Smt. Sudha Devi @APPELLANT@Hash Vedprakash Saini

G.R. Moolchandani, J

This appeal is directed against the decree and judgment passed by Family Court, Jhunjhunu dated 05.08.2017, whereby Family Court, Jhunjhunu has

decreed divorce petition preferred by plaintiff-respondent Vedprakash Saini under Section 13(1)(ia) of the Hindu Marriage Act 1955, dissolving the

marriage between disputing couple.

Plaintiff-respondent has pleaded that appellant Smt. Sudha Devi and respondent Vedprakash Saini solemnized their marriage on 01.12.2002,

defendant-appellant did not yield to cohabit and was sarcastic by taunting that he was not perfect of height and lacked perfect personality, this was

objected by the respondent and he tried to convince defendant that physical stature was irrelevant for marital relations but behaviour of Smt. Sudha did

not change, she would often leave to stay with her parental home, on 05.03.2005 plaintiff-respondent got selected in third Grade teacher, after

selection he went to fetch her and brought her on 15.03.2005 to join matrimonial consortium, after staying for five days, she left asserting that Village

‘Paunk’ was a rural area, subsequently on behest of plaintiff-respondent, she got employed with same school as Vidhyrthi Mitra, where she

served for three to four months but kept insulting plaintiff-respondent, three to four months later, she abandoned service and came back to her parental

home at Nawalgarh, despite attempts, she did not join matrimonial consortium of plaintiff-respondent, it has been further pleaded that on 10.01.2011,

when plaintiff got promoted to Senior Teacher Grade-Ist, he went to fetch her, she came along but did not permit to have physical relations and was

sarcastic by saying that plaintiff was short of height, being dwarf. On 17.07.2011 defendant-appellant declined to live together and threatened to re-

marry and has further made a prayer for annulment of marriage.

Defendant-appellant rebutting pleadings has countered that defendant-appellant never went to her parental home without consent of plaintiff-

respondent rather plaintiff-respondent misbehaved and harassed her and made dowry demands, he would rebuke her and even took away entire

salary, which was earned by the defendant-appellant having employed as a Vidyarthi Mitra, even machination was forged to eliminate

defendantappellant, overhearing and sensing it, she somehow managed to come back to her parental home to secure herself, allegations levelled

against the defendant are baseless, she was maltreated by her in-laws, even a plan was made to kill her, which she overheard, she is very much

agreeable to join matrimonial consortium.

Learned court below, after framing issues, recorded the evidence of both the sides.

Heard both the sides and perused the record, it evinces from the testimony of AW1 Ved Prakash Saini that he has accepted that prior to marriage

‘Tilak and Lagan’ ceremony was held, Single Bed, Black & White T.V., Small T.V., Chair, Almirah and Box were given in the marriage and a

gold ring was also gifted alongwith a watch, he has further stated that on what date his wife went to her parental home is not known to him, he has

also asserted that on 25.04.2008, when marriage of his brother Ramniwas had taken place, his wife Sudha Devi was present in the marriage, he has

also stated that in the month of January 2011 and subsequently in the months of April and May 2011, whenever he went to fetch his wife, she came

and stayed with him, he has further stated that on what date and on which month, he was taunted as dwarf by his wife, is not known to him, he has

conceded that his height and his wife’s height are similar.

He has candidly accepted that before marriage, he and his wife Sudha had agreed for the marriage, later,Â

after consent of both the families, marriage was solemnized, this very assertion is enough to say that couple had seen

each other, even prior to settlement of marriage and consent of the family members came subsequently, so to dislike on the basis of height, does not

appear to be a reason for alleged sarcastic utterances and assertions to this effect, rather goes in vain and does not substantiate allegations levelled by

the plaintiffrespondent, more so Vedprakash has himself asserted that he is not aware that on what date and on which month, he was taunted in

alleged way, which makes his assertions and allegations nontenable, he has also deposed that despite court orders he has not given any maintenance

amount to his wife.

AW2 Ghasiram has also stated that to fetch Sudha, they went five times but the dates are not remembered, contrary to the pleadings, AW3 Smt.

Sravani Devi, mother of groom, has stated that after marriage, Sudha indignantly said that she was got married in a poor family, which is not even a

case of the plaintiff, it has also been stated by this witness Smt. Sravani that she got her daughter-in-law understood that after employment of her son,

economic condition of their family will change. Sudha was even reluctant to stay in a katcha house, which tormented them and they thought since

Sudha was a sibling of an affluent family and her father was a Bank Manager, so she will understand the reality and change later, evidence to this

effect produced by Smt. Sarvani Devi is contrary to the pleadings, in crossexamination she has also stated that prior settling the marriage, they had

been to see Sudha since Sudha was liked, so the marriage was performed, dowry was also given in the marriage. She has also stated that she has got

no objection, if Sudha intends to join her husband. She has expressed her ignorance as to who had gone to fetch Sudha, she has also stated that in

Village ‘Paunk’, Sudha had stayed with her son for five to six months, for how many times she went to her parental home, she cannot say, this

witness has also stated that Sudha was not keeping well but recuperated after treatment, they also got her treated through ‘dora’ (a kind of

black magic).

AW4 Prakash Jangid has stated that he had attended couple’s marriage and was invited by Vedprakash, it was a “arranged marriage†and he

was conveyed and complained by Vedprakash that his wife had taunted him being wheatish of complexion. Exaggerating pleadings this witness has

stated that Sudha slapped before him, which has even not been pleaded by the plaintiff-respondent, this witness has stated that on 17.07.2011 he too

had gone to fetch Sudha but behaviour of her parents was not amicable, kind of testimony, which has been stated by this witness, falsifies allegations

and pleading of the plaintiff-respondent that he was threatened, maltreated, ousted or was daunted, since AW5 Uncle of Vedprakash has also stated

that Sudha’s parents didn’t behave properly.

