whatnot 03 January 2017
As for as indiankanoon.org goes, this case has been cited but no document of the site. The case has been cited in this case
May be someone else can chime.
This is second time you are asking?
This was adultery case citation, isit?
MANKU (EXECUTIVE) 03 January 2017
Zoheb Khatri (Practicing in Mumbai ZohebKhatri@gmail.com) 04 January 2017
Visit the neareast Court Library and you would get it.
TR NIMADE (AM) 04 January 2017
Dear Sir, 04/01/2017
THERE IS NO CASE OF SHIMLA DEVI IN THE QUOTED REFERNCE ( 1994 ) 3 WLC 519 ( Rajasthan High Court .
Please check with correct citation
TR NIMADE (AM) 04 January 2017
Dear Sir, 04/01/2017
It is noted that you have taken the reference of shimla devi from the following 2 judgments
MANKU (EXECUTIVE) 04 January 2017
Many thanks, but in many judgments the citation Smt Shimla Devi ....... is relied upon . If there is no such judgment then what is the correct one ? would anyone please help?
TR NIMADE (AM) 04 January 2017
Even this judgment is not available in the RAJ HC web site.
Only one remedy ,consult the advocate ANIL JAIN who quoted it in the case.
whatnot 04 January 2017
Law Web has presence here. Send them a message.
Following case has bit more descritive citing the Shimla Devi case
14. The respondent has placed emphasis on the decision of the Rajasthan High Court in Shimla Devi vs. Kuldeep Sharma AIR 1999 Rajasthan 181. In that case, the Court proceeded on the finding that the wife was unwilling to reconcile and resume cohabitation. Notably, the said judgment considered the correctness of the decision of the Family Court by which the marriage between the parties came to be dissolved and decree of divorce was passed. The observations found in Paragraph 7 and 8 of the said decision, on which emphasis has been placed, will be relevant in the context of the issue of dissolution of marriage and passing of decree of divorce.
TR NIMADE (AM) 04 January 2017
Dear Sir, 04/01/2017
Part name was not Shimla devi vs Kiran kumar.
It was Shimla Devi vs Kuldeep Sharma
citation was also used incorrectly.It was not decided in 1994 such as 1994 (3) W.L.C. (Raj.)
bUT IT WAS DECIDED IN 1999 10/03/1999 citation AIR 1999 Raj 181, I (2001) DMC 8, 1999 (3) WLC 285
NOW BELOW IS YOUTR DESIRED JUDGMENT
1. The appellant-Smt. Shimla Devi is the wife of the respondent-Shri Kuldeep Sharma, who has challenged the judgment and decree dated 16-11 -96 of the learned Judge of the Family Court, Jaipur by which the marriage between the appellant and the respondent has been dissolved and hence a decree of divorce has been passed after recording a finding that the respondent-husband has succeeded in proving his case of desertion alleged by him against the appellant-wife.
2. The marriage between the parties was performed on 12th June, 1987 according to the Hindu Rites at Karauli District Sawaimadhopur and thereafter the appellant-wife came to Jaipur along with her husband but on 12th June, 1987 (sic) the brother of the appellant and some other relatives came to take her back and on 19th June, 1987 she went to her parents' place and again on 23-8-87 she came to her husband's place, where she lived till 10-9-87 and thereafter went back to Karauli.
