Smt Uma Alias Kaushlya vs Bhagwati Prasad on 22 August, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Miscellaneous Appeal No. 2510 / 2009
Smt Uma @ Kaushalya wife of Shri Bhagwati Prasad Soni,
daughter of Bihari Lal, aged about 31 years, by caste Soni,
resident of 9/713, Malviya Nagar, Jaipur, presently residing at
Pratap Nagar, Sanganer, Jaipur.
—-Appellant
Versus
Bhagwati Prasad son of Shri Banwari Lal Soni, aged about 35
years, by caste Soni, resident of house No.48, Gupta Garden,
Govind Nagar West, Jaipur.
—-Respondent

Connected With
D.B. Civil Miscellaneous Appeal No. 5749 / 2011
Smt Uma @ Kaushalya w/o Bhagwati Prasad Soni, D/o Bihari Lal,
aged about 33 years, B/c Soni, R/o 9/713, Malviya Nagar, Jaipur,
presently residing at Pratap Nagar, Sanganer, Jaipur.

—-Appellant
Versus
Bhagwati Prasad S/o Shri Banwari Lal Soni, aged about 35 years,
by caste Soni, R/o House No.48, Gupta Garden, Govind Nagar-
West, Jaipur.

—-Respondent
__
For Appellant(s) : Smt.Manju Jain, Adv.

For Respondent(s) : Mr.Keshav Agarwal, Adv.
__
HON’BLE MR. JUSTICE AJAY RASTOGI
HON’BLE MR. JUSTICE ASHOK KUMAR GAUR
Judgment
Judgment reserved on : 9th August, 2017.

Date of Judgment : 22nd August, 2017.

By the Court (Per Hon’ble Mr.Justice Ajay Rastogi):

These appeals are filed against judgment and decree

dt.17.03.2009 passed by the ld.Family Court No.2, Jaipur granting
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decree for dissolution of marriage in favour of the respondent-

husband and dismissing the petition filed by the appellant-wife for

restitution of conjugal rights.

The brief facts to appreciate the controversy involved in the

appeals need mention are that the marriage between appellant

and respondent was solemnized on 29.05.1996 at Jaipur as per

Hindu rites and customs. The respondent-husband, as alleged, is

working as gold smith and the appellant is a house wife. Out of

this wedlock, one girl child was born, named Tina on 12.06.1997,

who is residing with the appellant-wife.

Prior to the present Divorce Petition No.374/2003 seeking

decree of divorce u/Sec.13 of the Hindu Marriage Act, 1955 came

to be filed by the respondent on the ground of cruelty and

desertion on 18.09.2003, it is indisputed and admitted by the

appellant herself that she left her matrimonial home along with

their daughter and started living separately since 12.08.2001 with

her parents who are residing at 9/713, Malviya Nagar, Jaipur and

on the same day when she left the matrimonial home, lodged an

FIR for offence u/Sec.498-A, 406 323 IPC at Police Station

Brahmpuri, Jaipur implicating the respondent-husband and her

father-in-law (sasur) brother-in-law (jeth) wherein all three

were arrested and later on granted post arrest bail and during the

course of trial, all the prosecution witnesses including the present

appellant PW-1 Smt.Kaushlya, PW-2 Smt.Sumitra, PW-3 Biharilal

PW-4 Smt.Triveni were declared hostile and order of acquittal

was passed by the ld.Trial Judge on 16.09.2002 (Exhibit-5) and on
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the very next day, a joint application u/Sec.13B of the Hindu

