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Subhash Vs Laxmibai

Judgement

 

Court: Madhya Pradesh High Court

Bench: Faizanuddin

Subhash Vs Laxmibai On 24 January 19854

Law Point:
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Divorce petition of husband on account of wife’s mental cruelty and desertion — Wife not allowing cohabitation — Wife threatened to commit suicide by pouring kerosene on herself on two occasions — Dates not mentioned — Wife not contesting the petition — Even then trial Court dismissing husband’s petition — Appeal against — Whether husband deserves a decree of divorce against the wife ? (Yes, on ground of mental cruelty) (Para 8) — Result — Appeal allowed.

 

 

JUDGEMENT

 

Parmanand Mishra, the husband has moved the present petition under Section 482 of the Code of Criminal Procedure challenging an order of interim maintenance at the rate of Rs. 300/- per mensem in a petition under Section 125 of the Code of Criminal Procedure, passed by Judicial Magistrate Ist Class, Faridabad on 21-10-1991 and also the order of its affirmation passed by Shri B P. Jindal, Additional Sessions Judge, Faridabad on 5-3-1992.

2. The main plea put forward on behalf of the petitioner challenging the two orders of interim maintenance is that there is a decree of restitution of conjugal rights in favour of the husband passed by the First Upper Civil Judge, Mathura on 18-8-1992. A copy of the aforesaid Judgment is Annexure P-4.

3. On behalf of the petitioner husband it has been argued that if there is a decree for restitution of conjugal rights in favour of the husband passed by a Competent Court the order of interim maintenance passed by a Judicial Magistrate under Section 125 of the Code of Criminal Procedure should not be enforceable.

4. The factual position that by now there is a decree of restitution of conjugal rights in favour of the husband though ex parte has not been controverted here. The learned Counsel for the petitioner has referred to Surjit Singh v. Gurmel Kaur and Others, 1977 PLJ (Cr.) 293, wherein it was held that an order of Civil Court where a decree under Section 9 of the Hindu Marriage Act has been passed shall have over-riding effect. Besides this, attention has also been drawn to Jasbir Singh v. Mrs. Amrit Kaur Walia, 1991 (2) CLR 374. Where in similar circumstances it was observed that a decree passed under Section 9 of the Hindu Marriage Act should not remain uncomplied. Any authority to the contrary has not been referred to here. The conclusion is that the present petition succeeds and it is held that the impugned order shall be non-operative with effect from 8-8-1992. Besides this, it is further ordered that in case Rekha Mishra the wife has actually received and spent the maintenance disbursed to her prior to the pronouncement of this judgment it shall not be recovered from her.

Petition allowed.This is husband’s appeal against the judgment dated 4-10-1982 passed by the District Judge, East Nimar, Khandwa in Civil Suit No. 17-A of 1982. Dismissing the plaintiff-appellant’s suit for divorce under section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’).

2. The appellant and respondent are husband and wife. The appellant presented a petition under section 13 of the Act for a decree of divorce on the ground of mental cruelty and desertion on the part of his wife-respondent. The appellant contended that his wife-respondent preferred to live with her parents and came to him only occasionally for a short period after much persuasion and efforts and that for the last about six months from the date of the divorce petition, she had not turned up and thus deserted him. He also contended that even during her short stay with him, she did not permit cohabitation which caused mental suffering to him and amounted to desertion within the meaning of clause (ib) of section 13(1) of the Act. The appellant also took the plea that his wife-respondent frequently raised dispute on trifling matters and on various occasions she poured kerosene oil over her body and threatened to put on fire to implicate him. The appellate contended that these acts on the part of his wife-respondent has disturbed his mental peace which amounted to cruelty within the meaning of clause (ia) of sub-section (1) of section 13 of the Act.

3. The respondent-wife did not turn up before the trial court to defend the divorce petition inspite of service of notice upon her and, therefore, the trial Court preceded ex-parte against her. On evaluation of evidence adduced by the appellant, learned trial Court took the view that the plaintiff-appellant had failed to establish any grounds for grant of a decree of divorce and, therefore, dismissed the divorce petition against which this appeal has been directed.

4. The respondent-wife has not turned up to contest this appeal also inspite of service of notice S.P.C. was also issued to her for a fix date of hearing of this appeal but the respondent-preferred to remain absent.

5. This appeal was presented after the prescribed period of limitation was over and, therefore, an application under section 5 of the Limitation Act supported with an affidavit for condonation of delay was filed. The delay has been condoned by order dated 21-1-1985.

6. Learned counsel for the appellant urged that there is evidence of mental cruelty and desertion on the part of the wife and, therefore, a decree of divorce ought to have been granted. He also urged that the rejection of the appellant’s evidence for want of insignificant details regarding the acts of cruelty on the part of the wife is wholly unjustified. Having heard the learned counsel for the appellant and after perusal of the record I find that the appeal must be allowed.

7. As stated earlier, the respondent-wife did not enter into her defence at all and preferred to remain ex parte in the trial Court. The appellant, however, examined himself as PW 1 and one Kishore (PW 2). The appellant Subhash deposed that respondent even after the marriage mostly lived with her mother and whenever he went to bring her to his house she declined. He also deposed that during her short stay she was always disobedient and raised dispute on trifling matters. He further deposed that she very often threatened to commit suicide and on two occasions she poured kerosene oil over her body and threatened the appellant that she would kill herself. Respondent had left for her parents’ house about 6 months before the filing of the divorce petition and thereafter she did not turn up even to this date despite a notice Ex. P. 1. These facts are supported by evidence of an independent person like Kishore (PW 2). There will be no justification to discard the evidence of these witnesses simply because there is no mention in their statement as to the dates of the two occasions when the respondent had poured kerosene oil over her body to commit suicide. If these witnesses were questioned as to date or period probably they may have stated the same. But in the absence of any question being put to them their evidence cannot be discarded simply on that ground. There is hardly anything to reject their evidence.

8. The divorce petition was made in June 1982 and the respondent did not turn up to the appellant’s house even to this date. The respondent did not even contest the petition as well as this appeal, and thus the contentions of the appellant remain unrebutted. The act of the respondent not admitting access to her husband-appellant and denying him the opportunity of cohabitation coupled with an act of pouring kerosene oil over her body as a measure of threat to kill herself in order to implicate her husband is nothing short of mental anguish disturbing his peace of mind and mental happiness. Such a behaviour which tend to destroy the legitimate ends and objects of matrimony can hardly be appreciated. It has been held time and again that cruelty need not be physical but it can be mental cruelty as well which can give rise to the decree of divorce on the ground of cruelty. In these circumstances the appellant deserves a decree of divorce against the respondent.

9. For the reasons stated above, the appeal is allowed. The judgment and decree passed by the Court below is set aside and the appellant’s petition for divorce is allowed and he is granted a decree for divorce. There will be no order as to costs as the respondent has not come forward to contest the appeal.

Appeal allowed.

 

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