AI Structured Summary
Not yet generated for this judgment
Judgment
Heard learned counsel for the parties.
The respondent sought divorce pleading that the marriage between her and the appellant was solemnized on 17.05.2011. After the marriage she
realised that the appellant was habituated to drinking and under influence of alcohol would beat her. His parents and his elder brother started harassing
her for dowry. She was thrown out of the matrimonial house. That her husband had weird habits and had physical relations with other girls.
The appellant denied the assertions made against him. He pleaded that in FIR registered pursuant to a complaint made by the respondent for
offences punishable under Section 498A/406 IPC the police submitted a closure report. That on 08.06.2014 when elders in the family intervened the
couple decided to separate and since then the respondent had not been residing with him.
On the pleadings of the parties two issues were settled by the learned Judge, Family Court for adjudication. The first was whether the appellant had
subjected the respondent to physical and mental cruelty. The second issue settled was whether the appellant was a habitual drunkard and had weird
habits and additionally was maintaining relationship with other girls.
The respondent besides examining herself as AW-1 as her witness examined her father as AW-2 and a neighbour named Baldeva Ram as AW-3.
The appellant examined himself as NAW-1, his father Rudaram as NAW-2 and a relative Narendra Kumar as NAW-3.
During arguments the Court put it to the parties whether it was possible for them to live together. The appellant stated that it was not possible for
the couple to live together. This was recorded in the order-sheet dated 23.06.2017 which was signed by the parties.
Noting aforesaid facts the reasoning is in paragraph 8 of the impugned decision and suffice it to state that central theme of the discussion hinges on
the reply filed by the appellant that when family elders intervened to sort out the matter the couple could not reconcile the differences and as a result
on 08.06.2014 they agreed to separate by mutual consent. The learned Judge has also highlighted what was recorded in the order-sheet dated
23.06.2017.
With this being the central theme, without discussing the evidence the learned Judge has also returned a finding that the respondent has proved that
the appellant subjected her to physical and mental cruelty under influence of alcohol. The learned Judge has not returned a finding that the respondent
had established that the appellant was maintaining physical relationship with other women.
Learned counsel for the appellant states that grievance of the appellant does not relate to the divorce being granted but to the finding returned that
the respondent has established the appellant subjecting her to mental and physical cruelty. Counsel urges that said finding is being used by the
respondent in the revision filed by her against the order of the learned Magistrate accepting the closure report concerning respondent’s complaint
resulting in an FIR against the appellant for offences punishable under Section 498A/406 IPC. She is also using the said finding in other judicial
proceedings such as under the Domestic Violence Act.
We find that the central theme of the impugned order is that the couple were not cohabiting since 08.06.2014 and both of them were unanimous in
the view that it was not possible for the two to live together. It would actually be a case granting divorce under Section 13(1)(ib) of the Hindu
Marriage Act, 1955. The evidence led by the respondent fails to meet the standard of proof of physical and mental cruelty either in the form of a
dowry demand or beating the respondent under influence of alcohol.
Thus, maintaining the impugned judgment dated 24.06.2017 insofar it has granted divorce we hold that the reasoning given that the respondent has
established physical and mental cruelty has not been established. It would be a case where both parties agreed to separate from each other. This
would take colour of desertion.
The appeal is disposed of in above terms.