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Chaudhari Miteshbhai Rameshbhai vs Chaudhari Manishaben D/O Chaudhari … on 8 January, 2024

Gujarat High Court

Chaudhari Miteshbhai Rameshbhai vs Chaudhari Manishaben D/O Chaudhari … on 8 January, 2024

Author: Gita Gopi

Bench: Gita Gopi

NEUTRAL CITATION

C/SA/498/2023 ORDER DATED: 08/01/2024

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SECOND APPEAL NO. 498 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/SECOND APPEAL NO. 498 of 2023

CHAUDHARI MITESHBHAI RAMESHBHAI
Versus
CHAUDHARI MANISHABEN D/O CHAUDHARI KESHARBHAI LAVJIBHAI
W/O CHAUDHARI MITESHBHAI RAMESHBHAI

Appearance:
MR NIKUL K SONI(5122) for the Appellant(s) No. 1
for the Respondent(s) No. 1

CORAM:HONOURABLE MS. JUSTICE GITA GOPI

Date : 08/01/2024

ORAL ORDER

1. The Second Appeal has been preferred challenging

the order dated 25.7.2023 passed by the learned

Additional District and Sessions Judge, Mehsana in

RCA no.40/22. While dismissing the appeal, the

learned Appellate Court affirmed the judgment and

order dated 14.11.2022 passed by the learned

Additional Senior Civil Judge, Visnagar in Hindu

Marriage Petition no.4/21.

2. Earlier the appellant had preferred Civil Revision

Application no.379/23 challenging the order but by

an order dated 5.10.2023, the same was converted

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into Second appeal.

3. Learned advocate Mr. Soni submitted that the

provisions of law have not been considered in

proper perspective while deciding HMP no.4/21 and

RCA no.40/22. The issue in question has not been

rightly interpreted by the both the courts on the

ground of suppression and further submitted that

the provisions of Section 13(1)(ib) of the Hindu

Marriage Act, 1955 (hereinafter referred to as

“the Act”) has not been interpreted in its true

sense when more particularly with the fact that

the respondent has voluntarily abandoned the

appellant by not residing with him. Learned

advocate Mr. Soni submitted that the issue of

cruelty alleged against the appellant has not been

rightly considered by the court in view of the

fact that the appellant had been acquitted in

Criminal Case no.7529/18 under Sections 498A, 323,

504, 506(1) of IPC and Sections 3 and 7 of the

Dowry Prohibition Act.

4. Learned advocate Mr. Soni submitted that learned

Trial Court in view of judgment of acquittal in

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Criminal Case was not right in rejecting the

application under Section 9 of the Act which was

filed for restitution of conjugal rights.

5. HMP no.30/21 was filed by the husband, the present

appellant under Section 9 of the Act praying for

restitution of conjugal rights. The learned

Additional Senior Civil Judge, Visnagar rejected

the prayer, wherein while answering the issues

framed at Exh.11 had considered that the applicant

could prove that he is legally wedded husband of

the opponent while issue no.2 was raised to the

effect that as to whether the applicant proves

that the opponent has without reasonable excuse

withdrawn herself from the society of the

applicant. The learned Trial Court has answered

the same in negative and the burden which was laid

down on the opponent to prove that after

solemnizing the marriage, the applicant has

treated the opponent with mental as well as

physical cruelty, the learned Trial Court while

answering the issue in affirmative has rejected

the prayer of decree of restitution of conjugal

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rights of the applicant observing that he is not

entitled to get the decree of restitution of

conjugal rights.

6. The marriage was solemnized on 11.3.2012 at

Chitrasani, Taluka Palanpur. The certificate of

marriage was produced on record at Mark 4/1. In

view of the deposition and documentary evidence,

the marriage was proved to be solemnized between

the parties. The affidavit of the appellant

produced at Exh.12 was considered and on 16.9.2018

the appellant had left the respondent along with

the minor daughter.

7. The respondent wife in her written statement had

pleaded that the applicant is an alcoholic and in

a state of intoxication, he was beating the

respondent. She has filed the criminal case

against him.

