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Gauttam Chand Surana vs Smt Kanchan Devi on 14 December, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Miscellaneous Appeal No. 1674 / 2011
Gauttam Chand Surana S/o Shri Nemi Chand Surana, aged about
45 years, R/o House No. 184 “B”, infront of Shiv Mandir, Mitra
Niwas Colony, Madanganj Kishangarh.
—-Applicant/Appellant
Versus
Smt Kanchan Devi W/o Shri Gauttam Chand Surana, by caste
Oswal, R/o House No. 184 “B”, Infront of Shiv Mandir, Mitra Niwas
Colony, Madanganj Kishangarh
—-Non-Applicant/Respondent

__
For Appellant(s) : Sh. Gaurav Jain, Adv.

For Respondent(s) : Sh. Mukesh Kumar Verma, Adv.
__
HON’BLE MR. JUSTICE AJAY RASTOGI
HON’BLE MR. JUSTICE DEEPAK MAHESHWARI
Judgment
14/12/2017

The instant misc. appeal is directed against the judgment

decree dt. 20.01.2011 passed by learned Family Judge, Ajmer in

petition filed u/S. 13 of the Hindu Marriage Act 1955 (“Act of

1955”) by husband-appellant Gauttam Chand Surana, whereby

learned Family Judge dismissed the petition.

Facts in brief relevant for our consideration are that marriage

between the parties took place as per Hindu customs and rituals

at Choti Khatu, District Nagaur on 25.11.1987. After staying for

10-15 days at the residence of her father-in-law at Madanganj,

wife-respondent Smt. Kanchan Devi came to her husband place at

Tinsukhiya (Assam). Husband Gauttam Chand was doing his

marble business there. Out of the wedlock, three issues namely
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[CMA-1674/2011]

Prerna, Preety Arihant were born. In April, 2007 Preety and

Arihant were admitted in Maheshwari International School,

Kishangarh, District Ajmer and elder daughter Prerna appeared in

the examination of class 12th. It has been averred in the petition

that the marital life of 20 years had never been peaceful for

petitioner husband. His wife used to pressurize him to stay

permanently at her maternal home at Choti Khatu. She also

pressurized him to seek partition of the property of his father

situated at Kishangarh and to obtain his separate share, his

father-in-law also pressurized for the same. Wife used to pick up

quarrels and to create scene in the colony where they were

residing. She used to break the tiles kept in the shop and also to

humiliate petitioner in the presence of the customers. She never

wanted to stay at Tinsukhiya and was adamant to come and stay

at Nagaur alongwith her husband.

It has also been averred that one of the relatives of wife

Kanchan Devi namely Trilokchand filed a false criminal case

against his real brother, Padamchand Surana, who after trial got

honourably acquitted in the case. She also used to tease her

parents-in-law, who were old and suffering from ailments.

Ultimately husband Gauttam Chand closed his business at

Tinshukhiya and started residing at Kishangarh since 15.04.2007.

Even then the quarrelsome attitude of respondent wife did not

stop. On 02.05.2007 she again picked up quarrel with parents-in-

law and husband. She called her uncle Malchand Surana at 10.30

at night. Father of the appellant had to file a civil suit seeking

permanent injunction against the wife/respondent as also a
(3 of 8)
[CMA-1674/2011]

criminal case u/S. 107/116 Cr.P.C. at Kishangarh Court. The

petition was thus, filed to seek divorce on the ground of cruelty.

In reply the respondent wife refuted the allegations made in

the petition. On the contrary she alleged that her mother-in-law

was in habit of raising taunts on her and all other family members

used to make altercation with her. She had to go to her parents

house for delivery of all the three children. During pregnancy

period, husband appellant was also not behaving properly with

her. She never pressurized him to get the property partitioned and

never threatened him to stay at her parental home. She has

denied the allegation made in the petition regarding the alleged

incidents of quarrel and prayed to dismiss the petition.

