A.K. Awasthy, J.
1. Appellant/petitioner has filed the First Appeal (No. 475/97) under Section 28 of the Hindu Marriage Act against the judgment and decree dated 30.9.1997 in Civil Suit No. 15-A/97 passed by the learned IInd Additional District Judge, Dewas dismissing her petition filed for dissolution of marriage on the ground of cruelty.
2. The appellant has filed another appeal (F.A. No. 476/97) under Section 28 of the Hindu Marriage Act against the same judgment and decree dated 30.9.1997 in Civil Suit No. 16-A/97 passed by the same learned IInd Additional District Judge, Dewas, whereby the petition filed by the respondent for restitution of conjugal rights under Section 9 of the H.M. Act was allowed.
3. The petition filed by the appellant for divorce in Civil Suit No. 16-A/97 and the petition filed by the respondent for restitution of conjugal rights in Civil Suit No. 15-A/97 were tried together and the learned Trial Court has recorded evidence of both the cases jointly. It is not in dispute that the marriage between the appellant and the respondent was solemnized on 22.4.1985 at Dewas according to the Hindu rites and customs and after one year of the marriage the appellant went in Gauna ceremony on 22.4.1986 to live with respondent in the matrimonial house.
4. The case of the appellant/wife is that the respondent/husband and his family members were in habit of physically assaulting her and they usually misbehaved and tortured her. That on 1.6.1994 the respondent came to the house of the appellant and he had quarrelled with the appellant and her father and also physically assaulted the appellant and her father and a report was lodged against the respondent in the Police Station at Dewas. That the respondent has left the appellant from more than two years and has not made any attempt to resume the matrimonial relationship. The appellant has prayed that she has danger to her life from the respondent/husband and as such the marriage be dissolved by a decree of divorce on the ground of cruelty.
5. The defendant has denied that he or his family members used to beat the appellant. It is pleaded by the respondent that after the marriage in the year 1986 the father and other relatives of the appellant administered Sulphas tablet to the appellant and she was saved by the treatment in the District Hospital at Dewas and M.Y. Hospital, Indore. It is further alleged by the respondent that the appellant was minor at the time of her marriage. It is further alleged by the defendant/ respondent that the brother of appellant Sandeep has stolen from the pocket of the respondent the cash amount of Rs. 25,000/-. It is further alleged by the respondent that the appellant has filed the suit for divorce at the behest of her father and the family members. The respondent has filed separate application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights with the appellant.
6. The learned Trial Court after framing the issues has examined Babita (P.W. 1), Rajni (P.W. 2), Manohar Natkar (P.W. 3), Shankar Singh Thakur (P.W. 4) and from the opposite side respondent Shyam Singh (D.W. 1), Dinesh (D.W. 2) and Vijay Singh (D.W. 3). The learned Trial Court has held that the appellant has failed to prove that the respondent has treated her with cruelty. That she is living separately from her husband without any rhyme or reason and as such she does not deserve the decree of divorce and has passed decree of restitution of conjugal rights against the appellant.
7. The appellant has alleged that the learned Trial Court has not properly appreciated the statement made by the witnesses of the appellant and erred in concluding that the ground of cruelty is not proved. That the decree for restitution of conjugal rights by the learned Trial Court and the dismissal of the petition for divorce are against the evidence on record.
8. Babita (P.W. 1) has stated that her husband and his brother and sister were in habit of torturing her and the respondent used to physically assault her. Babita (P.W. 1) has further stated that on account of cruel behaviour of her husband and his family members she went to live in her paternal house at Dewas and, thereafter, the family members of the respondent came to her house and then she was taken back to the matrimonial house. Babita (P.W. 1) has further, stated that her husband again started assaulting her and she is living separately from his husband at Dewas from the last 5 years. Rajni (P.W. 2) has stated that his house is near the house of appellant Babita and her husband on and off used to fight with Babita and all the neighbours used together there in the house of the appellant. Rajni (P.W 2) has further stated that the respondent had also assaulted his wife and her father. Manohar Natkar (P.W. 3) has stated that his house is adjacent to the house of Babita and he has seen respondent Shyam Singh abusing and beating Babita and her father. From the cross examination of Rajni (P.W. 2) and Manohar Natkar (P.W. 3) it is clear that their statements are trustworthy and there is nothing to disbelieve and doubt the veracity of their statements.
9. Shankar Singh (P.W. 4) has stated that Babita is her daughter and her husband Shyam Singh was in Jail for about six months and, thereafter, he started making false allegations against the character of her daughter and he was in habit of beating her daughter. Shankar Singh (P.W. 4) has further stated that one day when he came back from duty he saw that the respondent and his cousins were quarrelling and abusing his daughter and the respondent has also gave 3 or 4 blows of chain on his head and he lodged report in Police Station, Dewas. Ex. P/ 1 is the police report lodged on 1.6.1994 at about 11 a.m. at Police Station, Dewas and from the report it is clear that about few hours prior to lodging of the report his son-in-law came to his house with his cousins and they have assaulted the appellant and her father.
10. Shyam Singh (D.W. 1) has made the allegations against his wife that her parents gave the Sulphas tablets to the appellant and the appellant was admitted in the hospital. Shyam Singh (D.W. 1) has further made allegation against the brother of the appellant that he has stolen the amount of Rs. 5,000/- cash from his house. Respondent Shankar Singh Thakur (P.W. 4) has made false allegations against brother of the appellant in para 3 of his cross examination that the amount of Rs. 5,000/- were stolen by brother of the appellant from his pocket. The defendant has not led any evidence to prove that the said amount was stolen by brother of the appellant from the pocket of the respondent. The respondent has not asked any question in the cross-examination of the appellant about the allegation that the tablets of Sulphas were administered by her parents to Babita or that the amount of Rs. 5,000/- was stolen by her brother from pocket of the respondent. The appellant is living separately from the respondent from more than 10 years. At the time of filing of the petition for divorce the appellant was living separately from the respondent from last 4 years and it is clear that the respondent has not made any attempt to bring his wife back to the matrimonial house.
11. From the aforesaid evidence and circumstances it is clear that the respondent is guilty of matrimonial offence of causing physical and mental cruelty to the appellant. In the aforesaid backdrop the decree for restitution of conjugal rights passed by the learned Trial Court is not sustainable and the appellant/wife will not be allowed to live with the respondent/husband who is treating her with cruelty and making all sort of baseless allegations against her brother and parents. It is also proved that the respondent has beaten the father of the appellant in her house. Consequently, the learned Trial Court has erred in dismissing the petition for divorce of the appellant/wife and also erred in passing the decree for restitution of conjugal rights against the appellant.
12. In the result both the appeals are allowed and the impugned judgment and decree are hereby set aside and the marriage in between the appellant and the respondent is dissolved by a decree of divorce on the ground of cruelty. Parties to bear their own costs of the appeals.
This judgment be retained in F.A. No. 475/97 and a copy of the judgment be kept in the record of F.A. No. 476/97.