Madhu vs Vinod Kumar

Heard learned counsel for the appellant. Unfortunately, none appears for the respondent.

The preamble facts are that the appellant is a physically differently abled person. She holds degrees of B.Sc. and B.Ed. She is working as a Teacher under the State of Rajasthan in the Sarva Shiksha Abhiyan at Mavli. Her parents unburdened her by marrying her with the respondent who is a mere Class-V pass and earns livelihood running a grocery shop. It is apparent that the respondent married the appellant for the money she was earning as a teacher.

With the aforesaid preamble facts relevant would it to be noted that the appellant sought divorce pleading cruelty alleging that from the inception of the marriage, the conduct of the respondent towards her was hostile. He used to beat her. At the drop of hat, he would abuse her. He used to drink alcohol and gamble. With respect to these allegations, no dates or time has been pleaded. However, in paragraph 14, it has specifically been pleaded that on 26.10.2010 when the festival of Karva Chouth, requiring the appellant to abstain from food till she saw the Moon in the night, was celebrated the respondent taunted her that the whole day she had been flirting with males in the colony. The innuendo was that why she was observing a fake fast. Thereafter in paragraph 16 of the petition, a specific averment has been made that on 1.11.2010 the respondent went to the shop where the appellant's father got employment and insulted him by telling the shopkeeper that he had given employment to a thief and will regret the same.

The respondent contested by denying the averments made in the petition seeking divorce.

Appearing as a witness, the appellant led examination in chief by way of an affidavit and verbatim copied the petition seeking divorce. In the cross examination which is cryptic we find that the deposition of the appellant on oath regarding averments made in paragraphs 14 and 16 have not been challenged. In other words, the appellant's specific pleas of cruelty pleaded in paragraphs 14 and 16 of the petition seeking divorce which were made good by statement on oath have gone uncontroverted.

Notwithstanding that, the petition seeking divorce filed by the appellant has been dismissed by the learned Judge Family Court holding that in absence of material particulars of the acts of cruelty, that dates, time and place having not been mentioned, the appellant would not be entitled to the relief prayed for.

The impugned judgment overlooks two specific pleadings of cruelty which if proved would be sufficient to grant appellant decree of divorce on the ground of mental cruelty.

As regards the general nature of averments, the learned Judge Family Court has overlooked the fact that the pleadings are not general. The pleadings are specific. The pleadings are that drunkenness was a daily habit with the respondent and it was his daily habit to either abuse or physically beat the appellant.

Keeping in view the preamble facts which we have noted, it is apparent that the marriage was destiny to a destruction for the reason a physically differently abled person who was highly qualified was married to a boy who is Class V. The educational disparity between the two was sufficient for the marriage to be ruined.

We convert the de facto into de jure.

The appeal is allowed. The petition seeking divorce filed by the appellant is allowed. The marriage between the parties solemnised as per Hindu customs on 9.2.2004 is annulled by granting divorce to the appellant on the ground of mental cruelty. Decree be drawn in the appeal.