(11/08/2014) Per Justice S.K. Palo, Feeling aggrieved by the judgment dated 22nd December, 2011 passed by the Additional Principal Judge of Family Court, Gwalior in Case No. 370A/11 HMA. The applicant husband has filed this appeal under Section 28 of the Hindu Marriage Act.
2. The non-applicant wife remained absent before the trial Court despite service of notice. She did not make her presence before this Court even after process is served on her.
3. Briefly stated case of the applicant / husband before the Trial Court is that, on 6.6.2006 marriage of the applicant with the non-applicant was solemnized in Mainpuri U.P. After their marriage, the non-applicant / wife started living with the applicant at Gwalior. Her behavior was indecent and intolerable, she was quarreling with the applicant and his parents. Her behavior was intolerable and was mental harassment to the applicant / appellant. The applicant somehow tolerated the same. But the behavior of the non- applicant / wife become more offending. She pressurized the applicant to leave his parents and live with her at her maternal home, which the applicant refused. After 10 days of marriage that is on 18.6.2006, she left her matrimonial home. She took all the ornaments received by her during marriage. On being asked she said that she will be coming back on 1.7.2006. But on that day, when the applicant went to bring her, she refused to come. She said that she is not prepared to live with parents of the applicant. She wanted the applicant to live with her at her parents home. Again on 15.8.2006 applicant along with his brother-in-law went to bring her, she refused to come. On 30.1.2007 again his effort to bring her back brought no result. On 26.8.2010 again applicant along with his brother-in-law had gone to call her, again the same thing happened. On 14.9.2010 the applicant sent a notice which was not replied. In this back ground the applicant filed an application under Section 13 of HMA, 1955 on 12.9.2011.
4. The Additional Principal Judge, Gwalior dismissed the application under Section 13 (1) (1-b) of Hindu Marriage Act 1955, on the ground that the applicant did not make any efforts to bring her back. Hence, instead of passing a decree of divorce, passed an order of judicial separation.
5. The applicant appellant has challenged this order of judicial separation on several grounds.
6. We have considered the evidence adduced by the appellant. Affidavits under Order 18 Rule 4 of CPC of the applicant and his brother-in-law Arun Kumar Shrivastava have been filed. Both have corroborated the applicant's averments, no reason to disbelieve them.
7. The non-applicant wife remained absent despite service before the trial Court. Their marriage was solemnized on 6.6.2006. The non-applicant left the matrimonial house on 18.6.2006, since then she did not return to her matrimonial home even after several attempts by the applicant husband to bring her back. Brother-in-law of the applicant also supported this version of the applicant. He has stated that he had gone to her maternal home to bring her back. All these efforts brought no result. The learned Trial Court erred in not passing a decree of divorce. It is not only a ground of cruelty under section 13 (1) (a) but also on the ground of desolution under Section 13 (1) (1-b), the applicant is entitled to obtain a decree of divorce. As the applicant evidence has not been controverted, no reason to disbelieve the same.
8. In case of Samar Ghosh Vs Jaya Ghosh (2007) 4 SCC 511 the Hon'ble Supreme Court has held that, "cruelty" is something that cannot be explicitly cast in a particular mould, as regards what is and what may not amount to "cruelty". The Supreme Court has further stated that however, as a result of some situations, the marriage may become a fiction, and though supported by a legal hue, such a bond ought to be severed.
9. On the foregoing discussions, we allow this appeal and set aside the order dated 22nd December, 2011 passed by the Family Court and order the desolution of the marriage of the appellant with the respondent.
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