Marriage Act, 1955 was instituted/presented before the ld.Family

Court seeking decree of divorce by consent on 17.09.2002

(Exhibit-2) and it was stated in para-3 of the application that the

appellant-wife left her matrimonial home along with their daughter

on 12.08.2001 and because of their ideological differences and

litigation it has become difficult for them to maintain their

matrimonial relation and with consent they want decree of divorce

and in para-5 of the application it was averred that the appellant-

wife has accepted one time alimony of Rs.25,000/- from the

respondent-husband. The said joint application was duly

supported by their affidavits and after the completion of cooling

period, the appellant-wife was afforded an opportunity to appear

before the ld.Family Court but since she failed to appear, their

joint application seeking decree of divorce through mutual consent

u/Sec.13B of the Act, 1955 was rejected on 07.08.2003 (Exhibit-

1). The extract of paras-3 5 of the application seeking decree of

divorce by consent u/Sec.13-B of the Act, 1955, being relevant

are reproduced ad infra:-

“3- ;g fd fookg ds i’pkr dqN le; rd rks izkFkhZx.k ifr ifRu
ds :i esa ,d lkFk jgs ,oa izkFkhZ;ka Øe 1 }kjk ,d yMdh Vhuk dks
tUe fn;k x;k] ijUrq izkFkhZx.k esa vkil esa oSpkfjd erHksn mRiUu gks
x;k ,oe~ ftlds dkj.k ?kj esa ekufld Dys’k ,oa v’kkafr jgus
yxh ,oe~ izkFkhZx.k dk vkil esa ,d lkFk jguk nq’okj gks x;k] ftl
dkj.k fnukad% 1282001 dks izkFkhZ;k¡ Øe 1 izkFkhZ la[;k 2 dks
NksMdj viuh iqh Vhuk dks ysdj vius ihgj pyh x;h ,oe~ rHkh
ls izkFkhZ;ka la[;k 1 mijksDr irs ij fuokl dj jgh gSA izkFkhZx.k ds
vkil esa oSpkfjd erHksn jgus ds dkj.k vkil esa eqdnesckth gqbZ]
ijUrq izkFkhZx.k us vius Hkfo”; dks ns[krs gq, vkil esa cMs cqtqxksZ ds
lekus cqkus ij jkthukek dj fy;k gS ,oe~ vc izkFkhZx.k LosPNk ls
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fookg foPNsn dh fMØh izkIr djuk pkgrs gS ,oe~ LorU :i ls
viuk thou O;rhr djuk pkgrs gSA
4 XX XX XX XX
5 ;g fd izkFkhZ;ka la[;k 1 }kjk izkFkhZ la[;k 2 ls viuk o viuh iqh
Vhuk dk thou HkrkfuokZg ,d eq’r izkIr fd;k tk pqdk gS ,oe~
leLr Lh /ku izkIr fd;k tk pqdk gS izkFkhZ la[;k 2 ds ikl vc
izkFkhZ;ka la[;k 1 dk dksbZ lkeku ;k Lh/ku ugha jgk gSA izkFkhZ;ka
la[;k 1 ds lkFk mudh iqh Vhuk jgsxh ,oe~ vkxs Hkfo”; esa og Hkh
mldh ns[kHkky]lkt laHkky djsxhA”

Thereafter the present divorce petition came to be filed by

the respondent-husband on the ground of cruelty and desertion

u/Sec.13 of the Act, 1955 on 18.09.2003 and it was pleaded by

the respondent-husband in his application that after their marriage

was solemnized on 29.05.1996 for the first two years, they had a

very cordial relations one girl child was born out of this wedlock

named Tina on 12.06.1997 but later on the appellant-wife took a

U-Turn in her behaviour and so also in her attitude not only

towards the respondent-husband but towards his other family

members also and very frequently she started going to her

parent’s house without intimation and almost more than 15 days

in a month she started living in her parent’s house and that has

not only disturbed their family relations but matrimonial relations

as well. Her behaviour towards his parents was also very rude and

she used to utter slangs and abusive language not only to the

respondent-husband but to his family members as well.

