JUDGMENT
A.K. Awasthy, J.
1.This appeal is filed under Section 28 of the Hindu Marriage Act challenging the judgment and decree dated 14.12.1993 passed by District Judge, East Niwar, Khandwa in Civil Suit No. 39-A/1992 of dismissing the petition filed for divorce on the ground of cruelty and desertion.
2. The admitted facts of the case are that the marriage in between the appellant and the respondent was solemnised on 1.7.1989 at Khandwa by Hindu customs and now the appellant and respondent are living separately.
3. The case of the appellant is that the respondent Anita Bai has just after the marriage started using filthy words and she was lady of bad temperament. That Anita Bai used to demand telcom powder of better quality and other items of fashion and make-up and threatened to commit suicide if her demands are not fulfilled. That the appellant has stated that he has made many attempts to persuade respondent to behave properly and give due respect to his family members but she had no love and respect for his family and her behaviour had not improved. The appellant/husband has averred that his wife is living separately from him from 1990 and she has deserted him. That respondent/wife has taken back the gold and silver ornaments detailed in Para 7 of the petition. That the decree of divorce be passed against the respondent/wife and it be ordered under Section 27 of the Hindu Marriage Act that she should return back the gold and silver ornaments given to her in the marriage.
4. The respondent/wife has denied that her behaviour with the appellant or his family members was insulting or improper. She has denied that she used to demand good quality of cosmetics and she had threatened to kill herself if the demands were not fulfilled. The respondent has alleged that the appellant/ husband has physically assaulted her to fulfil the demand of dowry. That the appellant and his parents were in habit of beating her and the appellant usually come to the house after drinking lot of liquor. That the appellant has driven her out of his house and appellant has refused to keep her as his wife.
5. The learned Trial Court has examined three witnesses of the appellant and two witnesses of the respondent and after hearing the arguments it was held by the learned Trial Court that the allegations of cruelty and desertion against the respondent/wife are false and baseless.
6. The learned Counsel for the appellant has argued that the Trial Court has not properly appreciated the evidence and applied the law which was laid down in the case of Indra Gangele v. Shailendra Kumar Gangele, II (1991) DMC 401=1992 MPLJ 864, and Prafulla Kumar v. Smt. Sarla, II (1998) DMC 512=1998 (1) MPJR 372.
7. A.W. 1 Padam Singh has stated that his wife was of fashionable nature and she used to demand good quality of face powder and she was very fond of going to the market for shopping. Padam Singh (A.W. 1) has stated that his wife refused to share her bed and the marital relationship. Padam Singh has deposed in his statement that she was in habit of insulting his parents and when she was asked to improve her behaviour, then she threatened to commit the suicide. Padam Singh has further alleged that in the year 1990 about two days before festival of Holi, Anita took all her garments and ornaments to her parental house.
8. Padam Singh (A.W. 1) has not disclosed in his petition that his wife has refused to sleep with him and perform the marital relationship. From the perusal of the statement of Padam Singh and his petition, it is clear that there are lot of exaggeration in the statement of Padam Singh on oath. The appellant/husband has not called any Panchayat or gave the notice to the respondent/wife about her cruel behaviour. On 11.3.1992 the respondent/wife had filed the application under Section 125, Cr.P.C. in the Court of JMFC, Khandwa for maintenance from the appellant. Thereafter, the appellant has filed, after five months of the application of his wife, this petition for divorce on 6.8.1992.
9. Rupbasant Saini (A.W. 2) has deposed in his statement that the appellant used to complain that the behaviour of his wife Anita with his mother is not proper and she does not obey his parents. From the statement of Basant Saini (A.W. 2), it is clear that the respondent/wife has not ill-treated or committed the act of cruelty before him. Consequently, the statement of Basant Saini (A.W. 2) are worthless.
10. Trilokchandra (A.W. 3) has stated that Anita Bai used to beat her husband and mother-in-law. The appellant neither in his statement nor in the petition has adduced that his wife in habit of beating him and his mother. Consequently, the statement of Trilokchandra (A.W. 3) are not in conformity with the allegations made in the petition.
11. From the above discussion, it is clear that the appellant/husband has failed to produce the reliable evidence to substantiate his allegations that his wife’s behaviour was agonizing or cruel. However, the demand of the wife for better quality of powder and for going for shopping or not behaving properly with her husband or mother-in-law is not of grave nature as to constitute the matrimonial offence of cruelty. Learned Counsel for the appellant has cited the case of Indira Gangele v. Shailendra Kumar Gangele. In this citation it is observed that unruly temper of a spouse or whimsical nature of a spouse is not enough to constitute the cruelty. Unless a reasonable apprehension is caused that it is not possible to continue the married life, the decree of divorce cannot be passed on the ground of cruelty.
12. Consequently, I hold that the appellant/husband has failed to prove by producing the reliable evidence that the behaviour of his wife was so cruel as to cause a reasonable apprehension in the mind of appellant that it is not possible to continue in the married life. The findings of the Trial Court that the appellant/ husband has failed to establish the ground of cruelty is in accordance with the facts and circumstances of the case.
13. The appellant Padam Singh has not stated on oath that he or his family members made any attempt to bring back his wife from her parental house to his matrimonial house. From the statement of Anita (NAW 1) and Santosh Singh (NAW 2), it is clear that the appellant Padam Singh had refused to keep his wife in house. Even the witness of the appellant Basant Saini (A.W. 2) has admitted in para 3 of his cross-examination that the brother of respondent/wife along with four persons came to meet the appellant in order to pursuade him to keep respondent Anita Bai but the appellant Padam Singh refused to keep his wife. Consequently, it is clear that the respondent/wife has not deserted the appellant but the respondent is living separately because the appellant has refused to keep her in matrimonial house.
14. Consequently, the judgment and decree passed by the learned Trial Court is hereby confirmed and the appeal being without merit is hereby dismissed.
