Court No. - 34
Case :- FIRST APPEAL No. - 608 of 2012 Appellant :- Dr. Saurabh Baiswar Respondent :- Dr. Anshul Counsel for Appellant :- Mahesh Narain Singh Counsel for Respondent :- Ajay Rajendra Alongwith Case :- FIRST APPEAL No. - 609 of 2012 Appellant :- Dr. Saurabh Baiswar @ Munna Respondent :- Dr. Anshul And Others Counsel for Appellant :- Mahesh Narain Singh Counsel for Respondent :- Ajay Rajendra
Hon'ble Sudhir Agarwal,J. Hon'ble Shashi Kant,J.
1. Heard Sri M.N.Singh, learned counsel for the appellant- husband, Sri A.K.Umrao, Advocate, holding brief of Sri Ajay Rajendra, learned counsel for respondent- wife in both the appeals and perused the record.
2. Both the appeals are connected having been filed against common judgment whereby appellant-husband's suit for divorce on the ground of 'cruelty' filed under Section 13 of Hindu Marriage Act, 1955 (hereinafter referred to as “Act, 1955”) has been dismissed and wife's suit for 'restoration of conjugal rights' filed under Section 9 of Act, 1955 has been decreed.
3. Learned counsel for the appellant submits that in the facts and circumstances of the case and evidence produced, appellant-plaintiff has proved his case for divorce on the basis of 'cruelty' caused to him by defendant-respondent and deserted him without any just cause. Hence, Court below ought to have decreed suit of plaintiff- appellant alongwith dismissal of suit filed by defendant respondent but otherwise impugned judgment and decree passed by Court below dismissing plaintiff-appellant's suit and decreeing defendant- respondent's suit, it has committed manifest error of facts and law which renders impugned judgment and decree wrong and illegal and liable to be set aside.
4. We find that Trial Court on the basis of rival pleadings formulated following points in plaintiff-appellant's suit for divorce i.e. Matrimonial Suit No.877 of 2004 :
^^1- D;k izfrokfnuh us oknh o mlds ifjtukas ds izfrokn i= esa of.kZr fofHkUu izdkj ds dwzjrkiw.kZ dk;Z dkfjr fd;s] ;fn gka rks izHkko\
2- D;k izfrokfnuh us oknh dk nks o"kZ ls vf/kd le; ls lk'k; o tkucw>dj vfHkR;tu dh bPNk o rF; j[krs gq;s vfHkR;ftr dj fn;k gS] ;fn gka rks izHkko\
3- D;k oknh vius iq= dh vfHkj{kk djus dk vf/kdkjh gS\
4- D;k iznRr U;k; 'kqYd vi;kZIr gS\
5- D;k oknh o mlds ifjtukas us izfroknh dks ngts ds fy;s ekufld dwzjrk dkfjr fd;k] tSlk fd izfrokn i= dh fofHkUu /kkjkvkas 6- vuqrks"k\ß^^ esa of.kZr gS\ “1. Whether the defendant has subjected the plaintiff and his family members to different types of cruelties as mentioned in the plaint? If so, its effect?
2. Whether the defendant has willfully and deliberately deserted the plaintiff for more than two years with an intent to do so? If so, its effect?
3. Whether the plaintiff is entitled to the custody of his child?
4. Whether the court fee paid is insufficient?
5. Whether the plaintiff and his family members have subjected the defendant to mental torture for want of dowry as mentioned in different paras of the written statement?”
5. Issues 1, 2, 3 and 5 in Matrimonial Suit No.877 of 2004 has been taken together by Court below. It answered issues 1, 2 and 3 in negative and issue 5 in affirmative and consequently dismissed the Matrimonial Suit No.877 of 2004.
