Guman Mal Lodha, J.
1. This is an appeal filed under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') against the judgment and decree dt. 2nd May, 1981 passed by the District Judge, Tonk, allowing the application filed by the respondent under Section 13 of the Act and, passing the decree in favour of the respondent wife, namely Bachi.
2. The marriage took place on Alkha Feej Svt. 2030. The dissolution of the marriage is claimed by the wife Smt. Bachi on various grounds including the ground of cruelty. The application was seriously contested by the husband-appellant. Issue No. 1 was framed in respect of desertion and, Issue No. 2 was in relation to cruelty.
3. The trial Court came to the conclusion on the appreciation of the evidence of both the parties that the desertion was not proved but the cruelty was proved.
4. In this appeal, Shri Narendra Jain, appearing for the husband Lalloo has submitted that the approach of the trial Court was perverse inasmuch as the evidence of the defendant-husband was not discussed at all. It was pointed out that the very evidence which was disbelieved for the purpose of the rejection of plea of the desertion by the husband of the wife has been believed in respect of the cruelty.
5. Shri Jain took pains and has taken me through the entire record of the case and, read the relevant evidence, in addition to the judgment of the trial Court in order to substantiate his submissions.
6. Earlier, on 16-10-1984, Shri Jain informed the Court that according to information of the respondent's counsel there has been re-marriage and, therefore, he would like to take instructions from his client whether to press the appeal or not. The case was kept part-heard on 16-10-1984. Shri Jain has submitted an affidavit mentioning that the allegation that Smt. Bachi has conducted remarriage is not correct. In any case, the fact of remarriage would not come in the way while giving the decision in the appeal on merits.
7. It would not be proper for me to make any comments because it was Shri Jain who took adjournment for taking instructions and, now he has filed an affidavit repudiating the allegations. The fact that the counsel for the respondent has not filed any counter-affidavit cannot be indicative of the fact that the re marriage has taken place though it may be or may not be so.
8. I am, therefore, proceeding for deciding the case on merits without deciding the implications of the remarriage.
9. It would not be necessary to consider the entire evidence afresh, so far as the desertion is concerned because the plea of the desertion has been disbelieved by the trial Court and it has not been argued before this Court that the plea should have been believed.
10. All that is required to be seen is whether the finding of cruelty against the husband, with Smt. Bachi, wife is based on the proper appreciation of the evidence or not.
11. Since Shri Jain has taken me through the entire relevant evidence, it is not now material whether the trial court has discussed the entire evidence or not.
12. The kingpin of the proof of the cruelty relates to the incident alleged to have taken place at bus stand, where the respondent-wife was selling vegetables with her mother. At that time, the husband came and gave beating to the wife; when her maternal uncle and Kanhaiyalal tried to rescue her, they were also beaten. Due to this, a criminal case has been filed and an F. I. R. was also lodged at that very time. Apart from the evidence of the wife, herself, Mohd. Abid (PW4) has been examined by her in support of proof of this incident. According to Mohd. Abid (PW4), the appellant-husband started beating the respondent-wife and dragging her and when he (PW4) and mother of the respondent tried to intervene, they were also beaten. Kanhaiyalal (PW5) has also supported this version. Bhanwarlal (PW6) has proved F. I. R. (Ex. P. 1).
13. It would be important here to first notice F. I. R. (Ex. P. 1) dt. 28-8-1980 because, that constitutes documentary evidence in support of the case of the applicant-wife. It is important to note that this report was made by Kanhaiyalal who was accompanied by his father-Merilal, Bhanwarlal Gyarsi and Bachi, The version given in this report is that Smt. Bachi was selling vegetables and Lalloo came there. Lalloo started beating Bachi and then Gyarsi. Later in the same sequence, Lalloo along with 3 people when reprimanded as to why they have beaten Bachi, gave beating to him also. When his father Merilal and Bhanwarlal tried to intervene they were also beaten.
14. It is not without significance that this report shows that on a physical check up of these persons, it was found that Kanhaiyalal was bleeding from head and right hand and the fingers were also blood-stained. Bhanwarlal was having injuries near his left eye and left hand and knee. Gyarsi had injuries at elbow and other places and, was complaining of pain in the breast and chest. Bachi was complaining of injuries and pain on the backside and front side of the chest. Menial's right hand was blood-stained. Kanhaiyalal's head and right hand were having blood. They were sent for medical examination.
