Allowed

Basant Kumar v. Smt Bhagwati

Rajasthan HC1 Feb 2018CMA/261/1999

Case brief

AI extract

What is this about?

The High Court allowed the appeal, setting aside the trial court’s finding that no desertion occurred. The Court held that the wife’s Cruel conduct, including false allegations and refusal to live together, warranted a decree of divorce for mental cruelty.

What did the court decide?

Decree of divorce granted in favour of the husband on the ground of cruelty; marriage dissolved.

Basant Kumar Vs Smt Bhagwati — Matrimonial and Divorce | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Miscellaneous Appeal No. 261 / 1999

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Basant Kumar son of Khuman Singh @ Khubchand, Patwa, resident of Baharli, Bundi.

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----Appellant

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Versus

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Smt Bhagwati daughter of Nandlala (wife of Basand Kumar), Patwa by caste, Resident of Rampura, district Mandsore (M.P.)

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----Respondent

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For Appellant(s) : Mr. Kamlakar Sharma Senior Counsel with Mr. M.S. Rajpurohit and Mr. Azad Ali.

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For Respondent(s) : Mr. S.K. Jindal.

¶10

HON'BLE MR. JUSTICE INDERJEET SINGH Judgment

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01/02/2018

¶12

The instant appeal has been filed by the appellant (hereinafter referred to as ‘Husband’) against the judgment and decree dated 24.10.1997 passed by the District Judge, Bundi in Civil Misc. Case No.29/1989, whereby the application filed by the husband under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘Act of 1955’) was dismissed.

¶13

During pendency of this appeal husband submitted an application under Section 151 CPC for taking on record a copy of the judgment dated 07.12.2005 passed by the Court of Civil Judge (S.D.) & Chief Judicial Magistrate Bundi, (Rajasthan) by which the husband was acquitted in a criminal case lodged by the respondent (hereinafter referred to as ‘wife’) under Section 498A & 406 IPC and a copy of Criminal Complaint filed by the wife against the husband before the Chief Judicial Magistrate under the

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(2 of 13)

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[CMA-261/1999]

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provisions of protection of women from Domestic Violation Act, 2005. This court vide order dated 23.07.2014 treated the application filed by the husband under Section 151 CPC as filed under Order 41 Rule 27 CPC and ordered that the application under Order 41 Rule 27 would be decided at the time of hearing of the appeal.

¶17

Counsel for the husband submitted that the documents submitted along with his application are with regard to subsequent events, therefore, the same are necessary to decide the controversy involved in this appeal. In support of his contention counsel relied upon the judgment passed by the Hon’ble Supreme Court in the matter of Malathi Ravi, M.D. Vs. B.V. Ravi, M.D. reported in (2014) 7 Supreme Court Cases 640 wherein para no.23 & 24 has held as under:-

¶18

“23. First we intend to state the subsequent events. As has been narrated earlier, after the application of the wife was allowed granting restitution of conjugal rights, the husband communicated to her to join him, but she chose not to join him immediately and thereafter went to the matrimonial home along with a relative who is a police officer. After she stayed for a brief period at the matrimonial home, she left her husband and thereafter lodged FIR No. 401/2004 on 17.10.2004 for the offences Under Sections 498A and 506/34 of the Indian Penal Code and the provisions under Dowry Prohibition Act, 1961 against the husband, his mother and the sister. Because of the FIR the husband was arrested and remained in custody for a day. The ladies availed the benefit of anticipatory bail. The learned trial Magistrate, as we find, recorded a judgment of acquittal. Against the judgment of acquittal, the Appellant preferred an appeal before the High Court after obtaining special leave which was ultimately dismissed as withdrawn since in the meantime the State had preferred an appeal before the Court of Session. At this juncture, we make it absolutely clear that we will not advert to the legal tenability of the judgment of acquittal as the appeal, as we have been apprised, is sub-judice. However, we

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(3 of 13)

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[CMA-261/1999]

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take note of certain aspects which have been taken note of by the High Court and also brought on record for a different purpose.

¶22

The seminal question that has to be addressed is whether under these circumstances the decree for divorce granted by the High Court should be interfered with. We must immediately state that the High Court has referred to certain grounds stated in the memorandum of appeal and taken note of certain subsequent facts. We accept the submission of the learned Counsel for the Appellant that the grounds stated in the memorandum of appeal which were not established by way of evidence could not have been pressed into service or taken aid of. But, it needs no special emphasis to state that the subsequent conduct of the wife can be taken into consideration. It settled in law that subsequent facts under certain circumstances can be taken into consideration.”

