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Rajna Choudhary Vs. Raghubir Singh

Judgement

 

Court:Himachal Pradesh High Court

Bench: JUSTICE Surjit Singh

Rajna Choudhary vs. Raghubir Singh On 21 October 2010

Law Point:
Hindu Marriage Act, 1955 — Sections 13(1)(ia), 13(1)(ib) — Cruelty, Desertion — Appellant-wife alleged that respondent-husband was having illicit relations with his brother’s wife, which proved to be false — This allegation amounted to mental cruelty — Appellant also alleged that respondent got remarried but did not give particulars of lady whom he allegedly remarried — Another act of cruelty alleged by respondent is that appellant did not allow him sexual access — This conduct of appellant amounts to mental cruelty on her part — Appellant left matrimonial house on her own and not living with respondent since 1997 — Appellant refused to go with respondent when he went to get appellant back to matrimonial house — Impugned order upheld.

 

 

JUDGEMENT

 

1. This appeal by appellant Rajna Choudhary is directed against the judgment and decree dated 8.8.2005, whereby her marriage with respondent Raghubir Singh has been dissolved, on the grounds of desertion and cruelty.

2. Respondent Raghubir Singh filed a petition, under Section 13 of the Hindu Marriage Act, for dissolution of his marriage with appellant Rajna Choudhary, alleging that his marriage with Rajna Choudhary had taken place in the year 1988, according to Hindu rites and ceremonies, but the attitude and the behaviour of the appellant, from the very beginning was such that she did not want to live with him as his wife. She would not allow him to exercise his matrimonial rights and refused to share bed with him, with the result that no child was born. She left the matrimonial home in July, 1997 and never returned thereafter. It is further alleged that on 22.3.1988 she addressed a complaint to Deputy Commissioner and forwarded copies thereof to SHO, Police Station, Nurpur, Women Welfare Commission, New Delhi and several other authorities, in which allegation was made that respondent had been having illicit relations with his brother’s wife. The allegation was false and had been made simply, to cause mental torture to the respondent. Respondent initially filed a petition for dissolution of marriage in May, 1998, but that was dismissed in default. Thereafter another petition, out of which this appeal has arisen, was filed in October, 2005 seeking dissolution of marriage on the aforesaid two grounds.

3. Appellant contested the petition. She admitted that she made complaints against the respondent, but denied that she levelled any allegation that the petitioner was having illicit relation with his brother’s wife. She denied that she did not allow sexual access to the respondent or that she was not willing to live with him. She also denied that she left the matrimonial home for her mother’s place in Agra on her own in July, 1997 and pleaded that she went with the consent of the respondent and in fact respondent accompanied her to Railway Station, Pathankot, where she boarded a train for Agra. She stated that she was ready and willing to join the respondent, but he did not approach her to get her back to the matrimonial home and, so, she had been living with her mother. She stated that respondent had remarried and so he was not interested in getting her back to the matrimonial home. She also stated that she used to be given beatings by the respondent, when she stayed with him. Couple of preliminary objections were also raised.

4. Learned District Judge framed following issues, based on the pleading of the parties :

“1. Whether the respondent has treated the petitioner with cruelty?

—OPP

1-A. Whether the respondent has deserted the applicant without any reasonable cause and on this account petitioner is entitled for decree of divorce?

—OPP

2. Whether the present petition is not maintainable in the present form?

—OPR

3. Whether the petition has not been filed according to the High Court Rules and Orders?

—OPR

4. Relief.”

5. Both the parties examined two witnesses each, including themselves. Learned District Judge concluded that the appellant treated the respondent with cruelty and has deserted him. Consequently, petition was allowed and decree of divorce, dissolving the marriage between the parties, was passed.

6. I have heard the learned Counsel for the parties and perused the record.

7. Appellant while in the witness box admitted that she had lodged complaint Ext. PA with the Deputy Commissioner and forwarded copies thereof to various other authorities, but denied that in the said complaint she had levelled the allegation that respondent was having illicit relations with his brother’s wife. Complaint, which she lodged with the Deputy Commissioner, is Ext. PA. She was shown this complaint. She admitted as RW-1 that she had lodged this complaint and it bore her signature. In the complaint there is a specific allegation that the respondent had been having illicit relations with his deceased brother Om Parkash’s wife Kanta and had been squandering all his earnings to keep her happy. Thus her plea that she did not make the allegation that the respondent was having illicit relations with his brother’s wife is proved to be false, by the complaint Ext. PA, which she made to the Deputy Commissioner. This allegation definitely amounts to mental cruelty.

8. Appellant also alleged in her reply that respondent had remarried. She, however, did not give the name and other particulars of the lady, whom he had allegedly married. It was suggested to the respondent, when he was in the witness box as PW-1 that he had married another lady by the name of Saroj Bala. He denied the suggestion. Similar suggestion was thrown to PW-2 Tarlok Chand, a witness of the respondent. He too denied the suggestion.

9. Appellant herself stated in her testimony as RW-1 that the respondent had married another woman. Her witness Ranjit Singh stated that the respondent had married one lady by the name of Saroj Bala and that the lady has been registered as a voter from the household of the respondent and was reflected as wife of the respondent in the voter list. Appellant produced photostat copy of a sheet, purporting to be page No. l of voter list, which is Mark X. Though in this list Saroj Bala is shown to be the wife of Raghubir Singh son of Kirpa Ram (name of the respondent is also Raghubir Singh and his father’s name is Kirpa Ram), yet this document having not been proved in accordance with law, i.e. by summoning the record from election office and examining some witness from that office and also on account of this document being only a photostat copy of a loose sheet, the same cannot be used as a piece of evidence.

10. Another act of cruelty alleged by the respondent is that the appellant did not allow him sexual access. Though the appellant denied the allegation in her reply, yet while in the witness box as RW-1 she admitted that no child was born out of the wedlock, because she never lived like a wife with the respondent. Respondent himself also testified while in the witness box as PW-1 that the appellant had not been allowing him to sleep with her. This conduct of the appellant also amounts to mental cruelty on her part.

11. As regards the ground of desertion, it is made out from appellant’s own testimony that she left matrimonial house on her own. Though in the reply she stated that she went to Agra with the permission of the respondent and the latter accompanied her to Railway Station, Pathankot, in her testimony as RW-1 she stated that when she went to Agra, respondent did not go with her and that she went to Agra, because the respondent used to give her beatings. Similarly, in the written reply though she stated that she wanted to live with the respondent as his wife, but the latter did not approach her to get her back to the matrimonial home, yet in her testimony she stated that she refused to live with the respondent as his wife, because he used to give her beatings and make false accusations. At the same time, she stated that she was still willing to live with the respondent.

12. Witness of the appellant, RW-2 Ranjit Singh also proved the allegation of desertion. He stated that the appellant left the house of the respondent.

13. Respondent in his testimony stated that the appellant left his house in July, 1997 and refused to return to the matrimonial home, despite his having gone to bring her back to the matrimonial home twice, once in the month of December, 1997, when she had come to her mother’s native place Nurpur in District Kangra and second time in March, 1998, when she was at Agra with her mother and brothers. He stated that appellant had not been residing with him since July, 1997.

14. PW-2 Tarlok Chand, examined by the respondent, stated that the appellant had been residing at Agra for the last 5-6 years and that he accompanied respondent Raghubir Singh to get the appellant back to the matrimonial home, once at her mother’s native village in Kangra District and second time to Agra, but the appellant refused to return to respondent’s place.

15. In view of the above discussed evidence, I find no merit in the present appeal. The same is, therefore, dismissed.

 

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