3. On 18-10-93 the respondent-husband filed a petition under Section 13 of the Hindu Marriage Act, 1955 in the Family Court at Jaipur seeking a decree of divorce on the ground of desertion and, therefore, has given a detailed account of his marital life alleging that his wife/ appellant-herein, is under the influence of her foster parents Shri Tejbhan Chouhan and Smt. Premlata Chouhan. The respondent-husband is the only son of his parents and has four sisters and thus, he has lot of family responsibilities. He alleged that his wife Shimla Devi after marriage kept on nagging him that she would not live with her parents and sisters and she kept on pestering him daily to take her for outings in the evening and during the day time she insisted that she be-kept at her foster grand-mother's place and while coming back from office pick her up from there. The respondent-husband has further alleged that the appellant is an aggressive and a cantankerous woman. She ridiculed and misbehaved with her parents and often insulted them. The appellant is also accused of shirking from the household chores and whenever his mothercooked food and did cleaning of the house, she picked up faults in it which created great mental tension to the respondent-husband. He has further alleged that on 27-8-1987 the wife threatened that she would teach him a lesson and that she was there only for 5-10 days. She thereafter, left from 29-8-88 to 11-10-88 at her in-laws' place at Jaipur, but there was no improvement in her behaviour and on 10-10-88 she threatened that she would return only when the husband made separate arrangement by arranging a separate house for her. The respondent states that due to her insistence, he arranged for a separate kitchen from her parents in the same house and she also started cooking separately with which the respondent-husband was quite upset and only when he made this arrangement on 25-8-1989 that the wife returned to her in-laws' place. He has further narrated the previous history that from 16-9-1989 to 11-10-1989 they went on a tour to South-India and there also the wife did not listen to him and insulted him on one pretext or the other, with which he was greatly hurt and on 13-10-1989 at 10'O clock in the morning she started quarrelling with him for repair of the Mixer-Grinder and thereafter, went to her foster grand-mother's house where she went to persuade him to come back where she caught hold of his collar and abused him ferociously with which he was again mentally upset. From 15-10-1989 to 4-6-1991 the appellant-wife lived at her parents' place at Karauli. During this period the respondent himself went there to bring her back, but she flatly refused and said that she does not want to live with him. Thereafter, he received a letter from Karauli on 10-11-1989 that his wife suffered an abortion and according to the respondent-husband, this was an induced abortion of his wife without his consent. This also caused great mental hurt to the respondent-husband. However, she came to Jaipur on 5-6-1991 with great difficulty just for a day to attend his sister's wedding on 6-6-1991 and thereafter, insisted to come back to Karauli and put a condition that in future she would return only if he arranged for a separate house. During this period, she quarrelled on trivial matters because she did not want to live in a joint family. On 1-9-1991 the appellant-wife on the occasion of 'Janmashtmi' festival went to Karauli and thereafter she never returned and then he learnt that in December, 1991 she lookup the job of a Teacher in Udaipur District. On 23-3-1993 the respondent having been fed-up of the entire situation sent a registered notice to the appellant that she should come back and live with him as a wife within a period of 15 days or else he would take legal steps but she neither responded to the letter nor made any effort to come back. She had also locked her gifts which she had received from her father in an Almirah under lock and took the key along with her due to which no articles could be used and thereafter, when she did not return, the appellant filed the application for a decree of divorce in the Family Court.
4. The appellant-Shimla Devi, wife of the respondent-herein, however has a different story to narrate and she has stated that on the next day of her marriage the father and the mother-in-law of the appellant started accusing her that she has not come with sufficient dowry as a result of which the entire atmosphere in the house was vitiated which made her life difficult. The respondent's sisters Poonam, Suman and Renu terrified her and while the husband was away to the office, she was locked in a room and was tortured in different ways so much so that the appellant's mother-in-law and sister-in-law would lock the kitchen and on a number of occasions she had to starve without food and she was treated no more than a maid-servant. She has asserted that she never kept herself away from the household duties and she has also never been abusive, nor she insisted to go back to Karauli to her parents' place. During the South-India tour it was the appellant's husband who insisted her to have non-vegetarian food on which they had altercation and she was shocked to know that her husband was a non-vegetarian. She had gone to her grand-mother's place as her grand-mother was ill, where the husband himself dropped her at her grand-mother's place and when she came back from there, she was restrained from entering into the house due to which the appellant was compelled to leave for her parents' place at Karauli. She has also contradicted the husband's version that she deliberately has gone for abortion rather she has complained that when she suffered abortion no one came to meet her and since she was compelled at her in-law's place to live in a suffocating atmosphere, she was forced to leave to live at her parents' place from Sept. 1991 at Karauli, but the husband instead of making efforts to call her back initiated a proceeding seeking adecree of divorce. The appellant, therefore, was compelled to look for a job and she therefore, became a Teacher. It is her complaint that the husband failed to live-up like a faithful husband and made no efforts to continue with the marriage. The appellant is living at Udaipur on account of her job and she had left all her belongings at her in-laws' place which were being used there. On these averments she prayed for dismissal of the application of the respondent-husband praying for a decree of divorce.
