NIKHILESH UPADHYAY Vs. MANISHA UPADHYAY

JUDGEMENT

(1.) THIS is an appeal under Section 28 of the Hindu Marriage Act calling in question tenability of a judgment and decree dated 21.11.2005 passed by the Second Additional District Judge, Chhindwara in Civil Suit No. 165 -A/2002 dismissing an application filed by the appellant -husband for dissolution of the marriage under Section 13 of the Hindu Marriage Act.

(2.) MARRIAGE between the parties were solemnized on 16.4.2000 at Chhindwara and out of the wedlock a child was born on 28.3.2001. It is a case of the appellant that after the marriage the respondent forced him to live separately from his family at Bhopal and also refused to follow the customs and other religious system followed in the appellant's family. It is said by the appellant that the respondent claim to be a modern woman belonging to a different strata of the society and alleging that the appellant and his family members follow primitive and old system of living which cannot be adhered to by the respondent, she use to create fight, dispute and misunderstanding in the family. Pointing out various instances about the activity of the respondent wife and terming them to be 'cruelty', the application was filed for dissolution of marriage. Learned Court below framed various issues, witnesses were examined and based on the same a finding has been recorded to say that the instances indicated in the memorandum of application for dissolution of marriage do not constitute acts of 'cruelty', no case for dissolution of marriage on the grounds of cruelty is made out, dismissed the application. Challenging the same, this appeal has been filed by the appellant -husband under Section 28.

(3.) SHRI Sunil Pandey, learned counsel appearing for the appellant pointed out that when the proceedings were pending before the Trial Court, the respondent -wife on 7.6.2004 initiated proceedings under Section 498 -A, 406 IPC read with Section 3 and 4 of the Dowry Prohibition Act against the appellant, his parents and other family members and for the same the appellant and his family members were arrested, they were released on bail and subsequently tried in Criminal case No. 269/2008 in the Court of Judicial Magistrate First Class, Panna and during the pendency of this appeal vide judgment dated 11.2.2010 they have been acquitted. The said proceedings are available from page 180 to 192 of the paper book. It is further stated that apart from the above, in the year 2006 the respondent -wife filed a complaint against the appellant and his family members for offenses under Section 294, 494, 506 read with Section 34 of IPC and in the said case, seven family members of the appellant including his parents, brothers, sisters and brother -in -laws were prosecuted and finally acquitted by the Trial Court vide judgment dated 14.5.2013 in Criminal Case No. 6968/2006. Based on the aforesaid false prosecution of the appellant and his family members, Shri Pandey submits that the act of his wife to initiate false criminal case which ultimately lead in acquittal, implicating of the entire family members is an act of cruelty and based on the same, dissolution of marriage is permissible. In support of the aforesaid contention, he invites our attention to following judgments to say that now on these grounds the marriage is liable to be annulled and dissolved. The judgments relied upon are: - Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal - : (2012)7 SCC 288; Malathi Ravi Vs. B.V. Ravi - : (2014)7 SCC 640; K. Srinivas Rao Vs. D.A. Deepa - : 2013(4) MPHT Pg.1 and various judgments of this Court namely, Smt. Kavita Vs. Harish Raisen - : 2006(2) MPHT 515(DB); Manjusha Jadhav (Smt.) Vs. Pradeep Jadhav - : ILR[2014] MP 763; Smt. Aradhna Vs. Pradeep Mishra - : 2012(5) MPHT 376; and S. Tamrakaar Vs. R.K. Tamrakaar -, ILR [2013] MP 2939. Shri Pandey argues that now in the backdrop of the aforesaid legal principle when the respondent -wife has initiated false criminal case against the entire family of the appellant, got them arrested thereafter prosecuted and harassed them, which has ultimately led to their acquittal, the same amounts to 'mental cruelty' and now taking note of these factors marriage between the parties should be dissolved.