It was further averred that on 12.08.2001 the appellant-wife

made a false criminal compliant in Police Station Brahmpuri, Jaipur

implicating the respondent-husband, his father elder brother for

offence u/Sec.498-A, 406 323 IPC and all three of them were
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taken into judicial custody and later on granted post arrest bail

and during trial all the prosecution witnesses did not support the

criminal complaint made by the appellant-wife and order of

acquittal came to be passed by the ld.Trial Judge vide order

dt.16.09.2002 (Exhibit-5). Registration of a false criminal

complaint against the respondent-husband and his family

members in which they were taken into judicial custody has not

only humiliated them but has tarnished their image in the family

and society and it has certainly disturbed their peace of mind and

such act of the appellant-wife was unpardonable and only

thereafter they decided that it may not be possible to continue

with the matrimonial relation and the appellant-wife agreed to

dissolve their marriage by consent and accordingly the application

u/Sec.13B of the Act, 1955 was filed on 17.09.2002 (Exhibit-2).

Written statement to the divorce application was filed by the

appellant-wife on 19.01.2004 and denied all the allegations made

by the respondent-husband. The ld.Family Court on the basis of

the pleadings of the parties framed following issues for

determination, which read ad infra:-

(Matrimonial Case No.374/2003 – filed u/S.13 of Act, 1955)

“1- D;k vizkfFkZuh us fookg ds i’pkr ls izkFkhZ ds lkFk Øwjrk dk
O;ogkj fd;k gS+
2- D;k vizkfFkZuh us vO;ofgr :i ls nks o”kZ ls vf/kd vof/k ls
izkFkhZ dk vfHkR;tu dj j[kk gS
3- D;k izkFkhZ fookg foPNsn dh fMØh izkIr djus dk vf/kdkjh gS
4- vuqrks”k ”

(Matrimonial Case No.33/2004 – filed u/S.9 of Act, 1955)
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“1- D;k vizkFkhZ us fcuk fdlh ;qfDr ;qDr dkj.k ds Loa; dks
izkfFkZuh ds lkgp;Z ls izR;g`r dj fy;k gS
2- D;k izkfFkZuh nkEiR; vf/kdkjksa dh izR;kLFkkiuk ds fy, fMØh
izkIr djus dh vf/kdkfj.kh gS
3- vuqrks”k “

In support of his application seeking decree of divorce

u/Sec.13 of the Act, 1955, the respondent-husband recorded his

statement and one Manoj Kumar Sharma, who is running his shop

nearby the workplace of the respondent as PW-1 PW-2

respectively to establish that it is the appellant-wife who withdrew

herself from the matrimonial relations without any cause or

justification w.e.f. 12.08.2001 and never returned back to her

matrimonial home and has completely deserted the respondent-

husband and failed to perform her matrimonial obligation.

In her only statement recorded in support of her defence, as

DW-1 it was admitted in her cross examination that a false

criminal complaint was lodged by her at Police Station Brahmpuri,

Jaipur implicating the respondent-husband and his father elder

brother for offence u/Sec.498-A, 406 323 IPC and she was

never beaten by her in-laws and there was no demand of dowry

by them and this was the cause for acquittal of the respondent-

husband by the criminal court. In her cross examination she

further admitted that application for divorce by consent u/Sec.13-

B of the Act, 1955 was signed by her and filed in her presence

before the ld.Family Court but now she is not interested to agree

for divorce, although she accepted a sum of Rs.25,000/- at the

time when application u/Sec.13-B of the Act, 1955 was filed but it
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was not towards permanent alimony but was for maintenance. It

