Madhya Pradesh High Court
Shrikant Ramsajiwan Tripathi vs Saroj on 8 April, 2000
Bench: V Agarwal
Citation:AIR2001MP94,II(2001)DMC295,ILR[2001]MP12022, 2000(3)MPLJ404
1. This appeal under Section 28 of the Hindu-Marriage Act, 1955 (hereinafter referred to as the 'Act' for short) has been preferred against the judgment and decree dated 12.5.1998 in Civil Suit No. 2-A/1997 by District Judge, Panna whereby the petition under Section 13 of the 'Act' by the appellant seeking divorce against the respondent/wife has been dismissed.
2. Undisputably parties were married in January, 1990 at village Kanti, Tahsil Gunnore, District Panna. Gauna ceremony took place in November, 1992 whereafter, the respondent/wife lived in the matrimonial home for some time. She thereafter visited her parents' home twice till April, 1994. In April, 1994, she went along with her father to her parents' home. She did not reside with the appellant/petitioner after April, 1994. It is also not in dispute that the petitioner/appellant served two notices to the respondent/wife asking her to return back to the matrimonial home, which were duly replied to by the respondent/wife through her Counsel.
3. The petitioner/appellant averred in his petition under Section 13 of the 'Act' that his wife/ respondent did not return back to him after she left the matrimonial home with her father on 30th April, 1994, despite several efforts made by the appellant/husband to bring her back. It has been averred in the above context that on four occasions, the appellant or his brother went to the parents' home of the respondent/wife, but they could not succeed in bringing her back. It has, therefore, been averred that the respondent/wife has deserted the appellant. It was further averred that the respondent treated the appellant and his family members with cruelty, when she was living with them in the matrimonial home. A decree for divorce on the aforementioned grounds was sought.
4. The application was resisted by the respondent/wife. According to her averments in reply to the above petition, the father of the appellant, at the time of marriage in January, 1990 demanded four tolas of gold, 2 kgs. of silver ornaments and cash amount of Rs. 50,000/- as dowry from the father of the respondent. Since the respondent's father expressed his inability to meet such a demand, the marriage party returned back without taking the respondent along with them and the 'Bida' of the respondent could not take place on the above ground. Later on, with the intervention and persuasion of the relatives of the respondent/wife and other respectable persons, and appellant /husband performed the 'Bida' of his wife in the month of November, 1992 and had taken her with him to his village Kamta. During the period, the respondent/wife resided in her matrimonial home at village Kamta, there was continuous demand of dowry by the appellant and his family members. She was not even afforded articles of daily needs. She apprehended danger to her life. Therefore, she communicated the message through one Neeraj to her father Badri Prasad, who had thereafter taken her back. She has denied the averments of the petitioner/appellant that he or his brothers and other relatives attempted to take her back to her matrimonial home. She has further averred that there was a possibility of the appellant remarrying. Therefore, she had filed an application under Section 9 of the 'Act', which was registered as Civil Suit No. 40-A/1996 in the Court of District Judge, Panna. She also averred that she is still willing to live with her husband, the appellant, provided she is assured of security of her life and the appellant's father gives up his demand of dowry.
5. The learned Trial Court, in the impugned judgment, held that there was demand of dowry by the appellant and his family members. It was also found that the respondent has not deliberately refused to live with the appellant/husband and has not deserted him. It was also held that there was no effort on the part of the appellant/husband to bring back the respondent/wife to the matrimonial home, as has been his stand. It was, therefore, found that the appellant could not succeed on any of the grounds for obtaining divorce under Section 13 of the 'Act'. Accordingly, his petition for divorce was dismissed.
6. The learned Counsel for the appellant/husband has challenged the impugned judgment and decree. It has been submitted that the allegation of the respondent/ wife that there was demand of dowry by the appellant and his family members is not borne out from the evidence on record and that the appellant has deliberately abandoned by matrimonial home and is living separately since April, 1994 in her parents' home. The attempts made by the appellant and his brothers, etc. to bring her back proved futile as the respondent was adamant not to return back to the appellant's house. It has further been submitted that the marriage between the parties has irretrievably broken and their relations have become so Strained that there is no possibility of reconciliation and restoration of marital relation between the parties. Hence a decree for divorce deserves to be granted. Learned Counsel for the appellant, in support of the above contention, relied upon Smt. Sneh Prabha v. Rabinder Kumar, AIR 1995 SC 2170, and Chanderkala Trivedi (Smt.) v. Dr. S.P. Trivedi, (1993) 4 SCC 232.
