Rameshwar Prasad vs Smt Sugna Devi on 4 July, 2017

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
JUDGMENT
D.B. Civil Miscellaneous Appeal No. 3990/2009
Rameshwar Prasad S/o Ladu Ram Age 43 years, by caste Khatik,
R/o Shiv Shakti Colony, Gurjar Basti, Khatiko Ka Mohalla, Plot No.
C-22, Shastri Nagar Jaipur.

—-Applicant/Appellant
Versus
Smt. Sugna Devi W/o Shri Rameshwar Prasad, Age 40 years, by
caste Khatik, R/o B-54 Shivaji Nagar, Shastri Nagar, Jaipur.
Presently residing Smt. Sugna Devi C/o Shoram Khatik, Tehsil
Sanganer Village Kalwara, Distt. Jaipur.

—-Non-Applicant/Respondent

DB Civil Miscellaneous Appeal under
Section 19 of the Family Courts Act,
1984 against the judgment and
decree dated 30/04/2009 passed by
Judge, Family Court No. 2, Jaipur in
Case No. 192/2003, whereby the
petition filed by the
applicant/appellant under Section
13 of the Hindu Marriage Act, 1955
has been dismissed.

__
For Appellant(s) : Mr. M. S. Beg, Adv.

For Respondent(s) : Mr. Vishram Prajapati, Adv.

HON’BLE MR. JUSTICE AJAY RASTOGI
HON’BLE MR. JUSTICE DINESH CHANDRA SOMANI

Date of Judgment 04th /07/2017
(Per Dinesh Chandra Somani,J.)

The applicant/appellant has preferred this appeal under

Section 19 of the Family Courts Act, 1984 against the judgment

and decree dated 30.04.2009 passed by Judge, Family Court No.

2, Jaipur in Case No. 192/2003, whereby, the petition filed by the
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applicant/appellant under Section 13 of the Hindu Marriage Act for

dissolution of marriage, has been dismissed.

The material facts necessary for disposal of this appeal are

that the appellant filed a petition under Section 13 of the Hindu

Marriage Act, 1955 on 31.05.2003 against the non-

applicant/respondent in Family Court No. 2, Jaipur on the ground

of cruelty and desertion, and prayed to grant a decree of divorce.

The applicant/appellant averred that the marriage between the

aforesaid parties was solemnized on 08.04.1968 in a Mass

Wedding Ceremony held in village Kalwada, District Jaipur. At the

time of marriage, both the parties were minor and no dowry

articles were taken by father of the applicant, rather he gave

Rs.2,000/- to father of the non-applicant. After 10 years of the

marriage, when the parties became major, father of applicant-

husband contacted Chhitar, who happens to be brother-in-law

(Jija) of the non-applicant/wife for Gona, who demanded money.

When father of the applicant/husband declined to pay money, then

Chhitar became furious and since then, he hates family of the

applicant. In presence of persons of the community, Chhitar gave

a threat that he will not let this couple settle down. However,

Gona ceremony took place in the year 1979 under these

controversies. Thereafter, non-applicant/wife gave birth to two

children out of this wedlock but unfortunately both could not

survive. Non-applicant/wife lived with the applicant up to year

1993, but no more issue born during this period.

It is also averred that appellant is the only male child of his
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parents. Brother-in-law of non-applicant, Chhitar resides in front

of the house of the applicant and he has cordial relations with

non-applicant. Under ill advice and on instigation of her brother-

in-law (Jija Chhitar), non-applicant/wife was always cruel with the

applicant and his parents, and misbehaved with them on trivial

matters with intent to harm reputation of the applicant in society,

and thereby caused mental agony. Not only this, the non-

applicant never cooked food for old parents of the applicant and

she used to get them out of the house in cold winter.

The applicant also averred that the non-applicant used to go

to her maternal house without information and whenever, the

applicant went to his in-laws house to bring her back then, the

non-applicant, her brother Kaluram and his wife and Gopal

insulted and gave him beatings in the market, after consuming

liquor.

The applicant/appellant also averred that under ill advice of

her Jija, the non-applicant/wife always neglected the applicant.