¶23

Counsel for the wife opposed the application submitted by the husband for taking on record the documents.

¶24

I have considered, the application submitted by the husband for taking the subsequent events on record and also considered the fact that the documents filed along with application are certified copies of the order dated 07.12.2005 passed by the trail court and criminal complaint lodged by the wife against the husband. Since, neither any reply to the application has been filed on behalf of the wife nor the fact regarding passing of the judgment by the learned Trial Court has been controverted, therefore, I deem it just and proper, to allow the application submitted by the husband under Order 41 Rule 27.

¶25

Brief facts of the case are that the husband filed an application under section 13 of the Act of 1955 against the wife before the District Judge, Bundi seeking decree of divorce on the ground of cruelty and desertion. It was stated that the applicant

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(4 of 13)

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[CMA-261/1999]

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was married to the non-applicant before 16 years and out of this wedlock, two daughters viz. Rukmani and Radha were born in 1974 and 1976 respectively. It was further stated that immediately after the marriage, the wife insisted upon the husband to live separate from his mother but when the husband refused to do so she deserted the matrimonial home and went to her parents’ house. It was further stated that the wife initiated false proceedings before the SDO, Manasa (Madhya Pradesh) in pursuance to which warrants were issued and the mother of the applicant and both the daughters were taken by the police to Manasa (M.P.). Later on, the warrants were cancelled by the court. Thereafter, the husband gave a notice to the wife to join the matrimonial home in pursuance to which the wife came to the matrimonial home but started quarrel with the Mother-in-law and she use to beat her daughters without any reason. When the husband tried to stop her from committing the cruelty, the wife took a separate house on rent and started to live alone. It was further stated that even though the wife was living separately then also she use to come to the husband’s house in his absence and use to beat the daughters and rebuke his mother. It was also stated that the husband has tried so many times to persuade her not to commit cruelty to him and but she continued with the same behavior, therefore, she deserted the matrimonial home without his consent and without any sufficient reason before 9 years of filing the application. It was also stated that the wife did not join the matrimonial home again and had deserted the same without any just and sufficient reason. It was prayed that a decree of

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(5 of 13)

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[CMA-261/1999]

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divorce be granted under section 13 of the Act of 1955.

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That the wife filed reply to the application. It was denied that the she had ever committed cruelty with the husband. It was denied that the she had ever deserted the husband, on the other hand it was alleged that the husband use to beat her without any reason. It was also averred that the she never resided at another house but she was residing in one room of the same house in which her belongings are still present. It was also averred that the husband has locked the main door of the house, therefore, she forced to live at the ‘Chabutara’ outside the house. It was also averred that a report was also lodged against her under section 456, IPC in which she was arrested. It was also averred that she had not deserted the house in the year 1981 and she is still living in the house of the husband at Bundi.

¶33

The learned trial court on the basis of pleadings of the parties framed the following issues:-

¶34

^*1- D;k vizkfFkZuh us vkosnu ds pj.k Øe 10 esa of.kZr izdkj ls izkFkhZ dk] vius ihgj tkdj] fcuk ;qfDr;qDr izfr gsrq ds vfHkR;tu fd;k \

¶35

2- D;k vizkfFkZuh us izkFkhZ o mlds ifjtu ds lkFk funZ;rk ,oa dwjrkiw.kZ O;ogkj fd;k \

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3- D;k vizkfFkZuh ,d gtkj :i;s ekfld [kpkZ o fuokl gsrq edku izkIr djus dh vf/kdkfj.kh gS \

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4- D;k tokc dh fo’ks"k vkifŸk esa vafdr vk/kkj ij izkFkZuk&i= iks"k.kh; ugha gSa \

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5- vuqrks"k-^^

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In support of the application the husband examined himself as AW-1 (Basant Kumar), AW-2 (Bajaranlal), AW-3 (Rukmani @ Geetanjali). The wife examined herself as DW-1 (Bhagwati), DW2 (Babu Lal @ Rajendra Kumar), DW-3 (Vijay Kumar), DW-4

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(6 of 13)

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[CMA-261/1999]

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(Chandra Prakash) & DW-5 (Krishna Mohan).

¶43

The learned District Judge after recording the evidence submitted on behalf of both the parties dismissed the application submitted by the husband under Section 13 of the Hindu Marriage Act.

