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The appeal was filed by the husband (appellant-plaintiff) against the judgement & decree of dismissal by the Principal Judge of Family Court, Giridih. The appellant filed a suit for dissolution of marriage u/s 13 of Hindu Marriage Act, 1955 on the grounds of cruelty, desertion & mental capacity of the wife-respondent.
Facts :
Marriage between the appellant & respondent took place on 29-01-2007 according to the Hindu rituals at Mirazganj. 2 children,1 son & 1 daughter were born out of the wedlock.
According to the husband, the respondent treated him as well as his parents with cruelty. He still tolerated her & treated her with compassion. But she didn't change. He informed about her attitude to her parents while they attended marriage of her cousin-sister.
Their son was born & 20 days after that, the wife went to her parents house for better care of her child. He filed an informatory petition in the court of CJM against the falso case made against him for dowry & domestic violence.
After that, the husband got a job in AIIMS so he moved to Delhi. On 08-11-2009, a panchayat was held by Giridih Tailik Sahu Sabha, & the respondent went with her husband. The husband was wishing to bring his father to Delhi for his treatment but, the wife refused owing to which his father died on 11-05-2010 due to lack of proper treatment.
Both of them attended appellant's brother-in-law marraige on 05-06-2010. Suddenly after that, she came to Delhi on 28-06-2010 without informing the appellant who was having his breakfast in AIIMS canteen. She called up the police & created a scene despite being told to keep calm by the appellant.
The wife went to her parents home on 07-09-2010. The appellant wasn't allowed to meet the wife & son which is cruelty. The wife lodged a complaint at Tisri P.S. on 12-05-2011, u/s 498A/34 of I.P.C & 3/4 of Dowry Prohibition Act. He got bail after the compromise between the parties.
Even after that, the wife became more intense & her psychic behaviour endangered the life of appellant & his son. When the appellant got his job at Ranchi, they started living as husband & wife again, but she treated him with cruelty. His wife lodged a false criminal case against him u/s 498A & left him on 12-07-2014 out of her own will & since then they are living separately which is desertion.
The wife contested that appellant demanded dowry of Rs.2,00,000 & car which could not be fulfilled, so he treated her with cruelty. She lived at her parents house after the birth of first child, because he was not taking her back. She didn't refused to get his father treated, rather she performed all her obligations towards them. F.I.R was filed u/s 498A & 3/4 of Dowry Prohibition Act because, appellant was harassing her in which she accepted the compromise for saving her marriage.
0n 12-07-2014, she was driven out of the house. She wanted to resume her conjugal life & even attended appellant's younger brother marriage on 07-05-2017.
The husband could not establish the grounds for mental illness with evidences & so it was rejected by the court. The Trial Court decided in favour of the wife after analysing the evidences. Despite all the efforts of mediation, the parties could not compromise. The appeal was then filed on 24-09-2019.
Appellant's Submission :
The learned counsel appearing for the appellant submitted :
Respondent's Submission :
The learned counsel appearing for the respondents submitted :
Observation of the Court :
The court stated no documentary proof has been provided by husband to support the grounds of cruelty. On the other hand, the wife has supported he pleadings with evidences.
The court also pointed that the wife made compromises to secure his bail which indicates that she wanted to resume her conjugal life. Not filing any case for restitution of conjugal rights by her, does not mean that she isn't interested to live with him, rather the facts shows that she was compelled by her husband to leave the house.
The court held that the husband wanted to get rid of his wife, as evident from Exhibit-A the petition for mutual divorce sent to the wife signed by him & Exhibit-B letter on 30-09-2010 sent to the father-in-law which suggests that he wanted to get rid of his wife.
The court stated that desertion should be voluntary but in this case, it is clear that she was driven out of her her matrimonial home. She is willing to live with the appellant which is evident from the fact that she attended appellant's brother marriage. The husband had to take her back after compromise & dictum of panchayat.
Moreover, the court pointed that, "Desertion should be willful & voluntary Act by the party to leave something without any rational reason".
In the present case, the husband is at fault. Nobody can take benefit of this principle & it cannot be accepted, otherwise all the husbands desiring to get rid of their wife will drive them out of their matrimonial home by creating a situation & then take plea of desertion for more than 2 years. And so,t he husband cannot be granted the decree for divorce.
Judgement : The court dismissed the appeal & affirmed the judgement dated 05-10-2018 & decree of dismissal dated 28-11-2018.
Judge : Hon'ble Mr. Justice Rajesh Kumar & Mr. Justice H.C Mishra.
Case Courtesy : Sanjay Kumar v Suman Kumari.
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