6. While deciding the issue1, Court below has taken into consideration the evidence of parties, facts and circumstances of the case and held as under :
^^bl ekeys esa miyC/k lk{; ds vk/kkj ij ;g fuf'pr djuk gS fd D;k ifr us iRuh ds izfr dwzjrk dh ;k iRuh us ifr ds izfrA ;g Hkh ns[kuk gS fd D;k iRuh us ifr dk tkucw>dj ifjR;kx dj j[kk gS ;k ifr gh iRuh o iq= dks lkFk ugha j[kuk pkgrk gS vkSj bu fcUnqvksa ij mijksDr foospuk ds vk/kkj ij ;g fu"d"kZ fudyrk gS fd ifr us gh iRuh o iq= ds izfr dwzjrkiw.kZ O;ogkj fd;k gS vkSj mlus mudk ifjR;kx fd;k gSA** “From the evidence available in this case, it is to determine whether the husband subjected his wife to cruelty or she subjected him to it. It is also to see whether the wife has intentionally deserted her husband or whether it is only the husband who does not want to keep his wife and son with him. The aforesaid discussion leads to a conclusion that it is only the husband who subjected his wife and son to cruelty and deserted them.” (English Translation by the Court)
7. Above findings of Court below are based on material available on record. Admission of plaintiff-appellant Dr. Saurabh Baiswar in his cross-examination at pages 6, 9 and 20 are relevant in which he has said :
^^/kkjk &9 dk eqdnek ckjkcadh esa o"kZ& 2002 esa fd;k Fkk eSa chekj iM+ x;k Fkk rFkk csM jsLV ij Fkk rHkh ugha x;k Fkk rFkk o"kZ& 2005 esa og eqdnek [kkfjt gqvk gksxkA ml eqdnesa dks okil fy;s cxSj fookg foPNsn dk eqdnek dj fn;k Fkk bl eqdnesa esa /kkjk &9 ds eqdnesa dks okil ysus dk dksbZ mYys[k ;k yfEcr gksus dk dksbZ mYys[k ugha fd;kA^^¼i`"B&6½ “A case u/s 9 was filed in Barabanki in 2002. I had fallen ill and had been on bed rest; for which reason, I hadn't gone. In 2005, this case might have been dismissed. Without withdrawing that case, a case had been filed seeking dissolution of marriage. In this case, there was no mentioning about the withdrawal or pendency of the case filed u/s 9.”(Page 6) (English Translation by the Court) ^^esjs nkos esa fy[kk gS fd izfrokfnuh dk pfj= lafnX/k gks x;k gS v[kckjkas esa dkQh dqN fudyk Fkk eSa U;k;ky; esa dguk ugha pkga Waxw kA iis j dh U;wt ds vk/kkj ij eSus pfj= lafnX/k ik;k ijUrq esfMdy dkyst esa yksx iwaNus yxs] dgus yxs] VsyhQksu ls iwNk] eSaus viuh vka[k ls iRuh ds pfj= dks lafnX/k ugha ns[kkA Mk0 va'kqy ds ;kSu mRihM+u dks ysdj esfMdy dkyst esa LVªkbZd gqbZ Fkh pwafd ml le; gekjh ckrphr can gks x;h Fkh blfy, eSaus Mk0 va'kqy ls ugha iwaNk u gh ml laEcfU/kr izksQslj ls iwNk bl ckjs esa eSa esfMdy dkyst esa iwNus ugha x;k ml le; esjh dkQh cnukeh gks jgh Fkh yksx eq>ls iwNrs Fks fcuk lPpkbZ dks tkus eSaus iRuh ds ;kSu mRihM+u dks lgh eku fy;k mlh ls eSaus viuh iRuh ds pfj= dks lafnX/k eku fy;k bl lEcU/k esa xokgh nsus ds fy, dqN le; pkgwWaxk vkt esjh tkudkjh esa dksbZ xokg ugha gSA^^ ¼i`"B&9½ “In my claim, I have mentioned the character of the defendant to have become doubtful. There were much news in the newspapers. I do not want to state the same before this court. On the basis of the news published in the newspapers, I found her character to be doubtful but the people started making queries at the medical college, they began to gossip about it and enquired me over telephone. I saw nothing showing the character of my wife to be doubtful. There has been a strike in the medical college on account of sexual harassment of Dr. Anshul. Since we had ceased talking with each other at that time, I did not ask Dr. Anshul nor did I ask the concerned professor. I did not go to the medical college to enquire in this regard. At that time, I was getting so much defamed. People used to enquire me. Without getting to know the truth, I took the character of my wife to be doubtful. I would like some time to give my testimony in this regard. To my knowledge, I have no witness today.” (Page-9) (English Translation by the Court) ^^;g lgh gS fd esjh iRuh vkt Hkh esjs lkFk jgus dh ckr dgrh gS mUgksaus fnukad 13-5-03 dks cqykus dk eqdnek fd;k gS tks vkt Hkh blh U;k;ky; esa yfEcr gSA - - - - esjh nwljh 'kknh djus dk vHkh dksbZ bjknk ugha gSA*^ ¼i`"B&20½ “It is correct that my wife expresses her willingness to live with me even today. She has on 13.05.2003 filed a case before the court for a direction to fetch her back to the husband's place, which is pending in this very court even today. ........ I have no intention to go for second marriage as of now.” (Page-20) (English Translation by the Court)
8. Considering the above admissions alongwith other evidence produced by the parties, the Court below has come to a conclusion that defendant-respondent has not caused any cruelty on plaintiff- appellant and has not deserted him rather it is the plaintiff-appellant himself, who has caused cruelty upon defendant-respondent and her son. Learned counsel for the appellant, despite repeated query, could not dispute correctness of above findings, which are based not only on evidence available on record but also on the admissions of the plaintiff-appellant himself.
9. No other point has been raised. In the result, both the appeal deserve to be dismissed.
10. Both the appeals, therefore, are dismissed at the stage of hearing under Order 41 Rule 11 C.P.C..
Order Date :- 26.2.2018 KA