MANU/MP/0671/2003

Equivalent Citation: II(2003)DMC 708

IN THE HIGH COURT OF MADHYA PRADESH

First Appeal No. 81 of 1999
Decided On: 22.04.2003
Appellants: Balram Prajapati
Vs.
Respondent: Susheela Bai
Hon'ble Judges/Coram:
A.K. Awasthy, J.
Counsels:
For Appellant/Petitioner/Plaintiff: V.K. Jain, Adv.
For Respondents/Defendant: Mohd. Ali, Adv.
JUDGMENT
A.K. Awasthy, J.
1. The appellant/petitioner has filed this appeal Under Section 28 of the Hindu Carriage
Act challenging the judgment and decree dated 18.1.1999 passed by the Additional
District judge, Khurai, District Sagar in Civil Suit No. 42-A/96 dismissing the petition
for dissolution of marriage filed Under Section 13 of the Hindu Marriage Act.
2 . Admitted facts of the case are that the marriage in between the petitioner and the
respondent was solemnised on 10.3.1978 at Bina, District Sagar according to Hindu
rites and customs. It is also the common ground that they did not have any issue from
the wedlock and after the month of June, 1996 the respondent/ non-applicant had left
her matrimonial house.
3. The case of the appellant /petitioner is that because for 3 years there was no issue
from the wedlock, the petitioner/husband tried to get the respondent/, wife medically
examined and treated but she had refused to get the medical treatment and her
behaviour with the appellant and his parents became aggressive, insulting and cruel.
The appellant has alleged that the respondent /wife has lodged many false reports in
the police against the appellant and she levelled false allegations that the appellant
drenched her with kerosene oil to set her on fire. That it has become torturous and
impossible to live with the respondent/wife. The appellant has alleged that the
respondent is suffering from incurable venerable disease.
4. The respondent has alleged that the appellant is a greedy man and always pressurise
her for dowry. The respondent has made allegations that the appellant had threatened
to burn her and on 15.1.1997 the appellant poured the kerosene oil to cause the fire.
The respondent has denied that she is having any veneral disease. The respondent has
pleaded that the appellant has filed the petition on false and frivolous grounds and as
such it be dismissed with costs.
5 . The Trial Court has examined the appellant and his Witnesses Hajari (A.W. 2),

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Ramesh Kumar (A.W. 3), Babulal (A.W. 4) and Khelan Singh (A.W. 5) and respondent
has examined herself and two witnesses. Learned Trial Court has held that the applicant
has failed to establish that the behaviour of the non-applicant was cruel and she has
veneral disease and as such the petition under Section 13 of the Hindu Marriage Act was
dismissed.
6 . The appellant has assailed the impugned judgment and decree on the grounds that
the evidence was not properly appreciated by the learned Trial Court and the judgment
is erroneous on facts and also in law. The appellant has prayed to pass the judgment
and decree of dissolving the marriage in between the parties.
7 . Balram (A.W. 1) has stated that from the year 1996 his wife Susheela Bai is living
separately and her behaviour is cruel and she is of bad character. Balram (A.W. 1) has
stated that one day Susheela Bai drenched herself with Kerosene oil and went to the
police station to lodge the report that he was making an attempt to set her on fire.
Balram (A.W. 1) has further stated that Ex. P/22 is the First Information Report lodged
by Susheela Bai against him and Ex. P/25 is copy of the report sent to the
Superintendent of Police. Balram has stated that he has filed the complaint in the Court
of Judicial Magistrate, First Class, Bina against his wife and the statement of the witness
is on record.
8. Ramesh (A.W. 3) has stated that the wife of the appellant used to threaten that she
will commit suicide. Ramesh (A.W. 3) has not supported the aforesaid statement of the
appellant against the respondent/wife. Babulal (A.W. 4) has stated that on 17.12.1996
Susheela Bai came to her house and stated that the parents of her husband are not
ready to keep her in the house and the efforts should be invade to get the differences
settled amicably. Khelan Singh (A.W. 5) has stated that there was a village Panchayat to
resolve the difference between the appellant and the respondent and the Panchayat had
asked Susheela.Bai not to report in police against the appellant. The aforesaid
statement of Khelan Singh (A.W. 5) about what has transpired in the Panchayat are not
admissible as her say. In paragraph 2 of his statement, he has stated that he was not
present in Panchayat but one Babulal had told him about the facts which transpired in
the Panchayat. Consequently, I agree that the observations of the learned Trial Court
that the statement of Ramesh (A.W. 3), Babulal (A.W. 4) and Khelan Singh (A.W.
5),.are not supporting the averment of the appellant against the respondent/wife. The
appellant has led not an iota of evidence that the respondent wife is suffering from
veneral disease. The appellant has not examined the doctor to prove the nature and
extent of disease nor the name of the disease is disclosed by the appellant.
Consequently, I hold that the appellant has made false allegations against his wife that
she is suffering from veneral disease.
9. The appellant has not deposed in his statement the he or his family members made
an attempt to bring the respondent/wife back to his home to resume the matrimonial
relations. It was the burden on the appellant to prove that the desertion was with
animus deserendi. Consequently the finding of the learned Trial Court that the ground of
desertion for the divorce is not proved by the appellant is in accordance with the
evidence on record.
10. Learned Counsel for the appellant has argued that enumerable civil and criminal
cases and the police report in between the appellant and the respondent were instituted
and on account of these cases the relations between the appellant and the respondent
has become so apprehensive that it is not reasonably possible for the appellant to live
with the respondent without mental agony and affliction.

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11. Susheela (N.A.W. 1) has stated that in the year 1997 applicant and his parents
drenched her in kerosene oil and tried to put her on fire. Susheela (N.A.W. 1) has
stated that the report was lodged by her in the Police Station, Bina. Prahlad Singh (NAW
2) has stated that respondent had lived peacefully with her husband for about 4 years
and after that because no issue was born; the appellant started physically assaulting his
wife.
1 2 . The appellant has filed the complaint against the respondent/wife for offences
punishable Under Sections 323, 294, 506B, 427, 452, 383 and 388, IPC. True copy of
the statement of the witnesses examined Under Section 200(2), Cr. P.C. are Ex. P/29 to
Ex. P/31 and the copy of the order sheet of the Court are also filed. The appellant has
filed the criminal complaint and civil suit vide Exs. P/40 and P/41 after the complaint
was lodged by the respondent that her husband, appellant, has physically assaulted and
made an attempt to kill her by putting on fire. In the aforesaid circumstances, it cannot
be said that the act and conduct of the respondent has caused mental cruelty or agony,
to the appellant. The appellant himself is responsible for the cases instituted against
him or by him and as such the plaintiff will not be allowed to take the advantage of his
own wrong doing. Learned Trial Court has rightly held that the appellant/petitioner has
failed to prove any ground for dissolving the marriage by a decree of divorce. I am also
satisfied that the learned Trial Court has properly assessed the evidence and came to
the conclusion in accordance with the law applicable to the case.
13. Consequently, the appeal is dismissed as it is without any merit.

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