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Rajkumar vs Suman on 6 April, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JODHPUR

D.B. Civil Misc. Appeal No. 2360 / 2017

Rajkumar S/o Shri Hanuman Prasad, By Caste- Suthar, Resident
of Dholipal, Tehsil District- Hanumangarh (Rajasthan).

—-Appellant

Versus

Suman W/o Rajkumar D/o Shri Aadram, By Caste- Suthar,
Resident of Ward No.9, Rawla Mandi, Tehsil- Gharsana, District-
Sri Ganganagar (Rajasthan).

—-Respondent

__

For Appellant(s) : Mr. Vijay Jain.
__

HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS

HON’BLE MR. JUSTICE RAMCHANDRA SINGH JHALA

Judgment

Per Hon’ble Mr. G.K. Vyas, J.

Date of Judgment 06/04/2018

The instant misc. appeal has been filed by the appellant

under Section 19 (4) of the Family Court’s Act 1984 against the

judgment and decree dated 14th of July, 2017 passed by learned

Judge Family Court No.1, Bikaner in Civil Misc. Case No.163/2012

(478/2014) (Rajkumar Vs. Suman), whereby he dismissed the

application filed by the appellant under Section 13-A of the Hindu

Marriage Act, 1955 (Act of 1955) and refused to grant decree for

divorce.

(2 of 5)
[CMA-2360/2017]

Briefly stated, the facts of the case are that the marriage of

the appellant and the respondent was solemnized on 23.06.2004

at Village Rawla, Tehsil Gharsana, District Sri Ganganagar as per

Hindu customs and rituals. Subsequently a son was born from the

wedlock who was about 4 years of age at the time of filing of the

application. It is also stated that after some time of the marriage

the respondent/wife started committing mental cruelty with him

as she did not take any interest the house work and always

remained ready to quarrel with the appellant. She was specifically

alleging that he (appellant) is a gambler in front of relatives and

family members and gave threatening for implication him and his

family members in false case, therefore, the appellant suffer

mental agony by her rude behavior. Further, a false case was

registered under Section 498A and 406 of IPC against the

appellant and his family members, in which the police gave

negative final report and the same was accepted by the court

concerned. The respondent/wife voluntarily went to her parents’

house and despite making best of efforts at social level by the

appellant, the appellant did not come to reside the appellant. The

respondent-wife specifically denied to live with him and also

refused to take mutual divorce with consent.

Upon the aforesaid facts, the divorce application was filed, in

which the respondent-wife filed reply and accepted the factum of

marriage and birth of son from their wedlock, however, she denied

other allegations levelled in the divorce application and shown her

willingness to live with appellant along with her son. In the reply,

it was stated by the respondent-wife appellant has extramarital
(3 of 5)
[CMA-2360/2017]

affair with one girl, namely, Neetu and he used to life with her,

therefore, appellants wants to take divorce and for said reason

forcibly expelled her from the house. It was further stated that in

the proceedings before this Court against forcibly marriage of said

Neetu, an affidavit was filed by the appellant that Neetu is his girl

friend and this fact is not refuted by the appellant.

As per pleadings of the parties, the learned Judge, Family

Court No.1, Bikaner framed two issues, which are reproduced

herein below: –

1- Whether the applicant is entitled to get the decree of
dissolution of marriage solemnized on 23.06.2004 on the
grounds as mentioned in the application?

2- Relief?

In support of divorce application, the appellants examined

himself as AW.1 and also examined two other witnesses, namely,

AW.2- Lokesh and AW.3- Bhagwati. On the other hand, from the

side of respondent, she herself appeared before the court below as

NAW.1 and got her statements recorded.

The learned Judge, Family Court No.1, Bikaner after hearing

arguments of both the sides, vide its judgment and decree dated

14.07.2017 proceeded to dismiss the divorce application filed by

the appellant-husband under Section 13-A of the Act of 1955.

In this appeal, the appellant has challenged the said

judgment and decree.

Learned counsel for the appellant vehemently argued that

soon after the marriage the behavior of the respondent became

quarrelsome and she was not interested to live with the parents of
(4 of 5)
[CMA-2360/2017]

the appellant and regularly creating unhealthy atmosphere in the

house, which falls under the category of cruelty. It is further

submitted that Neetu, is girl friend and the appellant is not having

any illicit relations with her, therefore, the allegations levelled by

the respondent are false, however, the learned court below failed

to consider this aspect of the matter.

Learned counsel for the appellant further argued that

criminal cases under Section 498A and 406 IPC were filed by the

respondent-wife, out of which, in one case, FR was given by the

police on account of a compromise arrived at between the parties

but the fact remains that criminal cases were also registered

against the appellant upon complaint filed by the respondent-wife.

Thus is obvious that the conduct of the respondent is bad and she

does not want to live with him, therefore, it is a case for granting

divorce decree but the learned court below refused to grant

divorce decree. Thus it is prayed that the divorce decree deserves

to be quashed and set aside.

After hearing the learned counsel for the appellant, we have

perused the record summoned from the family court.

It is admitted position of the case and proceedings were

initiated by the appellant before the High Court against the early

marriage of one Neetu, in which an affidavit was filed by the

appellant that Neetu, who is his neighbor, is my girl friend and

this fact has not been disputed by the learned counsel for the

appellant but submit that mere acceptance of the fact of girl friend

it cannot be presumed that he is having relations with Neetu.

Further, there is no material evidence on record to prove the
(5 of 5)
[CMA-2360/2017]

cruelty being committed by the respondent-wife qua the appellant

or misbehavour of the respondent-wife. More so, the learned court

below observed that after compromise in criminal case registered

under Section 498A and 406, the respondent-wife lived with the

appellant till 2009. It was admitted fact that FR was given on the

basis of compromise, therefore, it cannot be said that there was

any cruelty of respondent-wife towards appellant. It is a case in

which the conduct of the appellant is seriously doubtful because

he has accepted that one Neetu is his girl friend.

In view of the fact that no trustworthy material evidence is

produced by the appellant in support his allegations for cruelty by

the respondent-wife, it cannot be said that the learned court

below has committed any error so as to give finding against him

or to dismiss the application for divorce filed by the appellant

under Section 13 of the Act of 1955.

Consequently, there is no force in this appeal, hence the

same is hereby dismissed.

(RAMCHANDRA SINGH JHALA) J. (GOPAL KRISHAN VYAS) J.

DJ/-

28

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