Rajkishore Sharma Vs. Sharda Devi - Court Judgment

Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - the respondent has clearly stated that even if the petitioner made any attempt to cohabit or lived in the same house, the respondent threatened to commit suicide or would kill her son and therefore, in spite of the fact that the petitioner being the only son of his parent left the house on 23rd december, 1982 on account of this cruelty. 3. in the reply submitted the respondent has denied the entire facts and further stated that all the allegations are false and baseless and that she has considered him like god. issues were framed on the points of cruelty as well as desertion and the various witnesses were examined. 4. the learned judge, family court came to the conclusion that the statement given by him were not reliable inasmuch as the petitioner being the incharge/manager of the school where kumari kamalesh pareek was a teacher and for which photo-graphs were also produced. sharada devi, the statements of shri satishchand, loonkaran saini and rajendra kumar were also recorded and the learned judge, family court came to the conclusion that the petitioner has failed to prove the cruelty. the appellant has suffered mental as well as physical cruelty from the respondent and that the appellant, was forced to leave the house under the fear of suicide by the respondent or murder of his son by her. the presumption of cohabitation terminates the desertion which has been stated in the written reply filed by the respondent which has not been effectively disproved or otherwise proved by the petitioner.v.k. singhal, j.1. allegaing mental and physical cruelty by the wife smt. sharda devi, a petition for divorce under section 13 of the hindu marriage act, 1955 was filed in the court of judge, family court, jaipur, by the petitioner. the said petition was dismissed on 26th july, 1986 and therefore, the present appeal has been filed under section 19 of the family courts act, 1984. the various submissions which were raised before the judge, family court have been reiterated.2. in this case, the marriage between the parties was performed on 30th june, 1975. out of this wedlock, a son was borne on 23rd december, 1979 and a daughter was borne on 15.12.1982. the petitioner appellant left his parental house on 23rd december, 1982 and the non-petitioner respondent is living with her father-in-law and mother-in-law. the reason for leaving the said house is said to be cruelty by the respondent and it has been alleged that she has never been fulfilled her obligations and never prepared meals and given to the petitioner in time and that whenever any guest came in the house she used to abuse the petitioner and beat her son. it is further submitted that the respondent has extended her limits by beating the petitioner on two days prior to raksha bandhan of 1980 and on the eve of deepawali of 1981 and has threatened to commit suicide if the petitioner lived in the house and she would even kill her son. on the eve of birth day of rakesh on 23rd december, 1982 she has attempted to commit suicide and poured kerosene on her and her son. the respondent has clearly stated that even if the petitioner made any attempt to cohabit or lived in the same house, the respondent threatened to commit suicide or would kill her son and therefore, in spite of the fact that the petitioner being the only son of his parent left the house on 23rd december, 1982 on account of this cruelty. it has also been submitted that the respondent has deserted the petitioner for continuous period not less than two years immediately proceeding the presentation of the petition. therefore, he is entitled for a decree for divorce.3. in the reply submitted the respondent has denied the entire facts and further stated that all the allegations are false and baseless and that she has considered him like god. additionally it is also submitted that the petitioner has illegal relations with one kumari kamalesh pareek who is a teacher in vimla sharada vidya mandir samiti school, paras ram nagar, jagipur. issues were framed on the points of cruelty as well as desertion and the various witnesses were examined. the petitioner was also examined wherein he has stated that he does not know kumari kamalesh pareek.4. the learned judge, family court came to the conclusion that the statement given by him were not reliable inasmuch as the petitioner being the incharge/manager of the school where kumari kamalesh pareek was a teacher and for which photo-graphs were also produced. in the statements in respect of school where 8 teachers and one lady teacher are there, it is impossible to believe that he does not remember kumari kamalesh pareek. it was also observed that the petitioner being the only son, had there been any misconduct or misbehaviour or cruelty to the extent as alleged, the parent of the petitioner would not have kept the respondent alongwith childrenwith them. no relative witness was produced.5. the evidence of shri banwari pareek who happens to be the brother-in-law of kumari kamalesh pareek was also discarded as he fails to give the name of any of the persons present on the birth day of son on 23.12.1982 and it was observed that since the respondent had given birth to a daughter on 15.12.1982 it is impossible that she could have poured kerosene on her and on the eve of birthday of 23.12.1982. the statement of shri nanagram a friend and collegue of the petitioner was also disbelieved as he could not give date of birth of his 4 sons. the statement of smt. munni devi employee of the school of the petitioner was disbelieved as she has not able to inform in which month she has gone to take food or of which year the deepawali was.6. besides the statements of the respondent smt. sharada devi, the statements of shri satishchand, loonkaran saini and rajendra kumar were also recorded and the learned judge, family court came to the conclusion that the petitioner has failed to prove the cruelty. it was observed that the written statements submitted by the respondent it has been submitted that the petitioner is coming to the house of the parent even after 23 december, 1982 and has cohabited thereafter.7.the learned judge family court came to the conclusion that there was no desertion by the respondent and the petitioner has left the house without any reasonable cause.8.the submission of mr. agarwal on behalf of the appellant is that the evidence adduced before that judge, family court has not properly been appreciated and that the actions of the respondent amounted to cruelty. the appellant has suffered mental as well as physical cruelty from the respondent and that the appellant, was forced to leave the house under the fear of suicide by the respondent or murder of his son by her.9. the arguments of both the learned counsel have been heard and the entire record has been perused. the various allegations which have been raised by the appellant of cruelty have not been proved by the appellant and it was his burden to prove the same. for the purpose of cruelty there must be the conduct or behaviour of the other party in such a manner which may be harmful or injurious to bodily or mentally to the petitioner. the mental cruelty could be inferred from the entirity of circumstances atmosphere. in a case where the only son of the parents alleges cruelty against his wife and such wife is living with his parent along with her children and he himself lives in the house is unbelievable. had there been iota of evidence of cruelty on the part of the wife, the parents would have expelled her from the, house rather than keeping her.10. another important fact that the absence of bringing the parents and other relatives in the witness bing which shows that the appellant petitioner has not discharged the burden which was on him, to prove the cruelty for the purpose of desertion. the statement given by the petitioner himself were rightly discarded as incorrect when he has stated that he does not know kumari kamalesh pareek when the documentary and oral evidence has proved that she was the teacher of his school.11. the allegation of desertion by the respondent has also not been proved. animues deserandi is an answer to the charge of desertion. the respondent has not deserted the appellant petitioner. she has stated in her written statement that the petitioner has been coming even after 23rd december, 1987 to the house of his parents where the respondent was living and has co-habited from time to time. the burden is on the petitioner to show that the desertion by the respondent was without reasonable cause. the presumption of cohabitation terminates the desertion which has been stated in the written reply filed by the respondent which has not been effectively disproved or otherwise proved by the petitioner.12. the finding arrived at by the judge family court are in consonance with the judicial process and the order and decree is just which should have been in the facts and circumstances of the case.13. the appeal is, therefore, dismissed with no order as to costs.