Prem Chandra Vs Smt. Santosh Charan

Dalip Singh, J.@mdashThis is the husband''s appeal against the judgment and decree dt. 08.08.1996 passed by the learned District Judge, Dausa in divorce petition No. 1/94 filed by the respondent wife on the ground of cruelty which has been allowed by the learned District Judge and a decree for the dissolution of the marriage has been passed in favour of the respondent wife.

2. The facts in brief are that the marriage of the parties took place on 22.11.1985 and the respondent wife accompanied the appellant to her matrimonial home. As per the averments and the findings of the learned District Judge she resided at the matrimonial home but during this period the behavior of the appellant towards the respondent wife was far from satisfactory and he used to beat her and ill treat her and also that the husband appellant was habitual of drinking and for this purpose he used to often ask his wife for money and when he was not in a position to comply with the aforesaid demands the husband would become aggressive and beat her and treat her with cruelty. It is further alleged by the respondent that whenever the respondent would be unwell he would not get her treated. So much so that while she was with her husband, she fell seriously ill but the appellant did not get her treated and she had to be taken by her father to her parental home for treatment. She remained at her parental home for six months. She was treated at the cost and expenses incurred by her father, for which the husband appellant never contributed nor did the appellant come to inquire about her health. It has further been alleged in the petition by the respondent wife that realising the fact that the appellant who used to run a truck, and his financial position not being sound as the truck itself having been sold she decided to take up employment as a teacher in 1988. She was appointed as a teacher grade-III in government service and was posted at Bundi. It is also the case of the respondent wife that sometimes the appellant used to come to her place of posting at the hostel where the respondent wife used to reside and often misbehaved with her in drunken state as he was all the time in need of money.

3. It is further alleged that in spite of all these, as and when the respondent wife would have holidays from the school where she was teaching and she was on leave she would rejoin her husband at the matrimonial home and out of the aforesaid wedlock in February 1990 (13.02.1990) a daughter was born to the parties. It is the case of the respondent wife that the birth of the daughter was not taken well by the husband appellant who was hopeful of the birth of a male child. As a result of the aforesaid the behavior of the appellant towards the wife and the child became more aggressive and ultimately in June, 1990 the wife was driven out of her matrimonial home by the appellant along with the daughter aged four months.

4. After the wife left the matrimonial home in June 1990 the appellant accompanied by ruttians, it is alleged by the wife, used to still come to her place of posting and would misbehave in a drunken state by abusing the respondent wife in the presence of other staff members and the students and even threaten her. The aforesaid averments are there in the petition filed by the respondent wife in paras 3, 4 and 5.

5. In nutshell the case of the respondent wife was that the on account of the aforesaid act of the appellant husband she faced such mental and physical cruelty which made it impossible for her to continue her matrimonial relationship and continue the marriage with the appellant.

6. The appellant husband filed his reply and denied the aforesaid allegation. The learned District Judge framed as many as 4 issues and recorded the evidence. From the side of the respondent wife apart from AW-1 respondent herself, AW-2 Naval Kishore who was a class 4th employee in the hostel where the appellant used to reside, AW-3 Nathi Lal who was the father of Smt. Santosh respondent and AW-4 Har Dayal one of the neighbour who was the witness the conduct of the appellant were examined. At the side of the appellant DW-1 Prem Chand appellant himself, DW-2 Ishwar Chand who is the elder brother of the appellant, DW-3 Tara Chand who is the nephew of the appellant and DW-4 Ram Singh who is the maternal uncle of the appellant Prem Chand have been examined.

7. The learned District Judge after the trial vide the impugned judgment dt. 08.08.1996 decided issue No. 1 with regard to cruelty in favour of the respondent wife and based upon these findings passed the decree of dissolution of the marriage in favour of the respondent wife. The aforesaid judgment and decree have been challenged before this Court by the appellant.

8. The submission of the learned Counsel for the appellant is that the findings which has been arrived at by the learned trial Court are not sufficient to justify the dissolution of the marriage and even as per the aforesaid finding the cruelty is not such which would given rise to the decree for dissolution of marriage being passed in favour of the wife. It has further been contended that as per the evidence which has come on record the only allegation which wife had leveled was that the husband was not earning enough and would always demand money from her as she was employed as a teacher grade-III at the Government school. It is sought to be contended that the poverty was the sole reason for any misbehavior on the part of the appellant and that cannot be a ground for dissolution of the marriage. It has further been contended that the learned trial Court has not accepted the contention of the respondent that the appellant used to misbehave or iltreat or beat the respondent wife. During the course of hearing before this Court as also before the learned trial Court efforts were made for reconciliation but in spite of several opportunities having been provided to the parties the efforts remained unfruitful. The learned Counsel for the appellant has frankly submitted that the wife respondent does not wish to live with the husband appellant.