Several times, the applicant brought back the non-applicant from

her maternal house, with intervention of respectable persons of

the society, but after some time, she used to quarrel with parents

of the applicant and went back to her maternal house. When the

applicant objected to the conduct of the non-applicant and

threatened her brother-in-law Chhitar, then she lodged a false

report on 08/03/1993 in Police Station, Shastri Nagar for offence

under Section 498-A and after investigation, police filed a charge-

sheet against them in the Court. The learned trial Court convicted
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the applicant and his parents in year 1997. News of the court’s

judgment was got published in the newspapers, which tarnished

and damaged their respect in the society and caused mental

agony. Thereafter, appeal was filed against the judgment, which

was allowed by Additional Sessions Judge on 01.04.1998 and they

were acquitted of the charge.

Applicant-appellant further averred that the applicant made a

complaint to his caste Panchayat. The panchas called both he

parties through notice but non-applicant did not turn up as she

was not willing to live with the applicant. To harass the applicant,

non-applicant filed a complaint under Section 125 of Cr.P.C. The

Court made several efforts for restitution but the non-applicant

refused outrightly. The non-applicant has willingly deserted the

applicant for last 10 years, without any reasonable cause. The

applicant went to his in-laws house on 30/05/2002 to bring back

the non-applicant, but she insulted him. After consuming liquor,

brother-in-law Kalu quarreled with the applicant and insulted him,

and in last he prayed to grant a decree of divorce in his favour.

The non-applicant/respondent filed her written statement

admitting the fact that her marriage took place with the applicant

before about 25 years in village Kalwada, Gona ceremony took

place after 10 years of marriage but indisputably, non-applicant

lived with the applicant upto year 1993. Non-applicant also

admitted that she approached the Court for her maintenance and

she also lodged an FIR against applicant and his relations, in

Police Station, Shastri Nagar for offence under Section 498A, and
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she denied all other material averments made by the applicant in

the divorce petition. She further averred that the applicant and his

father demanded dowry at the time of Gona. It was wrong to say

that her Jija (Brother-in-law) Chhitar ever demanded money from

the applicant. The relations did not remain cordial because

demand of dowry made by applicant and his father, could not be

satisfied and the ceremony of Gona took place with intervention of

the persons of caste community.

It is also averred that Jija (Brother-in-law) of the non-

applicant, Chhitar is an old person having wife and young aged

children. The applicant and his family members used to deny food

and gave beatings to the non-applicant and thereby, caused

mental agony to the non-applicant.

The non-applicant further averred that when she went to her

maternal house on the occasion of birth of nephew, the applicant

brought a lady, named Dhanni to his house and, since then he is

living with her till today, and who gave birth to 3-4 children. The

non-applicant denied the allegation of mal-treatment and averred

that she never mal-treated the applicant and his parents, rather

she always served them. She also averred that nata marriage of

the applicant with Dhanni, caused mental cruelty, and which

caused her to leave the matrimonial home. It is also averred that

in compelling circumstances, she filed an application in the Court

for granting maintenance. She also averred that applicant and his

family members tortured her for dowry, gave beatings to her and

brought other woman, and thereby deserted the non-applicant.

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The applicant also attempted to burn non-applicant, therefore, the

complaint was made to the police, and in last she prayed to

dismiss the divorce petition filed against her, with cost.

On basis of the pleadings of the parties, learned trial Court

framed following issues:-

1. Whether the non-applicant/wife committed cruelty with
the applicant/husband ?

2. Whether the non-applicant/wife deserted the applicant/
husband without any reason for last 10 years ?

3. Relief ?

In support of his case, the applicant/appellant examined

Rameshwar (PW-1), Chhoturam (PW-2), Laduram (PW-3) and

Mahesh Kumar (PW-4) in oral evidence and exhibited three

documents. Non-applicant/respondent examined herself as Sugna

Devi (DW-1). After hearing the parties, learned Family Court

dismissed the divorce petition filed by the applicant/appellant,

hence this appeal.

Learned counsel for the appellant contended that learned

Family Court has failed to appreciate that the respondent/wife

treated the appellant with cruelty by her disrespectful behavior

and attitude, whenever he went to his in-laws house, to bring her

back to her matrimonial home. She misbehaved and rather

abused the appellant before respected members of the society and

as such insulted him, which amounts to cruelty.

