KAMLA Vs. MOOLCHAND LAKHERA

JUDGEMENT

(1.) THIS first appeal under Section 28 of the Hindu Marriage Act is by the plaintiff and is directed against the judgment and decree dated 4-12-1987 passed by Shri S. K. Jain, District Judge, Sagar in Civil Suit No. 11-A/84 dismissing the appellant's suit for divorce.

(2.) THAT the parties are legally married husband and wife and have four children born to them out of their wedlock is not in dispute. It is also not in dispute that the parties are not living together since March, 1981. Both the parties are employed as teachers. The case of the appellant was that the respondent was in the habit of drinking and gambling and wanted the appellant to engage herself in sexual intercourse with his other friends. She also alleged that when she refused to oblige, the respondent gave her beating and drove her out of the home. The respondent denied requiring the appellant to submit herself to sexual intercourse by others. According to him, the appellant was living as a concubine of one Abdul Rajjak, Head Constable and for that reason has deserted him. In spite of it, he submitted that he was willing to take the appellant as his wife. The learned District Judge, on appreciation of evidence, reached the conclusion that the evidence does not establish that the appellant was treated with cruelty or was forced to submit to sexual intercourse to the friends of the respondent. On these findings, the learned Judge found no reason to grant the decree for divorce. Because of these findings, the learned Judge found it unnecessary so examine whether the appellant was living in adultery.

(3.) APPELLANT Smt. Kamla (PW 1) is the only witness examined in support of allegations of cruelty. According to her, she stayed with the respondent for little over ten years and was treated well. She further deposed that the respondent used to drink and gamble and used to come home in the night drunk. She further deposed that many a times, the respondent used to come home with friends and used to force her to permit his friends to have sexual intercourse with her. She further stated that she used to refuse and then the respondent used to beat her. She was beaten in 1979 for this reason and driven out of the home and since then she was living in Gandhi Ward, Bina. She further stated that in 1982 when she was going back home from her school, the respondent gave her a danda blow on the head. She had reported the matter to the police. She further stated that the respondent was making false allegations about her and has even got the news published in the newspaper. She admitted having received documents (Ex. P-1 to Ex. P-11 ). In her cross-examination, she admitted that she had earlier filed a case for dissolution of marriage. She also admitted that newspaper (Ex. P-6) was the newspaper containing false allegations against her. She asserted that she had filed a suit under Section 500 I. P. C. for that reason, which was dismissed in default of her appearance. She denied that the facts stated in the newspaper report (Ex. P-6) were correct. The respondent Moolchand as DW 1 has admitted that they had lived together as husband and wife upto 1979 during which four children were born to them. He also stated that Ex. D-7 was a letter written by Abdul Rajjak, which contains description of illicit relationship between him and the appellant. In cross-examination, however, he admitted that he never doubted the character of appellant. He also admitted that the letters (Ex. P-1 to Ex. P-5) were written in his hands. He further admitted that he was not happy by the appellant's meeting Abdul Rajjak and, therefore, had lodged the report. He also admitted that the letter written by Abdul Rajjak was sent by him to several persons. Laxmiprasad (DW 2) has only deposed that he learnt that the appellant had gone to live with someone else in 1981. From this evidence, it would appear that the appellant complained of beating not only at the time when she was living with the respondent, but also thereafter. Ex. P-7 and Ex. P-8 are the reports about them and prima facie support the appellant's statement. The respondent has generally denied the allegations, has said nothing specific about the incidence contained in reports (Ex. P-6 and Ex. P-7 ). On the contrary, he admitted that he was facing a trial under Section 324 I. P. C. for beating the appellant. The evidence, therefore, establishes that after the parties living separately, the respondent beat her at least twice and is facing trial for the said reason. These incidenly would sufficiently establish that the appellant was beaten by the respondent several times and for that reason a criminal case is also going on against him. The respondent Moolchand had admitted having written letters (Ex. P-1 to Ex. P-5) (para 5 ). These letters make allegations against the appellant's character and conduct and also threaten that acid would be thrown on her and she would be killed. Some of these letters also indicate that they were threatening to cause harm to each other. In Ex. P5, he seems to have made the effort to call her back or obtain a divorce. The respondent has also admitted that he has got document (Ex. P-6) photo-copied and sent to several persons. Nothing has been brought to the notice of this Court to indicate that the fact that the appellant was staying with Abdul Rajjak was a true fact. What has surprised this Court is the letter (Ex. D-7), which has been filed by the respondent. The respondent claims that it was written by Abdul Rajjak, but has not disclosed as to how he was aware of his writing. It is not understood as to how this letter is addressed to Kashiram and not the appellant. It is also not understood as to how this letter came in possession of the respondent. To make the matter worse, nothing was asked from the appellant about her relationship with Abdul Rajjak. It is, therefore, clear that the respondent was trying to some how intimate and threaten the appellant and adopted the cheap tactics of defaming her. These facts, in the opinion of this Court, sufficiently make out the case of cruelty. The learned Judge has not appreciated the evidence in proper perspective and seems to have been influenced by the fact that the letter (Ex. P-2) was written by the appellant's son. This letter, no doubt, appears to be apparently written by the son, but the fact whether it was really written or not was not asked from the appellant in her cross-examination. The fact that respondent Moolchand admitted having written this letter in statement on oath has been conveniently overlooked by the learned Judge. For this reason, this Court is unable to sustain the impugned-judgment.