F.A. No. 311/2009. Case: Sudheer Bahadur Morya Vs Smt. Bharti. High Court of Madhya Pradesh (India)
| Case Number | F.A. No. 311/2009 |
| Counsel | For Appellant: Mr. D.K. Katare, Sr. Adv. with Mr. Arun Katare, Adv. and For Respondents: Mr. Ashok Khedkar, Adv. |
| Judges | S.K. Gangele & G.D. Saxena, JJ. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Section 125; Hindu Adoptions And Maintenance Act, 1956 - Section 18; Hindu Marriage Act, 1955 - Sections 10(1)(a), 12, 12(1)(b), 12(1)(c), 13, 13(1), 13(1)(ib), 13(1)(iii), 13A, 18, 19, 3(5), 5, 5(ii)(b), 9 |
| Citation | 2012 (IV) MPJR 229 |
| Judgement Date | October 19, 2012 |
| Court | High Court of Madhya Pradesh (India) |
Judgment:
G.D. Saxena, J., (Gwalior Bench)
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Since the judgment challenged in these two appeals is one and the same, both the appeals are taken up together for final disposal by this common and one judgment. Both the appeals are filed against vise versa by the parties, having been aggrieved by a judgment and decree dated 29th September, 2009 given in Case No. 11A/07 (HMA), by the Principal Judge of the Family Court, Gwalior, dismissing claim of the wife preferred under Section 9 of the Act for restitution of her conjugal rights vis-à-vis counter claim preferred by the husband on other side for dissolution of marriage under Section 13 of the Act.
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The facts leading to the present case may be summarised as under:-
The marriage between the appellant-Smt. Bharti and respondent-Sudhir was solemnized on 5th May 1992 as per Hindu rites and customs. It is alleged that the respondent-husband-Sudhir expelled his wife-Smt. Bharti from his house on the part of her failure to bring dowry. Despite repeated efforts from her side, respondent husband did not permit her to live with him. On the contrary, he decided to file a petition under Section 13 of the Act for taking divorce, which was dismissed by the trial court vide judgment dated 15/10/01 against which an appeal (F.A. No. 234/01) was preferred. Same was dismissed by this court vide judgment dated 25th November 2005 by this Court, holding that the respondent-husband failed to make out a case with valid and legal reasons for dissertation of his wife. The appellant (wife of respondent), by submitting a petition under Section 9 of the Act, now, in turn, prayed for restitution of conjugal rights before the trial court.
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By filing written-statement, respondent/defendant denied all the allegations contained in the petition. In counter-claim, appellant asserted that in year 1997 after the matrimonial disputes arising between the couple, the respondent-husband filed a petition for divorce and Civil Suit No. 31-A/1997 was registered. During pendency of the case on 26th May 1997, the parties entered into compromise and consented to live with each other. Subsequently, thereafter the defendant filed another petition under Section 13 of the Act for divorce which was registered as Civil Suit No. 191-A 2000, on the ground of cruelty against his wife, but the prayer for divorce was disallowed. Against the said judgment and decree, he preferred an appeal (First Appeal No. 234/2001) which too, was dismissed by the judgment and decree dated 25th November 2005 of this court. After two years of dismissal of the petition of divorce filed by the respondent-husband, the present petition under Section 9 of the Act for restitution of conjugal rights was filed by the appellant-wife. The defendant by filing counter-claim submitted that the appellant was unable to procreate a child and was suffering from some bodied disabilities which proved the fact, therefore, it was prayed that under the provisions contained in section 5(ii) (b) and in section 12 (1) (b) of the Act, a decree for dissolution/nullification of marriage may be passed in his favour.
