of two kinds, one is physical cruelty and second is mental cruelty. So far as mental cruelty is concerned, according to us the cruel treatment by the spouse beyond the degree of tolerance power which a normal person can tolerate and it should be up to the degree that the spouse is unable to live with the husband or wife as the case may be. There cannot be a definite yardstick to measure mental cruelty and it is to be decided on the basis of circumstances of each case. However, if the behaviour of the spouse is such that it is crossing the limits which a prudent or sensible person is not expected to do then it may amount to mental cruelty.
19. In case of Naveen Kohli v. Neelu Kohli (supra), it was held by Apex Court in para 66:
“66. To constitute cruelty, the conduct complained of should be “grave and weighty” so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tear of married life”. The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered as noted above in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty, it must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complainee spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.”
20. Similar view was also expressed by Apex Court in case of A. Jayachandra v. Aneel Kaur, I (2005) DMC 111 (SC)=VII (2004) SLT 581=2005 (2) SCC 22.
21. In the present case, it has already been proved by the respondent/husband against the appellant/wife that she was indulging, in an indecent manner, with her Jija Gulshan Gulati. Her behaviour towards the husband and his family members was cruelsome. She also used to threaten in regard to lodge a false report against the respondent and his family members for sending them in Jail. Rajesh Dua (AW1) stated in para 14 of his statement that he cannot reside with his wife in such a situation and he wants divorce. Applicant/respondent Rajesh Dua belongs to a middle-class Hindu family, where such type of behaviour cannot be expected on the part of wife.
22. In the opinion of this Court, the respondent/husband cannot be reasonably expected to live with the appellant/non-applicant wife.
23. This appeal since devoid of merits so by affirming the judgment and decree passed by the Trial Court this appeal is dismissed. No costs. Accordingly, decree and costs memo be drawn. Advocate fee as per scheduled, if certified.
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