Court:Rajasthan High Court
Bench: JUSTICE M Mukherji, D Dalela
Vijay Kumar Sharma vs Smt. Sadhna Sharma on 17 December, 1997
False Allegation by Wife that husband used to beat her amounts to cruelty.
1. The marriage of the appellant (husband) and the respondent (wife), was solemnized on 2.12.1984, as per the Hindu customs and rites. According to the appellant, after the marriage, the behaviour of the respondent, was not proper and she started causing cruelty towards the appellant and his family members. She filed a divorce-petition on 31.5.1988 and levelled all kinds of baseless and unscrupulous allegations, e.g., that the appellant was a drunkard; was a womaniser; and used to beat her etc. On 26.8.1988, the respondent moved an application before the learned Family Court, Jaipur, praying that she wanted to withdraw the petition for divorce. On the same date, the learned Family Court accepted the application and dismissed her petition for divorce, as withdrawn. The appellant took back the respondent in the matrimonial home and he tried to sort out the matter and attempted to work out a peaceful living together. Nevertheless, the respondent persisted with her habits and behaviour, and ultimately, the appellant filed a divorce-petition on 30.1.1993, before the learned District Court – Bharatpur, which was later on transferred to the learned Family Court, Jaipur. During the pendency of the said petition, an application for amendment was moved for bringing on record, certain additional facts, with regard to the divorce-petition, filed earlier by the respondent. The amendment-application came to be allowed. The respondent challenged the order, allowing the amendment, in SB Civil Revision Petition No. 780/95, which was dismissed by this Court, on 24.7.1995. The learned Family Court, thereafter, passed the order/judgment dated 6.2.1997, whereby, the divorce-petition, filed by the appellant, has been dismissed on the ground that although, the mental cruelty on the part of the respondent stood established, the appellant had, by living together with her upto the year 1992, condoned her acts of mental cruelty. Feeling aggrieved by the impugned order/judgment of the learned Family Court, the appellant has preferred this appeal.
2. We have heard the arguments of both the sides and have also gone through the written-arguments, submitted by them.
3. The anxiety of the Court to preserve the marriage-tie is good public policy, but, it is also the duty of the Court to remedy as far as it can, the unhappy situation, in which, the young couple before it has placed itself. Even if a ground for relief is technically made out, it remains the duty of the Court, to see that there is no other lawful ground for refusing relief in a given case, relief may be refused on such lawful ground even if the ground on which the relief could be granted, has been made out. The jurisdiction of a Matrimonial-Court is remedial and not punitive. The Court has to deal, not with an ideal husband and an ideal wife, but, with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go to a Matrimonial-Court for, even if they may not be able to drown their differences, their ideal attitudes may help them overlook or gloss over mutual faults and failures. In the case of Dastane v. Dastane, AIR 1975 SC 1534, Hon’ble Supreme Court had observed, “it is our duty, in view of the provisions of Section 23(1)(b), to find whether the cruelty was condoned by the appellant. That section casts an obligation on the Court, to consider the question of condonation, an obligation which has to be discharged even in undefended cases. The relief prayed for, can be decreed only if the Court is satisfied, but not otherwise that the appellant has not in any manner, condoned the cruelty.”
4. In the instant case, from the decision of the learned Family Court, it is apparent that the acts of cruelty on the part of the respondent-wife were constituted by the allegations, contained in the petition for divorce, filed by the respondent, against the appellant, in the year 1988. After the divorce-petition was withdrawn by the respondent-wife, the appellant-husband had taken her back to the matrimonial home and lived together upto the year 1992. The appellant, Vijay Kumar Sharma, in his statement as AW 1, has clearly stated that in the year 1992, he had asked the respondent, to go to her parents’ house and that thereafter, she never returned. From this statement, it is evident that from 1988 to 1992, the appellant lived together with the respondent-wife in the matrimonial home, as husband and wife. He has also admitted in his statement that when his wife-respondent withdrew her petition for divorce, he did not want his marriage with the respondent to be dissolved. This shows that he had taken her back after the withdrawal of her petition for divorce, with the intention to live together, because, he did not want dissolution of the marriage between the parties. Again, in his statement before the learned Family Court, the appellant has stated that he remained in Bharatpur from September, 1991 to May, 1995. In the divorce-petition, preferred by the appellant before the learned District Judge, Bharatpur, in 1993, he has stated in para 9 of his petition that he and his wife (respondent) lastly lived in Bharatpur, as husband and wife. Such pleadings clearly imply that the appellant lived with the respondent, as husband and wife, at least upto 1992. Taking the testimony of the appellant as a whole, his statement that his wife (respondent) lived with him only for a few months between 1988 and 1992, does not inspire confidence on the doctrine of preponderance of probabilities and having regard to his pleadings in para 9 of the divorce-petition, filed by him. The testimony of the respondent-wife as DW 1, seems to be more natural and convincing, when she says that she lived with her husband for 2-3 years together. We, therefore, find ourselves to be broadly in agreement with the conclusion, arrived at by the learned Family Court that the parties lived as husband and wife, in the period between 1988 and 1992.
5. It is highly improbable that the couple has not indulged into sexual intimacy during the long period of more than three years. Therefore, on the doctrine of preponderance of probabilities, the appellant’s claim that he did not have any sexual relationship with his wife, during the above-said period, does not inspire confidence and does not seem to be natural. The respondent-wife, in her testimony, has clearly indicated that they led a natural sexual life during the said period. She has very clearly stated that it is wrong to suggest that there has been no sexual intimacy between her and her husband, after 1988. The testimony of the respondent-wife seems to be more natural and probable on the doctrine of preponderance of probabilities.
6. From the testimony of both the sides, it is taken that after the withdrawal of the divorce-petition, filed by the respondent-wife, in 1988, the appellant-husband had taken her back to matrimonial home and they lived together in the matrimonial home for more than three years and also had sexual and physical intimacy and relationship. It, therefore, amounts that the appellant-husband has condoned the offending conduct of his wife-respondent. We, therefore, broadly agree with this finding and conclusion of the learned Family Court, as well.
7. In her statement before the learned Family Court, the respondent-wife has stated the circumstances, under which, she had filed the petition for divorce earlier. She has deposed that her husband had pressurised her to file the petition for divorce and that subsequently, when the divorce-petition was withdrawn by her, he raised no objection. It cannot be said that this statement of the respondent-wife amounts to making false allegations against the appellant-husband. Her statement simply indicates the circumstances, under which, she had filed her petition for divorce, and there is nothing on record to infer that her statement in this regard, was totally false.
8. In our opinion, the respondent-wife did not make allegations, amounting to mental cruelty during the course of the proceedings before the learned Family Court. Upon considering the entire evidence and material on record, the contention of the appellant that he had neither consciously forgiven the respondent for her behaviour, nor had the normalcy between the parties ever restored, does not appeal us, and therefore, we reject the same.
9. In our opinion, the appellant-husband has condoned the alleged cruelty of the respondent-wife, and in view of the provisions, contained in Section 23(1)(b) of the Hindu Marriage Act, he is not entitled to any decree of divorce.
10. In the result, the appeal, having no force in it, is dismissed hereby.
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