On going through the pleading and the evidence in the case in the light of reasons given by the Trial Court in support of its conclusions, we do not find any justification in interfering with the refusal of the decree for divorce. Evidence of PW-2, the land lady, who apparently had no axe to grind, shows that there was no serious misunderstanding between the husband and the wife and there was nothing amiss in their relationship. According to her some problems were created by the relatives of the wife. The behaviour of the relatives of the wife cannot be considered to be an act of cruelty on the part of the wife, though no doubt, she could have resisted their attempts to disrupt the matrimonial home and continued to stay with her husband. The evidence of RW-4, who was the friend of elder brother (former husband of the lady) of the petitioner also indicates that there was no act on the part of the wife which could be found to constitute cruelty within the meaning of Section 13(1)(i-a) of the Act. The evidence of the other witnesses were discarded for proper reasons by the Trial Court and we do not find our way, to disagree with the appreciation of their evidence by the Trial Court.
1. The husband, the plaintiff in a suit for divorce under Section 13(1)(i-a) of the Hindu Marriage Act, is the appellant before us. On the death of his elder brother, the appellant married his brother's widow, the respondent herein.
2. The marriage took place on 27.4.1996. The parties were living in, the matrimonial home and the respondent-wife gave birth to a male child on 3.9.1997. According to the husband, about six months after the marriage, differences started cropping up and the respondent started behaving cruelly towards him and denied him her company and thus failed to perform her duties as a wife. She left him and went to the house of her parents, though after a short while she returned. She again left, this time taking the child with her. She has not come back and thus she had inflicted cruelty on him and, therefore, he was entitled to a decree for divorce. While denying these allegations, the wife submitted that she was willing to live with her husband and her in-laws and she denied that she was acting cruelly towards her husband or that she had denied him company or physical relationship.
3. In support of his case, the husband examined five witnesses including himself. The wife also examined herself and three other witnesses. The Trial Court, on an appreciation of the evidence, found the evidence of PW-2, the land lady of the building in which the couple were residing and the evidence of RW-4, a friend of the elder brother of the petitioner (the previous husband of the lady) reliable and their evidence did not disclose any cruelty on the part of the wife towards the husband. The Court below found no evidence of the wife ill-treating her husband amounting to cruelty within the meaning of Section 13(1)(i-a) of the Act. The evidence was found totally insufficient to support such a plea. Thus, the Trial Court dismissed the suit. There was also a claim by the husband for the custody of the minor child by invoking Section 26 of the Hindu Marriage Act. The Court found that the boy being of tender age, it was not proper to separate him from his mother, since the mother's care would be required and In that view, denied the husband the custody of the minor child. Being aggrieved by the rejection of such prayers, this appeal has been filed.
4. Mr. V.P. Singh, senior counsel took us in detail through the pleadings and evidence. He also emphasised that cruelty could be physical or mental and this was a case where the wife was inflicting mental cruelty on the husband. Counsel submitted that the evidence shows that the wife was not willing to live with the appellant and she had abandoned the matrimonial home and had denied him company expected of a wife. He, therefore, submitted that the Trial Court was not justified in refusing the decree. He also submitted that the custody of the child should have been given to the husband, especially since the child was a boy and the father was the legal guardian.
5. The wife, the respondent herein did not appear before us in spite of service of notice on her.
6. On going through the pleading and the evidence in the case in the light of reasons given by the Trial Court in support of its conclusions, we do not find any justification in interfering with the refusal of the decree for divorce. Evidence of PW-2, the land lady, who apparently had no axe to grind, shows that there was no serious misunderstanding between the husband and the wife and there was nothing amiss in their relationship. According to her some problems were created by the relatives of the wife. The behaviour of the relatives of the wife cannot be considered to be an act of cruelty on the part of the wife, though no doubt, she could have resisted their attempts to disrupt the matrimonial home and continued to stay with her husband. The evidence of RW-4, who was the friend of elder brother (former husband of the lady) of the petitioner also indicates that there was no act on the part of the wife which could be found to constitute cruelty within the meaning of Section 13(1)(i-a) of the Act. The evidence of the other witnesses were discarded for proper reasons by the Trial Court and we do not find our way, to disagree with the appreciation of their evidence by the Trial Court.
7. Thus, on an over all assessment of the relevant materials, we are satisfied that the Trial Court was justified in its conclusion that the husband has not made out a case for divorce under Section 13(1)(i-a) of the Act.
8. As regards, the custody of the minor child, we do not think it necessary to interfere with the decree, at this stage. As rightly pointed out by Mr. V.P. Singh, learned counsel, the boy has attained about seven years of age and the circumstances have changed. If that be so, the appellant can seek the custody of minor boy by making a proper application before the concerned Court in the changed circumstances. Obviously, the fact that the custody was negatived at an earlier stage in this proceeding, cannot stand in the way of consideration of that application on its own merit with reference to the facts as made out in that application or as they exist as on today. Thus, regarding the custody of the child, we arc not inclined to interfere with the present order based on the facts as then it existed and leave it to the husband, if he is so advised to make a fresh application as indicated above.