¶44

Counsel for the husband submitted that the finding given by the learned trial court on issue no.1 is perverse as there was sufficient material on record to show that the wife herself left his house without any reason, therefore, it was a case of desertion by the wife. Counsel further submits that learned trial court has committed a serious illegality in not considering the evidence of AW-3 (Rukmani) who is their daughter as she has specifically stated in her evidence that her mother has left the house and gone to her parental house when she was 4-5 years old. Counsel further submits that the learned trial court has not considered the evidence of independent witness AW-2 (Bajranglal) who has also stated in his evidence that he along with appellant went to the parental house of the wife for taking her back but she refused to come. Counsel further submits that after leaving the house of the husband the wife started living with her parents and also sent the police warrants and in compliance of such warrants the Police arrested his mother and take her two daughters to Manasa (M.P) from where the warrants were cancelled and they came back. Counsel further submits that the wife was not willing to live with his mother and she always pressuring her husband to live separately as she don’t want to live with his parents. Thus, counsel submits that behavior of the wife comes in the definition

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(7 of 13)

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[CMA-261/1999]

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of cruelty. Counsel further submits that during the pendency of the appeal before this court, the wife has also lodged a Criminal Case under Sections 498A and 406 IPC against the husband and the trial court vide order dated 07.12.2005 has acquitted him from the aforesaid offence, therefore, finding on issue no.2 deserves to be quashed and set aside.

¶48

Lastly, learned Senior Counsel submits that the appellant and respondent are living separately since, last 40 years and there is no possibility to live together at this stage and the husband at present 70 years old.

¶49

Learned counsel for the appellant relied upon the judgment passed by the Hon’ble Supreme Court in the matter of K. Srinivas Rao Vs. D.A. Deepa , reported in (2013) 5 Supreme Court Cases 226 in which para 10 & 28 has held as under:-

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“10. Under Section 13(1)(i-a) of the Hindu Marriage

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Act, 1955, a marriage can be dissolved by a decree of divorce on a petition presented either by the husband or the wife on the ground that the other party has, after solemnization of the marriage, treated the Petitioner with cruelty. In a series of judgments this Court has repeatedly stated the meaning and outlined the scope of the term 'cruelty'. Cruelty is evident where one spouse has so treated the other and manifested such feelings towards her or him as to cause in her or his mind reasonable apprehension that it will be harmful or injurious to live with the other spouse. Cruelty may be physical or mental.

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(8 of 13)

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[CMA-261/1999]

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Pursuant to this complaint, the police registered a case under Section 498-A of the Indian Penal Code. The Appellant-husband and his parents had to apply for anticipatory bail, which was granted to them. Later, the Respondent-wife withdrew the complaint. Pursuant to the withdrawal, the police filed a closure report. Thereafter, the Respondent-wife filed a protest petition. The trial court took cognizance of the case against the Appellant-husband and his parents (CC No. 62/2002). What is pertinent to note is that the Respondent-wife filed criminal appeal in the High Court challenging the acquittal of the Appellant-husband and his parents of the offences under the Dowry Prohibition Act and also the acquittal of his parents of the offence punishable under Section 498-A of the Indian Penal Code. She filed criminal revision seeking enhancement of the punishment awarded to the Appellant-husband for the offence under Section 498-A of the Indian Penal Code in the High Court which is still pending. When the criminal appeal filed by the Appellant-husband challenging his conviction for the offence under Section 498-A of the Indian Penal Code was allowed and he was acquitted, the Respondent-wife filed criminal appeal in the High Court challenging the said acquittal. During this period Respondent-wife and members of her family have also filed complaints in the High Court complaining about the Appellant-husband so that he

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(9 of 13)

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[CMA-261/1999]

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would be removed from the job. The conduct of the Respondent-wife in filing a complaint making unfounded, indecent and defamatory allegation against her mother-in-law, in filing revision seeking enhancement of the sentence awarded to the Appellant-husband, in filing appeal questioning the acquittal of the Appellant-husband and acquittal of his parents indicates that she made all attempts to ensure that he and his parents are put in jail and he is removed from his job. We have no manner of doubt that this conduct has caused mental cruelty to the Appellant-husband.”

¶58

Counsel for the wife submitted that the finding given by the trial court on issue no.1 & 2 is correct finding and the same is recorded after appreciation of evidence submitted on behalf of the wife. Counsel further submits that the wife was always ready and willing to live with the husband and husband don’t want to live with the wife. Counsel further submits that the husband in his cross-examination himself as admitted that the wife want to live with him and don’t want to take maintenance. Counsel further submits that after service of notice she again came back and started living with the husband in the year 1981 and since then, she is residing at Bundi. Counsel further submits that desertion if at all same was by the husband and she was forced to live separately by the husband, thus, the finding given on issue no.1 is a correct finding.

