HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Miscellaneous Appeal No. 2912 / 2008
Smt..Lilawati W/o Shri Shyam Lal Chitodiya, R/o 6, Gandhi
Montessori Middle School, Dhan Nadi, Bhajan Gunj, Ajmer.
—-Appellant
Versus
Shri Shyam Lal Chitodiya S/o Shri Ladu Ram Chitodiya, R/o 14/29,
Tilak Nagar, Dhola Bhata, Ajmer.
—-Respondent

__
For Appellant(s) : Mr.Veyankatesh Garg, Adv.
For Respondent(s) : Mr.Reasham Bhargava, Adv.
__
HON’BLE MR. JUSTICE AJAY RASTOGI
HON’BLE MR. JUSTICE ASHOK KUMAR GAUR
Judgment
Judgment reserved on : 19th July, 2017.

Date of Judgment : 28th July, 2017.

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

Instant misc. appeal has been filed by the appellant-wife

aggrieved by the judgment and decree dt.12.03.2008 whereby

decree of divorce was granted to the respondent-husband

dissolving their marriage on the ground of cruelty and desertion

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

The facts giving rise to the present appeal, in nutshell, are

that marriage of the appellant-wife with the respondent-husband

was solemnized according to the Hindu rites customs on

14.04.1982 at Ajmer. It may be noticed that there is no issue from

this wedlock and the appellant-wife has left the matrimonial home
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and they are living separately indisputably, as borne out from the

pleadings since 20.12.1989.

Prior to filing of the present Divorce Petition No.294/1999,

the respondent-husband alleged that the appellant-wife left the

matrimonial home and started living separately without any

legitimate cause/justification since 20.12.1989 but when their

differences her uncalled for behaviour could not be reconciled,

the respondent-husband filed Divorce Petition as Matrimonial Case

No.14/1990 on the ground of cruelty. Since the statutory period of

two years of separation was not completed and there was no

allegation/ground of desertion, the Divorce Petition No.14/1990

came to be dismissed on 22.11.1991. Thereafter, fresh Divorce

Petition was filed by the respondent-appellant on the ground of

cruelty and desertion as Matrimonial Case No.23/1992 and the

ld.Family Court while framing issues, framed Issue No.3 with

regard to res-judicata, on the objection being raised by the

appellant-wife in her written statement and while accepting the

plea of res-judicata, dismissed the Matrimonial Case No.23/1992

vide its order dt.12.07.1995 against which no further recourse

was adopted by the respondent-husband.

Thereafter, the respondent-husband moved a fresh Divorce

Petition No.294/1999 on the ground of cruelty and desertion.

Again an application was moved by the appellant-wife u/Sec.11

CPC seeking dismissal of the matrimonial case on the ground of

res-judicata. Accepting the plea of res-judicata, the Matrimonial

Case No.294/1999 came to be dismissed by the ld.Family Court

vide its order dt.06.02.2001 and that came to be challenged by
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[CMA-2912/2008]

the respondent-husband before this Court in D.B.Civil Misc. Appeal

No.442/2001 which was allowed by this court vide order

dt.05.02.2007 and the parties were directed to appear before the

ld.Family Court and after the parties recorded their attendance in

compliance of judgment of this Court dt.06.02.2001, the

appellant-wife failed to appear before the ld.Family Court, Ajmer

on five consecutive dates and, as such, ex-parte proceedings were

initiated against the appellant-wife and vide ex-parte judgment

and decree, the Divorce Petition was allowed vide order

dt.10.05.2007.

That against the ex-parte judgment and decree of divorce to

the respondent-husband, the appellant-wife on 08.06.2007 moved

application u/O.9 R.13 CPC for setting aside the ex-parte

judgment and decree dt.10.05.2007 which was allowed on

28.01.2008 and the Matrimonial Case No.294/1999 was restored

to its original number.