7. As against this, the learned Counsel for the respondent /wife has urged that there was demand of dowry by the appellant's father at the time of marriage itself. The demand as above persisted. The 'Bida' could not take place on account of inability of the father of the respondent/wife to fulfil the demand as above. It has further been submitted that though 'Bida' was performed much later after two years, the demand of dowry as above by the appellant and his father and other family members persisted even thereafter, resulting in strained relationship between the parties. Ultimately, the respondent/wife, unable to bear the misbehaviour meted out to her, was forced to leave her matrimonial home in April, 1994. The appellant/husband and his family members never cared to bring her back and left her to her fate. This resulted in the respondent /wife continuing to live with her parents.
8. The learned Counsel for the respondent/wife further urged that above circumstances go to show that there was no desertion on the part of the respondent. It was pointed out that, in fact, she filed an application for restitution of conjugal rights under Section 9 of the 'Act', and a decree of restitution in her favour has also been granted. It has also been submitted by the learned Counsel for the respondent/ wife that in view of above, since desertion on the part of the wife has neither been proved, nor can it be inferred; therefore, the petitioner/appellant was not entitled to a decree for divorce against his innocent wife.
9. On perusal of the petition under Section 13 of the 'Act', it would appear that divorce under Section 13 of the 'Act' was sought by the appellant/husband mainly on the ground of desertion by the respondent/wife, who is admittedly living in her parents' home since 30th April, 1994. It also appears that in para 4 of the petition, the appellant has pleaded that during her stay with him the respondent/wife had treated the appellant and his family members with cruelty. However, it may be noticed that no particulars of cruelty have been given. Therefore, the vague and general averment of cruelty as above would not constitute proper pleading. Such pleading would not disclose ground for divorce under Section 13(1)(ia) of the 'Act'. Under Order VI Rule 2, Civil Procedure Code pleadings should contain a statement in a concise form of material facts on which the party pleading relies for his case or defence, as the case may be. The Supreme Court in Udhav v. Madhav, AIR 1976 SC 744, has observed that all the primary facts which must be proved at the trial by a party to establish the existence of cause of action or his defence, are material facts. Material facts are thus those facts which a plaintiff must allege in order to show a right to sue or defence must allege in order to constitute his defence. Therefore, the plaintiff in support of his allegations regarding the ground of cruelty, should have pleaded all material facts, in relation thereto. It may also be noticed that neither an issue was framed by the Trial Court on the above averment of cruelty, nor any prayer was made by the appellant in the above regard. This ground has also not been pressed in appeal.
10. Therefore, the only question that deserves consideration is; as to whether the appellant has established desertion on the part of the respondent/wife?
11. As noticed earlier, the respondent/wife is undisputably residing with her parents at Kanti since 30th April, 1994 when she went away from her matrimonial home along with her father. The averment of the petitioner/appellant is that despite efforts on his part, his wife, the respondent did not return back to the matrimonial home. In the above context, the petitioner/appellant in para 3 of his petition has given details and particulars of the efforts made by him towards bringing back the respondent/wife. It would appear from the said pleadings that the appellant or his brothers went to the house of the respondent's father for bringing her back in all on four occasions and, lastly, they also went to the house of the maternal uncle (Mama) of the respondent for the aforesaid purpose. However, the respondent and her father were adament and the respondent did not come back.
12. The learned Trial Court, in the above context, after detailed discussion of evidence on record led by the appellant, has concluded that the evidence is discrepant and is not reliable, as would be clear from paras 8 to 21 of the impugned judgment. It would appear therefrom as well as from the record of the Trial Court that the evidence led by the appellant in the above regard was discrepant and inconsistent. It is noticed that though the brothers of the appellant namely, Krishna Kant and Vishnukant are alleged to have gone to call and take back the respondent with them, yet they have not been examined by the appellant in support of his case. It was also noticed by the Trial Court that Swami Prasad, the maternal uncle (Mama) of the respondent was also not examined though he was a material witness. It has also been observed by the learned Trial Court that the statements of the petitioner's witnesses are unnatural and inconsistent. The observation as above appears to be justified, when the evidence of the said witnesses is examined and scrutinised.
13. In view of the above, the evidence led by the appellant to show that though he made several attempts to bring back his wife, but she refused and was adamant in not coming back was rightly disbelieved by the learned Trial Court.
