Wednesday, July 31, 2013

married '75. togethr lessthan 1yr. Separate 19yrs. Marriage irretrievably broken. P&H HC grants divorce

married '75. together less than 1yr. Separate 19 years. Marriage irretrievably broken. P&H HC grants divorce

Learning
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* married in the year 1975. 
* After the marriage, the appellant has resided in the matrimonial home only for about one year (probably even less ...say a few months)
* claims of dowry demand by wife
* contradictions in her statement and her dad's statement on how the dowry was demanded / paid etc 
* Husband denies all allegations
* HC Says ".....Thus it is evidence that marriage is irretrievable broken. It is in the interest of justice that decree of divorce be granted so that both the parties can live in peace, harmony and honourable too and thus the tortuous litigation and continuous agony to the parties may come to an end....."
* Man asked to pay permanent alimony 



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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM INDIANKANOON SITE 
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Punjab-Haryana High Court

Smt. Krishna vs Som Nath on 21 March, 1995

Equivalent citations: I (1996) DMC 667

Author: S Saksena

Bench: S Saksena

JUDGMENT

Sarojnei Saksena, J.

1. This is an appeal under Section 28 of the Hindu Marriage Act (in short the 'Act').

2. The only admitted fact in the case is that the appellant was married with the respondent in the year 1975 and now they are living separately.

3. In a nut-shell, the appellant-petitioner's contention was that after marriage she was treated with cruelty by the respondent and his family members. She was taunted and insulted for bringing less dowry. When she expressed her inability to satisfy their lust for more dowry she was treated with cruelty. After two months, she was beaten and was forced to leave the matrimonial home. Thereafter she lived in her parental home for one year. Her parents gave Rs. 5,000/- to the respondent thereafter. She went to live in the matrimonial home. The respondent is a liquor addict. He used to beat her when intoxicated. She lived with the respondent for six months. She was again beaten and turned out of the house. Thereafter she lived with her parents for three years. Again when she went to her matrimonial home in October, 1986 she was turned out therefrom and since then she is living with her parents. Thus she claimed divorce on the grounds of cruelty and desertion.

4. The respondent-husband denied the allegations of cruelty and desertion According to him he never treated her with cruelty, never complained of insufficient dowry and never beat her. He does not take liquor. He never turned her out of the matrimonial home. He lived with her in a rented house. She left that rented house in December, 1988. She and her father took away his belongings from that house. When he asked them to return his clothes etc. he was turned out of the house. He is willing to live with the appellant. She became pregnant many a times but due to her ill-health she got premature deliveries.

5. The Trial framed three issues. On appraisal of parties evidence the appellant's petition for divorce was dismissed

6. Appellant learned Counsel contended that the Trial Court has not weighed the parties evidence properly. She has stated how on dowry demand she was maltreated by the respondent and his family members and many a times she was beaten by her husband. She was turned out of the matrimonial home and therefore she had to take refuge in her parental home. He further stressed that the Trial Court has not properly framed the issues. No issue on the alleged ground of cruelty and desertion was framed. The Trial Court has believed the statement of the husband which is patently unbelievable. The respondent has stated that he resided in Chuni Lal's house on rent with the appellant for 13 years but still he does not remember the number of that house. In his further cross-examination he has stated that he lived in Chuni Lal's house for 4/5 years. According to the husband one week prior to the institution of the divorce petition the appellant and her father turned him out of the house of Chuni Lal and they also refused to return his belongings but surprisingly enough no report was lodged by him at the Police Station. The Trial Court has believed such a witness and has discarded the credible evidence of the appellant and her father. He admitted that there are certain discrepancies in the statements of the appellant and her father but according to him they are bound to occur as they are not literate persons and their evidence was recorded after a long lapse of time.

7. Finally the appellant's learned Counsel submitted that the parties were married in the year 1975. After the marriage, the appellant has resided in the matrimonial home only for about one year. Since 1986, the parties are living separately. Thus the marriage has irretrievably broken. Hence justice will be done to both the parties if divorce is granted and they are allowed to live in peace, honourably and separately but at the same time he prayed that the husband should be directed to pay some amount to the appellant as permanent alimony. In this connection he pointed out that the Court had already ordered that the respondent should pay Rs. 500/- as maintenance per month and Rs. 1500/- as litigation expenses to the appellant vide order dated 27.7.1990. Amount of permanent alimony should be determined keeping in view the aforesaid order.

8. None appeared for the respondent.

9. I have gone through the parties evidence on record.

10. The appellant has stated that she was teased and insulted for bringing inadequate dowry. She was treated with cruelty. The respondent beat her and three/four times she was turned out of the matrimonial home. She has also stated that on one of such occasions when she was to be rehabilitated her father had to give Rs. 5000/- to the respondent. There are contradictions in the statements of appellant and her father on the point as to when and how this amount of Rs. 5000/- was paid but nevertheless her explanation for leaving the matrimonial home stands to reason.

11. The respondent-husband has denied that he demanded dowry or treated her with cruelty or turned her out of the matrimonial home. According to him he was living separately with the appellant in Chuni Lal's house where they resided for 13 years. He gave that statement to a Court question but later on in the cross-examination he deposed that he lived with the appellant in Chuni Lal's house for 4/5 years. A week before the presentation of the divorce petition the appellant and her father took away all the articles including his clothes of daily use from the house of Chuni Lal. When he demanded his clothes back he was turned out of the house. But surprisingly enough this fact is not put to the appellant or her father in the cross-examination. They have been only asked whether she ever lived with the respondent in Chuni Lal's house. The respondent does not know the number of the house of Chuni Lal. He did not lodge any report with the police when according to him his articles including his clothes were taken away by the appellant and her father. He has not examined Chuni Lal to corroborate his testimony. All these facts prove the hollowness of his statement. From the appellant's evidence respondent's faults and failings are evident. He has treated her with cruelty and has compelled her to leave matrimonial home. Thus he is guilty of constructive desertion. In my view the respondent's evidence is not trustworthy at all.

12. From the parties evidence it is evident that this wedlock has rather become a deadlock, since 1986 they are living separately. After marriage till 1986 she has lived only for a few months in the matrimonial home. Wife has made allegations of cruelty and desertion against the husband and husband has made counter allegations against her. Thus it is evidence that marriage is irretrievable broken. It is in the interest of justice that decree of divorce be granted so that both the parties can live in peace, harmony and honourable too and thus the tortuous litigation and continuous agony to the parties may come to an end.

13. So far as the ground of permanent alimony is concerned this Court has already ordered the respondent to pay Rs. 500/- per month as maintenance and Rs. 1,500/-as litigation expenses to the appellant vide order dated 27.7.1990. In her petition filed under Section 24 of the Act, supported by affidavit, the appellant has alleged that the respondent is earning Rs. 4000/- per month from his business of manufacturing of furniture. This is not rebutted by the respondent by filing a reply or counter affidavit. This prehistory of the case throws light on the financial capacity of the respondent.

14. In view of the above discussion and findings as decree of divorce is granted in appellant's favour. Trial Court's impugned judgment and decree is set aside, and appeal is hereby allowed Respondent-husband is hereby directed to pay Rs. 30,000/- to the appellant-wife as permanent alimony within a period of six months. No order as to costs.