5. The learned Judge of the Family Court framed the principal issue on the aforesaid averment as to whether the appellant had behaved cruelly with the respondent-husband and whether during the period of two years preceding the application, deserted her husband on the basis of which the decree of divorce could be passed. The learned Judge of the Family Court examined the husband Kuldeep Sharma as PW 1, Arvind Kumar Nigam PW 2, Shri Mohan Lal Vashisth PW 3 Shri Purushottam Sharma PW 4, Shri Hukutn Singh PW 5 and Shri Murarilat Sharma PW 6. He also examined appellant Smt. Shimla Davi as DW1, Shri Tejbhan Singh DW 2, Shri Deendayal Sharma DW 3, Shri Chothilal Sharma DW 4, Shri Shyam Sunder DW 5, Shri Krishna Gopal Sharma DW 6 and Shri Brahmanand Sharma DW 7. He thereafter also made efforts for reconciliation between the parties, but he has recorded that there is absolutely no scope of reconciliation between the two for even though they were given the opportunity to compromise by discussing the matter with each other, they took no interest in it as both the partners proceeded in opposite directions without talking to each other due to which the learned Judge of the Family Court inferred that there was absolutely no scope of their living together as husband and wife and they gave an impression that it was impossible for them to live together and it appeared proper and better that the marriage dissolved. However, before exploring the possibilities of compromise and reconciliation between the parties, the learned Judge of the Family Court examined meticulously the oral evidence led by the parties and was pleased to record that the appellant-wife refused to live with her husband without sufficient cause as it was expected of her to live the way her husband expected her to live and from 1-9-1991 when the appellant left the house of her husband she never returned. On the contrary she aggravated the situation by writing insulting and provocative letters to her husband stating that even if she had friendship with a sweeper, her husband will have to tolerate it. She thus lived away from her husband for more than 3 1/2 years and deprived the husband of marital pleasure, hence she was guilty of cruelty to her husband and the allegation of desertion was held proved against her.
6. However, on scrutiny of the evidence led by the parties, it is difficult to gather from the order of the Family Court as to whether the evidence of the appellant is reliable or the husband' s version is worth placing reliance because the learned Judge of the Family Court has merely narrated the version and the counter-version of the story, but finally do not appear to have recorded any reason as to whether the husband and his family were guilty of creating a situation which made it impossible for the wife to live with her family or the wife deliberately chose not to live with her husband. The learned Judge has also not assigned any reason why the version of the husband has been preferred to that of the wife. From the record there is also no evidence in support of the fact whether the abortion which the appellant suffered was in the natural course or it was an induced abortion as we do not find any medical evidence in support of this assertion. The appellant-wife also asserted that from 1st Sept. 1991 she wrote number of letters to her husband and she also tried to meet him in the Office, but the husband replied that he would reply to her in Court. Thus, although the Family Court do not appear to have reached any definite finding as to whether the wife has deserted the husband by being cruel to him or the husband did not make any effort to make her live with him by listening to her, yet the most incriminating circumstance which has weighed with the learned Judge of the Family Court is mat the appellant-wife in her deposition clearly stated that she neither wants to live with him nor she wants a divorce from him and both the parties have accepted the fact that from 1-9-1991 they have been continuously living separately although prior to this, they had lived together at intervals for 4 and half years. The Family Court from the inference drawn by the circumstances has, however, been pleased to record a finding that the appellant-wife is more responsible in creating a situation wherein the respondent could not be expected to continue to live as husband-wife along with the appellant as the appellant do not appear to be having any inclination of living as a wife with the husband, rather she was wanting a situation of status quo.