14. It is pertinent to note in the above connection that the appellant/petitioner has assigned absolutely no reason in his petition as to why the respondent/wife did not wish to live with him in the matrimonial home. Petition under Section 13 of the 'Act', filed by the appellant is conspicuously silent on the above vital aspect. It is also important to note that contrary to this, the respondent/wife has specifically pleaded that at the time of the marriage between the parties, there was a demand of dowry by the appellant's father, who demanded 4 tolas of gold, 2 kgs. of silver and cash of Rs. 50,000/-. The respondent's father expressed his inability to fulfil the above demand. This resulted in bitterness and the appellant's marriage party returned back without performing 'Bida'. The appellant has not filed any rejoinder to the above averments of the respondent/wife, and has not denied the same. However, in the evidence led by him, he has tried to explain the non-performance of 'Bida' immediately after the marriage in the year 1990 by stating that as per their caste custom, 'Bida' does not take place in 'Hara-Mandap', as would appear from the statement of Shrikant (A.W. 1), Kamlakant (A.W. 7), the brothers of the appellant and Vishnu Prasad Garg (A.W. 2), who was the 'Pandit' and performed the marriage of the parties, have also stated to the above effect. However, it may be noticed that the appellant's own witness Ramniwas (A.W. 6) in his statement has admitted that in their caste 'Bida' takes place in some of the families in 'Hara-Mandap', i.e., at the time of marriage itself. This contradicts the caste-custom as is tried to be substantiated by the appellant during evidence.
15. It may also be noticed that if such was the custom of the family or caste of the appellant, it should have been specifically pleaded by him in his petition under Section 13 of the 'Act' or at least by way of rejoinder or amendment after the reply of the respondent/wife was filed. As laid down in Saliq Ram v. Munshi Ram and Anr., AIR 1961 SC 1374, plaintiff basing his case on custom must actually plead custom. Similarly, in T. Saraswathi Animal v. Jagadambal and Anr., AIR 1953 SC 201, it was laid down that it is incumbent on a party setting up a custom to allege and prove it. However, it has not been done by appellant. In the circumstances, no foundation in the pleadings having been laid by the appellant regarding the caste or family custom as above; oral evidence in that regard cannot be accepted and acted upon. Besides, as noticed earlier, the appellant's evidence also is not consistent and does not inspire confidence.
16. As against above, the evidence of the respondent /wife Saroj (N.A.W. 2) substantiates her pleadings that there was demand of dowry at the time of marriage itself by the father of the appellant/husband. The statement as above is corroborated by the statement of her father Badri Prasad (N.A.W. 7). Independent witnesses Manbaharan (N.A.W. 1), Kashi Prasad (N.A.W. 4) and Ramrakhan (N.A.W. 5) have also stated to the above effect. There is no reason to disbelieve the above evidence led by the respondent/wife. From the above evidence, it would appear that there was demand of dowry by the appellant's father at the time of the marriage and on account of non-fulfilment of such demand, the 'Bida' of the respondent immediately after the marriage could not take place. Thus, non-fulfilment of the demand of dowry, made by the appellant's father appears to be the only cause for non-performance of the 'Bida' of the respondent, at the time of her marriage, as has been pleaded by her. There appears to be no other plausible reason for not taking the respondent/wife in 'Bida', immediately after the marriage as is customary.
17. It may further be noticed in the above context that the 'Bida' admittedly took place after more than two years of the marriage of the parties in November, 1992. Even if the appellant's contention is to be accepted that the 'Bida' does not take place in their family in 'Hara-Mandap', i.e., immediately after the marriage, there was no justification for the appellant not to perform 'Bida' for a long period of about 21/2 years. In the above context, the respondent has pleaded that the 'Bida' could take place only after the close relatives of the respondent and other respectable persons intervened. This also has been supported by the evidence led by the respondent. The above stand is corroborated by the statement of Badriprasad (N.A.W. 7).
18. The appellant, in the above context, has not offered any explanation in his petition as to why 'Bida' did not take place for about 21/2 years after the marriage. When the appellant Shrikant (A.W. 1) was cross-examined on the above aspect, he has stated that after a year of his marriage, his father suffered from high blood pressure. Therefore, the 'Bida' could not take place prior to 1992. However, the explanation as above offered by the appellant has neither been pleaded nor does it appear to be natural. If the father of the appellant/husband was ill, the normal reaction and conduct of the appellant and his family members would have boon to bring back the daughter-in-law, i.e., the respondent/wife to the matrimonial home; rather than delaying the matter and letting her remain with her parents.
19. In view of pleadings and evidence as above, it is clear that the respondent's stand that 'Bida' could not take place on account of demand of dowry by the appellant and his father appears to be more probable and deserves acceptance. The findings of learned Trial Court in that regard, therefore, appears to be justified. It is thus clear that the appellant himself was responsible for the estrangement between the parties. It is abundantly clear that the demand of dowry as above had created a crack in the marriage between the parties, right from its inception. The marriage appears to have been further given a dent, on account of persistence on the demand, as above. It further appears that the appellant and his family members were dissatisfied on account of non-fulfilment of their demand, which resulted in maltreatment with the respondent/wife, as has been stated by her. She was, therefore, forced to go back to her parent's house in April, 1994 along with her father. She was never taken back by the appellant thereafter. As already noticed, the evidence of the appellant that several efforts were made for bringing her back, to her matrimonial home, is not worthy of credence.
