1 D.B. CIVIL MISC. APPEAL NO.2322/2011 Smt. Abha Trivedi vs. Shri Rajendra Kumar Gautam IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :JUDGMENT
: D.B. CIVIL MISC. APPEAL NO.2322/2011 Smt. Abha Trivedi vs. Shri Rajendra Kumar Gautam Date of Judgment ::
24. h September, 2013 PRESENT HON’BLE MR. JUSTICE DINESH MAHESHWARI HON’BLE MR. JUSTICE ARUN BHANSALI Mr. R.K. Purohit, for the appellant. Ms. Abha Trivedi – appellant wife present-in-person. Mr. Rajendra Singh Charan, for the respondent. Mr. Rajendra Kumar – respondent husband present-in-person. ---- BY THE COURT: (PER HON'BLE BHANSALI, J.) This appeal under Section 19 of the Family Courts Act has been filed by the appellant-applicant-wife aggrieved against judgment and decree dated 11.08.2011 passed by the Judge, Family Court No.1, Jodhpur ('the Family Court'), whereby, the application filed by her under Section 13 of the Hindu Marriage Act, 1956 ('the Act') has been dismissed. The brief facts of the case can be summarized thus:- The applicant-appellant filed an application under Section 13 of the Act on 22.12.2004, inter alia, with the averments that her marriage with the respondent Rajendra Kumar Gautam was solemnized on 19.11.1995 at Jodhpur; and after marriage, she stayed 2 D.B. CIVIL MISC. APPEAL NO.2322/2011 Smt. Abha Trivedi vs. Shri Rajendra Kumar Gautam with her husband and in-laws at Kota. The appellant alleged that the husband and his family members used to abuse her for dowry, however, she remained silent. The appellant further averred that she was in government service from before marriage and was working on the post of Junior Accountant at Jodhpur; that her mother was suffering from Cancer and her three sisters were living outside Jodhpur and she had no brother; that for the purpose of living with her husband and for continuing with her matrimonial life, she got herself transferred to Kota in February, 1996, whereafter the atrocities of the husband and his family members increased and they took to physical violence with her. The appellant yet further averred that on being pregnant, she took leave and came to Jodhpur and delivered a son on 06.11.1996; that during that period, husband and his mother Mohini stayed at Jodhpur for 15 days and sought apology from her mother for their cruelty & misbehaviour and assured that the same would not happen in future whereafter she went to her in-law's place, but within few days, they started demanding Rs.1,00,000/- and, therefore, she separated from her in-laws and started living at Mahaveer Nagar, Sector-2, Kota. It was thereafter alleged that in the month of December, 1997, there was serious altercation and respondent committed physical violence with the appellant and, therefore, she had to come to Jodhpur with her child and stayed at Jodhpur for 4-5 months; that the husband came to Jodhpur and sought apology and she was again sent back to Kota; that after her coming back to Kota, all the things started again, her money was snatched, she was physically abused, and a 3 D.B. CIVIL MISC. APPEAL NO.2322/2011 Smt. Abha Trivedi vs. Shri Rajendra Kumar Gautam sum of Rs.14,00,000/- was demanded. However, according to the appellant, keeping in view the future of her son, she kept silently compromising but confided on all these things with one Smt. Mamta Malik. The appellant further alleged that on the night of 16.12.2002, the husband committed excessive physical violence with her and if the son had not woken up, he would have killed her. In the morning, the appellant applied for leave for a month from the office and went to her mother, who at that time was living with her brother-in-law Nitin Kulkarni; and from the month of January, 2003, she started living with her mother at Jodhpur after applying for further leave for 5-6 months. The appellant further stated that her mother died on 03.04.2003 when her mother-in-law and brother-in-law visited and started fighting with her; that on 07.03.2004, on the occasion of Holi, the husband came to her place and demanded money and started fighting with her, on which, the servant Uma intervened. With the averment aforesaid, the appellant prayed for the decree of divorce with the assertion that the husband had deserted her since 16.12.2002 and treated her with cruelty. A reply to the application was filed by the respondent-husband admitting the fact of marriage but, while denying the allegations of the appellant, it was alleged in the reply that after marriage, the applicant with mala fide intentions, behaved in indifferent and cruel manner with the non-applicant and kept him away from matrimonial company; she failed in discharging her matrimonial obligations and never thought of giving physical or mental comfort to him. Allegations 4 D.B. CIVIL MISC. APPEAL NO.2322/2011 Smt. Abha Trivedi vs. Shri Rajendra Kumar Gautam were made regarding her behaviour and indifference on the first night of marriage and regarding conspiracy to make him suffer. The fact of his