MAHENDRA PRASAD Vs. PARMESHWARI DEVI

JUDGEMENT

(1.) This Civil Miscellaneous Appeal has been filed by Mahendra Prasad to challenge the judgment and decree dtd. 19/5/2012 passed in Civil Misc. (Divorce) Case No.67/2008 (23/2003) titled 'Mahendra Prasad v. Smt. Parmeshwari Devi'. By this judgment, the suit for divorce filed by the appellant under Sec. 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 seeking dissolution of the marriage on the ground of cruelty and desertion has been dismissed by the Additional District Judge, Sujangarh (Churu).

(2.) In Civil Misc. (Divorce) Case No.67 of 2008, the appellant pleaded that his marriage with the respondent was solemnized about 35 years before instituting the suit for divorce. His marriage was solemnized following the rituals observed by the Hindus and, in particular, by observing Saptapadi. From the wedlock, one daughter Kiran and two sons, namely, Ram Ratan and Laxmi Narayan were born. The appellant further pleaded that he constructed a house at Sujangarh and lived there with his mother, brother and wife. About 3-4 years after the marriage, he got employment in the Army and he lived in the joint family whenever he came home on vacation. According to the appellant, his wife was quarrelsome from the beginning and she used to fight with his family members. Therefore, he purchased a piece of land and constructed a house for his wife to live there with the children. But there was no change in her behaviour and she used to quarrel with him, abused him and treated him with cruelty. The appellant further pleaded that his wife developed illicit relationship with his cousin Om Prakash who had deserted his wife and started living with the respondent as husband and wife. This fact was brought to his notice by his neighbours whenever he visited home on vacation. He tried to reason with the respondent but she, in turn, gave a false application on 16/8/1999 to the District Collector at Churu for restraining him from visiting Sujangarh. Not only that, the respondent instituted a false case vide Criminal Case No.218/2000 and made allegation against him for committing the offence under Sec. 498-A, 494 and 109 of the Indian Penal Code and in that case he was sent to judicial custody. However, the criminal case was closed and Final Form was submitted by the police. The appellant made a specific reference of illicit relationship of the respondent with Om Prakash when he visited home in the midnight around 12:30 A.M. on 8/9/1998 and found his wife indulged in sexual intercourse with Om Prakash. According to the appellant, his wife and Om Prakash started marpeet with him and threw him out of home. The appellant made allegation against the respondent that she grabbed his properties and Rs.4,00,000.00 which was invested in Kisan Vikas Patra and Rs.64,800.00 deposited in the post office. He made fruther allegations against Om Prakash and the respondent that they threatened him on 18/1/2003 when he was returning from the Court appearance and the respondent told him that she was no longer in relationship with him and Om Prakash was everything for her.

(3.) In her written statement, the respondent denied the plaint allegations levelled against her by her husband and raised a preliminary objection to maintainability of the divorce suit on the ground of suppression of material facts. The respondent raised such objection in view of Order VII Rule 5 of the Rajasthan Hindu Marriage and Divorce Rules, 1984 which requires the applicant to furnish the details of previously instituted or pending petitions/applications. The respondent pleaded that she had filed Petition No.08/2001 titled 'Smt. Parmeshwari v. Mahendra Prasad' under Sec. 9 and 11 of the Hindu Marriage Act which was pending consideration before the Court. She had filed an application under Sec. 24 of the Hindu Marriage Act and that application was also pending in the Court. Taking the matter further on the point of maintainability of the divorce suit, the respondent raised another objection on the ground that Om Prakash was not made a party-defendant in the divorce proceeding as mandated under Rule 7 of the Marriage and Divorce Rules and the divorce suit was liable to be dismissed on that ground. As regards the allegation of cruelty against her, the respondent made a counter attack alleging that her husband committed marpeet with her and inflicted cruelty upon her but she suffered all such assaults by her husband and surrendered herself to the service of her husband. Denying the allegation of sexual relationship with Om Prakash, the respondent pleaded that Om Prakash is a married person and he is like her son. According to the respondent, the appellant made such allegation against her because he left her company and developed illicit relation with Chotudi and two daughters were born from such illicit relation with Chotudi. She further alleged that one son of Chotudi born from the wedlock with her previous husband was also staying with her. Offering a justification for lodging of the criminal case, the respondent pleaded that her husband came to Dungargarh and committed marpeet with her and the children and threatened to throw them out of the matrimonial house. The respondent specifically pleaded that she has no source of income and her husband did not provide any maintenance to her and the children.