CHAUHAN, J. - (1.) THE appellant is challenging the judgment dated 13. 2. 98 passed by the Judge, Family Court, Jaipur, whereby the learned Judge has dismissed the appellant's application under Section 13 of the Hindu Marriage Act, 1955 (henceforth to be referred to as `the Act', for short ). Throughout this judgment the appellant shall be referred as the husband and the respondent as the wife for the sake of clarity.
(2.) IN a nutshell, the facts of the case are that the husband and wife were married according to Hindu rites on 30. 10. 90 at Jaipur. According to the husband for the first few days when the wife stayed at her matrimonial home, she behaved well with his family. However, upon her return from her parental house, after a few days of the marriage, her behaviour suddenly changed. He further claimed that he is the only son in the family. He has two small sisters and old father to look after. Even prior to her marriage, he had informed the wife's family that since there is no one to look after his aged father, his wife would have to look after him. But, immediately upon her return from her parental place, the wife started abusing her father-in-law by calling him names and by neglecting his welfare. She also pressurised the husband in abandoning his father and in shifting to another house. Since the husband refused to succumb to her pressure, her behaviour became more and more cruel towards him and towards his family members. According to him on 30. 3. 91, without any rhyme or reason and in his absence and in the absence of his father, the wife packed up her bags, collected her jewellary and left the matrimonial home. Since that date, she has refused to come back to the matrimonial home. Since that date, she has refused to come back to the matrimonial home. On 5. 12. 91, she gave birth to a son, but the husband was never informed either by the wife or by his in-laws. When he came to know about the birth of son, he went to see his wife at the hospital, but he found her missing. Thereafter, he went to his in-laws' place. However, they refused to let him come inside the house. Hence, he could neither see his newly born child, nor meet his wife. Furthermore, according to him despite sending many persons to reconcile between him and his wife, his wife consistently refused to come back to him. Therefore, he eventually filed a petition under Section 13 of the Act for divorce on the grounds of cruelty and desertion. On the other hand, the wife filed her written statement wherein she narrated a totally different set of facts. According to her on the very first night the husband came deadly drunk into the room and abused her for bringing insufficient dowry. She further claimed that she was shocked to learn that her husband was earlier married to a woman known as Shanta and had a son from the said marriage. According to her, this fact was not even revealed by the husband in the matrimonial advertisement given by him on 8. 4. 90 in the daily newspaper "rajasthan Patrika". When she inquired about his first marriage she realised that the husband had sought divorce on the exact same grounds as are pleaded by him in the present case. She further claimed that once when the husband had lost Rs. 3,000/- in gambling, he forced her to go to her parental place and to bring Rs. 3,000/- for him. Moreover, when her father retired from the services and had received Rs. 1,20,934/-, then subsequently the husband pressurised her to convince her father to part with Rs. 50,000/- for him. Whenever, she would refuse to her talk to her father on this topic, the husband would assault her. She further claimed that despite the fact that she was a woman from a Jain community, her husband would force her to cook meat and to drink with him. Since she believed in non-violence according to her religious tenance, she could never convince herself to eat non-vegetarian food and to drink. Lastly, according to her on 30. 3. 91, her husband mercilessly bashed her up and threw her out of the matrimonial home. Hence, she had no option but to return to her parental place. Even when she gave birth to her son, even when she was hospitalised and required blood, the husband never came to see her or to ask about her welfare. Therefore, according to her, the cruelty and desertion have been committed by the husband and not by her. In order to support of his case, the husband examined four witnesses including himself and submitted a number of documents. In order to buttress her case the wife also examined four witnesses, including herself and submitted the large number of documents. After going through and oral and documentary evidence, vide judgment dated 13. 2. 