NEELAM RALLY Vs. SATISH KUMAR RALLY

JUDGEMENT

(1.) Appellant feels aggrieved by the judgment and decree dated 25.4.1989 passed by Shri Alfred Xaxa, III Additional District Judge, Jagdalpur in Civil Suit No. 15-A of 1988, and challenges legality and validity thereof in this first appeal under section-28 of Hindu Marriage Act, 1955 (hereinafter referred to as the 1 Act).

(2.) The parties are legally married husband and wife and were married according to Hindu rites on 21.11.1982. Two sons have been born to them during this wedlock on 1.10.1983 and 15.11.1985 and are living with the appellant at Delhi. The respondent husband filed the present suit claiming dissolution of marriage, by a decree of divorce on the ground of cruelty and alleged that the parties last lived together on 2nd Feb., 1987 at Jagdalpur, after which they had separated. It is alleged that the attitude and behaviour of the appellant towards the respondent and other members of his family had been so cruel that he had never been able to live in peace. Instances of cruelty are detailed in the plaint and consist of (i) cruel behaviour of the appellant during their stay at Shrinagar immediately after marriage, i.e. getting up late in the morning, not cooking meals, etc. and otherwise behaving violently; (ii) behaviour during the parties stay at Amagude (Orissa), the marital home of the respondent in Jan., 1983 and several times thereafter, viz., abusing tire respondent, his sister, assaulting the respondent, his mother and sister and otherwise acting in a manner unbecoming of the daughter-in-law of the family and (iii) attitude and behaviour at Jagdalpur. The respondent alleged that the appellant had called him Kutta, Kamina and acted violently so as to cause injuries. He further submitted that while at Jagdalpur, she had lodged false report with the police, causing unnecessary mental strain, amounting to cruelty. The appellant wife denied these allegations and submitted that she had herself been treated with cruelty, not only by the respondent, but also his parents and others and had been driven out of the house for no justification. She further submitted that she had filed a case under section-9 of the Act in Delhi Court where the same is pending. She, therefore, prayed that the suit be dismissed. Proceedings of the trial Court indicate that the case was fixed for evidence of the respondent/plaintiff for the first time on 21.11.1988, on which date some witnesses were examined. Some other witnesses were examined on 22.11.1988 and the case was adjourned for further evidence of the respondent on 8.12.1988. It had to be adjourned to 19.12.1988 on which date the evidence of the respondent was recorded. His evidence was completed on 20.12.1988 after which the case was fixed for the evidence of the appellant/defendant on 7.8.1988. On 2.3.1989 three witnesses of the appellant/defendant were present, but could not be examined, as the appellant could not appear because of her sickness. The case was adjourned to 21.4.1989. On 21.4.1989, another request for adjournment was made by the learned counsel for the appellant, but was refused. In the absence of the appellant, evidence of her witness Jugdish Prasad was also not recorded and the case was closed for judgment. Under the circumstances, the impugned-judgment is based on the evidence adduced by the respondent/plaintiff alone. The aforesaid would further indicate that though the suit was filed on 17.2.1987, it was listed for evidence of the respondent/plaintiff on 21.11.1988. The respondent/plaintiff was afforded opportunities for evidence on 21.11.1988, 22.11.1988, 8.12.1988, 19.12.1983 & 20.12.1988, whereas the appellant/defendant was given such an opportunity on 7.8.1989 & 21.4.1989 only. Order-sheet dated 21.4.1989 clearly indicates the presence of one Shri Arun Thakur, Advocate of the appellant/defendant and clearly mentions that he filed an application for adjournment. There is on record a medical certificate dated 14.4.1989 by Dr. Barce to the effect that the appellant was sick and could not move out upto 27.4.1989. Now if this certificate was found to be false, there might have been some justification for the learned Additional District Judge to refuse adjournment, but the order-sheet dated 21.4.1989 does not reject this certificate and, therefore, it is reasonable to hold that the prayer of the appellant for adjournment was based on the ground of her own illness. The order-sheet refuses adjournment because the application was not supported by an affidavit. It may be that there was no affidavit in support of the application, but that does not mean that the certificate filed, was not required to be taken into consideration. Apparently, the learned Judge had adopted a very technical approach in the matter. The manner in which he had proceeded against the appellant, creates an impression that he had made up his mind to somehow dissolve the marriage. It should be realised that the power given to the Court to dissolve marriage by passing a decree for divorce, does not mean that now marriages are to be dissolved easily and by merely filing an application. The law still does not favour dissolution of marriage and this philosophy is more vibrant in cases where the marriage has lasted for sufficiently long period and children are born to the couple. In this view of the matter, this Court is not in a position to accept the legality of the proceedings before the learned trial Judge and is of the opinion that the appellant has been denied & reasonable opportunity of adducing evidence. For this short reason, this Court is not in a position to sustain the impugned-judgment and decree.

(3.) This Court has also been taken through the evidence by the learned counsel for the parties, to indicate that the conclusion recorded by the learned ADJ about the cruelty of the appellant is fully justified. This Court is, however, not in a position to agree with the conclusion of the learned A.D.J., inasmuch as, the learned Judge has not taken into consideration the birth of two children to the couple, nor has he considered facts in the context of established legal principles, as would be clear from various decisions of the Supreme Court, particularly in Dr. N.G. Dastane Vs. Mrs. S. Dastane, AIR 1975 SC 1534 Shobha Rani Vs. Madhukar Reddi, AIR 1988 SC 121 and Sanat Kumar Agarwal Vs. Smt. Nandini Agarwal, AIR 1990 SC 594. Since, however, this court is of the view that the reasonable opportunity of adducing evidence has not been given to the appellant, it would not like to pass any final opinion on the evidence of the respondent, as the same would be highly prejudicial to him and would postpone such an opinion, after both the parties had full opportunity of adducing evidence.