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In reply to the counter claim filed by the respondent-husband, the appellant-wife denied all allegations, as mentioned. She submitted that the parties to the case (Civil Case No. 31A/1997) entered into compromise and pursuant thereto she went with her husband and started residing with him. She stated that she and her husband made sincere efforts for birth of a child and her husband also caused her treatment but despite all efforts, she could not procreate a child. So, her husband, at the instigation of her mother started maltreating her and ultimately on 8th August 2000 she was expelled of her matrimonial house. She stated that she is ready and willing to reside with her husband and perform her conjugal duties. Therefore, she prayed to dismiss the counter-claim preferred by her husband and to pass a decree of restitution of conjugal rights in her favour.
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The learned trial Judge on the pleadings of the parties and documents on record framed the following issues for adjudication of the case:-
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Whether, the petitioner-wife after maltreating by her husband on illegal demand of dowry, was expelled of her matrimonial house by her husband?
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Whether, the respondent levelled a false imputation of procreation of a child and on the false ground that she was unable to give a birth to a child, the respondent intended to contract second marriage?
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Whether a decree for restitution of conjugal rights under section 9 of the Act may be passed in favour of petitioner-wife?
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Whether a decree of divorce under Section 13 of the Act for dissolution of marriage can be passed in favour of respondent-husband?
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Relief and Cost.
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The learned trial Judge after framing the aforesaid issues in the light of the averments and pleadings and having gone through the statements and documents filed by the parties, dismissed the petition under Section 9 of the Act as well as counter claim under Section 13 of Act, hence, these two appeal before our bench.
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The appellant's case is a case of non-procreation of a child and the respondent-husband discovered only after the marriage. The respondent was never told by the appellant-wife nor her parents that she was suffering from such bodied ailment. The respondent tried to discuss regarding the problems he was facing with the appellant and her parents, and especially her father, who by profession is a govt. doctor in district Jhabua, but they objected strongly. On the other hand, it was alleged by them that due to cruel treatment by the respondent, same made her nervous to the extent. Thus, the respondent filed a petition against the appellant for dissolution of marriage under Section 13(1)(iii) of the Hindu Marriage Act, 1955 hereinafter referred to as "the Act" before the Court of District Judge. The trial Court vide its order 15/10/01, dismissed the petition filed by the respondent for the grant of decree of divorce. Being aggrieved by the said order, the respondent filed an appeal before the High Court. The High Court vide order dated 25/11/05 dismissed the appeal filed by the respondent holding that there is insufficient material on record to establish the cause which come within the scope of concept of desertion. Aggrieved by the said order, the respondent filed this appeal before this court. The appellant filed a counter appeal. It is stated in the counter affidavit that the appeal is devoid of any merit inasmuch as the trial court has rejected the pleas of the respondent on the ground that he has not made out any case for grant of divorce. It was submitted that the respondent even before the marriage was having intimacy with the appellant and at that juncture he did not find any abnormality in her. It was also stated that the respondent has not made out any case seeking divorce on the ground of causing cruelty to him inasmuch as he has failed to prove any instance leading to causing such cruelty to him by the appellant. It was submitted that she is willing to reside with her husband but the trial court has wrongly rejected her petition. It was also submitted that from the evidence and pleadings, it appears that the respondent was having sex with the appellant without any problem and there is no truth in the allegation made by the respondent. The other allegations mentioned in the divorce petition have not been proved at all and therefore it is prayed that the appeal filed by the respondent deserves to be rejected.
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Heard the learned counsel appearing for the appellant-wife and the learned counsel appearing for the respondent-husband. Also perused the pleadings, annexures filed alongwith the appeal and the orders passed by the trial court and the grounds of appeal.
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According to the learned counsel appearing for the appellant, the evidence which has been brought on record by the respondent is wholly insufficient to infer that she is suffering from the said abnormality. Therefore, it is submitted that in view of the above fact, no inference can be drawn that the appellant was suffering from such kind of disease as to make her unfit for marriage and for procreation of children and that the respondent has not been discharged of the burden as required by the statutory provision. Learned counsel contended that the words used in sub-clause (iii) of Section 13(1) to the effect that "mental disorder of such a kind and to such an extent that the respondent cannot reasonably be expected to live with the appellant" must be given full...
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