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(10 of 13)

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[CMA-261/1999]

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Counsel further submits that summoning the mother-in-law and her two daughters through search warrants does not amount to cruelty. Counsel further submits that the wife filed criminal case against her husband under Section 498A and 406 after the judgment passed by the learned trial court in the year 1997 and hence, the filing of criminal case against the husband after the judgment passed by the trial court does not comes under the act of cruelty. Counsel further submits that she has never asked her husband to live separately from his mother, thus, there was no cruelty on the part of the wife in this matter, hence, issue no.2 has rightly been decided by the learned trial court.

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Heard counsel for the parties and perused the record.

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The husband i.e. AW-1 has stated in his evidence before the learned trial court that the wife’s behaviour was cruel to him and after birth of second child i.e. Radha when she was one and half year old then the wife left for her parental house from where she send the police with search warrants who took his mother and children with them and later on the warrants were quashed by the court at Manasa (M.P), thereafter, he gave notice through counsel and after that for some time the wife came and started living with him but his behaviour was not good with him and with his mother and she was regularly asking him to live separately, and after two months she left for her parental house again and since last 8-9 years she is living separately. He went to take her back at her parental house along with Bajrang Lal but she refused to come back.

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AW-2 i.e. Bajrang Lal has stated in his evidence that he

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(11 of 13)

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[CMA-261/1999]

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know both the husband and wife since last 15 years, they both are not living together, he further stated that he along with Basant Kumar went to the parental House of the wife, where Basant Kumar said that he came to take her back but the wife refused to come back with the husband.

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AW-3 Rukmani @ Geetanjali who is their daughter has stated in her evidence that her mother left them when she about 4-5 years old and after that she is not living with her father. She further stated that she lives with her father and her grand mother who is old and Parelethic. She further stated that initially they were living in Khojagate house and they changed 3-4 houses and lastly, when her mother lived at Khojagate house then, her mother beaten her father by wooden stick, thrown Burner (Chulha) and resulting bleeding on the head of his father.

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The wife i.e. DW-1 Bhagwati stated in her evidence that she has never misbehaved with her mother-in-law and the husband don’t want to live with her and the behaviour of the husband and his mother was not good with her. She further stated that she went to her parental house and also send search warrants against his mother-in-law and in compliance of which custody of children were given to her husband. She further stated that she came back to her Khojagate house and till date she is living there. She admitted in her cross-examination that for 5-6 months she lived in her Khojagate House and thereafter she went to her parental home. She further stated both her daughters are living with her husband.

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DW-2 Balu Lal has stated that the husband has left his

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(12 of 13)

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[CMA-261/1999]

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Khojagate house and the wife is residing in the house.

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DW-3 Vijay Kumar stated that the husband and wife are not living together and the wife is living in the Vranda of the Khojagate house of the husband.

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DW-4 has stated that since the year 1990, the wife is residing in the Vranda of the house. 24. A careful reading of the evidence on record adduced by both the parties, no willful desertion by the wife is proved. Thus, the finding given by the learned trial court on issue no.1 is a correct finding.

¶76

The finding given by the learned trial court on issue no.2 is perverse for the reasons, firstly, according to statement of AW-3 Rukmani who is daughter of appellant and respondent, she has clearly stated in her cross-examination that the behaviour of her mother with her father was cruel and number of times she misbehaved with her father and she also thrown Burner (Chulha) on her father; Secondly, as per the statement of husband the wife does not want to live with his mother and wants to live separately; thirdly, the wife also lodged a false criminal case against the husband under Section 498A & 406 IPC in which the husband has been acquitted by the trial court from offences under Section 498A & 406 IPC vide order dated 07.12.2005.

¶77

In my opinion conduct of the wife has caused mental cruelty to the husband as has been held by the Hon’ble Supreme Court in the matter of K. Srinivas Rao (supra) .

¶78

Thus, in the facts and circumstances of the present case, the

¶79

(13 of 13)

¶80

[CMA-261/1999]

¶81

finding given by the learned trial court on issue no.2 is quashed and set aside. The husband is entitled for a decree of divorce. Hence, the decree of divorce is granted in favour of the husband on the ground of cruelty. The marriage solemnized between the parties is hereby dissolved.

¶82

The appeal stands allowed.

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(INDERJEET SINGH),J. Mohit Grover Sr. No.08.

Basant Kumar v. Smt Bhagwati

Case brief

What is this about?

What did the court decide?

Basant Kumar v. Smt Bhagwati

Case brief

What is this about?

What did the court decide?

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