During the course of proceedings, the respondent-husband

recorded the statement of his own and Ramesh Chand (his cousin

brother) as AW-1 and AW-2 respectively. At the same time, the

appellant-wife got herself examined along with Jeevan Ram and

Nandkishore, who happens to be her neighbours as NAW-1, NAW-

2 and NAW-3 respectively.

The ld.Family Court on the pleadings of the parties, in all

framed four issues for determination, which read ad infra:-

“1 vk;k vizkFkhZ;k us izkFkhZ dk nks o”kZ ls vf/kd vof/k ls
fcuk fdlh ;qfDr ;qDr dkj.k ds ifjR;kx dj j[kk gS
2 vk;k vizkFkhZ;k dk O;ogkj izkFkhZ ds lkFk ;kfpdk esa
of.kZr vk/kkjksa ij dzwjrkiw.kZ jgk gSA
(4 of 11)
[CMA-2912/2008]

3 vk;k tokcnkos esa vafdrkuqlkj izkFkhZ ds ehjk uke dh
efgyk ls lEcU/k gS vkSj mls vius lkFk crkSj iRuh j[ks gq, gS]
;fn ,slk gS rks mldk ;kfpdk ij izHkko
4 vk;k izkFkhZ vizkFkhZ;k ds fo:} fookg foPNsn dh fMØh
ikus dk vf/kdkjh gS
5 vuqrks”k |”

It was pleaded by the respondent-husband in his Matrimonial

Application that after their marriage was solemnized according to

the Hindu rites customs on 14.04.1982 apart from the fact that

there is no child from this wedlock the appellant-wife left the

matrimonial home on 20.12.1989 and thereafter never turned up

upto the date of filing of the application and he tried his level best

to provide all medical care and treatment of one of the best

Gynecologist but in fact she failed to discharge matrimonial

relations for a sufficient long time and has deserted him for more

than two years on the date of filing of the divorce petition.

It was further stated that a false criminal complaint was

instituted against him u/Sec.494 IPC that he has remarried to

another woman named Meera and residing with him which was

factually incorrect and it was just to defame him in the society,

which after the regular trial found to be false and he was acquitted

by the ld.Trial Judge and in this regard, the appellant-wife in her

written statement in para-7 has stated that the respondent-

husband is residing with another woman named Meera as his wife

and a criminal case has been instituted at her instance for the

offence u/Sec.494 IPC before the competent court of jurisdiction

and further stated in para-11 of the written statement that

although she has left the matrimonial home on 20.12.1989 but
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[CMA-2912/2008]

reason was the demand of dowry from the respondent-husband of

Rs.10,000/- which she and her family members are unable to

fulfill.

On the statement which was recorded before the ld.Family

Court, the appellant-wife in her cross-examination as NAW-1

admitted that she has instituted a case for demand of dowry and

for solemnizing second marriage by the respondent-husband

u/Sec.494 IPC, although, later on he was acquitted by the

competent court of jurisdiction for the reason that the respondent-

husband has threatened her witnesses.

Taking note of the statement of witnesses recorded by the

parties in support of their case and the material which has come

on record, the ld.Family Court decided all the issues in favour of

the respondent-husband upholding that the appellant-wife has

deserted the respondent-husband without any reason/justification

from 20.12.1989 and instituted a false complaint against him

u/Sec.494 IPC in which there was an order of acquittal by the

competent court of jurisdiction and so also the fact that there was

no demand of dowry of Rs.10,000/- as being pleaded by the

appellant-wife in her statement as NAW-1 and finally granted

decree of divorce to the respondent-husband vide judgment

decree impugned dt.12.03.2008 and accordingly their marriage

solemnized as per Hindu rites customs on 14.04.1982 was

dissolved.

Counsel for the appellant-wife submits that although it could

not be proved by her that the respondent-husband is residing with

another lady named Meera but the fact is that she is residing as
(6 of 11)
[CMA-2912/2008]

his wife and because of her witnesses being threatened by the

respondent-husband the charge could not be proved and further

deposed that the respondent demanded a sum of Rs.10,000/- as

dowry from her but merely because she is unable to prove, that in

itself could not be considered to be a mental cruelty being

committed by her in granting decree of divorce under the

judgment decree impugned dt.12.03.2008.