was also her admission in the cross examination that from

12.08.2001 she left her matrimonial home with their daughter and

started residing with her parents since then and looking to the

litigation, pending between them, it has become impossible for her

to stay and also the fact that respondent-husband took a rental

accommodation nearby her parents’ residence but still relations

could not be improved and finally it was stated by her in cross

examination that she is not interested to give divorce and want to

stay with the respondent-husband. The extract of cross

examination of the appellant, being relevant for the present

purpose, is reproduced ad infra:-

“……………;g ckr lgh gS fd eSusa o esjs ifjokj okyksa us vnkyr esa
ekjihV ugha djus ngst dh ekax ugh djus vkfn ds ckcr c;ku fn;s
FksA ftl ij vnkyr us izkFkhZ jksfgrk’k dks cjh dj fn;kA ……………
eSusa lgefr ls rykd dh ;kfpdk vnkyr esa vius ifr izkFkhZ ds
ncko esa vkdj yxkbZ FkhA ;g dguk xyr gS fd eSusa vius ifr o
mlds ifjokj okyksa ds fo:} wBh fjiksVZ ntZ djkdj Øwjrk dk
O;ogkj fd;k gSA ;g ckr lgh gS fd eSusa 25 gtkj :0 13 ch
dh ;kfpdk is’k djrs le; fy;s Fks ijUrq og Hkj.k iks”k.k ds fy;s Fks
vkthou Hkj.k iks”k.k ds ugh fy;s FksA …………… ;g lgh gS fd ge
1282001 ds ckn dHkh ifr iRuh ds :i esa lkFk ugh jgs A ;g
dguk xyr gS fd eSusa izkFkhZ dks NksM+ j[kk gks cfYd izkFkhZ us esjs dks
NksM+ j[kk gSA ;g lgh gS fd gekjs chp eqdnesckth bruh c xbZ gS
fd gekjk lkFk jguk lEHkao ugha gSA ;g ckr lgh gS fd iqfyl us
esjs ifr tsB] llqj dks fxj¶rkj fd;k Fkk fQj ckn esa tekur gks xbZ
FkhA ;g ckr lgh gS fd ge esjh ek¡ ds edku ds ikl gh xyh esa
vyx ls edku ysdj jgs Fks fQj esjk ifr [kkus dekus lwjr pyk
x;k Fkk ogk¡ ls 23 ekg esa ,d ckj vkrk FkkA”

The ld.Family Court on the basis of oral documentary

evidence which has come on record finally held that the

respondent-husband has satisfactorily proved that the appellant-

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wife was guilty of having deserted him for a continuous period of

more than two years preceding the filing of the petition for divorce

and he suffered mental cruelty and has become entitled for a

decree of divorce and according the ld.Family Court decided both

the applications by a common judgment accepting the application

filed for grant of decree of divorce by the respondent-husband

u/Sec.13 of the Act, 1955 and dismissed the application of the

appellant-wife filed for restitution of conjugal rights u/Sec.9 of the

Act, 1955 vide judgment decree impugned dt.17.03.2009. Two

separate misc. appeals have been filed by the appellant i.e.

D.B.Civil Misc. Appeal No.2510/2009 against the judgment

decree of divorce on 21.04.2009 and after more than two years

another appeal was filed by her against dismissal of her

application u/Sec.9 of the Act, 1955 on 23.05.2011 registered as

D.B.Civil Misc. Appeal No.5749/2011.

Assailing the legal sustainability of judgment of the ld.Family

Court, counsel appearing for the appellant-wife submitted that the

allegations which are levelled by the respondent-husband even if

taken on their face value are nothing beyond the difference

between the spouse but that will not make out a case of mental or

physical cruelty on the respondent-husband to be assigned to the

appellant-wife and as regards the ground of desertion is

concerned, no material has come on record which could satisfy

making out a case of desertion on the part of the appellant-wife

and the respondent-husband in fact has failed to make out a case

of seeking decree of divorce on the basis of mental cruelty or
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desertion and from day-1 of filing of the petition, the appellant-

wife has stated through-out, without any reservation, which has

also come in her pleadings, that she is still interested in going

back to her matrimonial home but no attention has been paid by

the ld.Family Court to this proven fact that she wants to restore

back her matrimonial relations.

