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Judgment
Heard learned counsel for the parties. Trial court record has been perused.
Appellant sued for divorce pleading mental cruelty and desertion by the respondent.
The petition has been dismissed vide impugned judgment dated 12.7.2017.
Marriage between the parties was solemnized on 17.5.2005. A male child was born to the couple on 10.5.2008. As per the petition, case pleaded by
the appellant was that for sometime after the marriage respondent’s behaviour was cordial but after a while she started taunting his parents in
whose house the couple had set up their matrimonial home. The taunts were that she would not live with them and that she was forced into the
marriage. Due to insistence by the respondent the appellant took the respondent to the place where he was posted i.e. Dhariyawad. The respondent
refused to live in the rented house stating that he should purchase his own house. The respondent used to threat him that she would commit suicide or
implicate him in a false case. In December, 2007 she left the matrimonial house and shifted to her parents house. A son was born on 10.5.2008. After
3-4 months of the birth of the son when he went to bring the respondent and his son to his house she refused. With the intervention of community
people a settlement agreement was drawn up, as per which the respondent agreed to live with him. She joined consortium but within a few days once
again she started quarrelling with his parents and started abusing them. After 10-12 days, taking alongwith her the jewellery which were gifted to her
at the marriage she returned to her parents house and lodged a false complaint for offences punishable under Section 498A-406 IPC.
In the written statement filed the respondent admitted the factum of the marriage and child being born to the couple. She denied having taunted
appellant’s parents. She pleaded that she was troubled by them on account of dowry. Being in the family way she went to her parents house
because atmosphere in the matrimonial house was oppressive. After the son was born nobody came to visit her. She alongwith the son went to the
house of her in-laws but they refused to let her enter. She was forced by the community people to enter into the settlement on 21.10.2008.
On the pleadings of the parties two issues were settled. The first was whether the respondent committed acts of cruelty against the appellant and
the second was whether the respondent was living separately without any justifiable cause for a period of two years preceding the filing of the
petition.
Appearing as his witness the appellant filed an affidavit by way of evidence which was treated as examination-in-chief in which he verbatim
repeated the pleadings in the divorce petition. The cryptic cross-examination of the appellant, translated reads as under:- “I made various attempts
to take Hemlata with me, so did members of our Society. In Court Hemlata agrees to live with me but refused to live with me. It is correct that my
son studies in school. It is correct that since 10.9.2008 we are living separately. It is wrong that we entered into a written settlement due to societal
pressure. I can produce the written statement.â€
Respondent appeared as her witness and filed an affidavit by way of evidence in which she repeated her pleadings in the written statement.
Respondent’s cross examination by the appellant is equally cryptic. Translated into English it reads as under:- “It is correct that criminal case
for offence punishable under Section 498A lodged by me against my husband is pending. It is incorrect that the case filed by me under Section 125
Cr.P.C. has been dismissed as not pressed. That she did not press the case on the advice of her lawyer. It is correct that case lodged by her under the
Domestic Violence Act has been decided. It is correct that in said case ₹3000/- p.m. has been directed to be paid to her. It is correct that she is
receiving ₹3000/- p.m. It is correct that since the year 2008 both of them are living separately. It is correct that a son was born to them and he is
studying in school. It is wrong to suggest that criminal case for offence punishable under Section 498A IPC lodged by her is a false case.â€
The impugned judgment dated 12.7.2017 notes the pleadings of the parties, the issues settled and the testimony of the witnesses. Without a
discussion of the evidence the learned Judge has held that he believes the version of the respondent. Thus, both issues settled have been decided
against the appellant.
Contention of learned counsel for the appellant is that the respondent did not even challenge the testimony on oath of the appellant and thus cruelty
and desertion stand proved.
The response of learned counsel for the respondent is the same. The appellant did not challenge the testimony of the respondent when he cross-
examined the respondent and thus the learned Judge, Family Court has rightly dismissed the petition filed by the appellant.
Indeed, neither parties has effectively cross-examined the opposite party. But the onus would be on the appellant.
Reading the case of the appellant and his testimony the first act of cruelty alleged is that the respondent started taunting his parents after few
months of the marriage. What were the words used to taunt? None have been pleaded nor deposed to. The taunts were directed against the
appellant’s parents as pleaded by him but he has not examined them.
The second act of cruelty pleaded is the insistence by the respondent that the appellant should buy a house and that she would not live in a rented
house. Though there is no cross-examination of the appellant on this aspect of the matter, but the appellant admits that the respondent continued to live
with him inthe rented house. When she was in the family way in December, 2007 she went to her parents house. In her testimony the respondent has
denied having extended any threats of not living in the rented house. She has not been cross-examined. The plea, supported with the testimony of the
appellant that the respondent threatened suicide, is sans any dates. The written settlement between the couple pleaded in the petition has not been
proved.
The vague pleadings without material particulars would dis-entitle the appellant to any relief as prayed for.
Handicapped as we are by the cryptic cross-examination and abjuring to decide the matrimonial dispute applying technical principles of law
because neither party has cross-examined the other on the rival versions pleaded and deposed to We note that the evidence brings out that married on
17.5.2005 the couple enjoyed conjugal bliss evidenced by the fact that on 10.5.2008 a male child was born. Parents of the appellants at whom taunts
were directed not being produced leads us to accept the version of the respondent that it was dowry harassment by her in-laws which was the cause
for her to be compelled to leave the matrimonial house. The appellant has himself pleaded that the couple set up the matrimonial home in the house of
his parents. But his plea that on the insistence of the respondent he took her to the place where he was working shows that the appellant left his wife
in his parents house. He was working in a different city. The respondent wanted to live with her husband and not with her in-laws. The appellant
admits that he took his wife to the place where he was working. Meaning thereby, the so-called matrimonial home in the house of the parents of the
appellant was not a place where the couple resided as a married couple is expected to reside.
We find no infirmity in the impugned judgment dated 12.7.2017.
The appeal is dismissed.