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Prakashkaur v/s Harjinderpal Singh

    Civ. Miscellaneous Appeal No. 438 of 1997

    Decided On, 28 July 1998

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE P.C. JAIN

    For the Appellant: N.L. Joshi, Advocate. For the Respondent: ----------.



Judgment Text

P.C. Jain, J.

1. The wife-petitioner has filed this petition purporting to be u/s 13 of the Hindu Marriage Act, 1955 [for short 'the Act'] seeking decree of divorce against husband-non-petitioner Harjinder Pal Singh on the grounds of cruelty and desertion as set out in Section 13(1)(i-a)(i-b) of the Act.

2. The case of the petitioner is that her marriage with non-petitioner Harjinder Pal Singh was performed some three years ago in accordance with Sikh religion. Her parents gave dowry as per their status. The husband-non-petitioner

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treated her properly for three months but thereafter, at the instance of other relatives, he started harassing her and used to make demand for the dowry continuously. According to the petitioner, since her father had expired, it was not possible for her to satisfy the demand of dowry. The non-petitioner, therefore, started treating her with cruelty and also used to beat her and indulged in filthy language. In these circumstances, the wife-petitioner was compelled to lodge a complaint against the husband-non-petitioner and her in-laws for the offences under Sections 498A and 406 IPC. The Police, after investigation, filed a charge sheet against the husband-non-petitioner and others. The above criminal case is still pending. She therefore, sought divorce from the husband-non-petitioner.

3. A notice of the above petition was served on the husband-non-petitioner but despite service of notice, nobody appeared on his behalf to contest the divorce petition. Hence ex pane proceedings were taken. The wife-petitioner examined herself as A.W. 1. However, after appreciating the testimony of A.W. I Mr. Prakash Kaur, the application filed by the husband-petitioner has been dismissed by the learned Add). District Judge, Raisinghnagar vide his Judgment dated 13-5-1997. Hence this appeal by the wife-petitioner.

4. Notice of this appeal was also served on the husband-non-petitioner but he has not cared to appear. I have heard Mr. N. L. Joshi, the learned counsel appearing for the wife-petitioner and have very carefully gone though the record of the case.

5. Mr. N. L. Joshi, the learned counsel appearing for the wife-petitioner has contended that the wife-petitioner A.W. I Prakash Kaur in her statement before the Court clearly alleged that after-solemnisation of her marriage, the husband-non-petitioner treated her properly for three months but thereafter, he used to make demand of dowry. The petitioner explained that since her father had expired, it was not possible for her to fulfil the demand and so, the non-petitioner got angry and subjected her to constant cruelty and started living separately. The respondent also felt aggrieved because the appellant had registered a criminal case against him and his parents. Mr. Joshi has submitted that the learned Add). District Judge did not consider the important fact that the statement of wife-petitioner Mr. Prakash Kaur remained unrebutted. The demand of dowry amounts to cruelty. The statement of the petitioner substantially proves these averments made by the petitioner in her petition.

6. I have considered the arguments and have also perused the statement of Mst. Prakash Kaur.

7. It is important to note here that the statement of Mst. Prakash Kaur remained unrebutted. She has categorically stated that three months after solemnisation of the marriage, the husband-non-petitioner started treating her with cruelty and made the constant demands of dowry. She has, further stated that since her father had expired, it was not possible for her to fulfil the demand made by the husband-non-petitioner.

8. In Shobha Rani Vs. Madhukar Reddi, the apex court observed as under :

"The demand of dowry is prohibited under law. That by itself is bad enough- That amounts to cruelty entitling the wife to get a decree for dissolution of marriage."

The apex court while dealing with cruelty further observed as under at page 123 :

"The word "cruelty" has not been defined and could not have been defined. It has been used it relation to human conduct or human behaviour it is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the con duct itself is proved or admitted."

9. In the instant case, the testimony of wife-petitioner Mst. Prakash Kaur remained unrebutted that husband-non-petitioner treated her with cruelly as she could not fulfil his demand of dowry. The demand of dowry is an act of cruelty because it is the negation of the matrimonial obligation which one spouse has against the other. This has been judicially recognised by their Lordships of the Supreme Court in the aforesaid case.

10. In this view of the matter, the learned Additional District Judge was not justified in discarding the testimony of wife-petitioner and dismissing the divorce petition.

11. In the result, I allow this appeal, set aside the Judgment dated 13-5-1997 passed by the learned Add). District Judge, Raisinghnagar; allow the divorce petition filed by the wife-petitioner and pass a decree of divorce against the husband-non-petitioner u/s 13 of the Act.

12. The parties are left to bear their own costs of this appeal.

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