15. This F. I. R. further shows that after examination the result showed that Kanhaiyalal, Bhanwarlal, Gyarsi, Smt. Bachi and Merilal were having simple, sharp blunt weapon, injuries and, a case was thereafter registered under Section 323-324, IPC by S. H. O. P. S. Kotwali Tonk. The incident is of 24-8-1980.
16. I would now deal with the submissions of Shri Jain in respect of the finding of cruelty. The first and foremost submission of Shri Jain is that when major parts of the allegations of Smt. Bachi have been disbelieved, the court should not have granted decree of divorce in favour of such applicant and on the basis of her evidence. It is difficult to accept this contention as there cannot be any universal rule that out of two allegations, if the allegation regarding desertion is disbelieved then evidence of cruelty should have been disbelieved. It all depends upon the quality of the evidence and if it is found true part of statement of witness can be believed and, another part can be disbelieved. This is so even in criminal cases and, the matrimonial cases do not require stringent proof of criminal case but they are to be considered on the basis of the preponderances of the evidence on the standard of civil cases.
17. The second submission of Shri Jain that the evidence of the defendant has not been discussed appears to be partially correct, inasmuch as the lower court has not discussed that evidence in details so far as the cruelty is concerned. It was due to this that the evidence was read over before me. In such a situation two alternatives are left for the appellate court, either to remand the case or to have appraisal of the evidence and then decide the case. Since it is matrimonial matter, it would not be in the interest of justice to prolong the ordeal. I am, therefore, adopting the alternative procedure of considering the evidence afresh.
18. It may be pointed out here that the evidence of Smt. Bachi on the point of cruelty so far as it relates to the beating at the bus stand is concerned, has not been believed by the trial court. The statement of Smt Bachi on this point shows that Lalloo came there on the bus stand when she had come to sell the vegetable with her mother and when her mother wanted to rescue her, she was also beaten. Kanhaiyalal too was beaten when he rushed to rescue them. Undoubtedly, the F. I. R. and medical report support this version. This version of Smt. Bachi is corroborated by the evidence of Mohd. Abid (PW4). According to him, Lalloo gave beating to Smt. Bachi by dragging her and beating her and then when mother of Smt. Bachi tried to intervene she was also beaten. When Kanhaiyalal came and tried to rescue 8-10 persons started beating and Pooran, brother of Lalloo gave the blow of Gandas on Kanhaiyalal. The most important witness is Kanhaiyalal (PW5) who observed that Smt. Bachi and her mother were beaten by Lalloo by dragging and, Mohd. Abid also tried to save them on which he was also beaten and on account of the beatings he sustained injuries at 4-5 places. He also lodged the report in the police. He also stated that he got medical examination done for these injuries. Bhanwarlal (PW7) is S. H. O. and he proved the report (Ex. P) filed by Kanhaiyalal and his endorsement on that.
19. Lalloo against this evidence has denied the allegations. He has stated that he never gave any beating near bus stand. He has denied even that any report in police was made.
20. Shri Jain has laid much stress on the evidence of Bhooralal (DW6) who has given negative evidence that there was, no beating given by him. In cross-examination he stated that he is not in a position to say as to whether on 24-8-80 at Sabzi Mandi Smt. Bachi was beaten by Lalloo.
21. In view of the above, I am of the opinion that the evidence of Bhooralal is of no consequence. I am convinced that the finding of the trial Court on the point of cruelty is based on proper appreciation of evidence duty supported by the F. I. R. and the medical report.
22. Since it has been proved that Smt. Bachi was physically beaten at bus stand and, whosoever tried to rescue her were also beaten by Lalloo and his party, I am of the opinion that the cruelty of the husband against wife is well proved and established. It is not necessary for proving the cruelty that there must be many incidents of beatings. The beating by the husband to his wife in this age cannot be undermined and ignored. A wife is not a 'chattel' to be beaten at the whim and caprice of the husband. I am convinced that the decree of divorce passed by the trial Court on the basis of finding of the cruelty suffers from no infirmity.
23. In the result, this appeal fails and is hereby dismissed without any order as to costs, upholding the impugned judgment and decree dt. 2-5-1981 passed by the District Judge, Tonk.