purchasing house at Mahaveer Nagar, Kota to keep her happy was also stated; and it was alleged that mother and sisters of the appellant were interfering too much in the matrimonial life of the parties. The allegations about seeking dowry etc. were denied; and it was claimed that the appellant was free to deal with her finances and, while asserting that as and when she took leave from Kota, it was always for the purpose of looking after her ailing mother, it was alleged that her behaviour was essentially the reflection of her ego, which got inflated on account of succeeding to her mother's properties. The allegations regarding treating the appellant with cruelty and regarding desertion were specifically denied. In the additional pleas, it was stated that the respondent was an Engineering Graduate and the appellant, who had got compassionate appointment on account of death of her father, got married after due consideration; however, the appellant proved to be a mala fide partner and despite his various efforts, her behaviour did not improve. Ultimately, it was prayed that the application be rejected. The Family Court framed three issues. Issue No.1 related to question as to whether the husband treated the appellant with cruelty as detailed in the application. Issue No.2 related to desertion since 16.12.2002. Issue No.3 related to relief. On behalf of the appellant-applicant, three witnesses were examined and on behalf of the respondent, seven witnesses were examined. 5 D.B. CIVIL MISC. APPEAL NO.2322/2011 Smt. Abha Trivedi vs. Shri Rajendra Kumar Gautam The Family Court, after hearing the parties came to the conclusion that the applicant-appellant had failed to prove that the respondent treated her with physical and mental cruelty and also failed to prove that respondent had deserted her and, consequently, dismissed the application filed by the appellant-applicant. It has been contended by the learned counsel for the appellant that the learned Family Court has fallen in error in recording the finding on the issues relating to cruelty and desertion against the appellant, inasmuch as, it was proved on record that the respondent- husband had treated the appellant with physical and mental cruelty, and had deserted her. It was also submitted that various allegations made in the written statement/reply to the application themselves make out a case of mental cruelty and the desertion of the appellant is apparent on record; and that material on record was sufficient for the learned Family Court to grant a decree of divorce. Ultimately, it was prayed that in any case, from the facts on record, it is apparent that there is irretrievable break down of the marriage and, in the circumstance, grant of decree for divorce would be in the interest of both the parties and refusal to grant the decree would be too harsh for the appellant. Reliance has been placed on judgments of Hon'ble Supreme Court in Dr.N.G. Dastane v. Mrs. S. Dastane : AIR 1975 SC 1534 and Naveen Kohli v. Neelu Kohli : (2006) 4 SCC 558. Refuting the contentions, the learned counsel for the respondent contended that the appellant has failed to allege and prove any cruelty committed by the respondent; and no evidence in support of her contentions is available on record, and in fact, the appellant herself 6 D.B. CIVIL MISC. APPEAL NO.2322/2011 Smt. Abha Trivedi vs. Shri Rajendra Kumar Gautam left the matrimonial home, which fact is proved from the averments made in the application and the evidence available on record and, therefore, she cannot take advantage of her own conduct in alleging desertion against the respondent. It has been submitted that the heartburning and dejectment expressed by the respondent on account of behaviour of the appellant in the written statement does not constitute mental cruelty as claimed. The learned counsel also submitted that irretrievable break down of the marriage is not a ground in the Act for grant of divorce and, therefore, no decree in this regard can be passed on that ground. Ultimately, it was prayed that the appeal be dismissed. We have considered the rival submissions made on behalf of the parties and have gone through the record of the case. The allegations relating to cruelty in the application essentially relate to the alleged demands being made by the respondent-husband on appellant's salary, income and her mother's properties; and generalized allegations have been made in the application regarding physical cruelty; and only one specific incident has been indicated in the application in para 11 of the application. The relevant averments read as under:-
