condonation of cruelty by Husband

The aforesaid facts clearly show that even if there was any act of cruelty on the part of the respondent, then it was condoned by the appellant when the respondent conceived the child of the appellant. In respect of the abortion, the appellant though in his statement specifically denied that for the abortion, his consent was obtained but without the consent of appellant respondent could not have been aborted. (See para 8 of the statement of the appellant). The mother of the appellant has also appeared in the witness box. She has also specifically stated that no complaint was made by the appellant to her when appellant and respondent both have started sleeping separately. It is also staled in paragraph 5 of her statement that when the appellant and respondent were residing together, one notice was got served on the respondent. In para 5 of her statement, she has also stated that on her advice, this divorce petition was filed and the entire case was got prepared on the basis of her instructions.

7. All these facts show that the appellant could not prove any act of cruelty against the respondent and the trial court has rightly recorded the aforesaid findings and has not committed any error in dismissing the suit filed by the appellant. In view of the aforesaid, this appeal is found without any merit and is dismissed with no order as to costs.

AIR2013MP40

IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

First Appeal No. 623 of 2006

Decided On: 02.02.2012

Appellants: Vipin More
Vs.
Respondent: Smt. Preeti More

Hon'ble Judges/Coram:Krishn Kumar Lahoti and S.K. Seth, JJ.

Krishn Kumar Lahoti, J.

1. This appeal is filed under Section 19 of the Family Courts Act. 1984. against the judgment and decree dated 11/08/2006 passed by the Family Court presided over by First Additional Principal Judge of Family Court, Indore in Hindu Marriage Case No. 02/2005, by which a petition preferred by the petitioner seeking divorce against the respondent on the ground of cruelty was dismissed. The appellant has assailed the aforesaid judgment on the following grounds:-

(a) that within a period of ten days from the date of marriage, the respondent deserted the appellant. She gave threat to the appellant for implicating the appellant in criminal case and a report was lodged against the respondent at the police station, but no action was taken by the police.

(b) that the act of the respondent was cruel in nature and on this ground, the appellant was entitled for a decree of divorce. He has referred the statement of PW-1 and DW-1 to show that without the knowledge and consent of the appellant, the respondent had got aborted the child. It is submitted that the appellant is entitled for a decree of divorce on the aforesaid grounds.

2. Learned counsel appearing for the respondent supported the judgment and decree and submitted that the appellant could not make out a case for divorce under Section 13 (1) (1-A) (1-B) of the Hindu Marriage Act. The trial Court after appreciating the evidence has rightly dismissed the suit.

3. To appreciate the rival contentions of the learned counsel for the parties, it 2 would be appropriate if the facts of the present case arc stated:

The appellant filed a petition seeking a decree of divorce on the ground of cruelty that after 8-10 days of marriage, the respondent insisted the appellant for a separate house. She was complaining that she will not live as a servant, cannot perform the household work and also cannot serve the old mother of the appellant. In spite of various efforts, the respondent had not settled the matter and had also refused to sleep with the appellant. After one month of the marriage, the respondent completely deserted the appellant and started to give threat to the appellant for implicating the appellant in the case of dowry. The appellant had made several complaints to the family members of the respondent, but there was no change in the behavior of the respondent. The one so called Kamal Yadav, Jija is also residing at Indore and he was instigating the respondent and because of the conduct of the respondent, the appellant and his mother were in trouble and the respondent had not improved her behavior. On being harassed with the respondent, the appellant had lodged a report at the police station, but the police had not taken any action on the report. The respondent was not doing the household work. On these grounds the appellant had sought a decree of divorce.

4. The respondent filed a written reply to the petition in which all the allegations were denied. It is alleged that because of one friend of the appellant, who having knowledge of astrology had prepared a horoscope of the respondent, influence the appellant and because of this the appellant had started to raise certain allegations against the respondent. The appellant had forcibly got aborted the respondent. It is submitted that because of the aforesaid astrologer, the respondent was harassed by the appellant. The respondent had always took care of the mother of the appellant. First notice was served by the appellant on the respondent. The appellant was in the habit of consuming liquor and used to return home late night.

5. The trial Court framed the issues and after recording the evidence of the parties dismissed the petition on the ground that the appellant had failed to prove any act of cruelty against the respondent. Though the findings recorded by the trial Court are challenged, but from the perusal of the findings recorded by the trial Court, the trial Court considered all the allegations levelled by the appellant. A finding has been recorded by the trial Court that the conduct of the respondent was good and infact there was no act of cruelty done by the respondent and because of the astrologer, the conduct of the appellant changed. After l1/2 years of the marriage, respondent conceived, but because of the insistence of the appellant, she had got aborted her child and thereafter the case was filed.

6. The aforesaid facts clearly show that even if there was any act of cruelty on the part of the respondent, then it was condoned by the appellant when the respondent conceived the child of the appellant. In respect of the abortion, the appellant though in his statement specifically denied that for the abortion, his consent was obtained but without the consent of appellant respondent could not have been aborted. (See para 8 of the statement of the appellant). The mother of the appellant has also appeared in the witness box. She has also specifically stated that no complaint was made by the appellant to her when appellant and respondent both have started sleeping separately. It is also staled in paragraph 5 of her statement that when the appellant and respondent were residing together, one notice was got served on the respondent. In para 5 of her statement, she has also stated that on her advice, this divorce petition was filed and the entire case was got prepared on the basis of her instructions.

7. All these facts show that the appellant could not prove any act of cruelty against the respondent and the trial court has rightly recorded the aforesaid findings and has not committed any error in dismissing the suit filed by the appellant. In view of the aforesaid, this appeal is found without any merit and is dismissed with no order as to costs.

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