HEMWANTI TRIPATHI Vs. HARISH NARAIN TRIPATHI

JUDGEMENT

(1.) By this appeal filed under Section 28 of the Hindu Marriage Act, 1955 the appellant wife seeks to challenge the impugned judgment and decree dated 13.7.1998 passed by the learned ADJ whereby the divorce petition filed by the appellant under Section 13(1)(ia) of the Hindu Marriage Act was dismissed.

(2.) Broad facts based on which the appellant herein invoked the ground of cruelty and filed the petition for divorce are that the marriage between the parties was solemnized according to Hindu rites and ceremonies on 25.6.1980 at village Chamaria, P.O. Kali Jagdishpur, Distt. Basti, U.P. and a daughter Anupam was born out of the wedlock on 18.7.1982. The case of the appellant is that the parties started living together in Delhi in September, 1981 after "Gauna" ceremony was performed and the marriage was consummated; the respondent changed his behaviour shortly after the birth of the female child as he wanted a son and started blaming the appellant for having given birth to a female child and therefore respondent started harassing the appellant on one pretext or the other and used to hurl filthily abuses/insults on the appellant almost every day and he also started beating the appellant mercilessly very frequently. It is further the case of the appellant that the respondent started beating the daughter as well. The appellant further alleged that the respondent in the presence of the neighbours throws the appellant on streets by pulling her hair, turns out the appellant and the child and thereafter forces them to spend even the nights by sleeping outside the house. It is further alleged by the appellant that the position of the appellant is that of a prisoner confined in the house and that she has been tolerating the atrocities of the respondent in order to keep peace in their family and to save her prestige. The appellant alleged that the respondent stopped caring for the family and has been behaving cruelly and he even tried to strangulate her as a result of which on many occasions she became unconscious. It is further the case of the appellant that the respondent openly threatens her that he will not let her live peacefully, will spoil her figure and will not give anything towards her expenses and that the appellant cannot cause any harm to him. It is alleged by the appellant that the respondent abuses the appellant and the child in filthy language in the presence of his friends and that it has become his daily routine and being fed up with the cruel behaviour of the respondent, the appellant lodged a complaint in police station Shakarpur, Delhi on 1.7.1996. It is further the case of the appellant that the respondent expressed his unwillingness to keep the appellant as his wife any more through the writing dated 7.9.1994 and the appellant started living separately in a rented accommodation along with her daughter and the respondent kept on visiting the appellant claiming that the appellant being his legally wedded wife he has every right to stay with her and the respondent continued indulging in giving beating to the appellant and the daughter. The appellant had given the incident of cruelty dated 21.2.1996 during her stay at E-671, Ganesh Nagar, Shakarupur, Delhi when the respondent visited the house along with his two friends and insisted the appellant to stay with him at F-51/782, Ganesh Nagar, Delhi and on her refusal, the respondent got infuriated and gave her beating and pulled her hair and forced the appellant and the child to go and live with him. The appellant further alleged that on 23.4.1996 the respondent abused the appellant in the presence of his friends and slapped her as a result of which she developed pain in her chest and had high fever but the respondent did not take her to any doctor and rather forced her to entertain his guests and the appellant remained confined to bed for about a week. The appellant further alleged that on 16.5.1996 the respondent again gave beating to her and her daughter and turned them out of his house No. F-51/782, Ganesh Nagar, Delhi but with the intervention of the neighbours he permitted them to enter the house. The appellant further alleged that the respondent again gave merciless beating to her on 24.5.1996, pulled her hair, gave her fist blows and also gave beating to her with sticks and tried to strangulate her as a result of which she became unconscious and again on 1.7.1996 the respondent brought his friends and started abusing and beating the appellant by pulling her hair without any provocation and turned her out, and when the daughter of the parties who was aged about 14 years tried to intervene she was also beaten and turned out of the matrimonial home and the respondent did not return to the said premises thereafter. Thus due to the above enumerated acts, the appellant filed the petition for divorce which vide judgment and decree dated 13.7.98 was dismissed. Feeling aggrieved with the same, the appellant has preferred the present appeal.

(3.) The respondent on the other hand had taken a preliminary objection that the petition is liable to be dismissed under Order 7 Rule 11 CPC for want of cause of action. The respondent denied each and every allegation of cruelty as leveled by the appellant against him in her petition. The respondent also submitted that the female child was born on 18.7.1982 and the allegation of torture and harassment on the issue that she did not give birth to a male child by the respondent is alleged to have taken place in 1994-95 and 1996 after a gap of more than two years which itself is explanatory to prove the falsity of the allegation. It is also submitted by the respondent that in fact the appellant herself used to visit a Sadhu in Hanuman Temple Shakarpur, Delhi and the respondent had objected on her such visits but she disobeyed the respondent and continued visiting the said Sadhu" even against the desires and objection raised by the respondent on the pretext that she will be blessed with a son. It is submitted by the respondent that the father of the appellant often used to raise hue and cry in the house and used to allege false allegations against the respondent. The respondent has further denied the execution of the writing deed dated 7.9.1994 whereby he allegedly expressed his willingness of not keeping the appellant with him. It is submitted by the respondent that the appellant had leveled all these allegations of cruelty because the respondent had tried to restrain her from visiting the said Sadhu" and all the allegations of cruelty have been leveled by the appellant with ulterior motives to create circumstances for filing the petition for divorce on the ground of cruelty.