“11. यह ह क प र य श ल तनत पर वयवह र ब वजद ददन 16.12.2002 अच न र त समय अप र न प र य सर भय र म रप#ट % जजस पर प र य र न, रर न व चचल न पर परय प*त ननद स ज ग र र न पर अप र न प र य छड अनयर वह उस ददन प र य ज न स म र ड त । प र य इस गमभ#र ह दस स आहत ह र र तभर अपन बचच ग द म8 ल य र त# रह9। स*बह ह त ह9 प र य न अपन य य स ए मह % छ * टट9 आवदन द र अपन बचच सर र अपन# म त प स ज उस समय प र य ज#ज ज# नननतन * र व शभ स र रहत# र# प स गई, जह आप बबत# बत न ब द 6-7 जनवर9 2003 म8 अपन# म त स र ज धप*र आ र रहन ग# प र य अप र दर इस क * रत पर वयवह र पर9 तरह स सहम# ह*ई र#, म नलस रप स 7 D.B. CIVIL MISC. APPEAL NO.2322/2011 Smt. Abha Trivedi vs. Shri Rajendra Kumar Gautam असवसर स# ह गई, इस जसरनत म8 प चरय न अपन# नB र9 % 5 म ह % छ* दटटय और बढ न आवदन भज । इधर प र य % मत ज E सर स गलसत र#, अजनतम जसरनत पर र# प चरय % मत % ह त न ज दBर पर र#। अच न प र य % म त श#मत# हम त बतवद9 सय परय ऊपर स ददन 03.04.2003 उठ गय । 12. यह ह क प र य % मत सवगव स ह न दBर न प र य ज धपर* प#.डब .ड#. म न पर अप र , स स म दहन# व परय द बड जठ व ननद ई स*रश शम ज धप*र आय तर प र य स अ रर ड ई झगड रन ग। जजस पर प र य ररशतद रM द र समझ ईश पर अप र व उस % म त व भ ई वगर व पस च गय। 13. यह ह क अप र अच न ददन 07 म च 2004 ह 9 ददन प र य घर आय और अ रर पस % अन*चचत म ग रन ग एव प र य स र झगड रन ग जजस पर प र य चच न % आव ज पर प र य क नB र न# उम दBड र आय# और अप र स छ* ड य जजस पर अप र ए ननय धमक य दत ह*ए ब हर खड ए स टर व स र बठ र च गय । इस प र अप र परय पनत क * रत पर वयवह र ननरनतर ज र9 ह।" Further, even regarding mental cruelty too, generalized averments have been made in the application regarding the day to day altercations between the parties and alleged threatenings administered to her. In the evidence led by the appellant, she got recorded her statement as PW-1; and examined Smt. Mamta Malik as PW-2 and one Prem Prakash Bidiyasar as PW-3. In her statement, the appellant stated that respondent committed physical violence 5-6 times with her and just before she left for her mother's house, respondent committed excessive physical violence with her, which resulted in her gold bangle piercing her hand and her ear rings were snatched. In cross-examination, she admitted that at the time of marriage, she was posted at Jodhpur and after marriage, for the purpose of living with the husband, on his request, got herself transferred to Kota; before marriage and at the time of marriage neither money nor goods were demanded; it was wrong to say that after marriage the money and cash were not demanded from her mother; it was correct 8 D.B. CIVIL MISC. APPEAL NO.2322/2011 Smt. Abha Trivedi vs. Shri Rajendra Kumar Gautam that she had not given a single penny to the respondent after bringing it from her parents. Thereafter, she changed the said statement to say that some times Rs.3,000/- to Rs.5,000/- and some times Rs.7,000/- were given to the respondent. The applicant admitted that she did not lodge any report with the police regarding physical violence; the husband and in-laws visited her at the time of child birth and at the time of death of her mother and they had visited them on the same night of the death. She denied having left the matrimonial home on her own and asserted that for her own safety, she was forced to come to Jodhpur. The appellant stated that she did not want to live with the respondent even if he wanted to do so, as her life was in danger with him. Smt. Mamta Malik PW-2 stated in her statement that she was also working as Junior Accountant at Kota and, therefore, she knew the appellant who used to tell her that the respondent was committing physical violence with her and was asking for her salary; and that around December, 2002, she saw the injuries on her body, in which, there were marks of the bangle piercing her hand and blood clot on her ear. In her cross-examination, she stated that the appellant showed her injuries at her (Mamta's) home. She admitted that she did not see the respondent committing physical violence, abusing or misbehaving with the applicant and that she never tried to make him understand. She also admitted that the respondent visited her house once for requesting her to talk to the appellant to come back to the matrimonial home. 9 D.B. CIVIL MISC. APPEAL NO.2322/2011 Smt. Abha Trivedi vs. Shri Rajendra Kumar Gautam PW-3 P.P. Bidiyasar stated that he tried to mediate between the parties and he was told about Rajendra committing physical violence for dowry with the appellant. In the cross-examination, PW-3 admitted that in his presence, the respondent never demanded dowry and also did not commit any physical violence or misbehaviour with the appellant. From the above pleadings and statements, it is clear that the appellant made generalized statements regarding physical violence for dowry by the respondent and in the evidence led on her behalf also, generalized statements have been made regarding physical violence. From that statement of the appellant and that of PW-2 Mamta Malik and PW-3 P.P. Bidiyasar, it is quite apparent that the respondent and/or his relatives had never asked for any dowry before or at the time of marriage and/or any time thereafter in the presence of the said witnesses. Further, even the issue relating to physical violence, there is no direct evidence and/or any act/action on part of the applicant like lodging of any complaint with police etc. Though the applicant has stated that she had approached the police in this regard, but