Omwati vs Manoj Kumar

Heard.

This appeal under Section 28 of Hindu Marriage Act is directed against the judgment and decree dated 24/9/2012 passed by Additional District Judge, Ambah, District Morena in case No. 49/2009 (HMA). The suit filed by plaintiff-husband for divorce under Section 13 of Hindu Marriage Act has been decreed on the ground of desertion.

Facts pleaded in the plaint are to the effect that marriage between the defendant-wife and plaintiff-husband was solemnized in village Ruariyapura, police station Dimni, district Morena about 12 years ago. At present, plaintiff-husband is serving Indian Army as soldier and posted at Jammu and Kashmir. Out of the aforesaid wedlock, no child is born. For 2-3 years after the marriage, defendant-wife though had maintained cordial relationship with other members of the family; however, for the reason that defendant-wife did not conceive, she developed a typical hostility and don't care attitude towards the members of family, possibly for the psychological reasons. As plaintiff-husband has been away from home at his posting, day to day the atmosphere at the house had become tensed and disturbed. As and when husband used to visit the home, he did not receive proper treatment from his wife. She remained same with the husband as well during the time, husband was on vacation. In the month of March, 2009, the wife adopted a weird attitude and threatened to commit suicide by hanging. Somehow she was pacified. Thereafter, she went to her parents. When husband went to bring her to his home, he was subjected to ill treatment by the wife and her parents. However, husband maintained his cool. After sustained efforts, the wife came back to his home after two months. Again in the month of September, she consumed pesticides to kill herself as such, on her this action, weird attitude and hostile temperament, the whole family of husband was tensed and there was disturbed atmosphere at home. Such circumstances did cause mental agony and also social indignation in society. In view of aforesaid facts and circumstances, it was difficult for husband to lead a peaceful life with wife. For three years preceding the date of filing the suit, the wife was residing with her parents. There was no cohabitation. Under such circumstances, husband has filed the instant suit for divorce on the ground of desertion.

Defendant-wife filed written statement denying the plaint allegations and submitted that she has all along been prepared to live with husband; however, he did not agree to live with her and lead a happy married life. It is further submitted that husband has been humiliating her due to her dark complexion and that she has not brought any dowry with her. He used to pressurize her to ask her father to provide four wheeler car and only then he would keep her at his home, otherwise, he would marry to some other lady. She never caused any mental embarrassment or adopted hostile attitude towards husband or his family. On the contrary because of negligent and don't care attitude of the husband, she has suffered physical and mental agony. She also alleged that though at the time of marriage, husband was unemployed, however, after marriage, he was recruited in Indian Army. Thereafter, he changed his attitude. It is alleged that in fact he had illicit relations with his aunty and used to visit her during his leave. It is alleged that in September, 2009 when she suffered stomachache though her husband had taken her to hospital but when doctor advised for operation, he fled and thereafter her parents took her to their home where she has been provided sustained treatment. Since then she is staying with her parents. She has filed an application for maintenance vide 29/09 as husband has deserted her for no rhyme and reason. With the aforesaid pleading, defendant-wife has prayed for dismissal of the suit.

Upon such pleading, trial Court framed issues and allowed parties to lead evidence. Upon critical evaluation of the evidence on record, trial Court has reached the conclusion that more than 10-11 years period has passed by on the date of writing the judgment i.e. 24/9/2012, as on date i.e. after 13-14 years of marriage, defendant-wife is not living together with plaintiff husband and living away from her in-laws place, though plaintiff husband attempted to bring her back but she had refused, instead she has filed criminal complaint under Section 498-A of IPC against the plaintiff-husband. Besides she has also filed an application for maintenance. Trial Court also critically evaluated the evidence as regards the conduct and attitude of the parties and upon appreciation of evidence reached the conclusion that defendant-wife in fact did not live like a wife in the family of her husband. Because of her typical attitude, there was disturbance in the family and tensed atmosphere in the family. plaintiff-husband also has suffered embarrassment in the society. Without informing the plaintiff-husband or his family members, she has left for her parents'' place and never returned back. She did not even come to husband's house on the date of death of his father. In view of the aforesaid, trial Court reached a conclusion that this is a fit case for passing decree of divorce against the defendant-wife on the ground of desertion.

Having perused the impugned judgment and decree, this Court is of the view that there is no dispute about the fact that defendant-wife and plaintiff-husband are not living together for last more than 13-14 years. Under such circumstances, love is lost and emotions are dried. There is no such feeling of husband and wife between the two. This Court tried that parties may resolve the dispute and difference between two; however, attempts fell in vain. In view of aforesaid, this Court is of the view that no useful purpose will be served if issues are adhered on merits as decision either way, there would be further animosity and aggravation of situation as in the past which shall not be in the interest of either of the two. Hence, to strike a balance and allow both the parties to lead their life with full ease and comfort, this Court declines to invoke jurisdiction under Section 28 of the Hindu Marriage Act. Appeal is therefore, dismissed. However, to do complete justice between the parties, under Section 25 of the Hindu Marriage Act in light of judgment rendered by Hon. Supreme Court in the matter of Medha Ashok Panchabhai Vs. Ashok Atmaram Panchabha , we grant permanent alimony of Rs. 10,00,000/- (Rs. Ten Lacs only) as full and final payment to the defendant-wife by the plaintiff-husband in five equal installments in a span of one year.