Roshi W/O Sher Singh Vs. Sher Singh - Court Judgment

Excerpt:
- - thus, it would be clear that even though the petitioner had levelled serious allegation against the respondent husband in the divorce petition that he was trying to prostitute her, yet the petitioner miserably failed to prove this allegation. it appears that the petitioner was in the habit of levelling false allegations against the respondent and to the extent of saying that the respondent was compelling her to lead the life of a 'prostitute',but the petitioner miserably failed to prove this allegation.v.m. jain, j. 1. this appeal has been filed by the appellant wife against the judgment and decree dated 5.10.1995 passed by the additional district judge, vide which the petition for divorce filed by the appellant wife against the respondent husband was dismissed.2. the facts, in brief, are that on 24.1.1995, the appellant wife filed a petition undersection 13 of the hindu marriage act, 1955 against the respondent husband seeking dissolution of marriage by a decree of divorce. it was alleged that the marriage between the parties was solemnized in the year 1982 and that at the time of marriage, she was aged 6/7 years while the respondent was aged about 45 years. it was alleged that in may, 1992 the muklawa ceremony had taken place and the petitioner had gone to her matrimonial home and the parties lived together as husband and wife. it was alleged that the respondent was habitual to drinking liquor and poppy husk, and after the marriage, he started, harassing the petitioner during her stay in her matrimonial home and he also gave her severe beatings and tortured her. it was alleged that the respondent tried to 'prostitute' her and she was not provided proper food and clothing. it was alleged that the respondent gave beatings to the petitioner and turned her out of the matrimonial home after retaining all the dowry articles and also warned that unless she would agree for prostitution, he would not keep her with him. it was alleged that thereupon, the parents of the petitioner had gone to the house of the respondent and at that time, the respondent confessed his guilt and assured them that in future, he would behave properly, whereupon the petitioner came back to her matrimonial home. however, the behaviour of the respondent remained the same and he continued mis-behaving with her and that the petitioner was given beatings by the respondent and he turned her out of the house in three clothes after removing all the ornaments worn by her. it was alleged that the respondent had given mental and physical cruelty to the petitioner and that further cohabitation with the respondent was harmful to the petitioner. it was alleged that since december, 1992 the petitioner was residing with her parents and the respondent had deserted her for a continuous period of not less than two years prior to the filing of the petition without any reasonable excuse. it was, accordingly, prayed that the marriage between the parties be dissolved by a decree of divorce.3. in the written statement filed by the respondent husband, various allegations madein the petition were denied. it was alleged that in fact, the petitioner was adult at thetime of her marriage and the age gap was meager. it was denied that he was addicted tointoxication. it was also denied that he had ever made efforts to make the petitioner'prostitute' and if she was leading a life of prostitution, it was not in the knowledge ofthe respondent. it was alleged that in fact, the respondent is not levelling the allegationof prostitution against the petitioner. the allegation of desertion was also denied and itwas alleged that it was concoction.4. the petitioner filed replication. various issues regarding cruelty and desertionwere framed. both sides led evidence.5. after hearing both sides and perusing the records, the learned additional districtjudge decided both issues against the petitioner wife and resultantly,. dismissed the divorce petition. aggrieved with the same, the petitioner wife filed the present appeal in this court.6. after hearing the learned counsel for the appellant and perusing the records, in myopinion, there is no merit in this appeal and the same is liable to be dismissed.7. in order to prove that the respondent had treated the petitioner with cruelty and/orhad deserted her, smt. roshni petitioner, herself, had appeared in the witness box aspw-1 and had produced her mother smt. janno as pw-2. however, in my opinion, from the statement of these two witnesses, it could not be said that the respondent husband had treated the petitioner with cruelty or had deserted her. pw-1 smt. roshni deposed that she got married with the respondent about 13 years back and at that time, she was aged 6/7 years while the respondent was aged about 45 years. she further deposed that about three years back, the muklawa was done and she went to her matrimonial home and started residing with the respondent as his wife. she stated that the respondent started harassing her as he was addicted to poppy husk and he gave her beatings under the influence of intoxication and he did not provide her proper food and clothing. she deposed that when she was turned out of the matrimonial home, her parents had gone to the respondent where the respondent admitted his guilt and assured her parents that he would properly behave with the petitioner and she went back to the respondent, but his behaviour