98, the learned Judge dismissed the petition for divorce. Hence, this appeal before this Court. Mr. N. K. Joshi, the learned counsel for the husband, has vehemently argued that the cruelty and desertion were committed singularly by the wife. He has taken us to the factual matrix narrated above and has contended that these facts, as alleged by the husband, clearly prove that the wife has neglected her matrimonial duties both towards the husband and his family. Her persistent demand to separate from her father-in-law, her refusal to look after her father-in-law, her abuse of the father-in-law, her depriving the husband of the matrimonial relationship, her refusal to resume cohabitation with the husband, all these acts and omissions amount to cruelty and desertion. Her acts and omissions are not merely the usual "wear and tear of a married life", but constitute cruelty to the extent that it is impossible for the husband to live with such a wife. On the other hand, Mr. Akhil Simlote, learned counsel for the wife, has strenuously argued that the husband is in the habit of marrying and re-marrying. Even prior to the present marriage, the husband had married one Shanta from whom he had a son. This fact was never revealed by the husband to the wife or to her parents prior to the solemnisation of the present marriage. Even in the matrimonial advertisement (Ex. A-11), the husband has not revealed the fact that he is already a divorcee. Moreover, the husband had written a letter to his father-in-law (Ex. A-10 ). Even in that letter he did not mention the fact that he is a divorcee and a father of a son. Thus, he played fraud with the wife. Moreover, even during the pendency of the present appeal, the husband has placed a matrimonial advertisement in the paper as he wishes to enter into a third marriage. Therefore, while playing fraud on women, he wishes to continue solemnising number of marriages. The matrimonial advertisement given by the husband of entering into a possible third marriage was brought to the notice of this Court. The learned counsel has also pleaded that a bare perusal of the divorce petition filed against his first wife and the divorce petition filed by the husband against the present wife are almost identical in their content. The same set of allegations were levelled against the first wife as against the present wife. This clearly shows the modus operandi of the husband. The learned counsel has also taken us to the facts narrated by the wife mentioned above and has pleaded that cruelty was committed by the husband and not by the wife. Lastly, that the wife has a reasonable justification for wanting to stay away from the husband. Therefore, the husband has committed constructive desertion. Hence, he has supported the impugned judgment.
(3.) WE have heard both the learned counsels and have perused the impugned judgment. Marriage is not a child's play, but is a sacred relationship that binds a man to a woman and forms the basic unit of society. It is a relationship based on trust, love, compassion, and sensitivity. The moment the trust is broken, the marriage stands damaged. A bare perusal of the matrimonial advertisement (Ex. A- 11) placed by the husband clearly reveals that the husband and not disclosed his status as a divorcee. Even the letter written by him to his father-in-law does not reveal the fact he was earlier married to one shanta and had a son from the said marriage. Therefore, it must have been a trauma for the wife to suddenly discover that she is not married to a bachelor, but is married to a divorcee. The trust that a wife implicitly places on her husband, would, naturally, stand shattered. The testimony of Jai Prakash, the father of the wife, is replete that the instances of cruelty committed by the husband upon the wife. He tells the Court not only about the cruelty unleashed upon his daughter at her matrimonial home, but also about the consistent demand of Rs. 50,000/- made by the husband after the father-in- law had retired. The demand for dowry, the husband's consistent threat to his in-laws' family, his insistence that the wife cook non-vegetarian food and should consume drink - against her religious believes, his physical assault, his neglect of wife even when she was hospitalised are clear-cut instance of cruelty unleashed by him upon her wife. A perusal of the divorce petition, the husband filed against his fist wife and of the divorce petition filed in the present case, clearly shows that he had taken the same grounds for divorce and had levelled the same set of allegations against the first wife. During the course of the proceedings before this Court, the husband had appeared before us. When he was confronted with the facts and asked whether he had placed any matrimonial advertisement during the pendency of the present appeal, he unhesitantingly admitted to the same. According to Section 15 of the Act, he cannot re-marry during the pendency of the appeal filed in a divorce proceeding. Since the appeal has been filed by the husband, he cannot deny the fact that he did not realise that an appeal was pending. Yet, surprisingly, he has published a matrimonial advertisement clearly revealing his intention of re- marrying for the third time even before getting divorce from his second wife. Section 15 of the Act clearly lays down as follows:- " 15. Divorced persons when many marry again.-When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again. " ;