Following issues were framed by learned Family Judge:-

“(1) Whether behavior of the respondent wife
had been cruelsome towards petitioner husband
as alleged in the petition?

(2) Whether the petitioner husband is entitled
to get the decree of divorce against his wife?
(3) Relief?”

Petitioner got himself examined as AW1 alongwith his father

Nemichand Surana (AW2), Uncle Malchand Surana (AW3) and

Premchand Kocheta (AW4). On behalf of the respondent wife, her

daughter Prerna (NAW2) was also examined besides herself as

NAW1.

On the basis of the evidence available on record, all the

issues were decided by learned Family Judge against husband

petitioner and he dismissed the petition accordingly.

Learned counsel for the appellant has contended that learned
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[CMA-1674/2011]

Family Judge has not given thoughtful consideration to the

material available on record. Despite there being sufficient

evidence to prove the ground of cruelty, the relevant issues have

been wrongly decided by learned Family Judge. The judgment

impugned is thus perverse and is liable to be quashed and set

aside.

Per contra learned counsel for the respondent has supported

the judgment and decree impugned while praying to dismiss the

appeal.

In light of the arguments advanced by the rival sides and the

material available on record, we have thoroughly scanned the

judgment impugned. On careful scrutiny of the evidence of both

the side it appears that though relation between the husband and

wife were not cordial, yet usual discussions which they held

between them on trivial issues, may not tantamount to cruelty as

envisaged u/S.13(1) (ia) of the Hindu Marriage Act. The

allegations made in the petition that wife respondent used to

pressurize the husband for getting his father’s property partitioned

and to take possession of his own share is not established by the

evidence. Likewise petitioner has not been able to establish that

respondent wife pressurized him to get shifted to her parental

house and to stay there permanently. On the contrary it reveals

that because of the law and order situation prevailing in Assam at

the relevant point of time, the wife was interested to shift to the

State of Rajasthan, particularly at Kishangarh, the permanent

parental place of husband.

The allegation of cruelsome behaviour of wife also does not
(5 of 8)
[CMA-1674/2011]

find favour with us, in light of the fact that indisputably both the

parties alongwith the children stayed together at Tinshukhiya

(Assam), since their marriage in 1987 till the year 2005. Had

there been any aggressive or cruelsome behaviour on the part of

respondent wife, it could not have been possible for the husband

to stay with her for such a long period of 18 years. It may also be

inferred in view of the prolonged stay of both the parties together

that even if some discord of usual nature took place between

them, on account of alleged mis-behaviour by the wife, it was

pardoned and waived by the husband.

As regards the allegation made by the husband that one of

the relatives of his wife, Trilokchand filed a false criminal case of

committing dacoity against his brother namely Padamchand

Surana, it is apt to observe that a bare look at the judgment dated

05.11.1998 (Ex.5) in Criminal Case No. 419/1995, State Vs.

Padamchand shows that the allegation was not of dacoity but for

the simple offences u/S. 147, 323 341 IPC. As per the judgment

Ex.5, accused Padamchand was acquitted while extending him

benefit of doubt. In our opinion, such acquittal cannot be a ground

to presume that the false case was filed.

So far as other case u/S. 107, 116(3) Cr.P.C. and the suit for

permanent injunction are concerned, only order-sheet dated

10.09.2007 (Ex.14) of the Court of SDM, Kishangarh and the copy

of the plaint Ex.15 have been placed on record by the petitioner.

Order-sheet dated 10.09.2007 only shows that the show cause

notice was issued to Smt. Kanchan Devi, but what was the

ultimate result of both the proceedings i.e. the complaint u/S. 107
(6 of 8)
[CMA-1674/2011]

116 (3) Cr.P.C. and the suit for injunction, has not been

produced on record, in absence of which no definite opinion can be

formed against the respondent.

Further, as per the statement of father of appellant, AW-2

no reliable evidence regarding alleged cruelty has come on record.

