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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