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Arvind Selwal vs Sudesh on 5 July, 2019

FAO-6397-2016 -1-

FAO-6397-2016 (OM)
Date of Decision:05.07.2019
Shri Arvind Selwal
. . . . . Appellant
Smt. Sudesh
. . . . . Respondent

Present: – Mr.Satish Kumar Malik, Advocate,
for the appellant.

Mr.Jitender Malik, Advocate,
for the respondent.


This appeal is directed against the judgment and decree dated

19.09.2016 by which a petition filed under Section 13(1)(ia) (ib) of the

SectionHindu Marriage Act, 1955 [for short ‘the Act’] by the appellant has been


In brief, the marriage of the appellant with the respondent was

solemnized on 31.01.2005 at Sonipat as per Hindu rites and ceremonies and

out of this wedlock they were blessed with a daughter, namely, Ankita on

30.12.2007, who is living with the respondent. The appellant has alleged

that his relationship with the respondent came to an end in August 2011

when she stopped cohabitation with him. The appellant has sought the

decree of divorce, inter alia, on the ground of cruelty and desertion alleging

that at the time of his marriage, the marriage of his younger brother and the

younger sister of the respondent was also solemnized but on the very first

day the respondent had uttered that her marriage has been performed

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forcibly by her parents. Secondly, the behaviour of the respondent has been

allegedly rude and cruel towards the appellant and his family members and

she always wanted to live separately. The expenses of her higher education

were borne by the appellant. The respondent was allegedly in the habit of

insulting the appellant in the presence of his family members and relatives

on trivial issues. Thirdly, the respondent frequently used to visit her parental

home and compelled the appellant to shift to Sonipat from Delhi. He had

allegedly purchased House No.532/29, Vijay Nagar, Sonipat but still the

respondent kept on picking up quarrels on petty matters. Fourthly, the

respondent and her family members used to threatened the appellant to

implicate in a criminal case, inasmuch as, the younger sister of the

respondent, who was married to the younger brother of the appellant, took

the matter to the Police Station, Sonipat on 18.04.2008 and made a false

complaint of demand of dowry involving the parents of the appellant as well.

The father of the appellant has also expressed his feelings in his personal

diary (Ex.P4). Fifthly, the marriage of his younger brother with the younger

sister of the respondent was dissolved in the year 2010 on the basis of a

settlement. The younger brother of the appellant was given beatings in the

Court premises by the family members of the respondent-wife and the matter

was reported to the police for which father of the respondent had apologized

and the matter was compromised in writing on 5.10.2010. It is alleged that

the father of the appellant died on 5.11.2010 because of the misbehaviour of

the respondent and her family members. Sixthly, the respondent was posted

at Ambala College of Engineering Applied Research, Ambala and got

accommodation where the appellant had to reside with her whereas his

widowed mother and younger brother continued to reside at Sonipat.

Seventhly, the respondent had allegedly refused to cohabitate with the

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appellant and hence there was no physical relationship between them since

August, 2011. Eighthly, the respondent had allegedly tried to kill the

appellant by administering him some medicines in food. The respondent was

allegedly quarrelsome woman, who had even though joined Central

University, Jammu and left the job at Ambala but used the college

accommodation at Ambala and lastly the respondent had registered an FIR

No.55 of 2014 under Sections 498A, Section406 and Section406 read with Section 34 of

the IPC against the appellant and his family members in which they were

ultimately acquitted vide judgment Ex.PW1/8.

On the other hand, the case of the respondent is that the

appellant is in a habit of making false and baseless allegations regarding

cruelty and desertion. It is alleged by the respondent that the parties had

cohabitated at Ambala upto December 2013 and therefore, all acts of alleged

cruelty were stood condoned by the act and conduct of the appellant. It is

further alleged that there is no corroboration to any of the allegation made by

the appellant in regard to the misbehaviour of the respondent in the presence

of the colleagues of the appellant. It is also the case of the respondent that

there is no evidence on record that she was not interested to marry her or she

has ever refused to serve the appellant or had ever given him any such

medicine in his food which may threaten his life. Rather it is the case of the

respondent that the appellant wanted to get rid of her and has filed this

petition for seeking decree of divorce instead of filing any application for

restitution of conjugal right or even custody of his minor daughter. It is

further alleged that the appellant has filed a petition of divorce on

11.11.2013 allegedly on the ground of misbehaviour of the younger sister of

the respondent with his younger brother on which the respondent had no

control. All the allegations made by the appellant were thus totally denied

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and therefore, on the pleadings of the parties, the learned trial Court framed

the issues in regard to the cruelty and desertion which were tried together

and the finding was recorded against the appellant.

Learned counsel for the appellant has reiterated the stand taken

by the appellant in his pleadings and in order to prove the same has relied

upon the evidence of the appellant, who has appeared as PW1 and his

mother Krishna as PW2 and besides certain documents which were tendered

as Ex.P1 and Ex.PW1/8.

The learned Court below has recorded a firm finding of fact that

the appellant has failed to prove, from any kind of cogent evidence on

record, the act of cruelty and desertion by the respondent.

Insofar as desertion is concerned, the appellant was supposed to

prove that the respondent has been living separately, without any sufficient

reason, continuously for a period of two years before filing of the petition.

The petition was filed on 11.11.2013 and the desertion has been alleged

from August 2011 but there is no evidence brought on record the fact that

the respondent has been living separately from the appellant from August

2011 much less without there being any sufficient cause. Rather no petition

has been filed by the appellant for the purpose of seeking restitution of

conjugal rights or for taking the custody of his daughter from the respondent

if he had any kind of love and affection towards his daughter rather this

petition is filed straightway on 11.11.2013. The learned Court below has

further found that even the FIR was lodged by the respondent on 1.3.2015

much after the filing of the petition for divorce, therefore, it was not a part of

the pleadings of the appellant for the purpose of seeking the decree of

divorce rather it was a case of the respondent that the appellant wanted to get

rid of her for want of insufficient dowry.

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Although learned counsel for the appellant has raised all the

contentions raised before the Court below vehemently but in the absence of

any evidence brought on record much less convincing, there is hardly any

reason for this Court to interfere in the present appeal in order to set aside a

well reasoned judgment passed against the appellant.

In view of the aforesaid facts and circumstances, the present

petition is hereby dismissed though without any order as to costs.


05.07.2019 JUDGE

Whether speaking /reasoned : Yes/No
Whether Reportable : Yes/No

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