nothing is available on record to support this assertion. Regarding the alleged physical violence on 16.12.2002, the applicant has not stated in her application that next day, on 17.12.2002, she went to Mamta Malik's house but, has stated that she went to the office and took leave and left Kota to go to her mother. Further, in her statement also, the appellant did not say anything regarding visiting Mamta Malik; however, PW-2 Mamta Malik stated in her statement that she saw the injuries on her hand and ear in December, 2012 and 10 D.B. CIVIL MISC. APPEAL NO.2322/2011 Smt. Abha Trivedi vs. Shri Rajendra Kumar Gautam in cross-examination she stated that the applicant showed her the injuries at her (witnesse's) house. The statement of PW-2 Mamta Malik being beyond the pleadings and applicant's own statement does not inspire confidence and cannot, by itself, prove the alleged violence committed by the respondent on 16.12.2002. So far as the aspect relating to mental cruelty is concerned, the applicant has failed to allege any specific mental cruelty except, of course, the so called physical violence and other related behaviour in connection with demand of dowry. As already noticed hereinbefore, the applicant in her statement has categorically admitted that the demand of dowry, before or at the time of marriage, was not made and that she did not pay anything to the respondent by bringing the same from her mother. Therefore, even the said plea regarding misbehaviour etc. for dowry remains baseless and without any proof. Further, the statements of PW-2 Mamta Malik and PW-3 P.P. Bidiyasar regarding general behaviour of the respondent also do not support the plea raised by the appellant and, as such, the plea relating to mental cruelty is also without any evidence. The plea raised by the appellant based on the contents of written statement for alleging mental cruelty also does not advance the cause of the appellant. Though the averments made in the written statements cannot be said to be in good taste, wherein, the respondent has made comments about her alleged behaviour on the first night of marriage and also about some conspiracy being entered into by the appellant and further making allegations about her nature of being stubborn and egoistic after succession to the properties of her 11 D.B. CIVIL MISC. APPEAL NO.2322/2011 Smt. Abha Trivedi vs. Shri Rajendra Kumar Gautam parents, the same by itself cannot make out a case of mental cruelty, inasmuch as, neither any of the statements can be said to be impinging upon the character of the applicant nor could be termed as cruelty so as to pass the test laid down by the Hon'ble Supreme Court regarding causing a reasonable apprehension in the mind that it will be harmful or injurious for her to live with the respondent. The appellant has herself indicated in para 11 of the application (quoted hereinbefore) that she left the matrimonial home on 16.12.2002 on account of alleged physical violence and thereafter, she did not go back to the matrimonial home and has alleged desertion by the husband. From the averments in the application and from the statements of applicant, it is apparent that the respondent visited her place alongwith his family members on the death of her mother and reached there on the same night of the death and thereafter also, visited the applicant. It clearly goes to show that there was no desertion so far as the respondent was concerned. Had there been any intention to desert, there was no occasion for him to visit the applicant alongwith the family members at the time of death of her mother and repeatedly thereafter. Further, the statements of PW-2 Mamta Malik and PW-3 P.P. Bidiyasar also clearly go to show that the attempts were made by the respondent for restoration of the matrimonial home and, therefore, it cannot be said that there has been any desertion on the part of the respondent. Consequently, no case on that count is made out. The last plea raised on behalf of the appellant relates to 12 D.B. CIVIL MISC. APPEAL NO.2322/2011 Smt. Abha Trivedi vs. Shri Rajendra Kumar Gautam irretrievable break down of the marriage on account of the fact that the parties are living separately for last more than 11 years and though the respondent is willing to take her back in the matrimonial home, the appellant is not willing to live with the respondent. Having considered the said plea based on the law laid down by Hon'ble Supreme Court in the case of Naveen Kohli (supra) and after the analysis and evaluation of the entire evidence, suffice it to say that in the context of the facts of the present case, it cannot be said that the so called brake down in the present case is irreparable and that the marriage is totally dead merely for the reason that the parties living separate. In view of what has been discussed above, the appeal has no substance and the same is, therefore, dismissed. No costs. (ARUN BHANSALI), J.
(DINESH MAHESHWARI), J.
A.K. Chouhan/-