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Kamlesh Bagora vs Smt. Preeti Paliwal on 14 November, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
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
District Rajsamand.

—-Appellant
Versus
Smt. Preeti Paliwal W/o Kamlesh D/o Gopal Lal Joshi, Resident of
Nathuvas, Tehsil Nathdwara, District Rajsamand.

—-Respondent
__
For Appellant(s) : Mr.C.S.Kotwani, Adv.
__
HON’BLE MR. JUSTICE AJAY RASTOGI
HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Order
14/11/2017

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

condoned.

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)
[CMA-656/2017]

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:-

“Para 5:

(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)
[CMA-656/2017]

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
operation;

that any legal character, to which it declares any such
(4 of 5)
[CMA-656/2017]

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)
[CMA-656/2017]

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

above.

(KANWALJIT SINGH AHLUWALIA) J. (AJAY RASTOGI) J.

Solanki DS, PS/4

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