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Rajesh Dhawan Vs. Susheel Dhawan - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 195 of 1981
Judge
Reported in26(1984)DLT469
ActsHindu Marriage Act, 1955 - Sections 13(1)
AppellantRajesh Dhawan
RespondentSusheel Dhawan
Advocates: R.P. Kathuria and; B.S.C. Singh, Advs
Excerpt:
.....first is regarding the respondent being better qualified and her taunting the appellant for the said purpose and making him leave the joint family house. this statement obviously is false, for the simple reason, that public witness 2, the brother of the appellant, has stated that in his presence, the respondent bad come once or twice, and public witness 3 has also stated that in his presence the respondent had come to the hospital. so at least on three occasions in the presence of the witnesses, the respondent bad attended to the ailing husband. there is a good reason not to stay in the night when she had two minor children aged about 4 and 5 years to look after at her house when admittedly there was none-else in the house to look after them......and other family members in the house and because of these naggings and taunts he had to leave the family house and took a separate residence, lnparagraph5ofthe petition, it is alleged that on 23-5-1979 the appellant met with an accident and fractured his pelvis bone. he had to be admitted in lok nayak jai parkash narain hospital and had to remain in the hospital for 23 days. during this period, the respondent only visited him once or twice and did not care to attend to him as she should have and' never brought food for him from the house. (2) the petition was contested by the respondent-wife. she admitted the factum of marriage and the birth of the two children. she also admitted the educational qualifications of the parties as stated in the petition. she, however, denied allegations.....
Judgment:

Goswami, J.

(1) This appeal by the husband is directed against the judgment and decree dated 30-4-1981 paused by the learned Addl. District Judge, Delhi whereby the petition under section 13(1)(i)(a) of the Hindu Marriage Act was dismissed. It is stated in the petition that the parties were married on 13-4-1974 at Delhi according to Hindu rites and customs. Two children were born to the parties from the wedlock who are living with the respondent. The first allegation of cruelty is stated in paragraph 4 of the petition and the second one is stated in paragraph 5 of the petition. The first grievance of the appellant is that the respondent was M.A., M.Ed. whereas the appellant was only Higher Secondary and in these circumstances, the respondent used to taunt and nag him for his being less educated. It is alleged that the appellant was residing along with his parents and other family members in the house and Because of these naggings and taunts he had to leave the family house and took a separate residence, lnparagraph5ofthe petition, it is alleged that on 23-5-1979 the appellant met with an accident and fractured his pelvis bone. He had to be admitted in Lok Nayak Jai Parkash Narain Hospital and had to remain in the hospital for 23 days. During this period, the respondent only visited him once or twice and did not care to attend to him as she should have and' never brought food for him from the house.

(2) The petition was contested by the respondent-wife. She admitted the factum of marriage and the birth of the two children. She also admitted the educational qualifications of the parties as stated in the petition. She, however, denied allegations that she used to taunt or nag the appellant for his being less educated and stated that even prior to the marriage she knew about the educational qualification of the parties. As regards attending the appellant in the hospital it is stated that she was faithfully attending to the appellant and was bringing food for him also. She stated that she was not allowed to stay in the general ward during nights but was attending on the appellant every morning and every evening. According to her, the real cause of greviance of the appellant is the lack of adequate dowry having been brought by her from her parents. She also narrated the number of family members residing in the house where the appellant was residing at the time of their marriage. It is not disputed that the appellant was residing along with his parents, two married brothers, with their families and the number of family members residing there was more than 20 and the total number of rooms available with the family was four. According to the respondent in addition to the two brothers and parents there was yet a third brother with his family residing that house, which has been denied by the appellant. In any case, it has not been disputed that more than 20 members of the family were residing in those four rooms. It is alleged that soon after the marriage, the appellant started insisting in that she should bring a refrigerator and a television from her parents as her parents had hardly spent Rs. 25,000.00 on the marriage. It is further alleged that after the appellant was discharged from the hospital he asked the respondent to bring from her parents Rs. 2000.00 as a lot of amount had been spent on the medical treatment. The respondent refused to ask her parents for any further amount and that resulted in appellant leaving the matrimonial home. On the pleadings of the parties, the learned trial Judge framed the following issues :-

