Dismissed

Deepak Kumar v. Smt Meena

Uttarakhand HC1 Jul 2019FA/63/2016

Case brief

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What is this about?

This appellate bench dismissed the first appeal in a divorce case. The appellant failed to substantiate claims of mental cruelty or desertion against the respondent wife. The court held that there was insufficient evidence to alter the trial court's dismissal of the divorce suit.

What the court decided

AI extract

Deepak Kumar Vs Smt Meena — Matrimonial and Divorce | Uttarakhand HC (2019)

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Judgment Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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First Appeal No. 63 of 2016

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Deepak Kumar. ………...Appellant.

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Versus.

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Smt. Meena. …....Respondent.

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Present:

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Mr. Pradeep Kumar Chauhan, Advocate for the Appellant. None for the respondent.

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Coram: Hon’ble Alok Singh, J. Hon’ble Ravindra Maithani, J.

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Per Alok Singh, J.

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Present appeal is filed by husband appellant challenging the judgment and order dated 24.05.2016 passed by Additional Judge, Family Court, Roorkee, Haridwar whereby the Judge, Family Court was pleased to dismiss Original Suit No. 66 of 2013 filed by him for divorce.

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Brief facts of the present case inter alia are that marriage was solemnized between the parties on 25.11.2007. After marriage, the behaviour of respondent – wife was not good towards the husband and his family members. Marriage was solemnized against the wishes of respondent – wife. She threatened them to implicate in false case of dowry. She treated them with cruelty. Two daughters were born out of the wedlock. She was under the influence of their parents. She compelled him to take separate room in Saharanpur. Two years prior to filing of suit respondent - wife left the matrimonial home along with jewelry and at that time, she was three month pregnant. Stating all these facts, husband appellant filed suit for divorce under

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Section 13 of the Hindu Marriage Act. In order to prove his case, appellant got himself examined as Witness 1. He produced his father Narendra Kumar as Witness 2, Seva Giri & Gurmukh Giri – villagers as Witness 3 and 4.

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Learned trial Court having heard learned counsel for the parties and perusing the material available on record was pleased to dismiss the suit, as mentioned above. Feeling aggrieved, appellant approached this Court.

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Heard Mr. P.K. Chauhan, Advocate for the appellant and perused the record.

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Mr. P.K. Chauhan, Advocate for the appellant submits that learned trial court failed to appreciate the evidence available on record in right perspective and has come to a wrong conclusion. Thus, impugned judgment and decree may be set aside and decree of divorce may be granted.

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Appellant sought dissolution of marriage mainly on two counts viz. cruelty and desertion.

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Before dealing with the facts of the present case, we would like to refer two judgments of Hon’ble Apex Court dealing with “cruelty” and “desertion”.

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Hon’ble Supreme Court in the case of Ramchander vs. Ananta reported in 2015 (11) SCC 539 has observed as under:

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“10. The expression 'cruelty' has not been defined in the Hindu Marriage Act. Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes a reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other.

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Cruelty can be physical or mental. In the present case there is no allegation of physical cruelty alleged by the Plaintiff. What is alleged is mental cruelty and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. It is settled law that the instances of cruelty are not to be taken in isolation but to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the Plaintiff has been subjected to mental cruelty due to conduct of the other spouse.”

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Hon’ble Supreme Court in Adhyatma Bhattar Alwar Vs. Adhyatma Bhatter Sri Devi reported in 2002 (1) SCC 308 has held as under:

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“For desertion, two essential conditions must be there: (i) the factum of separation and (ii) the intention to bring cohabitation permanently to an end (animus deserendi). Two elements are essential so far as the deserted spouse is concerned; (i) the absence of consent and (ii) absence of conduct giving reasonable cause to the spouse leaving the matrimonial house to form the necessary intention”

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In the present case, in order to prove cruelty at the hands of respondent – wife, appellant stated that respondent used to quarrel with him. She maltreated him and his family members. Respondent used to state that she did not want to marry with him. She threatened them to implicate in false case of dowry. Appellant’s father for the first time in his statement stated that respondent-wife tried to commit suicide thrice by touching the live wire of electricity but this statement neither find place in the plaint nor in the statement of appellant.

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For desertion, appellant stated that respondent lived with appellant only for one year. PW 3 Seva Giri and PW 4 Gurmukh Giri are formal witness. They themselves stated that they had not attended the marriage of appellant. PW 3 Seva Giri stated on oath that he did not go to appellant’s house daily. Nothing from the statements of PW3 and PW4 came on record to show that respondent – wife deserted the husband – appellant or treated him with cruelty.

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In our view appellant made bald allegations against the respondent. Appellant failed to point out the cause of quarrel. He stated that respondent did not want to marry him but in the statement on oath he himself admitted that he did not want to marry with her. Appellant stated that their marriage was solemnized without but his father himself any dowry contradicted his statement. He stated that respondent’s father gave Rs. 30,000 - 40,000/- in the marriage. It has come on record that appellant’s father had borne the expenses of delivery of first child. Appellant husband has completed his B.Sc (Computer Science) but still he is unemployed. The conduct of the appellant reveals that appellant is not interested to shoulder his responsibility. Respondent - wife stated that appellant and his family members scolded her for bringing less dowry and they were not happy with the birth of two daughters born out of the wedlock. In our view, ground of desertion raised by the appellant is also not sustainable. Appellant stated that respondent lived in her matrimonial house only for one year. While the couple had two daughters, who are not twin. Therefore, this statement itself speaks in volumes that it is wrong. Father of the appellant stated on oath that his son is not ready to live with respondent. On 07.03.2013, appellant went to the house of respondent in order to bring her back but when she refused, he came back. He did not

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make any effort to save his marital life. Rather he filed suit for divorce. Per contra, respondent wife submitted that she was ready to go with appellant husband.

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Having gone through the material available on record, we find that there is no such evidence on record which shows that respondent wife has an intention to bring cohabitation permanently to an end without reasonable cause and consent of appellant husband. Respondent wife stated that she want to come back with her husband and resume cohabitation with the appellant. Appellant’s father in order to make out a case made a bald statement that respondent wife tried to commit suicide while there is no evidence to substantiate the same. Appellant also failed to prove that respondent treated him with cruelty.

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In view of the above discussion, it can safely be concluded that appellant has failed to prove cruelty and desertion at the hands of respondent – wife. Accordingly, appeal fails and is hereby dismissed.

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(Ravindra Maithani, J.) (Alok Singh, J.) 01.07.2019 01.07.2019

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SKS

Deepak Kumar v. Smt Meena

Case brief

What is this about?

What the court decided

Deepak Kumar v. Smt Meena

Case brief

What is this about?

What the court decided

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