9. In the result, the decree of the Trial Court is, hereby, confirmed, subject to the above clarification, and this appeal is dismissed.
We make no order as to costs.
Print Page
Jharkhand High Court
Kamlesh Kumar Agarwal @ Sawa vs Mamta Devi on 29 March, 2004
Equivalent citations: AIR 2005 Jhar 10, 2004 (52) BLJR 1096
Bench: P Balasubramanyan, T Sen
1. The husband, the plaintiff in a suit for divorce under Section 13(1)(i-a) of the Hindu Marriage Act, is the appellant before us. On the death of his elder brother, the appellant married his brother's widow, the respondent herein.
2. The marriage took place on 27.4.1996. The parties were living in, the matrimonial home and the respondent-wife gave birth to a male child on 3.9.1997. According to the husband, about six months after the marriage, differences started cropping up and the respondent started behaving cruelly towards him and denied him her company and thus failed to perform her duties as a wife. She left him and went to the house of her parents, though after a short while she returned. She again left, this time taking the child with her. She has not come back and thus she had inflicted cruelty on him and, therefore, he was entitled to a decree for divorce. While denying these allegations, the wife submitted that she was willing to live with her husband and her in-laws and she denied that she was acting cruelly towards her husband or that she had denied him company or physical relationship.
3. In support of his case, the husband examined five witnesses including himself. The wife also examined herself and three other witnesses. The Trial Court, on an appreciation of the evidence, found the evidence of PW-2, the land lady of the building in which the couple were residing and the evidence of RW-4, a friend of the elder brother of the petitioner (the previous husband of the lady) reliable and their evidence did not disclose any cruelty on the part of the wife towards the husband. The Court below found no evidence of the wife ill-treating her husband amounting to cruelty within the meaning of Section 13(1)(i-a) of the Act. The evidence was found totally insufficient to support such a plea. Thus, the Trial Court dismissed the suit. There was also a claim by the husband for the custody of the minor child by invoking Section 26 of the Hindu Marriage Act. The Court found that the boy being of tender age, it was not proper to separate him from his mother, since the mother's care would be required and In that view, denied the husband the custody of the minor child. Being aggrieved by the rejection of such prayers, this appeal has been filed.
4. Mr. V.P. Singh, senior counsel took us in detail through the pleadings and evidence. He also emphasised that cruelty could be physical or mental and this was a case where the wife was inflicting mental cruelty on the husband. Counsel submitted that the evidence shows that the wife was not willing to live with the appellant and she had abandoned the matrimonial home and had denied him company expected of a wife. He, therefore, submitted that the Trial Court was not justified in refusing the decree. He also submitted that the custody of the child should have been given to the husband, especially since the child was a boy and the father was the legal guardian.
5. The wife, the respondent herein did not appear before us in spite of service of notice on her.
6. On going through the pleading and the evidence in the case in the light of reasons given by the Trial Court in support of its conclusions, we do not find any justification in interfering with the refusal of the decree for divorce. Evidence of PW-2, the land lady, who apparently had no axe to grind, shows that there was no serious misunderstanding between the husband and the wife and there was nothing amiss in their relationship. According to her some problems were created by the relatives of the wife. The behaviour of the relatives of the wife cannot be considered to be an act of cruelty on the part of the wife, though no doubt, she could have resisted their attempts to disrupt the matrimonial home and continued to stay with her husband. The evidence of RW-4, who was the friend of elder brother (former husband of the lady) of the petitioner also indicates that there was no act on the part of the wife which could be found to constitute cruelty within the meaning of Section 13(1)(i-a) of the Act. The evidence of the other witnesses were discarded for proper reasons by the Trial Court and we do not find our way, to disagree with the appreciation of their evidence by the Trial Court.
7. Thus, on an over all assessment of the relevant materials, we are satisfied that the Trial Court was justified in its conclusion that the husband has not made out a case for divorce under Section 13(1)(i-a) of the Act.
8. As regards, the custody of the minor child, we do not think it necessary to interfere with the decree, at this stage. As rightly pointed out by Mr. V.P. Singh, learned counsel, the boy has attained about seven years of age and the circumstances have changed. If that be so, the appellant can seek the custody of minor boy by making a proper application before the concerned Court in the changed circumstances. Obviously, the fact that the custody was negatived at an earlier stage in this proceeding, cannot stand in the way of consideration of that application on its own merit with reference to the facts as made out in that application or as they exist as on today. Thus, regarding the custody of the child, we arc not inclined to interfere with the present order based on the facts as then it existed and leave it to the husband, if he is so advised to make a fresh application as indicated above.
9. In the result, the decree of the Trial Court is, hereby, confirmed, subject to the above clarification, and this appeal is dismissed.
We make no order as to costs.
No comments:
Post a Comment