CHAMELIBAI Vs. JAGANNATH

JUDGEMENT

(1.) This appeal by the wife is directed against the judgment and decree dated 20-1-1982 passed by the Fifth Additional Judge to the Court of District Judge Indore, in Hindu Marriage Act (suit) No. 60 of 1981.

(2.) The facts giving rise to this appeal briefly stated are as follows The parties are husband and wife and their marriage was solemnised according to Hindu rites at Indore some 30 years ago. They have 3 sons and a daughter. According to the respondent the appellant treated him with cruelty by abusing him and stealthily taking away his belongings from his house, where he is separately residing for managing his shop. The appellant is in the habit of making false imputations against the respondent. She also occasionally quarrels with him. It was also alleged by him that the appellant has deserted him. The respondent sought divorce on the above grounds. The appellant resisted the petition. The trial Court held that it was not proved that the appellant deserted the respondent for the last 3 years as alleged by him. The trial court, however, found that the appellant had treated the respondent with cruelty. Consequently, the trial court allowed the petition and dissolved the marriage by a decree of divorce. Aggrieved by the judgment and decree of the trial court the wife has preferred this appeal.

(3.) Having heard learned counsel for the parties I have come to the conclusion that this appeal deserves to be allowed. There is no acceptable evidence on record in support of the allegation made by the respondent that he was treated with cruelty by the appellant. From the testimony of the respondent himself the charge of cruelty is not made out. The respondent deposed that the appellant was always quarrelling with him and that he is cooking his food separately for the last one year. The appellant is not cooking his meals and is residing separately. He purchased two buffaloes for Rs. 3,000.00 and made them over to the appellant. The appellant told him that she would pay the amount in the instalment of Rs. 400.00 per month. The appellant, however paid him Rs. 775.00 in two instalments and the remaining amount was not paid by her to him and when he demanded the amount the appellant and his son Devnarayan threatened to assault him. The appellant instigated Devnarayan to assault him. Devnarayan took away furniture from his house and abused him. Devnarayan is indulging in 'Dadagiri'. He apprehends that if he lives with Chamelibai he would be assaulted by her. He gave notice Ex. P/1 to the appellant. Now the testimony of the respondent is too vague to be considered. He said nothing regarding the appellant making false imputations against him. No specific instances when he was treated with cruelty by the appellant are cited by him His main grievance seems to be that the appellant is not paying the instalments of the amount which was invested by him in the purchase of the buffaloes, this cannot be to be commission of any marital offence. In the notice Ex. P/1 the respondent had stated that as the husband of the appellant he purchased two she buffaloes in past and made over the same to her and she kept the earnings to herself and further two more she buffaloes were supplied by hi:n to her. In the notice, it is not alleged that the appellant has not paid the instalments which were agree.) to be paid by her. As the respondent himself failed to make out the case that he was treated with cruelty by the appellant it is not necessary to consider the other evidence adduced by him. The appellant denied that she treated the respondent with cruelty. The appellant was questioned in her cross-examination that she locked the door from outside while the respondent remain inside the house. She replied that her neighbour told her that the respondent was not well. She went to enquire about his health. The respondent locked the door from inside and did not open it when she called him. Therefore she falsely stated that she would put a lock outside the room. The trial court took this statement of the appellant into account in holding that she treated the respondent with cruelty. f n my opinion on the flimsy evidence adduced by the appellant the marriage of the parties which was duly solemnised some 30 years prior to the date of the petition cannot be dissolved. The decree of the trial court dissolving the marriage of the parties, therefore cannot be sustained in law and has to be set aside.