Counsel further submits that as regard leaving matrimonial

home on 20.12.1989 is concerned, although this fact is not

disputed that she is residing separately since 20.12.1989 but it

was only under the compelling circumstances that she left the

matrimonial home and reason behind is demand of dowry and the

respondent-husband is residing with another lady named Meera

and the solitary reason could not be considered the cause of

cruelty and the finding recorded by the ld.Family Courft on issue

Nos.1, 2 3 is totally perverse and the judgment and decree

impugned deserves to be quashed and set aside.

On the other hand, counsel for the respondent-husband

refuted the submissions made by counsel for the appellant-wife

and contended that the respondent-husband has been able to

prove various acts of cruelty being practiced by the appellant-wife

and sufficient evidence was brought on record with incriminating

proofs that act of the appellant-wife has caused mental cruelty to

the respondent-husband and she has leveled false baseless

allegations of dowry demand and staying with another lady named

Meera and in absence of any tangible evidence, in rebuttal, the

respondent-husband has been victimized and his image has been
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[CMA-2912/2008]

tarnished in the society and on the other hand, there is sufficient

evidence on record regarding her desertion and also of mental

cruelty which she committed on the respondent-husband which

has been considered by the ld.Family Court under the judgment

decree impugned dt.12.03.2008 which needs no further

interference by this Court.

We have heard counsel for the parties and with their

assistance carefully examined the material on record.

The relevant provision of Sec.13 of the Hindu Marriage 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 petitioner for a continuous period
of not less than two years immediately preceding the
presentation of the petition; or ………”

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

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
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[CMA-2912/2008]

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.

The respondent-husband in his application specifically stated

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

him u/Sec.494 IPC with the allegation that he is residing with

another woman Meera having illicit relations with her which is

without any factual basis and foundation and so also the fact that

she left her matrimonial home since 20.12.1989 and deserted him

without any valid cause and this was admitted by the appellant-

wife in para Nos.7 11 of her written statement. It would

appropriate to quote the relevant para Nos.7 11 of the written

statement filed by the appellant-wife, which read ad infra:-

“7 ;g fd izkFkZuk i dh pj.k la[;k7 ¼ lkr½ xyr gksus
ds dkj.k vLohdkj gSA tSlk fd Åij Hkh of.kZr fd;k tk pqdk
gS fd izkFkhZ fdlh Hkh rjg ls vizkFkhZ;k ls rykd pkgrk gS
rFkk ehjk uked efgyk dks og vius lkFk crkSj iRuh j[ks gq,s
gSA bl rjg ls izkFkhZ Loa; LoPN gkFkksa ls ekuuh; U;k;ky; ds
le{k ugha vk;k gSA
11 ;g fd izkFkZuk i dh pj.k la[;k 11 ¼ X;kjg½ xyr
gksus ds dkj.k vLohdkj gSA tSlk fd Åij Hkh fuosnu fd;k
tk pqdk gSA fd vizkFkhZ;k viuh bPNk ls vius ihgj esa ugha
jg jgh gS oju~ fnukad 20-12-1989 ¼ chl fnlEcj lu~ mUUkhl
lkS uokalh½ dks izkFkhZ o mlds ?kj okyksa us vizkFkhZ;k ds lkFk
ekjihV dj ?kj ls fudky fn;k gSA vizkFkhZ;k ds firk dk Hkh
nsgkUr gks pqdk gS rFkk vizkFkhZ;k viuh o`} ekrk ds lkFk jg
jgh gSA vizkFkhZ;k ds firk o lekt ds yksxksa us izkFkhZ o
(9 of 11)
[CMA-2912/2008]

mlds ?kj okyksa dks dbZ ckj lek;k fd og vizkFkhZ;k dks
vius lkFk j[ks rFkk mls vuqfpr ekWx dks ysdj viekfur o
izrkfM+r ugha djs ijUrq izkFkhZ o mlds ?kj okyksa us Li”V :i
ls dgk fd tc rd ekWx iwjh ugha gks tkrh rc rd vizkFkhZ;k
dks ?kj esa ?kqlus ugha nsaxsA vizkFkhZ;k vkt Hkh izkFkhZ ds lkFk
jgus dks rS;kj gSA bl izdkj izkFkhZ us gh vizkFkhZ;k dk R;kx
dj j[kk gSA”

