Gangabai vs Hari on 29 January, 2004

Madhya Pradesh High Court
Gangabai vs Hari on 29 January, 2004
Equivalent citations: I (2004) DMC 784, 2004 (3) MPHT 206
Author: A Awasthy
Bench: A Awasthy


JUDGMENT

A.K. Awasthy, J.

1. Appellant/defendant has filed this appeal under Section 28 of the Hindu Marriage Act against the judgment and decree dated 13-8-97 in Civil Suit No. 16-A/90 passed by the learned District Judge, Mandleshwar.

2. Admitted facts of the case are that the marriage in between the appellant and the respondent was solemnized in the year 1978 at Mandleshwar. It is also not in dispute that the defendant has filed the Case No. 9/89 against the petitioner 125 Cr.PC for her maintenance.

3. The case of the petitioner is that at the time of his marriage his age was 17 years and the age of the defendant was only 13 years. That their marriage was not legal and proper, because at that time they were minor and “Sapatpadi” and other rites have not taken place at the time of marriage. The petitioner has further alleged that few days after the marriage the defendant has left the matrimonial house and she was started living with her brother at Village Gogaona and she is doing the business of selling fruits. That the defendant has refused to resume the relations in spite of repeated efforts by the appellant/defendant. It is further alleged by the petitioner that the defendant is a lady of lose character and she is having illicit sexual relations with other persons. It is further alleged that the defendant is living separately from last 15 years and she has foresaken the matrimonial relations with the petitioner. The petitioner has prayed for dissolution of the marriage on the ground of desertion and cruelty and it is further prayed that the marriage of the appellant/defendant be declared void as it was performed when both were minors.

4. The case of the defendant is that the petitioner has performed second marriage and he is having children from his second wife. It is denied by the defendant that at the time of marriage the petitioner or she was minor. It is further denied by the defendant that she is leading life of adultry or she is having illicit relations with other persons. It was submitted that she lived with the petitioner for about 5 years and during that period she was physically assaulted by the petitioner and the petitioner has ousted her from the house and, thereafter, he has not made any attempt to resume the matrimonial relation and to keep her in his house.

5. The learned Trial Court after framing the issues has examined petitioner Hari (P.W. 1), Sitaram (P.W. 2) and Gendalai (P.W. 3) and from the opposite side defendant Gangabai (D.W. 1) and the learned Trial Court has dissolved the marriage on the ground that the appellant/defendant has deserted her husband for more than 15 years.

6. Learned Counsel for the appellant has assailed the impugned judgment and decree on the ground that the petitioner has made false and frivolous charges against the appellant that she was leading immoral life and that the petitioner has performed second marriage and, as such, the petitioner is not entitled for the decree of divorce on the ground of desertion.

7. From the statement of petitioner Hari (P.W. 1), Sitaram (P.W. 2) and Gendalai (P.W. 3), it is clear that the appellant/defendant is living separately from her husband for the last more than 15 years before filing the petition for divorce against her. Defendant Gangabai (D.W. 1) has stated that the petitioner has performed second marriage with one Savitribai and he is having 4 children with his second wife. Gangabai (D.W. 1) has not examined any witness to prove that the petitioner has performed second marriage with Savitribai. The defendant has also not produced any documentary evidence to prove the alleged second marriage. No question was put in the cross-examination of Sitaram (P.W. 2) and Gendalai (P.W. 3) about the fact that the petitioner has solemnised second marriage with Savitribai. The petitioner has denied that he is living with Savitribai or he is having children from Savitribai. Therefore, in this context it is relevant to observe that defendant Gangabai (D.W. 1) has not stated that in which year the petitioner has performed second marriage and that why she has not taken any action against her husband restraining him from keeping second wife. In these circumstances it is clear that defendant Gangabai has failed to prove that the petitioner has performed second marriage or he is living with one Savitribai. Consequently, the learned Trial Court has not committed any error in holding that the defendant is living from more than 15 years separately from her husband without any reasonable and probable cause.

8. Learned Counsel for the appellant has argued that the petitioner has made false and reckless allegations against the chastity of the appellant/defendant and in view of the false allegations made by the petitioner, he is not entitled to seek divorce on the ground of desertion, because it is laid down in Section 23 of the Hindu Marriage Act that in a petition for divorce the petitioner should not be allowed to take advantage of his own wrong. The appellant has not taken defence before the Trial Court that she is living separately with her husband on account of false allegations levelled against her by the petitioner relating to her bad character. Gangabai (D.W. 1) has not stated that before filing the petition for about 15 years she has lived separately from her husband. The petitioner on oath has not alleged that she is a lady of
bad character and leading immoral life. The defendant has not asked single question in the cross-examinations of petitioner Hari (P.W. 1), Sitaram (P.W. 2) and Gendalal (P.W. 3) that the petitioner used to make allegation against his wife that she is a lady of bad character. Hari (P.W. 1), Sitaram (P.W. 2) and Gendalal (P.W. 3) have also not stated a single word that the defendant is having illicit sexual relations with other persons. In these circumstances it can not be said that the appellant/defendant had justification of living separately from her husband because of the allegation made by her husband about her illicit relations with other persons. The appellant/defendant was also guilty of making false allegations against her husband that he has performed second marriage with one Savitribai and he is living with his second wife along with 4 children.

9. The appellant and the respondent are living separately from more than 25 years, they had made the false allegations of serious nature against each other. There is nothing on record to show that the chances of living together exist and the intention of the wife living separately was not to snap the matrimonial relations. It is contended by the learned Counsel for the respondent that in view of fact that the spouse are living separately since 1978 (i.e., from more than 25 years) and there are no chances of resuming relations and as such it should be held that the marriage has irretrievably broken down and decree of divorce should be passed. Looking to the totality of circumstances and their cumulative effect it is held that the appellant/defendant is living separately with the animus deserendi for more than stipulated period and consequently, the learned Trial Court has not committed any error in passing the decree of divorce on the ground of desertion.

10. The appeal is devoid of merit and it is hereby dismissed. Parties to bear their own costs.

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