HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
D.B. Civil Misc. Appeal No. 656 / 2017
Kamlesh Bagora S/o Shri Damodar Bagora, Aged About 34 Years,
Resident of A/21, Nai Abadi, Bhilwara Road, Kankroli, Tehsil and
Smt. Preeti Paliwal W/o Kamlesh D/o Gopal Lal Joshi, Resident of
Nathuvas, Tehsil Nathdwara, District Rajsamand.
For Appellant(s) : Mr.C.S.Kotwani, Adv.
HON’BLE MR. JUSTICE AJAY RASTOGI
HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Office has pointed out delay in filing of the instant appeal, in
support whereof application under Section 5 of the Limitation Act
has been filed, duly supported by the affidavit.
Having gone through the application, we are satisfied that
the delay has been satisfactory explained and deserves to be
Consequently, the application filed under Section 5 of the
Limitation Act stands allowed and the delay stands condoned.
Heard on merits.
The appellant-husband is aggrieved against the finding
returned by the ld.Family Court in impugned judgment
dt.15.11.2016 wherein it was held that the appellant treated his
wife, the respondent Smt.Preeti Paliwal, with cruelty.
(2 of 5)
Briefly stated, on 23.11.2010 the appellant and respondent
were married at village Nathuwas. The respondent-wife instituted
divorce petition before the ld.Family Court, Rajsamand seeking
divorce on the ground of desertion and cruelty. It is averred in the
grounds of appeal that on 14.10.2016, ld. Family Court had struck
the defence of the appellant. Thereafter the ld.Family Court vide
impugned judgment dt.15.11.2016 granted divorce in favour of
the respondent-wife by returning a finding that the appellant had
treated his wife with cruelty.
In the present appeal, the appellant has not assailed the
decree of divorce but has made a grievance that since the
ld.Family Court has returned a finding that the appellant had
treated his wife with cruelty, that shall be having a far-reaching
consequences, hence, this court should set aside the above
finding. It would be apposite here to reproduce ground-(ii) as
averred in para-5 of the appeal. The said ground reads as under:-
(i) … … …
(ii) That it is further pertinent to mention here that the
humble appellant does not challenge the validity and
propriety of the grant of decree of divorce but so far as
finding on issue No.1 is concerned i.e. derogatory
against humble appellant as the respondent wife was
never treated with cruelty at any point of time and the
learned court below without even considering the
important aspect has proceeded to grant the decree of
divorce on the ground of cruelty, which was not
established before it as finding on issue No.1 vitiates on
this ground and the same is liable to be quashed and
set aside on this ground as well.”
During the course of arguments, we called upon counsel for
the appellant to spell out the reasons as to why we should set
(3 of 5)
aside the finding returned by the ld.Family Court regarding the
ground of cruelty once he has accepted the decree of divorce.
The ld.counsel has expressed an apprehension that the said
finding after the defence of the appellant was struck off, can be
used by the respondent-wife in other proceedings. The ld.counsel
has urged that it cannot be ruled out that the said finding can be
used adverse to the interest of the husband in criminal
proceedings or in other rounds of litigation.
We have drawn the attention of the counsel to Section 41 of
the Indian Evidence Act (hereinafter called ‘Act’). Sections 40 to
Section 44 of the Indian Evidence Act specify as to how judgments
of courts of justice shall be relevant in other proceedings. We in
the present proceedings are concerned with the Section 41 of the
Act, which is reproduced below:-
“41. Relevancy of certain judgments in probate,
etc. jurisdiction.- A final judgment, order or decree of
a competent Court, in the exercise of probate,
matrimonial, admiralty or insolvency jurisdiction, which
confers upon or takes away from any person any legal
character, or which declares any person to be entitled
to any such character, or to be entitled to an specific
thing, not as against any specified person but
absolutely, is relevant when the existence of any such
legal character, or the title of any such person to any
such thing, is relevant.
Such judgment, order pr decree is conclusive proof–
that any legal character which it confers accrued at the
time when such judgment, order or decree came into
that any legal character, to which it declares any such
(4 of 5)
person to be entitled, accrued, to that person to be
entitled, accrued, to that person at the time when such
judgment, [order or decree] declares it to have accrued
to that person;
that any legal character which it takes away from any
person ceased at the time from which judgment, [order
or decree] declared that it had ceased or should cease;
and that anything to which it declares any person to be
so entitled was the property of that person at the time
from which such judgment, [order or decree] declares
that it had been or should be his property.”
In matrimonial matters, the judgment so far it affects legal
character of the parties is relevant in other proceedings. Once
divorce is accepted by the appellant-husband, as result thereof
appellant and respondent are no longer husband and wife and
their legal character to this effect stands determined. However,
any ancillary finding given qua determination of legal character of
the parties in itself is not relevant in the criminal proceedings or
the proceedings before any court of law.
It is well settled legal position that the criminal court or
for that matter any other court has to rely upon the evidence led
before that court and ipso facto finding given by the ld.Family
Court cannot be read as a binding upon any other court.
Therefore, because of non-challenge to the impugned decree, it
stands conclusively determine that the appellant and the
respondent wife are no longer husband and wife, however, so far
any connected or ancillary findings given by the ld.Family Court
are concerned, they cannot be transposed in any other
proceedings as the same have to be proved by the parties by
(5 of 5)
leading evidence in accordance with the provisions of law.
In view of the above observations made by us, the above
apprehension expressed by the appellant is unfounded and
therefore, calls for no adjudication by this court.
Consequently, the present appeal is disposed of without
causing any interference in view of the observations made by us
(KANWALJIT SINGH AHLUWALIA) J. (AJAY RASTOGI) J.
Solanki DS, PS/4