1. Whether the respondent committed cruelty towards the petitioner as alleged by the petitioner 2. Relief.

(3) In support of his allegations, the appellant examined himself as Public Witness 1, bids brother Benarsi Lal as Public Witness 2 and Sat Nam Singh a friend of the appellant as Public Witness 3. In rebuttal, the respondent examined herself as Public Witness 1, her sister as Pw 2, her landlord as Rw 4, a neighbour of the parties as Rw 4 and her sister's husband as Rw 5. In addition to this oral evidence, the appellant placed on record carbon copies of three letters dated 29-10-1979, 9-11-1979 and 28-11-1979 written by him to the respondent. The first two letters were sent under certificate of posting and third letter was sent by registered post.

(4) Learned trial Judge carefully considered the entire material on record and came to the conclusion that it was the appellant who had left the matrimonial home without any sufficient cause and he bad failed to prove the allegations of cruelty alleged against the respondent. Consequently the petition was dismissed.

(5) In this appeal I have been taken through the pleadings and the entire evidence on record. As I have already stated there are only two allegations of cruelty. The first is regarding the respondent being better qualified and her taunting the appellant for the said purpose and making him leave the joint family house. Admittedly in the joint family there were more than 20 members of the family residing at the time of marriage of the parties. This also has not been denied by the appellant in his statement that there were only four rooms in that house. Obviously the parties could not be expected to get a separate room to themselves. In these circumstances, even if the respondent asked the appellant to shift to another house, no fault can be found with such a desire particular when both the parties were earning and were in a position to have a separate residence. This certainly cannot be considered to be an act of cruelty. As regards nagging and blaming the appellant for his being less educated there is hardly any instance stated in the petition or even in the evidence. It is true that Public Witness 2, the brother of the appellant has stated that soon after the marriage, the respondent had said that she had come into the family of orphans and had called him chowkidar. However, these allegations are not mentioned in the petition and as such cannot be taken note of. The only other witness is Public Witness 3, the friend of the appellant who deposed that once in his presence in the hospital the appellant had said that she was not willing to bring food. This seems to be a made up case and has rightly been disbelieved by the learned trial Judge.

(6) The only other allegation is regarding the respondent not having attended to the appellant in the hospital. The appellant stated in his petition that the respondent had come only once or twice in the hospital. This statement obviously is false, for the simple reason, that Public Witness 2, the brother of the appellant, has stated that in his presence, the respondent bad come once or twice, and Public Witness 3 has also stated that in his presence the respondent had come to the hospital. So at least on three occasions in the presence of the witnesses, the respondent bad attended to the ailing husband. The respondent has produced her landlord as also a neighbour. Both of them have deposed that the respondent was regularly going to the hospital to attend on the appellant. They have also stated that she used to take food for him. Actually those two persons are the only independent persons because all other witnesses are either relations or close friends of the parties. After giving my careful consideration to the evidence of those persons, I do not find any reason to disbelieve them. It is true that the respondent has admitted that she was not staying at night in the hospital and she has explained that she was not permitted to do so, as the appellant admittedly was in a general ward. Assuming that she was permitted to stay even in the night. There is a good reason not to stay in the night when she had two minor children aged about 4 and 5 years to look after at her house when admittedly there was none-else in the house to look after them. She could not be expected to leave those two minor daughters alone in the house. The appellant, in any case, was not suffering from such a disease that the presence of the respondent was required at every hour in the hospital.

(7) As regards the three letters produced by the appellant, a reading of those letters makes it absolutely clear that the same were written to create evidence for filing the present petition. The letters are not the ordinary letters from a husband to the wife. They are in the form of notices, which ordinarily is sent by a lawyer to a party. In the letters he does not bother about knowing the welfare of the respondent but shows his anxiety for his two children and wants the respondent to hand over custody of those children to him, The appellant had also admitted that the respondent and the children were living in the matrimonial home and he had left them home. During all that period he never bothered to give any money for the children or to find out about their welfare or even try to meet them. In these circumstances, it can safely be presumed that it was the appellant who had left the matrimonial home without any sufficient reasons and with an idea of getting rid of the respondent. In the circumstances, no fault can be found in the impugned judgment and the decree.

(8) For the reasons recorded above, I do not find any merit in this appeal is hereby dismissed with costs. Counsel's fee Rs. 300.00.


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