DEVESH YADAV Vs. MEENAL

JUDGEMENT

(1.) The appellant-husband has come up in appeal before this Court seeking setting aside of judgment and decree dtd. 26/2/2013 passed by the District Judge, Rohtak, whereby petition filed by him under Sec. 13 of the Hindu Marriage Act, 1955 (for short 'the HMA') for dissolution of marriage by a decree of divorce, has been dismissed.

(2.) Brief facts of the case are that appellant-husband filed a petition under Sec. 13 of the HMA for dissolution of marriage by a decree of divorce pleading therein that marriage between the parties was solemnized on 19/11/1998 and the same was registered on 23/11/1998 at Rohtak. At the time of marriage, appellant-husband was posted at Srinagar and they lived there upto March, 2000. Respondent-wife insisted that delivery of the child should take place at Rohtak, therefore, appellant acceded to her request and they went to Rohtak, where they were blessed with a son, namely, Jalaj on 24/8/1999. Thereafter, appellant was transferred to Jammu and parties lived together there upto April, 2002. The appellant remained posted at Jammu upto September, 2002 and then was transferred to Lucknow. It is alleged by the appellant-husband that from the beginning of the marriage, conduct, behaviour and attitude of the respondent-wife had been cruel, unwarranted and harsh and she used to pick up quarrels over trifles without any justifiable cause. The respondent deserted the appellant in April, 2002 and since then she had not returned to matrimonial home, whereas appellant had always been giving love and affection to the respondent and his son. In the beginning of December, 1999 appellant had taken the respondent along with his son to his place of posting at Srinagar and at the request of respondent her mother was also taken there and appellant provided proper food, clothing and every good lodging facility to the respondent, her mother and the son. In mid December, 1999, respondent suffered with breast abscess and she was got treated and operated at Army Hospital, Srinagar. In December, 1999, respondent was again operated at PGIMS, Rohtak, as the said ailment had re-developed. In April, 2002, respondent went to the house of her parents at Rohtak and thereafter in spite of best efforts of the appellant, she did not return to her matrimonial home. Appellant had also written several letters from the place of his posting requesting respondent and her parents to send the respondent and his son to him but in vain. Whenever, appellant came on leave at Rohtak and tried to meet his wife and the child, respondent's parents did not allow him to meet them. Rather, Pawan, brother of the respondent, misbehaved with the appellant whenever appellant visited the house of his in-laws. Appellant also met the respondent in April, 2006 and requested her to accompany him and apprised her that he had booked seats for journey but she flatly refused to accompany him and threatened that if he tried to take her with him, she would commit suicide. It is further alleged that respondent failed to discharge her matrimonial duties and obligations and rather she ill-treated and mal-treated the appellant, caused physical and mental cruelty upon him, did not cooperate in married life and made his life hell. The respondent even failed to give any respect and regard to the parents of the appellant. When respondent expressed her desire to do a job, appellant agreed to her request and she had worked at Army Public School, Jammu, from July, 2001 to March, 2002. As in spite of best efforts made by the appellant, respondent did not join the matrimonial home, he was compelled to institute a divorce petition bearing No.58 of 2006. The matter was referred to Lok Adalat/mediation. During the course of these proceedings, respondent agreed to withdraw her complaint made to the Air Force authorities as well as the application for maintenance filed before the Senior Air Force Officer, on withdrawal of said petition by the appellant. The matter was compromised on the basis of separate statements dtd. 21/12/2008 and the petition filed by the appellant was dismissed as withdrawn. Appellant further alleged that respondent was working as lecturer in mathematics in Matu Ram Institute of Engineering and Management at Rohtak. Even during vacations she never joined the company of the appellant. Despite having given undertaking before the Court in her statement dtd. 21/12/2008, she had not withdrawn her complaint and maintenance application filed before the Senior Air Force Officer and did not join the company of the appellant at the matrimonial home at the place of his posting i.e. at M.E.T. Flight Air Force Station, Sirsa (Haryana). Therefore, appellant sought decree of divorce on the ground of cruelty and desertion.

(3.) Respondent-wife contested the petition admitting the factum of solemnization of her marriage with the appellant and the birth of the son out of their wedlock. Respondent denied that she insisted that the delivery of the child should take place at Rohtak. It was also denied that from the beginning of the marriage, her conduct, behaviour and attitude had been cruel, unwarranted, harsh and she used to pick up quarrels with the appellant without any good cause and reason. It was also denied that she deserted the appellant in April, 2002 whereas the appellant had caused mental as well as physical cruelty to her. In the beginning of December, 1999 she was taken to Srinagar by the appellant and the mother of the respondent had to accompany her as there was no one else to look after her and her son. There respondent suffered with breast abscess in December, 1999 but the appellant refused to consult the doctors at Air Force Hospital being male staff and pressurized her to consult a nurse and due to the delay, the respondent had to undergo an operation at Srinagar Army Base Hospital and her mother had to look-after her. Since she was not fully recovered, she had to undergo another operation in December, 1999 at PGIMS, Rohtak. As her mother-in-law refused to look after her, therefore, her sister stayed there to look after her and her mother took care of the child. The appellant did not avail leave at that time to join her in such painful moments. In march, 2000 respondent returned to the matrimonial home and went to appellant's place of posting at Jammu, however, appellant started teasing her by hurting her physically and mentally. On several occasions, respondent was thrashed by the appellant and in the midnight of June 19, 2000 she was turned out of the matrimonial home. Appellant level leved false allegations about her character. Therefore, her brother had to come to Jammu to patch up the matter. On 27/28/8/2000, appellant repeated his behaviour and left the respondent and her son at Ambala at her brother's house forcibly. He came in November, 2000 and had taken the respondent and their son back on 18/11/2000. However, after a few days, appellant again started treating the respondent like a slave and demanded money to pay his loan taken for purchase of a car. As a result, respondent had to go back to her parental home as it was not possible to live in such isolation where she was compelled to keep even every window shut with curtains and not to talk to any person. After reaching Rohtak, it was revealed that the respondent had conceived again but appellant forced her to abort the pregnancy alleging that the same did not belong to him. After that appellant went to the house of the respondent and apologized for his mis-behaviour. Respondent denied that she did not allow the appellant to meet his son Jalaj. She also denied that she deserted the company of the appellant continuously since April, 2002. She joined the company of the appellant after April, 2002 and lived together at Lucknow and they along with their son Jalaj visited Imambara and other historical places of Lucknow. They also visited Nainital and enjoyed picnic and photographs were snapped at those places. Respondent alleged that marriage of her brother was solemnized in February, 2003 and appellant and her family members attended the said marriage. Respondent admitted the factum of filing of earlier divorce petition by the appellant but after compromise, the same was got dismissed as withdrawn and thereafter respondent joined the company of the appellant. She was ready to withdraw her complaint moved by her before the Air Force authorities, however, appellant turned her out of his place of posting and deserted her. It is further alleged that in fact appellant had withdrawn his earlier divorce petition because he wanted the respondent to withdraw the complaint filed before the Air Force authorities. While denying all other allegations, respondent-wife sought dismissal of the petition.