Court:MADHYA PRADESH HIGH COURT
Bench: JUSTICE A.K. Awasthy
KAMLAKANT JOSHI Vs. SANTOSHBAI PANDYA 28 November 2003
Wife guilty of making false, baseless and dirty allegations against her husband concerning his character. Husband bound to suffer mental agony and embarrassment living jointly with his parents and family members : Wife living separately from last more than 12 years. No valid and sufficient reason of defendant of living separately from her husband : Circumstances sufficient to hold Wife guilty of matrimonial offence of mental cruelty. Husband deserves dissolution of marriage by decree of divorce.
Appellant-petitioner has filed this appeal under Section 28 of the Hindu Marriage Act, 1955 against the judgment and decree dated 16.5.1997 in Hindu Marriage Case No. 370/92 passed by IXth Additional District Judge, Indore whereby the decree of judicial separation is passed on the ground of cruelty.
2. The admitted facts of the case are that the marriage in between the appellant and the respondent was solemnized according to Hindu rites and customs in the year 1982 and they had one daughter Sapna from the wedlock and the daughter is living with the appellant petitioner. It is also the common ground that the respondent wife has left the matrimonial house and living in her parental house from the year 1991.
3. The case of the petitioner is that his wife defendant has sent a notice to him on 13.9.1992 alleging that the petitioner is having the illicit relations with the wife of his brother viz. Radhabai. It is further alleged that the defendant has refused to resume the matrimonial relation inspite of the efforts by the appellant to bring her back and as such the marriage be dissolved by the decree of divorce on the ground of mental cruelty.
4. The case of the respondent/defendant is that the petitioner is having the illicit relations with Radhabai and that the petitioner has ousted her from the matrimonial house in the year 1991 and thereafter he has not made any attempt to bring her back to the matrimonial house.
5. The learned Trial Court after framing the issues has examined Kamlakant Joshi P.W. 1, Sadashiv Pathak P.W. 2, Radha Joshi P.W. 3 and from the opposite side Santoshbai D.W. 1, Ramchandra D.W. 2, Gopal Pandya D.W. 3 and Vimleshwar Pathak D.W. 4 and learned Trial Court has held that the respondent has made the allegation of illicit relations against her husband and as such the appellant is entitled for the decree of judicial separation.
6. The learned Counsel for the appellant has alleged that in view of the finding of the learned Trial Court that the defendant has made the false allegation about his illicit relation with his bhabhi, the decree of divorce should be passed and it is further alleged by the learned Counsel that the appellant and the respondent are living separately from last 12 years and the marriage has become dead and as such it should be dissolved.
7. Kamlakant P.W. 1, Sadashiv Pathak P.W. 2 and Radha Joshi P.W. 3 have stated that the defendant has made the false allegation against the petitioner that he is having the illicit relation with Radhabai P.W. 3. Santoshbai D.W. 1 in her written statement and statement on oath has alleged that the appellant is having the illicit relation with his bhabhi but she has not led any evidence or proof of any circumstance to show that the allegation made by her about the wrong relation between her husband and bhabhi is proved. The learned Trial Court in paras 11 and 12 of his judgment has held that the defendant has made the false allegation of the wrong relation of her husband with his bhabhi but, it was observed by the learned Trial Court that there is a possibility of the infatuation of her husband with bhabhi on account of the fact that the brother of her husband is not in job. The line of reasoning of doubting the character of the petitioner by the learned Trial Court is not sound. From the evidence on record it is clear that the respondent-defendant is guilty of making the false, baseless and dirty allegation against her husband concerning his character. In these circumstances, the appellants husband is bound to suffer mental agony and embarrassment who is living jointly with his parent and family members—brother and his family. The defendant is living separately from last more than 12 years and there is no valid and sufficient reason of the defendant of living separately from her husband. All these circumstances are sufficient to hold that the defendant is guilty of the matrimonial offence of mental cruelty and as such the appellant deserves the dissolution of marriage by decree of divorce under Section 12(1)(a) of the Hindu Marriage Act.
8. The petition is allowed. The marriage between the appellant respondent is hereby dissolved by the decree of divorce on the ground of mental cruelty. Parties to bear their own cost of the appeal.
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