To counter, counsel for the respondent-husband has urged

that the petition, filed by him, if read in entirety, would go to show

that the respondent-husband has specifically pleaded about the

mental hurt and trauma that he had suffered because of the

treatment meted out to him by his wife and her family members

by implicating them in a false criminal case registered for the

offence u/Sec.498A, 406 323 IPC in which they were taken into

judicial custody and later on granted post arrest bail and during

trial this allegation was found to be false and they were acquitted

of the offences by the competent court of jurisdiction and that

apart at one time application was file u/Sec.13-B of the Act, 1955

duly signed by both the parties and presented before the ld.Family

Court and it was her own admission that she withdrew herself

from their matrimonial relationship from 12.08.2001 and because

of their ideological differences it is not possible for her to restore

their matrimonial relations and she is interested in the decree of

divorce and has also accepted permanent alimony but as she

failed to appear before the ld.Family Court at the later stage, that

application was rejected and since nothing in rebuttal has come on

record, at least the factum of desertion stands proved/established
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from the evidence which came on record and her subsequent

conduct for the purpose of demonstrating the cruel treatment of

the appellant-wife also stands established from the material which

is on record and the decree of divorce, granted by the ld.Family

Court, needs no interference.

We have heard counsel for the parties and to appreciate the

rival submissions we have carefully perused the evidence adduced

by the parties and the judgment of the ld.Family Court.

The plea that was raised for grant of divorce is based on the

ground of cruelty envisages u/Sec.13(1)(ia) and desertion

envisages u/Sec.13(1)(ib) of the Act, 1955. The relevant provision

of Sect.13 of the Act, 1955 reads ad infra:-

“13. Divorce – (1) Any marriage solemnized, whether
before or after the commencement of this Act, may, on a
petition presented by either the husband or the wife, be
dissolved by a decree of divorce on the ground that the other
party –

(ia) has, after the solemnization of the marriage, treated the
petitioner with cruelty; or

(ib) has deserted the petition for a continuous period of not
less than two years immediately preceding the presentation
of the petition; or ……

Explanation:- In this sub-section the expression ‘desertion’
means the desertion of the petitioner by the other party to
the marriage without reasonable cause and without the
consent or against the wish of such party, and includes the
willful neglect of the petitioner by the other party to the
marriage, and its grammatical variations and cognate
expressions shall be construed accordingly.”

It is true that ‘cruelty’ has not been defined in the Act but is

a relative term. It varies from person to person and there cannot

be laid down any straight jacket formula and each case has to be

examined on its own facts. The allegation and conduct of one
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particular case may not amount to cruelty in all the cases. It

depends upon various factors which includes the status of the

spouses and the atmosphere in which they live. Cruelty implies

and means harsh conduct and of such intensity and persistence,

which would make it impossible for the spouse to operate the

marriage. Although the cruelty may not defined in the Act, but it is

to be determined on the basis of proved facts and circumstances

of the case.

It is indeed true that marriage is a sacred relationship

between husband and the wife. In a traditional society like ours,

when a boy marries a girl, he not only brings a wife to his home

but also beings a daughter-in-law for the family. Thus, the

behavior of a woman has to be seen both as a wife and as a

daughter-in-law.

For grant of decree of divorce on the ground of desertion, it

has to be established that the other party to the marriage has

deserted the party seeking divorce for a continuous period of not

less than two years immediately preceding the presentation of the

petition. The concept ‘desertion’ has been examined by the Apex

Court in Adhyatma Bhattar Alwar Vs. Adhyatma Bhattar Sri

Devi reported in (2002) 1 SCC 308 wherein it was held ad

infra:-

“7. ‘Desertion’ in the context of matrimonial law represents a
legal conception. It is difficult to give a comprehensive
definition of the term. The essential ingredients of this
offence in order that it may furnish a ground for relief are :

1. The factum of separation;

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2. The intention to bring cohabitation permanently to an end
animus deserndi;

3. The element of permanence which is a prime condition
requires that both these essential ingredients should
continue during the entire statutory period;