7. We have heard the learned counsel for the parties and have also perused the order of the Family Court from which we have noticed that the Court below although has narrated the version of the husband and the counter-version of the wife yet we do not find adequate reason to hold as to which of the two partners is more responsible for creating a situation to the point-of "No Return" as a result of which they have been living and working separately at Udaipur and Jaipur. It is perhaps needless to state that in order to make a marriage work, the responsibility of the husband and wife lies in equal measure and if there is an element of non-cooperation at the instance of either of the partners, the matrimonial home is bound to crumble down. But when the matter reaches to the Court for adjudication for recording the finding of fact regarding cruelty and desertion against a partner it cannot be recorded even though the facts indicate merely a case of mal-adjustment which makes the task of the Court difficult since no clear inference can be drawn which of the two partners has created a situation of incompatibility which is difficult to reconcile as we are aware that there are situations of marital discord which may not strictly fall within the ambit of desertion yet it may be a case of mal-adjustment resulting into marital disharmony. However, mere mal-adjustment between partners cannot be treated to be a case of desertion so as to allow the partners to reach to the extent of seeking a decree of divorce, but in the process the Court surely has to gather the intention of partners whether they at all have the will to live together so as not to create a situation where the partners can be alleged of desertion and cruelty. We have examined this case keeping this aspect in our minds because in this case the entire allegation levelled by the husband against the wife apparently appears to be a case of maladjustment, not very uncommon but probing further it has finally come out that the maladjustment ultimately has culminated to a point where the wife has lost the will to live with her husband and yet she appears to be lacking in the courage to dissolve the marriage as in her evidence she has categorically stated that she neither wants to live with her husband nor she would accept a decree of divorce. This she has demonstrated also by her action as she do not appear to have made any effort even at the time of reconciliation in the Family Court by even uttering that she is prepared to live with her husband provided she gets the right kind of atmosphere and comfort. Initially we were under the impression that perhaps it is the job of the wife which is preventing her from joining her husband, but it was found that the job was not a cause for the clash but she took up a job after she left her husband's house. We have further noted that when the husband sent a registered notice to the wife stating that in case she does not return he would go to the Court, she refused to realise the seriousness of the situation and did not even respond to the letter at least by stating that she was prepared to live with him in case the husband provided her with a separate residence but she adopted an attitude of indifference and failed to respond to the notice and still deposed in the Court that neither she wants to live with her husband nor she would agree for the divorce. It is no doubt true that it is not the wife alone who has to yield to all kinds of demand of the husband, but it is surely expected of her to co-operate and when the husband makes an effort to call her back then at least she could have expressed her terms and conditions for her return but in this case although the appellant has crossed 30 years of age she has neither responded to the husband's legal notice nor she is prepared to budge an inch from her stand. So even though the finding recorded by the Family Court against the appellant on the question of desertion and cruelty may be suffering from strict legal proof, yet we do not find any scope of interference with the impugned judgment and decree.
8. Under the circumstances of the case we have taken note of the efforts of the Family Court which gave ample opportunity to the parties to negotiate and reach at some reconciliation, but neither of the partners have shown any intention to live together and if at all the wife wanted to disprove the charge of desertion and cruelty levelled against her by the husband in order to prove her bona fides, she had ample opportunity to prove before the Family Court by expressing her willingness that she is prepared to live with the husband and merely saying so in her memo of appeal before the Appellate Court is not enough. We are, therefore, left with no option than to uphold the judgment and decree passed by the Family Court.
9. In the result, this misc. appeal stands dismissed and in the circumstances without any order as to costs.
MANKU (EXECUTIVE) 04 January 2017