In her testimony, Smt. Sudha Devi has stated that she obeyed her spouse duty, her father spent six to seven lakh in the marriage, she was often

beaten because Maruti car and a plot in Sikar was not given in the marriage, she was beaten by her husband and was kept starving. On truce, she

came back to her husband’s home, Vedprakash was addicted to liquor and on resistance, she was beaten and a dowry demand was also made, in

July 2007 she was selected for B.Ed training and completed B.Ed in June 2008, study expenditure was borne by her father, it was not given by

Vedprakash, whenever her in-laws came to fetch her, she was permitted to go, she was misbehaved and was threatened to be eliminated.Â

Apprehending danger, she fled away to her parental home, she has also stated that she is always prepared to join marital consortium of her husband

and had never wanted divorce, in cross-examination she has stated that at the time of her marriage, her husband was not employed in Government

service but was selected subsequently, she has further stated that her matrimonial life was comfortable and she is staying away from July 2011, she

has specifically stated that when she overheard planning being contemplated to eliminate her, she fled away to her parental home.

Testimony of NAW2 Sitaram, father of defendant- appellant, NAW3 Subhash Chandra, NAW4 Chiranjilal have also been adduced in support of the

contentions of bridal side.

Scrutiny and evaluation of entire evidence goes to reveal that marriage between the couple was an arranged marriage and both had seen and liked

each other prior to marriage, so question of alleging ‘He’ partner being short of height or blackish of complexion, does not infuse reliance.Â

Plaintiffrespondent has himself asserted that at many occasions, whenever he went to fetch Sudha Devi, she came and joined matrimonial consortium,

even it has come in the evidence that Sudha Devi stayed at Village ‘Paunk’ for five to six months. Sudha Devi has pleaded that she was

tortured and harassed for demand of dowry, even she overheard planning of her in-laws, talking to commit unpleasant upon Sudha Devi, which

compelled her to fled away in order to save herself from the apprehensive jeopardy.

Bride abandons her parental house for marital consortium of her husband, expecting amicable atmosphere and security to her life and prestige.Â

Admittedly, she has completed her B.Ed. during her marital bonds, which does also show that she toiled alot to keep her studies completed, even

during marital bonds.

Imperative it is to provide secured atmosphere to a bride in a matrimonial house, since a lady, who joins the family of her husband won’t feel

secured to stay alongwith her groom, in absence of sense of security and grace over there, it emanates from the evidence that she was tortured and

harassment was perperated upon her, even demands for Maruti car was made, mother of plaintiff-respondent stated that defendant-appellant belonged

to a family of affluent class and her father was a Bank Manager and groom’s family was not of that status. It has also come in the evidence

that marital proposal was settled after the customary ‘look ceremony’ and the couple consented for the marriage, in furtherance thereto, nuptial

was ceremonised, so assertions that subsequently taunts were hurled on account of short height of groom, infuses no faith rather post-marriage

achievement of teaching job by the groom, appears to be a reason of discontent and disharmony, which cannot be attributed to ‘She’ spouse,

since post-marriage job was achieved by Vedprakash and he was selected Teacher Grade-III, subsequently was promoted to Senior Teacher Grade-I

and at both these occasions, when Vedprakash went to fetch Sudha Devi, she came and joined matrimonial consortium of her husband, which is an

admitted position and has been so asserted by Vedprakash Saini in his evidence and Smt. Sudha Devi, while overhearing machination of unpleasant,

sensing jeopardy to her life, compelled to leave her matrimonial house to rescue herself and this was the reason wherefore she constrained to live

apart from her husband, which can never be treated to be a “desertionâ€, even in the testimony, Smt. Sudha Devi and her other witnesses have

specified that Smt. Sudha Devi is prepared to join matrimonial consortium of her husband.

Apex Court brought forth essential ingredients of “desertion†as ground of matrimonial relief in the case of Bipinchandra Jaisinghbai Shah V.

Prabhavati AIR 1957 SC 176. The Hon'ble Apex Court in Savitri Pandey V. Prem Chandra Pandey (2002) 2 SCC 73, has observed as under :-

Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(i-a) of the Act. Cruelty has not been defined under the Act but in

relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty

consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and

manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or

to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to

the matrimonial life of the other. “Crueltyâ€, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable

apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be

distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be

adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case both the

Trial Court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent.Â

Concurrent findings of fact arrived at by the courts cannot be disturbed by this Court in exercise of powers under Article 136 of the constitution of

India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly show that the allegations, even if held to have

been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than

ordinary wear and tear of the family life.

“Desertionâ€, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by

the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage.Â

Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations

i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into

consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of

race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it

is a continuous course of conduct to be determined under the facts referring and circumstances of each case. After referring to a host of authorities

and the views of various authors, this Court in Bipinchandra Jaisinghbai Shah V. Prabhavati held that if a spouse abandons the other in a state of

temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion.

We, do not find that appellant-defendant would have deserted the matrimonial consortium of her husband intending permanent cessation of

cohabitation, nor a positive evidence is there regarding alleged cruelty, if a spouse leaves the matrimonial house in order to secure her life, then

temporary disassociation would never amount desertion.

In view of the afore-discussed facts and circumstances, the issue/s determined by the learned court below in respect of “desertion†and

“crueltyâ€​ ought not to have been decided against the defendant-appellant.

Summing-up, we are of the view that plaintiff-respondent has failed to prove his case, hence findings arrived at by the learned Family Court, are

faulted and deserves to be set aside.

Thus, the appeal succeeds, as such judgment and decree impugned are set aside.

No cost.