The clause lays down the rule that desertion to amount to a
matrimonial offence must be for a continuous period of not
less than two years immediately preceding the presentation
of the petition. This clause has to be read with the
Explanation. The Explanation has widened the definition of
desertion to include willful neglect of the petitioning spouse
by the respondent. It states that to amount to a matrimonial
offence desertion must be without reasonable cause and
without the consent or against the wish of the petitioner.
From the Explanation it is abundantly clear that the
legislature intended to give to the expression a wide import
which includes willful neglect of the petitioner by the other
party to the marriage. Therefore, for the offence of
desertion, so far as the deserting spouse is concerned, two
essential conditions must be there, namely, (1) the factum of
separation, and (2) the intention to bring cohabitation
permanently to an end (animus deserendi). Similarly, two
elements are essential so far as the deserted spouse is
concerned: (1) the absence of consent, and (2) absence of
conduct giving reasonable cause to the spouse leaving the
matrimonial home to form the necessary intention aforesaid.
The petitioner for divorce bears the burden of proving those
elements in the two spouses respectively and their
continuance throughout the statutory period.”

It has further been examined by the Apex Court in Savitri

Pandey Vs. Prem Chandra Pandey reported in (2002) 2 SCC

73 wherein it was held at para 8 10 ad infra:-

“8. “Desertion”, for the purpose of seeking divorce under the
Act, means the intentional permanent forsaking and
abandonment of one spouse by the other without that
other’s consent and without reasonable cause. In other
words it is a total repudiation of the obligations of marriage.
Desertion is not the withdrawal from a place but from a state
of things. Desertion, therefore, means withdrawing from the
matrimonial obligations, i.e., not permitting or allowing and
facilitating the cohabitation between the parties. The proof of
desertion has to be considered by taking into consideration
the concept of marriage which in law legalises the sexual
relationship between man and woman in the society for the
perpetuation of race, permitting lawful indulgence in passion
to prevent licentiousness and for procreation of children.

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Desertion is not a single act complete in itself, it is a
continuous course of conduct to be determined under the
facts and circumstances of each case. After referring to host
of authorities and the views of various authors, this Court in
Bipinchandra Jaisinghbhai Shah v. Prabhavati held that if a
spouse abandons the other in a state of temporary passions,
for example, anger or disgust without intending permanently
to cease cohabitation, it will not amount to desertion.

9. XX XX XX

10. To prove desertion in matrimonial matter it is not always
necessary that one of the spouse should have left the
company of the other as desertion could be proved while
living under the same roof. Desertion cannot be equated with
separate living by the parties to the marriage. Desertion may
also be constructive which can be inferred from the
attending circumstances. It has always to be kept in mind
that the question of desertion is a matter of inference to be
drawn from the facts and circumstances of each case.”

The respondent-husband in his application has specifically

stated that the appellant-wife has instituted a false criminal case

against him and his family members for offence u/ec.498A, 406

323 IPC in which they were arrested taken into judicial custody

and later released on bail and finally acquitted of the offences by

the competent court of jurisdiction after recording the finding that

it was a false complaint made by the appellant-wife implicating not

only the respondent-husband but his family members as well vide

judgment dt.16.09.2002 (Exhibit-5) and that apart the appellant-

wife has left her matrimonial home with their daughter on

12.08.2001 and indisputably has not returned back to her

matrimonial home even once thereafter and there remained no

physical relations between them since then and no cohabitation

has taken place.

For desertion, so far as the deserting spouse is concerned,

two essential conditions must be there viz., (1) the factum of
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separation; and (2) the intention to bring cohabitation

permanently to an end (animus deserendi). At the same time, two

elements are essential so far as the deserted spouse is concerned

viz., (1) the absence of consent; and (2) absence of conduct

giving reasonable cause to the spouse leaving the matrimonial

home to form the necessary intention aforesaid and for holding

desertion as proved, the interference has to be drawn from certain

facts which may not in another case be capable of leading to the

same inference. The facts have to be viewed as to the purpose

which is revealed by conduct and expression of intention, both

anterior subsequent to the actual act of separation.