remained the same and again, she was turned out of the house after removing the ornaments and since december, 1992 she was residing with the parents. during cross-examination, she stated that she did not remember as to from which date and month, she was residing separately from the respondent and she was given beatings, but stated that she was given beatings for three months after muklawa. she stated that she did not remember the date and month of her marriage. she stated that neither she had attended any panchayat for compromise nor her father had convened any panchayat for compromise with the respondent. she stated that the respondent had come to her parental home with a panchayat for compromise, but she refused to join the matrimonial home. she further stated that the police has challaned the respondent. she further stated that she got herself medically examined and medical certificate was in her possession. she denied the suggestion that she was living separate from the respondent of her own will. pw-2 smt. janno, mother of the petitioner, deposed that the parties were married about 13 years back and at the time of the marriage, the petitioner was aged 6/7 years while the respondent was aged 45 years. she stated that muklawa ceremony took place about three years back and the parties lived together as husband and wife. she stated that her daughter had told her that the respondent had tried to 'prostitute' her. during cross-examination, she stated that the respondent never gave beatings to the petitioner in her presence. she stated that the petitioner was residing with them for the last 2-1/2 years, but she could not give any specific date or month, since the petitioner was living with them. she stated that the respondent was never challaned by the kaithal police. she further stated that no panchayat was convened by them for effecting compromise with the respondent, she stated that she could not tell the date and month when the petitioner left the matrimonial home.8. in order to rebut the evidence led by the petitioner wife, sher singh respondenthimself appeared in the witness box as rw-1 and denied that he was habitual to drinking liquor or taking poppy husk. he also denied having given beatings to the petitioner during her stay with him. he stated that his sister was married with the uncle of the petitioner. he denied that he had ever compelled her to lead the life of a 'prostitute'. he stated that he was ready to keep the petitioner with him and denied having turned her out of the matrimonial home at any time. he stated that all the ornaments were with the petitioner. he denied that he was ever challaned by the police in any excise or any other case. he stated that he had convened panchayats two or three times to patch up the matter. he stated that the petitioner had left the matrimonial home along with her brother on the pretext of seeing her ailing mother. during cross-examination, he denied the suggestion that he was involved in various cases of poppy husk and opium or that he was carrying on the business of poppy husk etc. or that he had given beatings to the petitioner or had turned her out of the matrimonial house.9. from the pleadings and the entire evidence led by the parties, in my opinion, itwould be clear that the petitioner wife had levelled serious allegations against the respondent husband in the divorce petition that he had tried to 'prostitute' her. this allegation was specifically denied by the respondent in his reply. however, when smt. roshni petitioner appeared in the witness box as pw-1, she did not utter a word about this allegation against the respondent that he had tried to 'prostitute' her. when the mother of the petitioner appeared in the witness box, she, however, stated that the petitioner had told her that the respondent had tried to 'prostitute' her. when the respondent appeared in the witness box, he denied having compelled her to lead the life of a 'prostitute'. he was not cross-examined in this regard on behalf of the petitioner. thus, it would be clear that even though the petitioner had levelled serious allegation against the respondent husband in the divorce petition that he was trying to prostitute her, yet the petitioner miserably failed to prove this allegation. in my opinion, this by itself would be sufficient to dis-entitle the petitioner to the dissolution of marriage by a decree of divorce. it appears that the petitioner was in the habit of levelling false allegations against the respondent and to the extent of saying that the respondent was compelling her to lead the life of a 'prostitute', but the petitioner miserably failed to prove this allegation. this is especially so when it has come in the statement of rw-1 sher singh that his sister was married to the uncle of the petitioner. considering the relationship between the parties, if the petitioner still level such allegation against the respondent, in my opinion, it could not be said that the petitioner wife was entitled to dissolution of marriage by a decree of divorce by claiming that the respondent had caused mental and physical cruelty towards her. similarly, in my opinion, the allegation of desertion is also not proved on records, in view of the vague allegations made by the petitioner in this regard.10. in view of the above, while up-holding the findings of the trial court on issuesno. l and 2, and finding no merit in this appeal, the same is, hereby, dismissed.