Smt. Maya vs Raju Rajoriya

Rajeev Kumar Shrivastava, J

By this first appeal under Section 28 of Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act'), the appellant has assailed the validity of the judgment and decree dated 16.10.2019 passed by Fourth Additional District Judge Dabra, District Gwalior in Case No. 88/2015 (HMA), by which the petition preferred by the respondent under Section 13 of the Act has been allowed.

It is pertinent to mention here that in this case appellant Smt. Maya shall be referred hereinafter as 'wife' and respondent Raju Rajoriya shall be referred hereinafter as 'husband'.

In order to appreciate the appellant's challenge to the impugned judgment and decree, few facts need mention, which are stated infra.

It is the case of the respondent-husband that he got married to appellant wife on 26.11.2010. Prior to marriage between the appellant and respondent, respondent married with one Manju, resident of village Barkisarai, and one son named Bholu @ Abhijeet was born out of the wedlock of respondent-husband and his ex-wife late Manju, who died due to carelessness of the doctor during the course of delivery. Since there was no one to lookafter his son, therefore, respondent had married the appellant. After some time, the wife's behaviour towards the respondent's son was not good and she used to beat his son. On convincing his wife, she used to quarrel with the husband with abusive language. On 8.3.2013 at 6.45 pm when husband called his wife and son Bholu @ Abhijeet, he did not find any response from them then he went on the roof of his house and saw that his wife was drowning his son in a drum filled with water and his son's head was under water, due to which his son Bholu @ Abhijeet died. In relation to this offence, the wife had been convicted by the competent Court vide judgment dated 22.6.2016 and she was sentenced to life imprisonment. Thereafter the wife was released on bail, and while on bail the wife had got registered a false report against the husband along with Rajesh, Mukesh and Vimal in Police Station Dabra, district Gwalior. The wife had also got registered a case under Section 307 of IPC against the husband and another in Police Station Karera, wherein during investigation it was found that the wife had herself caused injuries to her and FIR was lodged with a view to make pressure in the case filed under Section 302 of IPC. It was also the case of the respondent-husband that no conjugal right had been established between the husband and wife w.e.f. 8.3.2013. Therefore, the husband (respondent herein) had filed a petition seeking divorce under Section 13 of the Act. The wife filed written statement and prayed for dismissal of the petition for divorce.

The trial Court, after framing issues and after appreciation of due evidence collected and available on record allowed the petition for divorce under Section 13 of the Act vide impugned judgment and decree.

Learned counsel for the appellant-wife has submitted that the impugned judgment and decree is based on surmises and conjectures. The trial Court has not discussed and considered the evidence adduced by the appellant and wrongly misread the same. The trial Court has granted the divorce to the husband merely on the ground that the wife had been convicted by the competent court under Section 302 of IPC, but has ignored the fact that an appeal against the conviction is pending before this Court wherein there are reasonable chances of appeal being allowed. Hence, prayed for setting aside the judgment and decree passed by the trial Court and allowing the instant first appeal.

Per Contra, learned counsel for the respondent-husband has submitted that the trial Court has rightly allowed the divorce petition after appreciating the entire evidence available on record, and prayed for dismissal of the appeal filed by the appellant-wife.

Heard learned counsel for the rival parties and perused the record.

The point for determination is that whether trial Court had erred in granting a decree of divorce in favour of husband ?

In the present case, the trial Court has granted decree of divorce in favour of respondent-husband on the ground of cruelty. From the evidence available on record, it is apparent that there are no physical relations between the parties after 8th March, 2013. The fact that the appellant-wife had been convicted under Section 302 of IPC and sentenced to life imprisonment, for causing death of respondent's son Bholu, remained unrebutted from the side of the appellant. It has also come on record that when the appellant was on bail in the aforesaid case, she lodged a false report against the respondent in Police Station Dabra, District Gwalior as crime No. 716/2013 under Sections 451, 323, 506-B of IPC. The appellant had also lodged another FIR against the respondent for the alleged offence under Section 307 of IPC wherein the investigating authority found that the respondent has been falsely implicated by the appellant in a concocted case in order to make pressure upon the respondent for compromise in the case under Section 302 of IPC. Though defence was taken by the appellant that since the respondent-husband wanted to take divorce from the present appellant-wife, therefore she had been falsely implicated in the aforesaid case under Section 302 of IPC, but the fact remains that the competent Court after detailed analysis of the evidence available on record had convicted the appellant in the said case.

In paras 23 and 26 of the impugned judgment, the trial Court has observed that from the evidence and the documents produced by the respondent, it is clear that there was no dispute between the appellant and respondent prior to the death of respondent's son Bholu on 8.3.2013 but thereafter the appellant-wife has filed First Information Reports against the respondent-husband in Police Station Dabra as Crime No. 716/2013 and in Police Station Karera, District Shivpuri as Crime No. 774/2013 under Section 307 of IPC, which falls within the purview of 'cruelty' by the appellant-wife.

From the facts and circumstances of the present case, it is evident that filing of cases one after another against the husband amounts to cruelty as it causes mental agony and torture to the respondent and, therefore, the trial Court has correctly found that the possibility of living together by the appellant and respondent has come to an end.

In view of the aforesaid analysis, we are of the considered opinion that in the present state of evidence available on record before the trial Court and, in the light of law established with regard to cruelty/cruel behaviour on the part of either party, the trial Court did not commit any error in allowing the divorce petition filed by the husband. Hence, appeal filed by the appellant-wife appears to be devoid of substance and is hereby dismissed. No order as to cost.