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Mina Verma vs Kirit Verma on 17 August, 1998

Patna High Court
Mina Verma vs Kirit Verma on 17 August, 1998
Equivalent citations: 1999 (47) BLJR 678, II (1999) DMC 58
Author: P Deb
Bench: P Deb


JUDGMENT

P.K. Deb, J.

1. This appeal has been preferred by the petitioner-appellantabovenamed under Section 28 of the Hindu Marriage Act against the -ex-partejudgment and order dated 11.11.1987 passed by the then Additional District Judge,7th Dhanbad in Title (Matrimonial) Suit No. 47 of 1985.

2. The facts in brief are that the petitioner-appellant was married to therespondent according to the Hindu rites and rituals on 13.12.1971, at Dhanbad andthereafter they started conjugal life. As per the contents of the divorce petition filed,from the very date of entering into the matrimonial life, the appellant was takenaback when she found that her husband was a dead drunkard and was alwaystreating the petitioner-appellant with cruelty. He was not having any sort of loveand affection towards the petitioner but still being a Hindu wife she tried to getherself adjusted and to mend her life partner, but all her attempts proved futile. Afemale child was born in the wedlock in the year 1974 but then also tine attitude ofthe respondent-husband did not change. He was not even ready to maintain wifeand his own child. The petitioner being compelled learnt tailoring and startedearning for her maintenance and also for her female child. With tine thought of herbeing separated temporarily the respondent might have changed his attitude, sheoccasionally used to withdraw from the matrimonial home and stay at her parents’house. But on coming back also she found the situation unchanged, she becamecompletely fed up with the cruelty being meted to her by her husband and as suchin the compelling circumstances of not getting maintenance for her and her child, -she went to her father’s house in the year 1985 and since then she was residing ather parents’ house, till the filing of the divorce petition in the year 1985.

3. The divorce petition filed by the appellant was registered as Title (M) SuitNo. 47 of 1985 and on being noticed, the respondent-husband put in appearance byfiling Vakalatnama and took several adjournments for filing written statement, butultimately he did not file so. Even he did not respond to the attempt of reconciliationbetween the spouses made by the trial Judge and ultimately the case was heard ex-parte and the appellant was examined as a sole witness in support of her contention.In her evidence, she has stated what she contended in her divorce petition, but thelearned Court below after considering the evidence on record came to the findingthat neither of the grounds for divorce as enumerated under Section 13 of the HinduMarriage Act could come into play on the contents and evidence adduced by theappellant. In the impugned judgment and order the learned Court below held thatthe ground of desertion could not be proved as the petitioner had withdrawn herselffrom the matrimonial home. He has further held that the ground of cruelty couldalso not be proved as drunkardness per se cannot be said to be a ground of cruelty.

4. In the appeal also, notices were served on the respondent but he preferrednot to appear as he did so in the Court below. The learned Counsel for the appellanthas submitted that the impugned judgment and order is against the principles oflaw as enunciated by various High Courts and the Supreme Court in the present dayof modernisation. His further submission is that the learned Matrimonial Courtonly stuck to his conservative heels regarding the grounds of divorce.

5. I have carefully gone through the divorce petition and also the ex-parteevidence adduced by the appellant. The concept of divorce in the Hindu societycame up for last few decades when the Society has been changed due tomodernisation of the concept of marriage and living together. Even now like theEuropean countries, the concept of living together without a marriage knot hasbecome very much in existence in the Matropolitan cities. The Supreme Court in thecase of Reynold Rajmani v. Union of India, has held that due to change of societyand the mental development and ethical change of the marriager concept liberalviews about the ground of divorce should always be taken. The ground of divorceas enumerated under Section 13 of the Hindu Marriage Act should be streched andamplified to its last elasticity, if it could be found that the marriage knot betweenthe spouses has already proved futile to give liberty to the spouses to live a free life.Conservative feelings for the known sacramental ethics attached to the Hindumarriage should not come in way in considering liberalisation of the grounds ofdivorce.

6. In the present case, both grounds of cruelty and desertion have beenasserted from the side of the petitioner-appellant. It is true that drinking habit perse cannot be a ground of cruelty, but if such drunkardness creates unhappiness tothe matrimonial home and the behaviour of drunkard spouse brings a feeling offaithlessness on the other spouse then the same should also be considered as aground of cruelty. In the present case, it has been stated by the petitioner-appellantin her ex-parte evidence that since her marriage she found her husband who was aman of means was habituated in heavy drinking and because of drunkardness hewas neglecting the wife and even after the birth of the child the attitude did notchange rather it was aggravated when the husband refused to maintain the wife andhis female child. The wife tried her best to mend the attitude of her husband andfor that reason she sometimes went out in her parents’ house so that the other spousebecause of loneliness could come to terms but the things did not change andultimately out of frustration the petitioner had to leave the matrimonial home. Overand above the ground of cruelty, there is also a ground of desertion. The worddesertion as appearing under Section 13 of the Hindu Marriage Act has got differentconcept as that of its Dictionary meaning. It is true that in the case at hand thepetitioner had herself withdrawn from the society of the respondent but suchwithdrawal was not at her own sweet will but because of the compelling circum-stances and long frustration of a decade in the matrimonial relationship. So,desertion by giving its proper meaning should also impress the present case of thepetitioner. It appears that the learned Matrimonial Court did not construe thematter in its proper sense. The husband-respondent did not contest the case,although he took several adjournments. By mat he had admitted the allegationbrought against him. He even was not ready for reconciliation, although he has gota female child through the petitioner. This shows the attitude of the husbandtowards the poor wife, which can also be construed as a mental cruelty. She herselfhas stated that when she has not been paid maintenance and the schooling fees ofher daughter, she started earning by tailoring and maintaining not only herself butalso her daughter. The tuition fee has also not been contributed from the side of thehusband.

7. From the above discussion, it is clear that the learned Court below has notconsidered the divorce petition and tine evidence of the petitioner-appellant in theirproper perspective and by stucking to the conservative views have dismissed thedivorce petition. In the facts and circumstances, I find the present case to be a fit onewhere divorce should be granted to give liberty to the petitioner-appellant to livefreely in tine society without any hindrance or obligation towards the matrimonialhome.

8. In the result, the appeal is hereby allowed. The impugned judgment anddecree is hereby set aside and Title (Matrimonial) Suit No. 47 of 1985 is herebyallowed and the marriage knot between the appellant and respondent is herebydisrupted and the appellant shall be at liberty to live a free independent life.

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