He has admitted that the incident which took place on 02.05.2007

is not in his personal knowledge but he has narrated about it only

as per the information given by Malchand (AW-3) who himself has

admitted that he did not file any complaint regarding the incident

of 02.05.2007 in the police or before any member of the

community. He has also admitted that petitioner Gauttam Chand

told him that it was a matter between husband and wife which

would be settled among themselves. In this light, it cannot be

assumed that some serious incident took place on 02.05.2007.

Learned counsel for the appellant has relied upon Suman

Kapur Vs. Sudhir Kapur, reported in AIR 2009 Supreme Court

589. On going through the judgment we find that it is of no

assistance to the appellant as the facts of the case in hand are

entirely different from that of the case referred above. In that

case the wife was found to be keen to lead independent life and to

pursue her professional career. As per the letter written by her, it

was evident that she had lost interest in the marriage and had no

belief in Indian culture. She also levelled serious allegation against

the husband that he had married to another American Woman.

Not only this she prevented her husband to have matrimonial

relations with her. In such fact situation Hon’ble Supreme Court

treated it to be a case of mental cruelty at the instance of wife.

(7 of 8)
[CMA-1674/2011]

But the facts of the case in hand are entirely different. In our

considered opinion, this judgment is therefore, of no assistance to

the appellant.

It will be relevant to mention here that Hon’ble Supreme

Court in Praveen Mehta v. Inderjit Mehta, reported in (2002)

5 SCC 706 has held as under:-

“21. Cruelty for the purpose of Section 13(1)(i-a) is to be
taken as a behaviour by one spouse towards the other, which
causes reasonable apprehension in the mind of the latter that
it is not safe for him or her to continue the matrimonial
relationship with the other. Mental cruelty is a state of mind
and feeling with one of the spouses due to the behaviour or
behavioural pattern by the other. Unlike the case of physical
cruelty, mental cruelty is difficult to establish by direct
evidence. It is necessarily a matter of inference to be drawn
from the facts and circumstances of the case. A feeling of
anguish, disappointment and frustration in one spouse caused
by the conduct of the other can only be appreciated on
assessing the attending facts and circumstances in which the
two partners of matrimonial life have been living. The
inference has to be drawn from the attending facts and
circumstances taken cumulatively. In case of mental cruelty it
will not be a correct approach to take an instance of
misbehaviour in isolation and then pose the question whether
such behaviour is sufficient by itself to cause mental cruelty.
The approach should be to take the cumulative effect of the
facts and circumstances emerging from the evidence on
record and then draw a fair inference whether the petitioner in
the divorce petition has been subject to mental cruelty due to
conduct of the other.”

In case of Naveen Kohli Vs. Neelu Kohli, reported in

(2006)4 SCC 558, the Hon’ble Supreme Court has held as

under:-

“51. The word “cruelty” has to be understood in the
ordinary sense of the term in matrimonial affairs. If the
intention to harm, harass or hurt could be inferred by the
nature of the conduct or brutal act complained of, cruelty
could be easily established………………….
…………………………………………………………………………………………….”

On going through the entire material available on record, we

are of the opinion that whatever allegation have been levelled

regarding cruelsome behaviour of respondent wife cannot said to
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[CMA-1674/2011]

be of such a grave nature which may amount to cruelty as

envisaged u/S. 13(1)(ia) of the Act of 1955 so as to warrant the

grant of decree of divorce. All these incidents can at most, be

treated to be ordinary wear and tear of married life, of which

serious note cannot be taken of.

In light of the observations made here in above, we find no

illegality in the impugned judgment dated 20.01.2011 passed by

learned Family Judge, Ajmer, which may call for our interference.

Accordingly, we find no substance in the appeal which is

liable to be and is dismissed accordingly.

(DEEPAK MAHESHWARI),J. (AJAY RASTOGI),J.

Arun/40

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