DR. MAHENDRA KUSHWAHA Vs. POOJA KUSHWAHA

JUDGEMENT

(1.) Appellant had filed first appeal under Sec. 19 of the Family Courts Act, 1984 read with Sec. 28 of the Hindu Marriage Act, 1955 challenging judgment and decree dtd. 24/8/2024 passed by Principal Judge, Family Court, Mandla (MP) in RCSHM No.74/2022 by which application under Sec. 10 of the Hindu Marriage Act, 1955 filed by appellant for judicial separation was dismissed.

(2.) Learned counsel appearing for appellant submitted that respondent was suffering from epilepsy prior to her marriage with appellant and said fact was suppressed from him. Later on, when appellant/husband declared the said fact and filed a petition for divorce/judicial separation, incorrect and false allegations were made against him. It was stated by respondent that husband malafidely gave her food to eat which were too sweet due to which she suffered sickness/epilepsy. Husband and his mother were doing conspiracy against respondent and he wants to live separately. Aforesaid false allegations amount to mental cruelty against appellant and falls within ambit of Sec. 13(1) of the Hindu Marriage Act, 1955. It is submitted that respondent has specifically denied that she is suffering from epilepsy in her written statement and also in oral statement given in Court. Over and above aforesaid fact she had made various false allegations of conspiracy and attempt to injure her by giving sweets. Counsel for appellant further submitted that respondent was suffering from epilepsy prior to her marriage with appellant. Said fact can be found out from various document which has been exhibited i.e. Ex.P/40 to Ex.P/44. In aforesaid document/prescriptions, it has been mentioned that respondent is suffering from seizures. She is being given medicine for seizures. Said documents reflect that she was having disease before her marriage. It is submitted that trial Court had committed an error in deciding the issues framed by it. Trial Court has also committed an error in holding that appellant had deserted respondent without any reasonable cause, therefore, respondent is entitled for decree of restitution of conjugal rights. It is submitted that pleadings of parties, evidence available on record and deposition of witnesses show that cruelty has been committed with appellant by respondent which is a ground for getting divorce under Sec. 13(1)(ia) of the Hindu Marriage Act and on basis of said ground appellant has prayed for grant of judicial separation under Sec. 10(1) of the Hindu Marriage Act, 1955.

(3.) Learned counsel appearing for respondent opposed the appeal and denied said facts. It is submitted by him that if judicial separation is permitted then it will enhance woes of respondent and it will amount to cruel treatment of respondent by appellant in her difficult times of sickness. Husband has to take care of wife and not to plead judicial separation in Court. Epilepsy is not disease which cannot be treated. It is further submitted that respondent was not suffering from Epilepsy prior to her marriage. Later, she had developed the said disease. Learned counsel appearing for respondent further submitted that trial Court has rightly decided issue No.4 wherein respondent has proved desertion by appellant without reasonable cause, therefore, no error has been committed by the trial Court in granting decree of conjugal rights in favour of respondent and dismissing petition for judicial separation between the parties. In these circumstances, first appeal may not be allowed on the sole ground raised by appellant.