SHARMA, J. - (1.) "you know better Your relations With the other. But would it be a crime To spare some time. And ask about me About how I am And where I am?" These words appear to have been uttered in the instant matter by the respondent wife in response to the allegations of `mental cruelty and desertion' levelled by the appellant husband against her. Learned Family Court Jaipur where the appellant husband filed the petition for divorce found these allegations unfounded and dismiss the petition vide decree and judgment dated December 12, 1989 that are under challenge in his appeal.
(2.) AS per the facts stated in the petition the appellant entered into the marriage with respondent on June 11, 1978 according to Hindu rites and from their wedlock a female child was born on July 13, 1979, thereafter from December 21, 1980 the respondent started living separately. It was averred in the petition that the respondent from the very beginning of marriage had superiority complex. She used to compare her prosperous parental family with that of the simple family of the appellant. Many a times she expressed her proud feeling that she was the daughter of a police officer. The behaviour and conduct of the respondent caused immense emotional stress and mental agony. It was also pleaded that in the petition filed on behalf of her daughter Shruti, claiming maintenance, the respondent made false allegation against the appellant that he had illicit relations with another female doctor. According to the appellant this false allegation caused mental cruelty to him. The appellant also averred that the respondent had deserted him for the past six years prior to filing of the petition. She left his house on December 21, 1980 without any just cause and started living with her parents and there being no sharing of the bed and co- habitation, prayer was made to grant decree of divorce for dissolving the marriage between the parties. The respondent in her reply pleaded that the petition for divorce was filed on unfounded allegations. It was stated that the appellant himself ousted her and did not allow her to live with him. In fact when the respondent was to undergo an operation in February, 1980 the appellant left her and her daughter in the house of her parents. After the operation when the respondent went to the house of appellant, he openly told her that he did not want to live with her since he intended to marry with Dr. Urmil Katyal. In the year 1982 the appellant was posted at Sawai Madhopur and the respondent was residing with her in-laws at Jaipur. On June 27, 1982 the respondent alongwith her brother and parents went to Sawai Madhopur to reside with the appellant but he misbehaved with her and did not allow her to stay with him. In such circumstances it could not be said that the respondent deserted the appellant and caused mental cruelty. On the basis of pleadings of the parties learned Family Court framed as many as three issues related to cruelty, desertion and relief. The appellant examined himself and Dr. Mahendra Bag, whereas the respondent in addition to her own statement, adduced the evidence of Ashok Kumar, Ganesh Narain Vyas, Dr. Om Lata Bhardwaj, Sita Ram Pareek, Raj Kumar Pareek and Mahesh Pareek. Thereafter on hearing final submissions learned Family Court decided all the issues against the appellant holding that neither the respondent deserted the appellant nor her behaviour was cruel to him. Mr. Sagar Mal Mehta, learned Senior Counsel appearing for the appellant canvassed as under:- (i) Family Court while deciding issue No. 1 gave undue importance to the letter dated April 11, 1983 (Ex. A1) addressed to Dr. Urmil Katyal. Family Court took a very restricted and orthodox view of the said letter though the appellant had explained the circumstances in which the said letter was written by him. The Family Court drew wrong inferences from the said letter which resulted in miscarriage of justice to the appellant. It is an admitted position that making false allegations of illegal relations with some other woman amounts to mental cruelty but the Family Court failed to appreciate the facts and circumstances regarding his relationship with Dr. Urmil Katyal. (ii) Family Court erred grossly in deciding issue No. 2 against the appellant inspite of the fact that he had proved all the essential ingredients of desertion in this case. (iii) There has been an irretrievable break down of marriage and reunion was impossible, therefore there was therefore no other option but to pass the decree of divorce. Reliance is placed on D. P. Tripathy Vs. A. Tripathy (2005)7 SCC 353. Per contra, Mr. Ajeet Kumar Sharma, learned counsel for the respondent supported the impugned judgment and urged that no case of desertion and mental cruelty could be established by the appellant. We were taken through the statements of the witnesses and the documents and attempt was made to show that it was appellant who ill treated the respondent since he had illicit relations with Dr. Urmil Katyal. According to learned counsel in the letter dated April 11, 1983 (Ex. A1) the appellant addressed Dr. Urmil Katyal as "my sweet heart, Ummu". Special letter-head whereupon sketch of young male and female embarrassing each other was drawn used for this purpose. The appellant admitted to have written the said letter. In deciding the issue relating to mental cruelty, Family Court discussed in detail the letter Ex. A1 and observed that the appellant had illicit relationship with Dr. Urmil Katyal. In respect the issue of desertion, Family Court after having discussed the evidence adduced by the parties held that since the appellant wanted to marry with Dr. Urmil Katyal he did not allow the respondent to live with her and as and when she made attempt to reside with him he insulted her and did not allow her to live with him.
(3.) WE have reflected over the rival submissions. At the outset we proceed to scan the letter Ex. A1. It reads as under:- " My Sweet heart, Ummu, 11. 4. 83 Dear I have reached here at 12. 45 AM. This evening train is useless. I would have missed even the Agra forte if the train could have delayed 20 mt. more. I had some meeting at 10. 10 AM. Today I have received the form from BHEL Orthodox. I have gone through whole the form. Please fill it very previously. You have not to attach any documents along with it. I am late in writing this letter as I could not find your photograph. I think you must have got photo attest on passport form. For that I have written to Tak Studio. Subhash ji will collect the photograph & passport. This is the last photograph. I am sending you. Please send the form duly filled upto 17th duly filled by black ink may be ball pen. Following things keep in mind while filling it. (1) C applied for - Sr. Medical Officer Pead Adv. No T. I. Dt. Page 2 6 Permanent address Mailing address Dr. Urmil Katyal M. D. Dr. Urmil Katyal C/o Katyal Medical Stores C/o Dr. Haxmohan Near Govt. Hospital Baran ENT Specialist Pin Code ESI Hospital Sawai Madhopur Pin code. 8. Father's/ Guardian's name Dr. Hari Mohan Occupation Doctor ENT Specialist Dr. Hari Mohan ENT Specialist, ESI Hospital Sawai Madhopur Page 7 12 Membership 1. Indian Medical Association 2. Rajasthan Medical Association 3. Association of Pead of India 4. Rajasthan PG Association. " A look at the statement of appellant reveals that he admitted to have written the letter to Dr. Urmil Ktyal but stated that Dr. Urmil Ktyal was like his sister. Refuting the statement of appellant the respondent deposed that from the very beginning the appellant wanted to marry with lady doctor and because of his relationship with Dr. Urmil Ktyal, he did not allow her to reside with him and persuaded her to give her consent for his marriage with Dr. Urmil Ktyal. She further deposed that appellant and Dr. Urmil Ktyal resided at Sawai Madhopur under one roof and the appellant used to carry Saris of Dr. Urmil Ktyal from Sawai Madhopur to Jaipur for the purpose of dry-cleaning. Dr. Omlata Bhardwaj (Dw. 4) deposed that when she had gone to Delhi, she had seen the appellant with Dr. Urmil Katyal in a restaurant. Raj Kumar Pareek (Dw. 6) and Mahesh Pareek (Dw. 7) also stated that in June,1983 when they had gone to Sawai Madhopur and went to the house of appellant it was Dr. Urmil Ktyal who opened the door. ;