Learned counsel for the appellant also contended that

learned Family Court has committed material error in having failed

to appreciate that the respondent/wife filed a false criminal case
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under Section 498-A of IPC against the appellant and his parents,

and the learned trial Court wrongly punished them, and the

learned Appellate Court acquitted the appellant and his parents.

Filing of false criminal case by the respondent against the

appellant and his parents, caused mental cruelty. Learned counsel

also submitted that the news of conviction of the appellant and his

parents by the learned trial Court, was published in newspaper

which caused mental agony and harassment to the appellant, but

the learned Family Court dismissed the divorce petition ignoring

the material facts as mentioned above, and passed the impugned

judgment on surmises and conjectures, without application of

mind.

Learned counsel for the appellant also contended that

Sugna (DW-1), respondent herself stated on oath that she has

been living separately since 08/03/1993 i.e. for last 16 years and

during this period, no co-habitation took place between the

parties. Therefore, the factum of desertion by the respondent for

last 16 years, is well proved, even then the learned Family Court

wrongly decided the issue no. 2. Thus, the impugned judgment

and decree deserves to be quashed and set aside. In last, learned

counsel for the appellant prayed to allow the appeal and to quash

and set aside the impugned judgment and order, and to pass the

decree of divorce in favour of the applicant/appellant. In support

of his contentions, learned counsel for the appellant placed

reliance on:-

In 2001 (3) WLC (Raj.) 689
Smt. Rukmani Devi Vs. Badri Narayan
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In 2007 (3) WLC (Raj.) 133
Smt. Alka Dadhich Vs. Ajay Dadhich

In 2002 (1) WLC (Raj.) 717
Rakesh Sharma Vs. Surbhi Sharma

Per contra, learned counsel for the respondent strongly

refuted the arguments of the learned counsel for the appellant and

contended that the appellant/husband has utterly failed to prove

the allegations of cruelty and desertion levelled by him against the

respondent/wife. Moreover, it is proved that the appellant has

performed nata ceremony with another woman named Dhanni and

he is living with her, who gave birth to 3-4 children out of this

wedlock, which forced the respondent/wife to leave the

matrimonial home in the year 1993, and since then she is living in

her maternal house due to compelling circumstances.

Learned counsel for the respondent also contended that the

appellant cannot be permitted to take advantage of his own

wrong. Learned counsel further contended that the alleged cruelty

with the appellant and his parents, was committed about 10 years

ago, prior to the institution of the divorce petition. The incidents

alleged by the appellant are not of recurring nature and there is

no proximity with filing of the petition. Therefore, the alleged

incidents of long past, have been condoned by the appellant and

thus, does not constitute an act of cruelty. Learned counsel

supported the impugned judgment and decree passed by the

learned Family Court, and prayed to dismiss the appeal being

devoid of any substance. In support of his contentions, learned
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counsel for the respondent placed reliance on:-

In AIR 2017 Supreme Court 1316
Suman Singh Vs. Sanjay Singh

We gave anxious consideration to rival contentions of learned

counsel for the parties and carefully scanned the material and

record of the case.

It is admitted fact that the marriage between the parties was

solemnized on 08/04/1968 in village Kalavada, at the time of

marriage, both the parties were minor and Gona ceremony took

place after 10 years of the marriage, after interference of the

persons of caste community and from this wedlock, the

respondent/wife gave birth to two children and both could not

survive. It is also admitted fact that the respondent/wife

approached the Court for maintenance under Section 125 of

Cr.P.C. and also lodged an FIR implicating the appellant and his

parents, in Police Station Shastri Nagar for offence under Section

498-A of IPC. It is not disputed that they lived together up to the

year 1993 and the learned trial Court convicted the appellant and

his parents under Section 498-A of IPC, but the appeal preferred

by the appellant and his parents, was allowed by Additional

Sessions Judge No. 1, Jaipur City, Jaipur on 01/04/1998, and the

Appellate Court acquitted all of them.

Petitioner Rameshwar Prasad (PW-1) deposed that his

marriage was solemnized in the year 1968 according to Hindu

rites. In marriage, his father gave Rs.2,000/- to father of Sugna

(respondent/wife). No dowry articles were given in the marriage.

