NEELAM SHARMA Vs. YOGESH KUMAR KAUSHIK

JUDGEMENT

(1.) FEELING aggrieved by the judgment and decree dated 17.9.2002 passed by the Additional District Judge (I), Rohtak, whereby the petition filed by the respondent -husband under Section 13 of the Hindu Marriage Act, 1955 (in short "the Act") for dissolution of marriage by a decree of divorce was allowed, the appellant -wife has approached this Court by way of instant appeal.

(2.) BRIEFLY stated, the facts necessary for adjudication of the present appeal as narrated therein may be noticed. The marriage between the parties was solemnized on 28.4.1999 at New Basti, Samalakha, District Panipat according to Hindu rites and ceremonies. It was a simple marriage and some articles were given to the appellant by her parents as gifts but no dowry was taken by the respondent. After the marriage, the parties lived together and cohabited as husband and wife at Rohtak and out of the said wedlock, a female child was born. According to the averments made in the divorce petition, the appellant was a lady of childish and non -cooperative nature. She had been a puppet in the hands of her mother and had not left the affection of her parents and had always been keen to live in her parental house instead of her matrimonial home. She had always been reluctant to have sexual intercourse with the respondent and this caused mental tension, agony and mental cruelty to the respondent. She even did not allow the respondent to have sex with her. After the marriage, the respondent took her to Samalakha to meet her parents but she refused to come back and the respondent left her there and asked her to come back after 2/3 days. Thereafter, the respondent brought her back with much persuasion and soon after she reached the matrimonial home, she rang up her parents and her brother came to Rohtak and took her back to Samalakha. When she made frequent visits to Samalakha, the respondent talked to her parents whereupon they told that her brother Sunil was suffering from ill soul effect (Pret Badha) and the presence of the appellant was necessary for his care. The respondent was pressurized by his in -laws for separation from the rest of his family and on his assurance, he brought her back. When he did not ask his parents for separation for 2/3 days, then the appellant asked him to talk to his father but on his refusal, she became rude and refused to do any work in the house. The respondent tried to make her understand but instead of understanding the matter, she insulted the entire family of the respondent and left the matrimonial home and flatly refused to return to her matrimonial home unless he separated himself from his family. However, keeping in mind the peace of married life, the parents of the respondent separated him from the joint family and when they settled in a rented accommodation, the appellant and her family members were not satisfied and they started pressurizing the respondent to claim his share in the property of his father and on his refusal, the appellant refused to do the domestic duties and she even did not cook meal for him. In the first week of April, 2000, the appellant went to her parents without informing the respondent and when he came back from his school, he came to know about this fact from his landlady upon which he immediately went to Samalakha and asked her as to why she had repeated the above acts and conduct. On this, the appellant told that she could not live without her younger brother Sunil who was ill and that she would come back in 10/15 days. However, she did not come back and the respondent again visited the house of his in -laws and she returned back only on the assurance of the respondent for getting his share separate in the parental property. When the appellant complained about pain in her stomach, the respondent took her to a lady doctor who told that the pain was due to mishandling the abortion. The said fact was concealed by the appellant from the respondent and this caused mental cruelty to him. On 1.6.2000, the appellant locked herself inside the house and refused to join a religious function and threatened to commit suicide unless he got his share separate in the parental property. The respondent somehow with the help of neighbourers brought her out and called his father -in -law and told him about the entire episode who instead of asking his daughter to behave properly, pressurized the respondent to file a case against his father for his share in the property. The appellant left the matrimonial house along with her father by extending threat to the respondent to face dire consequences of some criminal case of dowry demand. The respondent again approached the appellant and her father and requested her to come back but she refused to accept his request. Thereafter the respondent filed a petition under Section 9 of the Act for restitution of conjugal rights which was ex parte decreed vide judgment dated 9.9.2000. Despite a decree for restitution of conjugal rights, the appellant did not join her matrimonial life with the respondent and threatened him for purchasing a house in her name otherwise she would involve the entire family in a dowry case. She even did not inform about the birth of a female child. She made a complaint to the SHO, Police Station, Samalakha on 18.2.2001 with the allegations of demand of dowry. On investigation, it was found that it was not a matter of demand of dowry but was a matter of family partition. The respondent and his family members brought back the appellant on 4.3.2001. The appellant started giving some mixture and bhabhuts in the food to the respondent and the respondent came to know this fact on 19.3.2001 when he attended a phone of his sister -in -law who was asking the appellant that she was using all the trick to grab the entire property of the respondent, upon which he tried to talk to the appellant but she started quarrelling and abusing him and his family members. Thereafter, the father of the respondent disinherited him from his property and due to all this, the respondent was depressed. The respondent again tried to save his home and went to Samalakha to persuade the appellant and when she came to know about his disinheritance, she flatly refused to come back on 31.3.2001. Accordingly, the respondent filed the petition under Section 13 of the Act for dissolution of marriage by a decree of divorce. The said petition was contested by the appellant by filing a written statement. Besides raising various preliminary objections, it was pleaded that her parents spent more than Rs. 2 lacs in the marriage but the respondent and his family members made more demands, harassed and tortured her for dowry and, therefore, she lodged a complaint under Sections 406/498 -A of the Indian Penal Code. She also filed a petition under Section 125 of the Code of Criminal Procedure for maintenance. The respondent filed a petition under Section 9 of the Act for restitution of conjugal rights on 27.7.2000. However, during the pendency of the said petition, with the intervention of the relatives of both the families, it was decided that the parties would live together and the respondent would withdraw the said petition but instead of withdrawing the petition, the respondent obtained an ex parte decree dated 9.9.2002. The matter was compromised with the intervention of the biradari and the appellant started living with the respondent but after a week, she was turned out of her matrimonial home in three clothes. The other averments made in the petition were denied and a prayer for dismissal of the same was made. The respondent filed replication controverting the averments made in the written statement. From the pleadings of the parties, the trial court framed the following issues: - -

(3.) In support of his case, the respondent besides examining himself as PW4, examined ASI Pawan Kumar as PW1, Ved Parkash as PW2, Balwan Singh as PW3 and Ramesh as PW5. On the other hand, to rebut the evidence of the respondent, the appellant examined herself as RW1, her father Om Parkash as RW2 and Ram Kumar Sharma as RW3.