20. In the circumstances, though the respondent/wife is living separately, it cannot be said that she has deserted the appellant/husband. It may be noticed that to constitute desertion under Section 13(1)(ib) of the 'Act', it is not only necessary to prove the factum of separation, but it has also to be proved that there was intention to bring the cohabitation permanently to an end; and that there should be absence of consent in the above regard in the matter of separation and also absence of conduct giving reasonable cause to quit the matrimonial home. The meaning of the word 'desertion' as given in the Explanation to Section 13(1) of the 'Act', has to be kept into consideration, which reads :
"Explanation : In the Sub-section, the expression "desertion" means the desertion of the petitioners by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly."
21. Allegation of desertion by the appellant/husband if viewed in the context of the above Explanation; it would appear that though the respondent/wife is living separately from the appellant/husband since 30th April, 1994, it does not appear that she was responsible or could be blamed for doing so. In Siraj Mohammad Khan v. Hafezunnisa, AIR 1981 SC 1971, the wife complained about the persistent demands of dowry, from her husband's parents and relations. The Supreme Court held that the wife had reasonable apprehension arising from the conduct of the husband, that she was likely to be physically harmed, and there was reasonable justification for the wife's refusal to live with her husband. Therefore, though the respondent/wife is living separately, she cannot be said to have deserted the appellant. It is, in fact, the appellant himself who appears to be at fault. In the circumstances, the appellant cannot succeed in obtaining decree of divorce, on the ground of desertion.
22. The learned Counsel for the appellant has submitted that since the marriage is dead, the appellant is entitled to a decree of divorce. The learned Counsel relied upon Smt. Chanderkala Trivedi (supra). Respondent/husband in that case had filed the petition for divorce on ground of cruelty. In the written statement filed by the wife, allegation of adultery was made against the husband. Differences between the parties had arisen 9 years after the marriage due to the alleged intimacy of the husband with another lady doctor. It also appears that the husband/ respondent set up a case of undesirable association of the appellant/wife with young boys. The Matrimonial Court found the behaviour of the appellant/wife was not befitting a Hindu married woman. It was observed by the Apex Court that whether the allegations as above were correct or not, the marriage of the two, in the circumstances, cannot be continued any further and that it appeared to be practically dead. In the circumstances, the Apex Court thought it fit to dissolve the marriage and, therefore, maintained the decree for divorce on terms mentioned therein. It is, therefore, obvious that in the said case, the appellant/wife's conduct was also found to be not beyond reproach and the solemn vows of the marriage tie, appear to have been violated by both the parties.
23. However, such are not the facts in the instant case. As pointed out earlier, the appellant's contentions of desertion by the respondent/wife, in the present case, have been negatived by the respondent; who has successfully pleaded and proved that she was forced to live separately on account of the conduct of the appellant/ husband and his family members, as there was demand of dowry and misbehaviour with her on non-fulfilment thereof.
24. In Smt. Sneh Prabha's case (supra), relied upon by the appellant, the respondent/husband of that case had filed an application for restitution of conjugal rights. The decree was granted by the Trial Court, which was affirmed by the High Court. The Apex Court observed that since the marriage between the parties has irretrievably broken down and there was no chance of their living together, a decree for divorce between the parties was granted.
25. In the instant case, however, the facts are entirely different. The appellant cannot be permitted to take advantage of his own wrong. It may be noticed that Section 23(1)(a) of the 'Act' provides that in any proceedings under the 'Act', decree can only be granted by the Court, if the ground for granting relief exists and if it is satisfied that the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief; and not otherwise. In the instant case, as noticed earlier, since the appellant himself is to be blamed for his wife/ respondent living separately, and since the ground of 'desertion' on her part has not been established; he is not entitled to a decree for divorce, as prayed by him.
26. It may also be mentioned here that the respondent/wife has filed proceedings under Section 9 of the 'Act' for restitution of conjugal rights in which she has succeeded in the Trial Court. The husband has filed First Appeal No. 275 of 1998, which is also being dismissed by a separate judgment. For that reason also, the appellant cannot succeed in his petition for divorce.
27. Therefore, the application of the appellant /husband under Section 13 of the 'Act', as well as this appeal is hereby dismissed. The appellant shall bear his own costs and shall pay that of the respondent/wife. Counsel's fee, Rs. 1,000/- if certified.
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