1 HIGH COURT OF MADHYA PRADESH: BENCH: INDORE (DIVISION BENCH: HON.MR.JUSTICE SHANTANU KEMKAR AND HON.MR.JUSTICE PRAKASH SHRIVASTAVA) FIRSTAPPEAL NO.251/2008 Jaspalsingh S/o Sundersinghji Bagga ... Appellant Vs. Kiran W/o Jaspalsingh Bagga ... Respondent For appellant: Shri S.K.Vyas,Sr. Advocate with Shri A.S.Gokhale, Advocate. For respondent: None appears, though served. ----------------------------------------------------------------------------------- J U D G M E N T (Delivered on 21st November, 2011) Per Prakash Shrivastava,J:- This Appeal under Section 19 of the Family Court Act, 1984 has been filed by the husband, challenging the judgment dated 19th February, 2008 passed by the Court of II Additional Principle Judge, Family Court, Indore, dismissing the Marriage Case No.201/2005. [2] The appellant- husband had filed the application before the Family Court, Indore seeking divorce from the respondent on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (for short “the Act”), pleading that his 2 marriage with the respondent was solemnised following the Hindu customs on 15/9/1983. From the wedlock, three children were born namely Ku.Garima 18 years, Ku.Isha 14 years and Master Swapnil 9 years. He further pleaded that the respondent is short tempered and rude lady and she misbehaves with the appellant. She abuses the appellant and does not take care of the house. She has stopped having any kind of relations with the appellant and she even sleeps in a separate room depriving the appellant of the matrimonial relations. She creates scene on the small issues and even does not cook food for the appellant or his family, consequently, they have to bring their food from outside. She does not take care of the children, therefore, he has to admit the children in the hostel. She throws away the household goods on the street resulting into the loss to the appellant. The appellant pleaded that the behaviour of the respondent as pleaded in the application for divorce, has caused mental cruelty to him. [3] Before the trial Court, notice of the application was served upon the respondent, but she had not appeared and did not participate in the proceedings. The record of the proceedings before the trial Court indicates that the trial Court had appointed Ms.Nidhi Bohara as Commissioner to visit the 3 house of the respondent and to interact with her. The order sheet of the trial Court dated 12/11/2007 indicates that the respondent had misbehaved and abused the Commissioner and had also misbehaved with the children in the presence of the Commissioner. The record shows that the respondent is in fit mental state, yet she behaves in peculiar manner. [4] The appellant in order to prove his case had examined himself as PW.1 and his father Surendrasingh Bagga as PW.2. Garima, the daughter of the appellant was examined as Court witness. Since the respondent had not appeared, therefore, the evidence which was adduced by the appellant remained uncontroverted. [5] The trial Court by the judgment under appeal, rejected the application for divorce holding that the appellant had failed to establish the plea of cruelty. [6] Learned counsel appearing for the appellant submitted that the trial Court has not properly appreciated the uncontroverted evidence on record which clearly establishes the ground of cruelty pleaded by the appellant and therefore, he was entitled to the decree of divorce. He further submitted that the trial Court has proceeded on the basis of conjunctures and surmises. [7] The respondent has not chosen to appear in this appeal 4 inspite of the service of notice and repeated SPC which were issued to her intimating the dates of hearing. [8] We have heard the learned counsel for appellant and have minutely perused the record of the case. [9] The main issue that arises for consideration before this Court is as under:- - Whether the appellant has been able to establish the ground of cruelty entitling him for a decree of divorce U/s.13(1)(ia) of the Act ?. [10] We have examined the plea raised in the application for divorce and also perused the statement of PW.1 Jaspalsingh Bagga, the appellant, PW.2 Sundersingh Bagga, the father of the appellant and Garima (mentioned as PW.2), the daughter of the appellant. [11] The statement of PW.1 Jaspalsingh Bagga as well as PW.2 Surendersingh Bagga establishes that the respondent is a short tempered lady who intend to live her life independently without any interference. She deliberately refuses to do the house hold work. Without any reason, she abuses the appellant and have altercations with him. Without informing, she leaves the house keeping it unattended, open and unsafe. After the year 2003, she has stopped having any relations with the appellant 5 and even started sleeping in a separate room. She has not allowed the appellant to have any physical relations with her since 2003. She threatens the appellant that she would commit suicide or send him to jail in a false case of demand of dowry. The father of the appellant is paralytic but she has stopped preparing food for the appellant and other family members, consequently, the appellant and his other family members are getting their food from the hotel whereas the respondent cooks only for herself. The respondent in order to harass the appellant throws the house hold goods on the street. At one occasion she had thrown mattresses, pillow, and utensils out of the house in the appellant's absence which were taken away by the outsiders. She also throws and breaks the crockery in the house. In February 2005, in the absence of the appellant she had thrown four iron boxes, two iron containers, suitcase and other house hold items on the street which were taken away by the strangers. The evidence adduced by the appellant also indicates that the respondent is not taking care of three children namely Garima, Isha and Swapnil, born out of the wedlock. The children were not given food at home, consequently they were admitted in the hostel. The respondent also mistreats the guests arriving at home. 6 [12] The trial Court, after the conclusion of the evidence of the appellant had summoned Garima, the major daughter of the appellant as Court witness. Garima also stated that for last 3-4 years the fight between her parents had intensified and also that for last 4-5 years the respondent had stopped cooking the food. She has also confirmed the fact that the other two children are admitted in Boarding School and that the appellant and the appellant's father were forced to have food from outside. She has also confirmed that the respondent does not sleep in the room of the appellant and that the respondent is in fit mental condition and that the reason for such a strange behaviour of respondent is not known. Thus, the evidence adduced by the appellant also supported by the statement of Garima who is the daughter of the appellant and was the Court witness. [13] The aforesaid evidence clearly indicates that the respondent by her conduct and behaviour has caused mental cruelty to the appellant. Her conduct of depriving the appellant of matrimonial relations and pleasure, abusing him and cooking food only for herself and forcing other family members to have food from outside and throwing the household belongings on the street and leaving the house open and unattended and her other conduct mentioned above amounts to 7 the mental cruelty which the appellant has suffered Thus, the appellant has been able to successfully establish the ground of cruelty and is entitled to the decree of divorce under Section 13(1)(ia) of the Act. [14] The trial Court has not properly appreciated the evidence on record. The trial Court has proceeded on conjunctures and surmises when making the general observations relating to the change of behaviour of a woman after 45 years. The analysis of the evidence by the trial Court is one sided and the trial Court has not properly appreciated the uncontroverted evidence which has been brought on record by the appellant. Hence the judgment of the trial Court cannot be sustained. [15] Thus, we allow the application for grant of divorce filed by the appellant and declare the marriage between the appellant and the respondent as dissolved under Section 13(1)(ia) of the Act. The decree be prepared accordingly. No cost. (Shantanu Kemkar) (Prakash Shrivastava) JUDGE JUDGE VM