During course of evidence recorded in support of the

respective allegation of the appellant-wife during cross-

examination as NAW-1, being relevant for the present purpose, is

quoted ad infra:-

“;g lgh gS fd eSusa izkFkhZ ij ngst ekaxus o nwljh ‘kknh djus
dk eqdnek fd;k Fkk mlesa izkFkhZ cjh gks x;k ysfdu blus esjs
xokgksa dks /kedk;k blfy, cjh gqvk gS mlds ehjk ds
lkFk uktk;t laca/k gSa ;g xyr gS fd eSaus blds
foHkkx esa Hkh waBh f’kdk;rsa djds bldh csbTtrh dh gks vfirq
eSaus lgh f’kdk;r dh gSa A”

No tangible evidence has come on record in support of both

the allegations about demand of dowry and that the respondent-

husband is residing with another woman Meera. On the contrary,

after a regular trial, the respondent-husband was acquitted by the

competent court of jurisdiction of the case instituted against him

u/Sec.494 IPC at her instance and it was observed to be a false

case instituted against him. As regards desertion is concerned, she

has left her matrimonial home since 20.12.1989 and the

explanation which was tendered/furnished by the appellant-wife

was not acceptable even to the man of ordinary prudence and no

evidence has come on record in rebuttal which could support the

justification tendered by her.

Thus, the stand establishes from the material on record that

false and baseless allegations were levelled against the

respondent-husband by the appellant-wife of demand of dowry
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[CMA-2912/2008]

and residing with another woman named Meera and no tangible

evidence has come on record in rebuttal which could defend the

case of the appellant-wife.

The ld.Family Court has found as a fact that the allegations

levelled against the respondent-husband implicating him in a case

instituted u/Sec.494 IPC and of demanding dowry are totally false

and baseless which the appellant-wife has failed to prove against

the respondent-husband and that established to mental cruelty on

part of the appellant-wife and that has certainly made the

respondent-husband entitled to a decree of divorce on this ground

alone.

That apart litigation is going on between the parties since

1990 and even from the material which has come on record

admitted by the appellant-wife, they are living separately since

20.12.1989 and almost 28 years have rolled by now. Otherwise

also it is breakdown of their marriage and there is sufficient

material available on record to cause mental agony to the

respondent-husband. Making wild and false allegations against

character of the respondent-husband is nothing but an attempt to

tarnish his image in the society which amounts to mental cruelty

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

granting decree of divorce in favour of the respondent-husband so

as to make out a case of cruelty practiced by the appellant-wife.

The evidence of respondent-husband appears to be reliable

whereas the testimony of the appellant-wife is against her

averments in reply which certainly not only belies her testimony

but also renders her unworthy of trust. It also indicates that she
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[CMA-2912/2008]

has perjured herself and has indulged in blatant lies. The ld.Family

Court has given cogent and valid reasons for relying upon the

evidence of the respondent-husband while deciding issue Nos.1, 2

3 in favour of the respondent-husband. We have no hesitation to

hold that act of the appellant-wife did constitute an act of cruelty

to the respondent-husband and the finding of fact recorded by the

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

and does not call for interference.

In view of the foregoing discussion, the finding recorded by

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

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

to hold that the decree of divorce granted by the ld.Family Court

impugned dt.12.03.2008 deserves to be sustained and does not

call for any interference by this Court and the instant misc. appeal

deserves to be dismissed.

Consequently, the instant misc. appeal being devoid of merit

and substance is hereby dismissed. No order as to costs.

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

Solanki DS, PS