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Jija (brother-in-law) of Sugna, Shri Chhitar was mediator in the

marriage. In 1978, when father of Sugna was approached for

Gona, he said to call Chhitar. When met with Chhitar, he

demanded Rs.5,000/-, and gave a threat that he will not let this

couple to settle down. For some time, they lived together, but

thereafter, non-applicant used to go to her maternal house on the

ill advice of Chhitar and his wife. Whenever the witness went to

his in-laws house to bring back the non-applicant, then her

brother Gopal, Kalu and Bhabhi (Sister-in-law) insulted and

abused him. The witness used to understood her and brought her

back then, after some time Sugna used to speak loudly and give

abuses. She didn’t cook food in time for old parents of the witness

and used to abuse them. During this period, out of this wedlock,

Sugna gave birth to two children, who could not survive. Sugna

had cordial relations with her Jija and sister and used to go to

them. One day, he saw Sugna and Chhitar in objectionable

condition. He seriously objected to it, then, in counter and on ill-

advice of Chittar, she lodged an FIR on 08/03/1993, against the

witness and his parents in Police Station Shastri Nagar. The

witness was acquitted in the case and he made a complaint to the

caste Panchayat, who issued notice to Chhitar, Sugna and her

brother, but they did not turn up. He made several efforts to live

together with Sugna. The non-applicant is not residing with him

since 08.03.1993 and the fact is that she is living in Shivaji Nagar

with someone else.

The witness proved copy of decision of caste Panchayat and
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copy of judgment of acquittal passed by the Appellate Court.

In cross-examination, the witness Rameshwar (PW-1) stated

that the non-applicant is residing with a boy named Amar Chand

and denied the suggestion that Amar Chand is son of non-

applicant’s sister. The witness also denied the suggestion that he

performed marriage with Dhanni Devi and got 6 children from her.

Chhoturam (PW-2) is relative of the applicant/appellant, who

deposed that about 13-14 years ago, caste Panchayat took place

regarding dispute of Gona. We made several efforts for restitution

of Sugna and Rameshwar, but she denied to go to the house of

Rameshwar.

Laduram (PW-3) is father of the applicant/appellant. The

witness deposed that the marriage of Rameshwar and Sugna was

solemnized 35-36 years ago, and Gona ceremony took place after

8-9 years of the marriage. After Gona, Sugna lived in matrimonial

home with the appellant for 8-9 years, and gave birth to two

children, who could not survive. He does not know, as to why

Sugna is not living in his home. Caste Panchayat gave a verdict

that Sugna will live in the house of Rameshwar but she did not

obey. Presently, Sugna is living with son of her sister, in Shivaji

Nagar. The witness also stated that in a case instituted by Sugna,

they were convicted and sentenced to one year imprisonment, but

later on they were acquitted by the Appellate Court. In cross-

examination, the witness admitted that Sugna was not present in

caste Panchayat. The witness denied the suggestion that

Rameshwar has solemnized second marriage with Dhanni.

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Mahesh Kumar (PW-4) is first cousin of the appellant. The

witness deposed that 13-14 years ago, Sugna was living in house

of Rameshwar, situated in Shastri Nagar and Rameshwar was

living in Jodhpur. Sugna used to speak disrespectfully with her

parents-in-law. Under ill advice of her Jija, Sugna lodged a case

against Rameshwar, in which they were convicted, and later on

they were acquitted in appeal. In cross-examination, the witness

stated that he has no knowledge, if the applicant would have

solemnized second marriage with a woman, named Dhanni, and is

having 6 children from her.

In rebuttal of above evidence, Sugna Devi (DW-1), the

respondent herein, has deposed that 30 years ago, she was

married in childhood with Rameshwar. They lived together for 10-

12 years after marriage, and out of this wedlock, she gave birth to

two sons (twins), who died after two hours of their birth. The

witness also deposed that almost everyday, the applicant and his

family members used to beat her for trivial matters. She gave due

respect to her parents-in-law and all family members. Her father

made no demand at the time of Gona, rather he gave some

ornaments to her. She used to do all domestic work in her

matrimonial home. She doesn’t have any illicit relations with her

Jija, he is like her father. She instituted dowry case on her own.

The witness also deposed that the applicant does not want to keep

her with him, and he brought second wife named Dhanni, and is

having 2-3 children from her. The applicant gave her beatings and

poured oil, over her person. Police came on spot on information of
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someone, report was lodged in police station and since then, she

is living in her maternal house for last 15 years, and during this

period, the applicant never came to bring her back. She is still

ready and willing to live with the applicant, as his wife.