9. None has appeared despite service on behalf of respondent wife.

10. I have considered the aforesaid submission and perused the record of the learned Court below. The allegations which were there in the application may be reproduced for ready reference. In para 3 of the application u/s 13 it has been alleged by the respondent wife as follows:

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11. Similarly in para 4 regarding the incident at the place of the posting of the wife and the behavior of the appellant it has been mentioned that the appellant came to the hostel and in presence of the members of the staff and student while being in a drunken state the appellant started abusing the respondent wife. Similar averment has also been made in para No. 5 of the petition. The incidents which have been occurred in the hostel are alleged to have taken place in the month of October, 1992 on 7th and 15th of the month of October, 1992 where the appellant allegedly accompanied by several other persons came in a drunken state and started abusing the respondent wife. These have ultimately provoked the respondent wife to file the petition for the dissolution of the marriage on 20.10.1992 soon after the incident of 7th and 15.10.1992 as mentioned in paragraphs 5 and 6 of the petition.

12. Needless to say that so far as the aforesaid averments are concerned the appellant in reply has denied the aforesaid allegation and instead alleged that the petition had been filed at the instance of the father of the respondent wife.

13. With a view to satisfy myself, I have gone through the evidence and more particularly the statement of the respondent wife who in her statement in Court has deposed with regard to the alleged acts of cruelty and ill treatment meted out to her by the appellant husband in detail. Respondent wife has clearly stated that the husband used to abuse her and also often used to beat her at the same time she was also deprived of basic necessity by the husband.

14. She has clearly deposed that when she fell ill seriously she was not treated or taken to a doctor by her husband and her father had to take her to her parental home for treatment where she remain under treatment four about six months and the husband never even bothered to enquire about her health or to make any arrangement with regard to the treatment expenses. The respondent has clearly stated that the appellant often used to come to the place of her posting and demand money which demand would be often with regard to the fulfillment of his requirement for alcohol and on non fulfillment of these demands she would be abused in the presence of staff members and students. She has also reiterated and has clearly stated in Court that her husband was not happy at the birth of a girl child and on one occasion even threw her down from the bed and subsequently that they were driven out of the matrimonial home by the husband. She in her statement clearly deposed that on account of the aforesaid circumstances and cruel behavior meted out by the appellant towards her it has become impossible for her to remain in the matrimonial home as the wife of the appellant and she wants a decree for dissolution of the marriage.

15. The respondent wife was cross examined in detail by the appellant and in the cross examination the respondent wife has reiterated what she stated in the examination in chief. Nothing could be extracted in cross examination which would go to show that what she has deposed in her examination in chief may not be correct.

16. In support of her aforesaid testimony, as has been stated above, the statement of AW-2 the class 4th servant at the School has been recorded. The father of the respondent wife Nathi Lal AW-3 has corroborated the statement of the respondent AW-1. The statement of the respondent wife and her father has further been corroborated by one of the neighbors AW-4. Thus there is corroboration of her testimony by her father and the independent witnesses.

17. The appellant on the other hand has appeared as DW-1 who denied the facts as mentioned by the respondent wife. However, the fact that the respondent wife fell ill after about 1 and 1/2 years of the marriage has been admitted by the appellant. He has not denied that the treatment was done at her parental house by the father who bore the expenses. So far as the other witnesses are concerned they are all relatives being the elder brother and related to the appellant from his mother''s side and none of them can be said to be an independent witness DW-2 Ishwar Chand is the elder brother of the appellant, DW-3 Tara Chand is the maternal uncle of the appellant and the appellant is his nephew (bhanja) being the son of the sister of Tara Chand DW-3 similarly DW-4 Prem Chand is also the maternal uncle of Prem Chand and the appellant is his nephew (bhanja).

18. It would be thus seen that, so far as the respondent wife is concerned apart from the father of the respondent she has examined two independent witnesses AW-2 and AW-4 who have supported the case of the respondent.

19. In the light of the aforesaid findings which have been arrived at by the learned District Judge it cannot be said to be such a case based upon re-appreciation of the evidence so as to require interference by this Court in appeal. In para 15 of the judgment the learned trial Court has come to the conclusion that on account of the conduct of the appellant it is clear that at her matrimonial house the appellant treated the respondent wife with such cruelty which would make it impossible for the respondent wife to stay in the matrimonial home. Having gone through the record of the case as has been mentioned above and the findings of the learned trial Court, I am of the view that the findings which have recorded by the learned trial Court do not call for any interference in this appeal.

20. The fact that since June, 1990 the parties have been living separately and during this period of 19 years the wife has not changed her mind for returning to the matrimonial home with the husband appellant also cannot be lost site of. The husband during the last few days when the case was listed tried to make efforts to reconcile but the respondent it is admitted does not wish to rejoin him. The aforesaid circumstance is an additional circumstance and the judgment and decree does not call for any interference.

21. The appeal fails and is accordingly dismissed. There shall be no order as to costs.