8. The learned Trial Court while considering and

discussing the meaning of word “cruelty” observed

as; “The quality of being cruel; disposition of

inflicting suffering; delight in or indifference

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to another’s pain; mercilessness; hard-

heartedness.” The learned Trial Court observed

that the burden to prove the said issue was on the

respondent and the respondent wife by way of

written reply as well as the evidence on record as

well as the supporting evidence has proved that

the husband was cruel to her in the state of

intoxication. The learned Trial Court Judge has

observed that the appellant has not objected the

say of the respondent. The FIR was placed on

record. Considering the evidence as well as the

documents produced, the learned Trial Court came

to the conclusion that that the appellant had

tortured the respondent physically and mentally

and therefore, has committed mental cruelty on

her.

9. While dealing with the issue under Section 9 of

the Act for the prayer of restitution of conjugal

rights, the learned Trial Court has observed that

the respondent wife has filed HMP no.4/21 to get

the decree of divorce which was allowed on

14.11.2022 and since the divorce was granted, the

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court observed that no order as to conjugal rights

could be passed in his favour and therefore,

rejected the petition.

10. It is required to be noted that RCA no.40/22 was

preferred by the husband under Section 28 of the

Act challenging the order dated 14.11.2022 which

was passed in HMP no.4/21 under Section 13(1)(ib)

of the Act. The order of rejecting the prayer for

restitution of conjugal rights has not been

challenged before the learned Appellate Court. The

learned Appellate Court while dealing with the

aspect of cruelty and desertion under Section

13(1)(ib) has referred to the judgment in the case

of Debananda v. Smt. Kakumoni, 2022-0-Supreme (SC)

139, Ravi Kumar v. Julmi Devi, 2010-0-AIR (SCW)

1564 and also Shobha Rani v. Madhukar Reddi, air

1988 SC 121.

11. The learned Appellate Court has dealt with the

facts of the case and while appreciating the

evidence on record, had observed the fact of

mental and physical cruelty. The evidence of the

appellant being an alcoholic and physically

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assaulting the wife as well as alleging against

the wife on her character was found to be the

cruelty. In such circumstances, it was observed

that it would be difficult to lead the life

together. The observation has also been made about

the helpline phone call made to 181 Abhayam on

7.6.2018 and FIR was registered at “A” Division

Police Station, Mehsana on 18.9.2018. Criminal

Case no.7529/18 was proceeded before learned

Additional Chief Judicial Magistrate, Mehsana

where the appellant came to be acquitted.

12. Learned advocate Mr. Soni submitted that the very

fact of acquittal in Criminal Case proves that the

cruelty has not been proved and since being

acquitted in Criminal Case, learned advocate

submitted that no case of cruelty could be found

and therefore, the order of decree of divorce is

required to be set aside.

13. The learned Appellate Court has rightly observed

that the proceedings before the criminal court and

civil court are absolutely independent. The

standard of proof in both the courts are

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different. In criminal case proceedings, the

allegations are to be proved beyond reasonable

doubt while in civil proceedings, it is on the

basis of preponderance of probabilities. The

evidence as was noted and appreciated was that

from the date of marriage i.e. 11.3.2012, the wife

has been residing with the husband and on

14.6.2016, she had given birth to a daughter and

had left the matrimonial house on 16.9.2018 and

the petition for divorce was filed on 18.2.2021,

the wife because of the cruelty of the husband,

was forced to leave the matrimonial house. Both

the courts have rightly appreciated the evidence

on record. There is no reason to entertain the

Second Appeal nor any substantial question of law

has been found to be raised. The prayer of

restitution of conjugal rights was rejected by the

learned Trial Court which has not been challenged

by the present appellant. The wife suffered

cruelty at the hands of the husband. She was

forced to leave the matrimonial life. The criminal

complaint was also filed. It appears that both the

courts have rightly granted the decree of divorce

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and declined the prayer of restitution of conjugal

rights. The appellant had treated the wife with

cruelty and she was forced to leave the

matrimonial home.

14. In view of the observations made hereinabove, this

court does not find any perversity or illegality

with the orders of both the courts. The decree of

divorce which has been passed is on sound

principle of law appreciating the evidence on

record. This court does not find any reason to

entertain the Second Appeal and hence, the same

stands dismissed. Connected Civil Application also

stands dismissed.

(GITA GOPI,J)
Maulik

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