Apart from mental cruelty which the respondent-husband

had faced because of the false criminal case being instituted

against him family members for offence u/Sec.498A, 406 323

IPC in which during the course of trial, the prosecution witnesses

have not supported the case of the prosecution and order of

acquittal came to be passed acquitting the respondent-husband

and his family members of the criminal charges levelled against

them vide judgment dt.16.09.2002 (Exhibit-5) and sufficient

material is available to record to establish that the appellant-wife

has deserted the respondent-husband for a continuous period of

not less than two years immediately preceding the presentation of

the divorce petition as she left the matrimonial home on

12.08.2001 and never tried to return back to her matrimonial

home and even in her own cross examination as DW-1, it is her

admission that she made a false complaint of being beaten by the
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family members of her husband or there was no demand of dowry

and as a consequence whereof order of acquittal came to be

passed by the competent court of jurisdiction and further admitted

that a joint application u/Sec.13-B of the Act, 1955 seeking decree

of divorce by consent was filed but put a caveat of under pressure

and a sum of Rs.25,000/- was accepted by her not towards

permanent alimony but for maintenance and as they are residing

separately since 12.08.2001 and looking to the nature of litigation

and their ideological differences between them, it became

impossible for her to stay at her matrimonial home and tried to

apologize for the rest to the respondent-husband along with family

members.

Thus, the facts on record clearly establish the factum of

separation and from cross examination of the appellant-wife as

DW-1 her intention to bring cohabitation permanently to an end

(animus deserendi) also stands established. At the same time, she

is unable to justify the absence of consent and no justification was

offered giving reasonable cause to her leaving the matrimonial

home and this what has been considered by the ld.Family Court in

finally arriving to the conclusion that apart from the kind of

mental cruelty with which the respondent-husband has suffered,

he is able to make out a case that the appellant-wife has deserted

him without any reasonable cause or justification.

After we have heard counsel for the parties gone through

the material on record, we are satisfied that the evidence of

respondent-husband appears to be reliable whereas the testimony
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of the appellant-wife is against her averments on record which

certainly not only belies her testimony but also renders her

unworthy of trust. The ld.Family Court has given cogent and valid

reasons for relying upon the evidence of the respondent-husband

while deciding the issues in favour of the respondent-husband and

we have no hesitation to hold that act of the appellant-wife did

constitute an act of cruelty to the respondent-husband and she

has also deserted her matrimonial home without any reasonable

cause or justification and the finding of fact recorded by the

ld.Family Court, in our considered view, is liable to be sustained

and does not call for interference.

Before parting with the judgment, we would like to record

that during pendency of the appeals, on application filed by the

appellant-wife u/Sec.24 of the Act, 1955, a detailed order was

passed by us on 13.10.2014 granting maintenance of Rs.10,000/-

per month i.e. Rs.5,000/- to the appellant-wife and Rs.5,000/- for

the daughter. Let that may be treated as monthly alimony and be

allowed to continue until further orders being passed by the

ld.Family Court on the proceedings if initiated by the appellant-

wife for permanent alimony u/Sec.25 of the Act, 1955.

In view of the foregoing discussion, the finding recorded by

the ld.Family Court being based on proper legal appreciation of

the evidence on record, deserves to be upheld and the decree of

divorce granted by the ld.Family Court impugned dt.17.03.2009

deserves to be sustained and does not call for any interference by

this Court in the instant proceedings.

(17 of 17)
[ CMA-2510/2009]

Consequently, the instant misc. appeals being devoid of

merit and substance are hereby dismissed. No order as to costs.

(ASHOK KUMAR GAUR)J. (AJAY RASTOGI)J.

Solanki DS, PS

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