Madhya Pradesh High Court
Viram vs Shanta Bai on 13 October, 2022
Author: Vivek Rusia
-1- F.A.No.355/2004
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 13th OF OCTOBER, 2022
FIRST APPEAL No. 355 of 2004
BETWEEN:-
VEERAM S/O SHIVJI, AGE 30 YEARS, OCCUPATION LABOUR,
R/O GRAM PIPLIYAPAL, TAHSIL SARANGPUR, DISTRICT
RAJGARH (MADHYA PRADESH)
.....APPELLANT
(NONE FOR THE APPELLANT)
AND
SHAITAN BAI W/O VEERAM, AGE 25 YEARS, OCCUPATION
AGRICULTURE, R/O GRAM BASKHEDA, TAHSIL AND
DISTRICT RAJGARH (MADHYA PRADESH)
.....RESPONDENTS
(NONE FOR THE RESPONDENT)
This appeal coming on for final hearing this day, JUSTICE
VIVEK RUSIA passed the following:
JUDGMENT
1) Since no one was appearing in this appeal, therefore,
S.P.C was issued to the appellant on 19.02.2009. Thereafter Shri
Sanjay Sharma, Advocate appeared on behalf of the appellant on
-2- F.A.No.355/2004
02.04.2009 but he stopped appearing in the matter, therefore, the
appeal was dismissed in default on 09.09.2010. Thereafter the
appellant filed an M.C.C seeking restoration of the appeal and
vide order dated 05.05.2011 the appeal was restored to its
original number. The appeal came up for hearing on 17.04.2013
but no one appeared on that date. Thereafter the matter was
listed before the National Lok Adalat, there also no one
appeared on behalf of the appellant as well as respondent.
Since this First Appeal is pending since 2003, therefore,
we are deciding it on merit.
2) Appellant/husband has filed this appeal against the
judgment dated 14.05.2004 passed by the 1 st Additional District
Judge, Shajapur in H.M.A Case No.2A/03 whereby the
application filed under section 13(1)(1)(1a) of the Hindu
Marriage Act has been dismissed.
3) Appellant filed the aforesaid application seeking the
dissolution of the marriage on the ground of adultery and
cruelty. According to the appellant, the marriage with the
respondent was solemnized 8 years ago under Hindu customs
and rituals. Thereafter they started living together in the house
situated at Gram Pipliyapal, Tahsil Sarangpur. Respondent gave
birth to a male child viz. Rahul on 04.07.1996. She filed an
application under section 125 Cr.P.C seeking maintenance for
-3- F.A.No.355/2004
herself as well as her child which was dismissed on 27.12.2002
for her but maintenance was allowed to the child at the rate of
Rs.1500/- per month.
4) Appellant filed an application under section 10 of the
Guardian and Wards Act before the District Judge, Shajapur and
vide order dated 17.11.2003 the application was allowed and the
custody of child Rahul was given to him.
5) Appellant filed an application under section 13(1)(1)(1a)
of the Hindu Marriage Act alleging that the respondent is
residing with one Jaswant Pal in adultery. She assaulted his
mother for which an FIR was lodged against her, therefore, he is
entitled to divorce on the ground of adultery and cruelty.
6) Respondent filed a written statement disputing the
aforesaid facts and allegations. According to her, the appellant
was interested in the second marriage, therefore, he deserted her.
She is still willing to reside with him as wife and to perform the
marital obligations.
7) On the basis of the pleadings, the learned Additional
District Judge has framed 3 issues for adjudication which are as
under:
1- D;k vukosnd us fookg ds vuq"Bkiu ds ckn tloar iky ds lkFk
LoksPN;k eSFkqu fd;kA
2- D;k vukosnd us vkosnd ds lkFk dqzjrk dk O;ogkj fd;kA
-4- F.A.No.355/2004
3- lgk;rk ,oa O;;A
8) In support of the application, the appellant examined
himself as PW/1, Amar Singh as PW/2, Premsingh as PW/3,
Kasturibai (mother) as PW/4, Ramchandra as PW/5 and in the
defence respondent examined herself as DW/1, Jaswantsingh as
DW/2 & Ajabsingh as DW/3. After evaluating the evidence that
came on record, vide impugned Judgment & Decree the learned
Additional District Judge has held that the appellant has failed to
prove the allegation of adultery as well as cruelty, therefore, he
is not entitled to dissolution of marriage, hence this first appeal
before this Court.
We have perused the record of the learned Trial Court and
we are of the opinion that there is no substance and the First
Appeal is liable to be dismissed due to the following reasons .
9) So far as the allegation of adultery is concerned,
according to the appellant the respondent is residing with
Jaswant Singh as his wife and he saw her going to the house of
Jaswant Singh 5 months ago. He has also examined other
witnesses i.e. PW/2, PW/3 and PW/4 to establish that they also
saw the respondent along with Jaswant Singh on several
occasions. It settled the law that mere roaming along with any
male other than the husband does not constitute a presumption
of adultery against the wife. There must be direct evidence to
-5- F.A.No.355/2004
establish that she was seen in a compromising position or
adultery with other than her husband then only the charge of
adultery can be said to have been established. Merely meeting or
roaming with a person other than the husband does not
constitute adultery, therefore, the trial Court has rightly held that
the allegation of cruelty has not been established.
10) The appellant has also challenged the findings on the
ground that learned trial Court has denied the maintenance under
section 125 Cr.P.C doubting the character of the respondent. It
is settled law that the findings recorded while deciding the
application under section 125 Cr.P.C do not constitute res
judicata. The proceedings under section 125 Cr.P.C are
summary proceedings where the allegation and counter
allegation are not liable to be established beyond reasonable
doubt and only desertion or inability to maintain are liable to be
examined, therefore, the trial Court has rightly rejected the
aforesaid application and we also do not find any substance in
that ground raised by the appellant.
11) So far the cruelty in respect of registration of criminal
case concerned, that was filed by the mother of the appellant
against respondent Shaitanbai in which she has been given the
benefit of the Probation of Offenders Act, therefore, that does
not constitute cruelty against the appellant, hence we do not find
-6- F.A.No.355/2004
any ground to interference in the impugned judgment.
Accordingly, the appeal is dismissed.
The record be sent back to the concerned court.
(VIVEK RUSIA) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
hk/
Digitally signed by HARI
KUMAR C G NAIR
Date: 2022.10.14 18:15:05
+05'30'
