Gyarsi vs Savitri Bai

This appeal has been filed by the appellant-husband under Section 28 of the Hindu Marriage Act, 1955 against the judgment and decree dated

21.10.2003 passed by First Additional District Judge, District Betul in Civil Suit No.19-A/2003.

There is no dispute that the marriage between appellant and respondent was solemnized in the year 1981. They were residing separately since

last 15 years. There is no marital relationship between them. They have five children. All were residing with the respondent.

The appellant''s case is that he was working as daily wage labourer. The appellant alleged that the behaviour of the respondent was cruel from

the very beginning of their marriage. She pressurized him to live with her maternal house otherwise she will commit suicide. She quarreled with him

and his parents. The appellant was mentally tortured by her. There was no marital relationship between them. He deprived from love and affection

of his own children. Therefore, he filed a divorce petition under Section 13(1)(ia) of Hindu Marriage Act, 1955 against the respondent.

In reply, the respondent denied the allegations and submits that she was resided upto 11 years with the appellant but he was habitual to beat her

after consuming liquor and she was along with their children neglected by the appellant. The appellant failed to pay maintenance allowance of

Rs.600/- per month which was awarded in favour of the respondent under Section 125 of Cr.P.C. and thrown her with five children from their

house. Hence, the respondent claims that there is a possibility for restitution of conjugal rights between them. The appeal filed by the appellant

deserves to be dismissed.

Learned trial Court found that the marriage between the parties was solemnized 22 years'' ago. They have 5 children. The respondent deposed

that she was always beaten by her husband and under compulsion she was residing separately with her children. The trial Court has refused to

grant divorce decree in favour of the appellant.

Learned trial Court considered that there is a possibility of settlement between the parties and they will reside together and fulfill their marital

obligations. Even though, about 13 to 14 years, they were residing separately, but this alone is not a ground to grant a decree of divorce in favour

of the appellant. On such ground, a suit under Section 13(1)(ia) of the Hindu Marriage Act, 1955 was dismissed by learned trial Court.

The above finding has been challenged by the appellant before us on the ground that learned trial Court wrongly held that living separately for a

long period of 13 to 14 years is no ground to grant decree of divorce. The respondent was never interested to reside with the appellant. Therefore,

the appellant has prayed to set aside the impugned judgment and decree passed by learned trial Court and to grant a decree of divorce under

Section 13(1)(ia) of the Hindu Marriage Act, 1955 in his favour.

We have heard learned counsel for the parties at length and perused the record.

It is not in dispute that the appellant and respondent were married since long. They have five children out of their wedlock and residing

separately for more than 15 years. The statement of the respondent has not been rebutted with regard to the fact that the appellant used to beat her

after consuming liquor. Therefore, the respondent left his house and residing separately with her children.

The appellant, in his statement, admitted that the monthly maintenance allowance awarded against him under Section 125 of Cr.P.C. is

Rs.600/- per month. Even then, only Rs.1000/- was once paid by him to the respondent. He continuously neglected his wife. After awarding the

maintenance allowance in favour of the respondent, he filed a suit for divorce.

Learned counsel for the appellant placed reliance on the case of Satish Sitole Vs. Ganga AIR 2008 SC 3093 and Durga Prasanna Tripathy

Vs. Arundhati Tripathy AIR 2005 SC 3297, in which it was held that :-

If husband unable to make out ground grounds - facts however showing that parties lived separately for 14 years making acrimonious allegations

against each other - Attempts at reconciliation proved futile - Continuance of such marriage would itself amount to cruelty - Decree of divorce

granted with adequate provision of alimony in exercise of powers.

In order to prove cruelty, the complainant party has to establish that the conduct of spouse has been of such nature. The conduct of the

appellant-husband is evident from the record that he used to beat and harass the respondent-wife. He persuaded her to live separately. The

appellant himself appears guilty of constructive desertion and not the respondent-wife. Hence, the appellant cannot take advantage of his own

wrong.

On such flimsy ground, the lower Court has rightly declined the decree of divorce in favour of the appellant. Appellant and respondent have

five children, therefore, decree of divorce could not be granted putting the future of the children in dark. By such decree their future would be

maligned and that would also be a stigma for their entire future. That would shatter their mind also.

But we find that the appellant has not stated any allegation which proved that the respondent''s behaviour is cruel towards him or his family

member or she harassed him in any count. We also found that the appellant never tried to take the respondent back to her matrimonial house. He

never took care of his wife/respondent or his children. In such circumstances, there is no evidence against the respondent for her cruel behaviour.

The appellant is not entitled to get decree under Section 13(1)(ia) of the Hindu Marriage Act, 1955 against the respondent. Accordingly, the

first appeal is dismissed.