Suresh Kumar vs Smt. Kanti

M.C. Garg, J.—This judgment shall dispose of First Appeal preferred on behalf of the appellant/husband aggrieved of the judgment delivered by the learned 2nd Additional Principal Judge Family Court, Indore in Hindu Marriage Case No. 669/2010 dated 02.09.2011. By the impugned judgment, the learned Family Court has been pleased to dismiss the suit filed on behalf of the appellant for dissolving the marriage with Smt. Kanti Rathwe the respondent both on the ground of treating her with cruelty and deserting him for the period of more than two years w.e.f. 9.10.2007. The suit was instituted on 17.08.2010. The respondent contested the suit before the Family Court by filing written statement however, she did not appear to lead any evidence in support of her pleas. She has also not appeared before us despite service. She also did not appear before the Mediation Center despite several notices given to her and her counsel.

The Family Court after recording the evidence led on behalf of the appellant despite the fact that the respondent neither cross examined the appellant nor led any evidence in the suit, dismissed the suit filed by the appellant. Hence this appeal.

Briefly stating, it was the case of the appellant that he was married with the respondent accordingly hindu rights on 11.07.2005 at Itarsi. After the marriage the respondent started residing with the family of the appellant at village Kalda Tehsil Bhikangaon District Khargone. From the wedlock, a son namely - Rudraksh was born on 03.02.2007. It was further alleged that right from the beginning, the respondent treated the appellant and his family with cruelty. She was dis-respectful to the family members of the appellant and used to say that the appellant was not to her liking. She used to say that she is not in a position to live with the appellant in his joint family. Whenever, there was any effort made to counsel her, she became up set and started using abusing language and also threatened the appellant and his family of false implication in dowry demand case.

It was also the case of the appellant that on account of conduct of the respondent, the appellant started residing at Indore. Here also, there was no change in the behavior of the appellant. She was always indulging him with cruel behavior and did not take interest in the household work. She did not prepare food for the appellant. Whenever, the appellant told her to behave properly, she used to shout on the appellant. On 25.06.2005, she left Indore alongwith her brother. Even at that time, when the appellant tried to tell about the mis-behavior of the respondent to her brother, she started fighting with the appellant. Thereafter, the appellant brought respondent to Itarsi and told her family members about her conduct. They also made effort to counsel her but there also the respondent''s behavior continued to remain as usual. It is also alleged that the respondent even tried to commit suicide. In July, 2006, after she was pregnant and her examination was conducted by the doctor, the doctor revealed that she had been taking medicines which would made her health deteriorated. Infact, even the brother and maternal uncle of the respondent gave threatening calls to the appellant. She was not even looking after the child. Whenever, she was told that she should behave properly and should take care of child, she was angry. Then the appellant told her to call his parents to take care of child, she told that she would kill the child and would commit suicide. After that the appellant had lodged the report in Aerodrome Thana on 01.10.2007. After that incident, the respondent left her matrimonial house and started living with her parents and also filed a case u/s 498A of IPC which is pending.

The respondent did file a written statement after she was served with summon and denied all the allegations made by the appellant. She also stated and it was the appellant, who used to treat her with cruelty and his family members used to make dowry demand. In this regard, she has also stated that a complaint filed against the appellant in the competent court is still pending. On the basis of the pleadings, the Family Court framed the following issues:-

Even though, the appellant led evidence to support his plea and the respondent neither examined herself nor led any evidence to support her case, the Family Court relying upon the complaint filed by the respondent before Mahila Thana, Indore u/s 498A of IPC believed the case of the respondent even though, the allegations made in the complaint were completely un-substantiated, dismissed the suit.

The relevant observation made by the Family Court in this regard is reproduced hereunder:-

Learned counsel for the appellant submitted that the allegation of the appellant as pleaded in his plaint clearly establishes that the overall behavior of the respondent was cruel qua towards the appellant and his family members. She deserted him for the period of more than two years prior to the filing of the suit without any rhyme and reason. Merely, because she had filed complaint against the appellant, would not prove that she had good reasons to desert the appellant. It is also submitted that the averments made by the appellant which was supported by the appellant in his affidavit having remained un-rebutted in the absence of the respondent either cross examination or even to led evidence, the case of the appellant must be deemed to have been admitted by the respondent. It is submitted that in view of that, the appellant is entitled to decree of divorce on both the counts.

Having given our thoughtful consideration and the submission made by the appellant and having perused the plaint filed by the appellant supported by his affidavit and in the absence of the respondent having not come forward or to lead any evidence in support of her plea taken in her written statement, we are of the considered view that the averments made in the plaint by the appellant which is supported with his affidavit proves both the grounds i.e. infliction of cruelty by the respondent upon the appellant as also deserting him. Therefore, while setting aside the judgment delivered by the Family Court, we decide both the issues in favour of the appellant. Consequently, the findings of the Family Court on both the issues are reversed and the impugned judgment and decree for grant of divorce, on both the grounds i.e. infliction of cruelty and deserting him u/s 13(I)(a) and 13(I)(b) of the Hindu Marriage Act, is hereby set aside. The appeal filed by the appellant is allowed. The marriage between the parties is dissolved by decree of divorce both on the ground of infliction of cruelty and on the ground of desertion by the respondent to the appellant for a period of more than two years prior to the filing of suit for no rhyme or reason. Decree sheet be drawn accordingly. There shall be no order as to costs.

C.c. as per rules.