BABU LAL PAREEK Vs. ARUNA PAREEK

JUDGEMENT

(1.) Aggrieved of the judgment dated 18-11-2011 passed by the District Judge Sikar (hereinafter 'the trial court') dismissing applicant-appellant's (hereinafter 'the applicant') divorce petition under Sec. 13(1) of the Hindu Marriage Act, 1955 (hereinafter 'the 1955 Act') this appeal under Sec. 28 of the 1955 Act has been filed.

(2.) The facts of the case are that the applicant and the respondent-non applicant (hereinafter 'the non applicant') were married at Chirawa on 21-2-2002. It is the case of the applicant that three months subsequent to the marriage the non applicant insisted on a separate kitchen in an otherwise joint family/household. This was so done and the applicant and the non applicant shifting to the first floor of the parental house. According to the applicant this did not satisfy the non applicant and she began nagging him about the purported lack of culture in Sikar and insisting upon the applicant selling his share of joint family property and shifting to Dibrugarh (Assam) where the non applicant's father had an ongoing business. During this period a daughter was born to the married couple on 7-3-2003. According to the applicant his reluctance to accept the non applicant's demand of leaving Chirawa entailed a gradual unwinding of the marriage. Soon after the Holi of March, 2004 the non applicant without just cause left her matrimonial home and begun to reside at her parental house first in Suhasada (Haryana) and thereafter in Dibrugarh (Assam). The applicant went to fetch the wife and returned with her to Sikar on or about 11-4-2005. It was stated that however in spite of her return to Sikar, the non applicant could not reconcile herself to stay with the applicant and his family. She once again left her matrimonial home on 1-7-2005 along with the minor daughter. Matters between the couple thereafter deteriorated, consequent to which FIR No.151/2005 for the offences under Sections 406 and 498A Penal Code was lodged at Police Station Chirawa against the applicant, his parents, brothers and sister-in-law i.e. Vishvanath, Smt. Narbada Devi, Pramod Kumar, Smt. Nirupama Devi, Manoj Kumar and Mukesh Kumar. Further alleging that the non applicant and her father were threatened with their lives having lodged the FIR, a criminal complaint was also lodged by the non applicant and her father under Sec. 107/116 Crimial P.C. before the ADM Chirawa. Proceedings were also taken against the applicant and his family before the Women's Commission Jaipur inter alia alleging that Sikar police was under the influence of the applicant and apart from lethargic investigation into FIR No.151/2005 the accused applicant's parents, brothers and sister-in-law viz. Smt. Nirupama Devi, Manoj Kumar and Mukesh Kumar were not being challaned for the offence under section 307 Penal Code in spite of specific allegation on that count. Thereon the applicant and his parents were summoned. Stating that the conduct of the non applicant amounted to desertion and mental cruelty a divorce petition was filed by the applicant praying that the application for divorce be allowed and the marriage be dissolved.

(3.) On service of notice on the divorce petition, the non applicant appeared and denied the facts alleged. It was stated that matrimonial relations between the non applicant and the applicant sustained till June 2005 when owing to threat to the non applicant's life owing to her refusal to pledge her jewellery against a loan for the applicant's business the non applicant was constrained to leave her matrimonial home with intervention of the Chirawa Police following her father's phone call who had in turn been earlier telephonically informed by the non applicant herself of the intolerable situation in her matrimonial home. It was alleged that the applicant, his parents, brothers and sister-in-law were constantly harassing the non applicant with demands of dowry/ unlawful demands for property and are guilty of criminal breach of trust qua the non applicant's stridhan. On the pleadings of the parties the trial court framed 14 issues rather carelessly, inasmuch as every averment made in the application and denied in the reply was made into a separate issue. The learned trial court thereafter at the time of the judgment on the divorce petition rightly formulated three points for determination for the disposal of divorce petition i.e. (1) whether the non applicant had willingly withdrawn herself from the company of the applicant, deserted him and failed to discharge her obligations as wife; and (2) whether the conduct of the non applicant tantamounted to cruelty within the meaning of Sec. 13 (1) (ia) of the 1955 Act; and finally (3) as to what relief-if any, the applicant was entitled to. On consideration of the evidence before it, the learned trial court held that no case of desertion within the meaning of Sec. 13 (1) (ia) of the 1955 Act was made out as the non applicant was forced to leave her matrimonial home for reasons beyond her control. On the issue of cruelty the learned trial court held that the applicant and his witnesses had not been able to make out any case of cruelty under Sec. 13 (1) (ia) of the 1955 Act. It was further held that there was no substance in the case of the applicant that in the overall facts of the case more particularly the fact that the non applicant had been admittedly residing separately commencing July, 2005 and the fact that various complaints criminal and otherwise had been filed by the non applicant against the applicant and his family, decree of divorce ought to be granted on the ground of irretrievable break down of marriage. The reasoning was that irretrievable break down of marriage was not a ground for divorce recognised under Sec. 13 (1) of the 1955 Act and merely because the Honourable Supreme Court in the case of Samar Ghosh Vs. Jaya Gosh [(2007)4 SCC 511] exercised its powers under Art. 142 of the Constitution of India on that count and had indeed dissolved a marriage on the ground of irretrievable break down of marriage, it was not within the powers of the trial court to pass a decree of divorce on a similar ground. Hence this appeal.