DBCMA No.122/1997
Smt. Kalpu @ Smt. Mukta Mandoth Vs. Prakash Mandoth
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IN THE HIG COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
****
:JUDGMENT:
Smt. Kalpu @ Mukta Mandoth
Vs.
Prakash Mandoth
****
D.B. CIVIL MISC. APPEAL
NO.122/1997 AGAISNT THE
JUDGMENT AND DECRE DATED 1ST
NOV., 1996 PASSED BY SHRI S.K.
AGARWAL, LEAREND JUDGE OF THE
FAMILY COURT, JODHPUR IN CIVIL
CASE NO.94/91.
Date of Order : 4th September, 2008
PRESENT
HON'BLE MR. JUSTICE PRAKASH TATIA
HON'BLE MR. JUSTICE C. M.TOTLA
Mr.Jitendra Chopra, for the appellant.
Mr.Jagat Tatia for Mr. M. Shishodia, for the respondent.
BY THE COURT: (Per Hon'ble Mr. Justice Prakash Tatia)
The appellant is aggrieved against the divorce decree
passed by the Family Court, Jodhpur in Civil Original Suit
No.94/91 dated 1st Nov., 1996, hence, preferred this
appeal.
Originally, the divorce petition was filed in the Family
Court at Bangalore by the respondent, which was registered
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as case no.MC No.509/1990. The appellant-non-applicant
sought transfer of said divorce petition to the Court at
Jodhpur in the State of Rajasthan by moving transfer
petition (Civil) No.549/1994 before the Hon’ble Supreme
Court, which was allowed by the Hon’ble Supreme Court by
order dated 20th Dec., 1990. In consequence thereof, the
divorce petition was transferred to the Family Court,
Jodhpur. After trial, the trial court granted the decree for
divorce.
The marriage of the appellant and the respondent was
solemnized on 5th Dec., 1987 at Sumerpur in Pali District of
State of Rajasthan according to the Hindu rites. The
appellant started living with her husband at Bangalore after
marriage. On 30th Oct., 1988, a baby Guddu @ Tina born to
them. According to the respondent, appellant started
behaving rudely at Bangalore with him as well as with his
family members. The respondent had a large family rather
he was member of joint family as respondent was living
with his four younger brothers and four younger sisters.
According to the respondent, he had responsibility to look
after his aged parents and younger brothers and sisters.
The appellant did not like this situation and wanted to live
with her husband only. According to the respondent within
three months after coming to the Bangalore, the appellant
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started demanding separate house for her at Sumerpur and
appellant also wanted that respondent-husband should live
at her parents’ house at Sumerpur. When the respondent
did not accept this demand of the appellant, then according
to the respondent, the respondent was abused by the
appellant by filthy language. She also abused family
members of the respondent and threatened to commit
suicide. Because of the behaviour of the appellant,
according to the respondent, the respondent and his family
members loss their entire peace. The respondent’s relatives
also tried to intervene who advised the appellant to live
good life, but the appellant shot back towards the relatives
of the respondent, who tried to intervene between them.
According to the respondent, the appellant went to houses
of their relatives and informed them that respondent and
respondent’s family members alongwith other relatives are
torturing her. With the facts in detail, the respondent
sought divorce on the ground that because of the act of the
appellant, he and his family members are suffering serious
mental cruelty.
Several letters exchanged between the parents of both
the parties and those were produced and exhibited, details
of which is not necessary because of the reason that the
exchange of letters by both the parties clearly show that
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relation was not strained only between the appellant and
the respondent but become strained with their family
members. Be it as it may be, according to the respondent,
the appellant left for her parents house at Sumerpur on 23rd
Sept., 1989 with valuable articles and did not return
Bangalore. The respondent’s parents, went to Sumerpur to
bring back the appellant, but she did not come back. Again
on 26th May, 1990, the respondent went to Sumerpur to
bring back his wife-appellant, but she did not come to
Bangalore with respondent and wrote a letter saying “good
bye” to the respondent. It is also alleged that even at
Sumerpur, the respondent was ill treated by the appellant.
The respondent on the ground of cruelty sought divorce as
well as custody of his daughter Guddu @ Tina.
The appellant submitted reply to the divorce petition
on 21st Jan., 1992 and admitted that her marriage with the
respondent as per Hindu rites at Sumerpur. She also
admitted that she gave birth to daughter Guddu @ Tina and
admitted that her daughter is living with her. She denied all
the allegations levelled against her about her rude
behaviour against the respondent and his family members.
She levelled counter allegations of her harassment by her
mother-in-law and levelled allegation of demand of dowry
and torture. She denied that she demanded separate
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house at Sumerpur. It is also stated by the appellant that
her parents tried to persuade the respondent to keep the
appellant with him, but the respondent and his family
members insisted for dowry. She also stated that younger
brother of the respondent Nirmal conducted second
marriage, obviously to show that what was the nature of
family members of the respondent. She alleged that
respondent used to come late in night and she had doubt
about his character. She stated that she had utmost love
and affection for her daughter Guddu who was student of
Model English School at that time.