In cross-examination, the witness admitted that she is living

separately from the applicant for last 15-16 years, and the house

of her sister and Jija is situated in front of the house of her

husband. Witness admitted that her husband was annoyed with

her Jija Chhitar but she does not know the reason thereof. The

witness admitted that her husband arranged for her operation,

when she was living with him. The witness also admitted that

during last 15-16 years, they never lived together and she denied

the suggestion that she would have started litigation at the

instance of her Jija.

From perusal of pleadings of the parties and oral as well as

documentary evidence produced by them, this is an admitted fact

that the respondent/wife lodged an FIR with Police Station Shastri

Nagar, against the appellant and his parents for offence under

Section 498-A of IPC. After investigation, the police filed charge-

sheet against them and they were prosecuted. After conclusion of

trial, the appellant and his parents were convicted and sentenced

to one year’s imprisonment by the learned trial Court. The

appellant and his parents preferred appeal against the judgment

of conviction and order of sentence passed by learned trial Court,

which was allowed by Additional Sessions Judge No. 1, Jaipur City,

Jaipur on 01/04/1998, and the Appellate Court acquitted the
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accused/appellant and his parents.

In Smt. Rukmani Devi Vs. Badri Narayan (supra), the

learned Family Court granted the decree of divorce in favour of the

husband-respondent on the ground of cruelty, which was assailed

by the appellant/wife before the High Court. A criminal case under

Section 498-A and 406 of IPC was registered against the husband

and his relations on the basis of report of the wife. After

investigation, charge-sheet was filed but the learned Metropolitan

Magistrate, New Delhi discharged the accused persons on the

ground that Court’s at Delhi has no jurisdiction. The wife did not

pursue criminal actions further. Coordinate Bench of this Court

observed that the wife-appellant does not want to live with the

husband and an attempt was made by the learned Family Court to

pursuade the parties to live together, but the wife-appellant did

not agree to reside with the husband respondent. In such

circumstances, the Coordinate Bench did not see any illegality in

the findings arrived at by the learned Family Court and dismissed

the appeal filed by the wife.

In Smt. Alka Dadhich Vs. Ajay Dadhich (supra), the

husband alleged that the wife misbehaved with the parents of the

husband. She used to wander bare-headed in front of the parents

and sit in open verandah, only in petticoat-blouse. She used to

talk to her in-laws in filthy language and used to defy directions of

husband, and gave threatening to implicate the husband and

entire family in false cases, and to commit suicide after jumping

from roof of the house. The wife also lodged a criminal case
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against the husband and his family members on the allegation of

demand of dowry. Coordinate Bench of this Court was satisfied on

the material on record that the relationship between the parties

had deteriorated to such an extent, due to conduct of the wife that

it would be impossible for them to live together without mental

agony, torture or distress and dismissed the appeal filed by the

wife.

In Rakesh Sharma Vs. Surbhi Sharma (supra), the

husband was seeking divorce on ground of desertion and cruelty

of wife. Wife filed the petition for judicial separation. Learned trial

Court allowed the husband’s petition and passed a decree of

judicial separation instead of decree of divorce. The fact of wife

residing with parents was not disputed. No reason for desertion

was established in evidence adduced by the wife, and there was

no reliable evidence of cruelty or adultery or demand of dowry on

part of the husband. Wife made no attempt to return to

matrimonial home and the learned trial Court itself held that there

was no chance of re-union. Coordinate Bench of this Court

substituted the decree of judicial separation, by decree of divorce.

In Suman Singh Vs. Sanjay Singh (supra), respondent-

husband filed a petition seeking divorce on some isolated incidents

alleged to have occurred 8-10 years prior to filing of date of

petition. Hon’ble the Apex Court held that incidents alleged to

have occurred 8-10 years prior to the petition cannot furnish a

subsisting cause of action to seek divorce after 10 years or so of

occurrence of such incidents. The incidents alleged should be of
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recurring nature or continuing one and they should be in near

proximity with filing of petition. It is also held that few isolated

incidents of long past and that too found to have been condoned

due to compromising behavior of parties, cannot constitute an act

of cruelty within meaning of Section 13 (1) (ia) of Act.

