HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 1755 / 2015
Shivanshu Atre S/o Vinod Kumar Atre aged 28 years, resident of
4-56-D, Anutash Colony, Rawatbhata District Chittorgarh.

—-Appellant
Versus
Smt. Reenu Atre W/o Shivanshu Atre D/o P.D.Kaushik, aged 27
years, resident of A-63, Brijdham Nagar, Rampura, Tehsil Ladpura
District Kota. At present residing at 72, Sukhdham Colony,
Forkheda, Khejda Road, Kota.

—-Respondent
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For Appellant(s) : Mr.J.D.S.Bhati
For Respondent(s) : None.

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HON’BLE THE CHIEF JUSTICE

HON’BLE MR. JUSTICE VINIT KUMAR MATHUR
Judgment
08/05/2018

1. Alleging acts constituting mental cruelty, the appellant

sought annulment of the marriage solemnized between the parties

on 29.10.2009. It was pleaded that the respondent left the

matrimonial house on 23.12.2009 and that during the period

between the date of the marriage and the respondent leaving the

matrimonial house the respondent evinced characteristic of mental

disorder. She would always remain angry and would abuse the

appellant and his parents. She would threaten to lodge false cases

against them. On 1.1.2010 the respondent lodged a false

complaint under Section 498A/406 IPC against the appellant and

his parents. She filed a complaint under the Domestic Violence Act

and initiated proceedings under Section 125 Cr.P.C. That in the
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complaint for offences punishable under Section 498A/406 IPC the

appellant was sent to prison.

2. In the written statement filed the respondent denied the

allegations made against her and pleaded that on account of not

fulfilling the illegal demand for dowry she was thrown out of the

matrimonial house and as regards the proceedings initiating by

her under the Domestic Violence Act, Cr.P.C. and for return of the

istri dhan she pleaded that law conferred said rights on her.

3. Needless to state that the only issue which came to be

settled was whether the respondent had committed acts of cruelty

entitling the appellant to a decree for divorce.

4. At the trial the appellant examined only himself as his

witness and so did the respondent.

5. In his examination-in-chief by way of an affidavit the

appellant stated on oath the facts which he pleaded in the petition

seeking divorce. But, on cross-examination admitted the

suggestion that during the period the respondent lived in the

matrimonial house no quarrel took place between the two and that

it was correct that during said period the respondent’s conduct

towards him was fine. He admitted that he did not have any

evidence to support his plea that the respondent’s mental

condition was not proper.

6. Interestingly, the appellant introduced the story during

cross-examination containing the reason why the respondent left

the matrimonial house. He stated that the respondent’s father was

a drunkard. A fact not pleaded in the petition seeking divorce was

stated by him during cross-examination, that one day the
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respondent consumed sleeping pills; but admitted that he had no

proof for the same.

7. Notwithstanding the respondent not having taken any plea in

her written statement that the appellant was having some kind of

a relationship with a girl named Vidushi, a suggestion was put to

the appellant by the respondent’s counsel that he was maintaining

some kind of relationship with a girl named Vidushi. He denied the

same. He also denied the suggestion that Vidushi was pressurizing

the appellant to obtain a divorce. He denied the suggestion that

for said reason he was seeking divorce. He admitted that Vidushi

had lodged an FIR against him for offence punishable under

Section 354 IPC. He stated that Vidushi was the cousin sister of

the respondent.

8. Relevant would it be to highlight that the line of cross-

examination concerning facts as noted in para 7 above was

outside the pleadings of both parties.

9. In her examination-in-chief by way of an affidavit the

respondent stated the facts as pleaded by her in the written

statement and we find that during cross-examination of the

respondent, the appellant put suggestions to the respondent that

since her father was drunkard and her sisters were married she

wanted to go to her parental house to look after her father.

Needless to state that she denied the same. Interestingly, the

respondent admitted that once in her matrimonial house she took

sleeping pills. In cross-examination she stated that she read in the

newspaper some report regarding appellant and Vidushi.

10. Giving reasons that the suggestions and admissions during
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cross-examination which were outside the pleadings of the parties

had to be ignored and highlighting the admission made by the

appellant in cross-examination and that for the period the

respondent resided in the matrimonial house there was no dispute

between the couple and the respondent’s attitude towards

appellant was good, the petition seeking divorce filed by the

appellant has been dismissed.

11. From a narration of the facts noted by us hereinabove it

emerges that in the petition seeking divorce the only case pleaded

by the appellant was that on account of being mentally disturbed

the respondent would constantly fight with him and his parents.

She would abuse them. This case he himself demolished when he

made admissions in the cross-examination which admissions we

have noted hereinabove. Thus, it has to be held that the appellant

failed to prove the case set up by him.

12. Whilst it may be true that during cross-examination of both

parties it emerges that the actual probable reason for the

matrimonial discord is the girl named Vidushi, but unfortunately

neither party laid any foundation in their pleadings regarding

Vidushi. The appellant did not plead that the respondent starting

alleging against him that he was having some relations with

Vidushi and therefore she left the matrimonial house on said false

reason. Likewise, the respondent did not plead that she had to

leave the matrimonial house due to the appellant’s relationship

with Vidushi.

13. It is settled law that there cannot be any variance between

the pleadings and proof.

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14. The appellant had to succeed on the strength of the case

pleaded by him. He had to prove the case pleaded by him. The

appellant could not make out a different case.

15. The appeal is dismissed.

16. No costs.

(VINIT KUMAR MATHUR)J. (PRADEEP NANDRAJOG)CJ.

Parmar