Hon'ble BHAGWATI, J. - (1.) CHALLENGE In this appeal is to the judgment and decree dated 11th May, 2007, whereby the District Judge, Dholpur ordered to dissolve the marriage between the appellant-wife and the respondent- husband by way of decree of divorce.
(2.) THE factual matrix of the case, as culled out from the pleadings and evidence, can be succinctly stated as under: "THE undisputed fact is that the marriage between the appellant-wife and the respondent-husband was solemnized on 24th November, 1997 at Basedi, District Dholpur. It is averred by the respondent-husband that right from the very beginning, the appellant-wife never treated him as her husband and did not allow to consummate the marriage till filing of the application. It is further averred in the petition that in 1998, the appellant-wife Mamta had written a letter to her parents, which indicated that she was never interested in the marriage. THE appellant- wife unequivocally stated therein that neither she intended to marry him nor was she his wife. It is her parents who forcibly married her to her husband. As per the respondent-husband, the marriage was never consummated since 24.11.1997. This indifferent attitude of the appellant-wife amounts to cruelty. THE husband implored the Court to grant the decree of divorce on this ground alone. Otherwise too, on the date of filing the application under Section 13 Of Hindu Marriage Act, the parties had been living separately for the last seven years. In reply to the afore-stated pleadings of the respondent-husband, the appellant-wife only admitted the fact of their marriage being solemnized on 24th November, 1997, but denied all the rest of averments. THE appellant-wife stated that she remained with her husband in his house between 24th November, 1997 to 26th March, 1999 and the marriage was consummated between this period. THEreafter the husband deserted her. She further submitted that it was not the appellant-wife, but the respondent-husband, who was responsible for cruelty towards her. THE conduct of husband was never fair and reasonable to the appellant-wife. THE respondent- husband agreed before Women Commission, Jaipur to keep the appellant-wife and pursuant to the order of Women Commission, the wife went to her husband's house and started residing there, but she was turned out of the house on 26th March, 1999. Thus, the respondent-husband should not be allowed to take the benefit of his own wrong and the petition for divorce deserves to be dismissed." The learned trial court framed as many as three issues on the basis of pleadings of the parties, which are thus: JUDGEMENT_1463_RAJLW2_2011Image1.jpg The respondent-husband Ram Gopal AW-1 put his own evidence on oath in support of his case, whereas the appellant-wife examined herself and produced two more witnesses NAW-2 Badri Singh and NAW-3 Ram Bharosi Lal to defend her case. Heard the learned counsel for the parties and carefully perused the relevant material on record. The appellant-wife has filed the instant appeal on the following grounds: i) Once it is admitted by the respondent-husband that the appellant- wife was living with him from 24th April, 1997 to 26th March, 1999, for almost 1 1/2 years, the presumption would be that both were living as wife and husband and sexual relations are presumed to have been established between them, unless, of-course, a strong rebuttal is adduced by the husband. Thus, the learned trial court erred in arriving at a finding that the marriage between the parties was never consummated. ii) The learned trial court misinterpreted and misconstrued the letter Ex. A/2 written by wife to her parents. This letter has been read by the learned trial court in favour of the respondent-husband, whereas a bare reading of the letter reflects that the husband was cruel and indifferent towards his wife. iii) The appellant-wife has always been willing to live with her husband and maintain all conjugal relations, but it is the husband, who being a dominated person, has been trying to take advantage of his wrong. The learned trial court has given a wrong finding that the wife deserted her husband, whereas for desertion also, it is the husband, who is responsible. iv) Albeit, the appellant-wife has been living separately for the last so many years, but she is still ready and willing to live with her husband- respondent. Hence, the impugned judgment and decree dated 11 th May, 2007 deserves to be set-aside and the divorce petition needs to be dismissed.
(3.) E Converso, the learned counsel for the respondent-husband defended the judgment and decree and contended the same to be apt and proper. He further contended that the marriage was never consummated and not allowing the husband to consummate marriage sans any plausible reason amounts to cruelty. He further contended that a plain and simple reading of the letter Ex. A/2 shows the intention of the appellant-wife for deserting the respondent-husband. He has cited the judgment of Samar Ghosh Versus Jaya Ghosh reported in 2007 (3) Supreme 26 in support thereof. A bird's eye view of some of the decisions of Hon'ble Apex Court throwing light on this issue needs to be taken into consideration. In the case of Naveen Kohli Versus Neelu Kholi reported in I (2006) DMC 489 (SC), the Larger Bench of Hon'ble Apex Court observed as under: "90. Even at this stage, the respondent does not want divorce by mutual consent. From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt in our mind that the respondent is bent upon treating the appellant with mental cruelty. It is abundantly clear that the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again." ;