It was husband who withdrew from company of wife without

reasonable cause and the husband is not entitled to decree of

dissolution of marriage. Whereas, in present case, the

appellant/husband filed a petition on 31/05/2003 seeking divorce

on the ground that the respondent/wife was always cruel to him

and his parents, and misbehaved with them on trivial matters with

intend to harm reputation of the appellant in society. It is also

alleged that the respondent/wife never cook food for his old

parents and she used to get them out of the house in cold winter.

It is also alleged that the respondent/wife used to go to her

maternal house without information, and whenever the appellant

went to his in-laws house to bring her back then, after consuming

liquor, the respondent/wife, her brother Kalu and his wife, and

Gopal insulted and gave him beatings in the market.

It was also alleged that when he objected to the conduct of

the non-applicant, and threatened her brother-in-law Chittar, in

counter she lodged a false report in Police Station, Shastri Nagar

for offence under Section 498-A of IPC and after investigation,

police filed a charge-sheet against the applicant and his parents in

the Court. The learned trial Court convicted them and news of the

court’s judgment was got published in the newspapers, which
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tarnished their image in the society and caused mental agony. But

as there was no material to book them, an appeal filed against the

judgment of conviction and order of sentence, was allowed by the

Appellate Court and they were acquitted of the charge. Due to

change in facts and circumstances of the case, the law laid down

by the Apex Court in this case, is not of much help to the

respondent.

In K. Srinivas Vs. K. Sunita reported in (2014) 16 SCC 34,

the question before the Apex Court was whether filing of criminal

complaint for offences under Indian Panel Code and Dowry

Prohibition Act, 1961 by wife, whereby the husband and his family

members were acquitted, would amount to cruelty for the purpose

of dissolution of marriage. The Apex Court held that filing of false

complaint by wife to embarrass the husband and family members,

in the given facts and circumstances constituted cruelty as

postulated in Section 13(1) (ia) of Act. In present case, it is

admitted fact that the respondent-wife lodged an FIR against the

appellant and his parents in Police Station, Shastri Nagar for

offence under Section 498-A of IPC. This is also not in dispute that

the Additional Sessions Judge No. 1, Jaipur City, Jaipur, the

Appellate Court acquitted them for the charge.

Taking support from the law laid down by the Apex Court in

K. Srinivas Vs. K. Sunita (supra), we are of the opinion that

filing of criminal complaint for offence under Section 498-A of IPC

by the respondent wife, whereby the appellant-husband and his

parents were acquitted, amounts to cruelty for the purpose of
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dissolution of marriage. Filing of false complaint by the wife is

sufficient to constitute matrimonial cruelty.

From holistic analysis of the evidence produced by the

parties, and also the indisputed fact that respondent-wife lived

with the appellant-husband upto year 1993, it is proved that in the

year 1993, the respondent-wife lodged an FIR against the

husband and his parents in Police Station, Shastri Nagar for

offence under Section 498-A of IPC, in which the appellant-

husband and his parents were acquitted by the Appellate Court in

the year 1998. It is also not in dispute that even after culmination

of criminal proceedings, the respondent-wife did not make any

attempt to return to her matrimonial home, and thereby deserted

the appellant/husband without any reason since the year 1993.

In view of above, we are satisfied from the material on

record that the relationship between the parties has deteriorated

to such an extent that it would not be possible for them to live

together with such mental agony and distress, due to conduct of

the respondent-wife. The respondent-wife dragged the

appellant /husband and his old aged parents in a criminal

prosecution for offence under Section 498-A of IPC, she cannot

expect to reconcile the marital ties. It is also proved that the

respondent-wife has knowingly deserted the appellant-husband

without any reasonable excuse, for more than 10 years.

In view of above, the applicant/husband has made out a

case to claim decree of divorce. The appeal is well founded and

deserves to be allowed. Accordingly, we allow the appeal filed by
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the applicant-husband, and set aside the impugned judgment and

decree passed by learned trial Court, and dissolve the marriage of

the parties solemnized on 08/04/1968. The parties shall bear their

own costs.

(DINESH CHANDRA SOMANI)J. (Ajay Rastogi),J.

Ashish/

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