PURNIMA GUPTA Vs. AJIT KUMAR GUPTA

JUDGEMENT

(1.) HEARD Sri B. D. Mandhyan, learned Senior Advocate assisted by Sri Kumar, learned advocate in support of this appeal and Sri H. R. Mishra, learned senior Advocate assisted by Sri B. K. Tripathi, learned advocate who appeared for the respondents.

(2.) THESE are two appeals clubbed together. Both Appeals are by lady challenging the decree for divorce against her and dismissal of her petition for restitution of conjugal rights. Appeal No. 403/2006 challenges the order passed by Principal Judge, Family Court, Gorakhpur dated 17. 08. 2006 by which Divorce Petition No. 343/2006 filed by the husband who is respondent here has been decreed and the Appeal No. 404 of 2006 challenges the dismissal of petition for restitution of conjugal rights filed by the wife. For disposal of the appeal, necessary facts can be summarised. Marriage between the parties took place eight years before filing of the petition which was filed in the year 2001. Out of the wedlock, just after one year, a male child whose name is Mukul who was aged about six years at the time of filing petition was born. Very next year, a female child whose name is Gudiya who was aged about five years at the time of filing of petition was born. On the allegation that just after couple of the years, lady started ignoring and not taking care of the parents of the husband and started abusing them and started free visit to maika etc. and for certain other details, as stated in the petition, which according to the husband amounted to cruelty, Divorce Petition was filed. A plea of desertion i. e. leaving the place of the husband without any lawful excuse has also been taken. The lady in her written statement denied all the charges and as counter version it was said that she never wanted to leave the place of her husband and it is on the ailment of the son, on 24. 09. 2001, the husband finally left her at parents' place and thereafter in-laws never took her back. Various allegations as levelled against her were also denied. Besides the contest in divorce petition filed by the husband, lady filed petition for restitution of conjugal rights in the year 2003, which was numbered as Petition No. 247 of 2003. Both petitions were clubbed for being decided together. From the side of husband, the statement of Ajit (husband), Shanker Gopal and one Ram Gopal Shukla was given. The lady in support of her case, examined herself and one Sita Ram. Various documents i. e. Panchayat papers, filing of application before the police authorities, some settlement in the Mahila thana etc. are on record. Learned Family Judge after getting necessary issues framed, decided both petitions and as noted above, the divorce petition filed by the husband was decreed and the petition for restitution of conjugal rights filed by the lady was dismissed and thus to challenge both the orders of Principal Judge, Family Court granting decree for divorce and dismissing Restitution of Congujal right petition, these appeals are before this Court.

(3.) SRI Mandhyan, learned senior advocate at the very start of the submission, submits that learned Principal Judge, Family Court proceeded in a very cursory manner in granting decree for divorce. Required finding in relation to the plea of cruelty and desertion which can be said to be based on positive evidence and referable to any specific instance/incidence which may lead to cruelty is not there and thus the judgment being based on cursory note of the evidence , decree for divorce as granted is not to be approved. It is submitted that heavy emphasis was given by learned Family Judge about series of cases lodged by the lady, (six in number ) which caused mental harassment/cruelty to the husband and family members but on analysis of those cases, this Court can safely find that those cases are just off-shoot of the proceedings/litigation which was started by the husband himself and they can be said to be a natural flow from any ordinary litigant. Submission is that neither there is any positive evidence either oral or documentary nor there is any positive allegation which may be termed as cruelty, but the Court has inferred factum of cruelty just on vague and misconceived assertion and therefore, the judgment can be said to be based on surmises and assumption and thus, the marriage which under Hindu system, is said to be sacrosanct, has been directed to be dissolved by an arbitrary approach to the facts which needs interference by this Court. Submission is that lady, all times even today, is ready to live with the husband without imposing any condition and this statement is not as a compulsion but this is with the sweet will and all kindness on her part as she has two children (one male and one female) as noted above out of the wedlock. Sri Mandhyan, learned senior advocate submits that rigidness of the husband-respondent and the stand before this Court for not taking her back itself speaks about harshness and cruel approach of the husband. In respect to plea of desertion , Sri Mandhyan submits that neither there is any clear plea that for the required period, without any lawful reason, lady deserted the husband nor there is any evidence nor there is any clear finding.