The rejoinder was submitted by the respondent and in
rejoinder, it is stated that on 22nd June, 1992, it was
decided that both the parties will seek divorce mutually and
all ornaments and cash and other goods were returned to
the appellant for which appellant gave due receipt.
The issues were framed and in the trial court
respondent gave his statement as AW-1 and produced other
witness AW-2 Sohan Lal, AW-3 Jagdish, AW-4 Smt. Nazri
Bai, AW-5 Suwa Lal and AW-6 Devi Lal Shaklecha. The
appellant gave her own statement and produced NAW-2
Narayan Bharti, NAW-3 Pukh Raj, NAW-4 Kailash Chandra
Arora, NAW-5 Shiv Kumar, NAW-6 Narayan lal Agarwal and
NAW-7 Smt. Indu.
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The trial court decided the issue of committing cruelty
by the appellant in favour of the respondent, but decided
the issue about the entitlement to the custody of daughter
Guddu @ Tinna in favour of the appellant and against the
respondent . A counter issue about the ill treatment by the
respondent against the non-applicant-appellant was also
framed by the trial court and that was decided against the
appellant as she failed to prove ill treatment of the
respondent and his family members. The trial court also
held that for Istridhan no evidence was produced by the
appellant and a receipt dated 22nd June, 1992 has been
produced to show that ornaments, cash and cloths etc were
returned by the respondent to the appellant. In
consequence to the findings recorded above, the divorce
decree was granted by the trial court on 1st Nov., 1996.
We may recapitulate the fact that marriage of
appellant and respondent took place on 5th Dec., 1988 and
the divorce decree was granted by the trial court as back as
on 1st Nov., 1996. In the evidence, the appellant herself
stated that respondent already contracted second marriage
and according to the learned counsel for the appellant, the
respondent has children from second marriage. According
to the learned counsel for the appellant, the respondent
conducted second marriage when the divorce matter was
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pending. It is also submitted by learned counsel for the
appellant that the respondent owns duty to maintain his
daughter and contribute in the marriage of his daughter.
Learned counsel for the appellant also submitted that the
decree for divorce on the ground of cruelty cannot be
sustained.
Learned counsel for the respondent submitted that in
view of the serious allegations against the character of the
appellant and in view of the fact that the respondent and
appellant are living separately since more than 10 years
even from the date of decree of divorce and in view of the
allegations of the appellant, there is no chance of reunion
between the parties. It is also submitted that appellant has
her own income sufficient to maintain herself as well as to
bear all necessary expenses for marriage of her daughter.
It is also submitted that there is no evidence on record on
the basis of which any amount can be awarded for the
purpose of marriage of the respondent’s daughter. It is
also submitted that from the oral as well as documentary
evidence, it is fully proved that appellant has committed
grave cruelty and torture to respondent and his family
members. Therefore, appeal of the appellant may be
dismissed.
We considered the submissions of learned counsel for
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the parties and perused the record. Without referring the
detail evidence of the parties we would like to observe that
after perusing all the letters exchanged between the
family members of the appellant and the respondent
containing several allegations and counter allegations,
there appears that the situation became absolutely out of
control for both the parties and their family member in the
matter of relation of the appellant and the respondent and
it happened decade ago. The learned trial court considered
the various judgments on the issue of cruelty – physical
and mental both and the trial court thereafter, reached to
the conclusion that the respondent proved by evidence that
cruelty was committed by the appellant upon respondent
and his family members. Even if that finding suffers from
any error of fact even then no useful purpose can be served
by setting aside the judgment and decree of the trial court
granting divorce for appellant and respondent, looking to
the allegations against the character of respondent-husand
and the allegation of the appellant that respondent
contracted second marriage and has children from second
marriage and looking to the allegation that the appellant
herself has been harassed and tortured by the respondent
and his family members then now after 12 years of divorce
decree, there is no possibility of reunion of parties. The
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documentary evidence, the letters Ex.17 (8.8.1991), Ex.18
(16.7.1991), Ex.19 (16.7.1991) and Ex.1 to Ex.16, Ex.A3
as well as oral evidence of parties running in several pages
only proved one fact that they cannot live together. In this
situation, we do not want to interfere with the judgment
passed by the trial court granting decree for divorce. The
allegation of cruelty lost its any importance after lapse of
more than 12 years from the time of passing of decree of
divorce for appellant and respondent. Therefore, we are not
inclined to interfere in the impugned judgment and the
decree passed by the trial court when the parties are living
separately since more than 12 years, may be because of
the decree passed by the trial court.
So far as claim of the appellant for any amount for the
purpose of marriage of the appellant and respondent’s
daughter is concerned, there is no material and evidence
available on record apart from the fact that there was no
prayer before the trial court as it could not have been at the
time due to age of the daughter of the appellant and
respondent. Consequently, there is no evidence on the
basis of which this issue can be considered by this Court at
appellate stage when both the parties are not present
before the Court. If the appellant and respondent’s
daughter is entitled to any relief of any kind then she may
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be free to avail the remedy in accordance with law.
In view of the above reasons, the appeal of the
appellant is dismissed. No order as to costs.
[C. M. TOTLA], J. [PRAKASH TATIA],J. c.p.goyal/-