HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
D.B. Civil Misc. Appeal No. 549 / 2014
Kailash Chandra S/o Gopi Lal, aged about 37 years, resident of
Devgarh, Tehsil Devgarh, District Rajsamand.
Smt. Laxmi W/o Shri Kailash Chandra, resident of Purani
Kachahari, behind Chhipon Ka Mohhalha, Bhilwara, District
For Appellant(s) : Ms.Pooja Parihar for Dr.Sachin Acharya
For Respondent(s) : Mr.Love Jain.
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE VINIT KUMAR MATHUR
1. The appellant presented a petition seeking divorce on ground
of desertion for a period of two years preceding the date of
presentation of the petition without reasonable cause by the wife
as well as cruelty. The petition was filed on 20th October, 2010.
2. It was pleaded that the marriage between the couple was
solemnized as per Hindu customs on 18.6.1998. Each year the
respondent would visit her parents and stayed with them for upto
a month. Her endeavour was to live with her parents rather than
the appellant. In December, 2004 she left for her parental house
taking with her the jewellery. Attempts made towards
reconciliation failed. On 24.5.2009 the appellant sent a notice to
the respondent through a lawyer requiring her to join consortium.
(2 of 5)
Inspite of service she did not join back. During reconciliation the
respondent would threaten to commit suicide if she was forced to
join the appellant. The allegation of threatening to commit suicide
was by way of mental cruelty committed by the respondent
against the appellant.
3. In the written statement filed the respondent denied the
assertions and pleaded that the cause for her to leave the
matrimonial house was she being troubled on account of bringing
inadequate dowry. She pleaded that she was physically beaten for
not bringing dowry. A preliminary objection concerning territorial
jurisdiction of the Court was also pleaded. The respondent desired
an alimony to be fixed in her favour.
4. On the pleadings of the parties five issues were settled. The
first was whether the respondent had without reasonable cause
deserted the appellant for a period of two years preceding the
date of presentation of the petition. The second was whether the
respondent had committed acts constituting mental cruelty. The
third was whether the Court had territorial jurisdiction. The fourth
was whether the respondent was entitled to restitution of conjugal
rights and the fifth was to what alimony the respondent would be
5. Counsel state that the 4 th issue was redundant and be
6. After evidence was led vide impugned decision dated 12 th
February, 2014 the petition seeking divorce has been dismissed.
On the issue of territorial jurisdiction the appellant succeeded. On
issue No.4 the finding returned is that the respondent is entitled
(3 of 5)
to the restitution of conjugal rights.
7. It needs to be highlighted at this stage that after the
appellant sued for divorce the respondent filed a complaint against
the appellant for having committed offence punishable under
Section 498A IPC which resulted in the appellant being tried and
acquitted on 17th February, 2014. The said decision has obviously
been rendered after the impugned decision dated 12 th February,
2014 was pronounced.
8. As usual in matrimonial cases the appellant and the
respondent deposed facts as per their pleadings and their
witnesses supported them.
9. The allegation of mental cruelty by the appellant i.e. of the
respondent threatening suicide, as conceded by learned counsel
for the appellant, has remained a mere statement without
specifying the dates on which the respondent threatened to
10. Since the only fact of mental cruelty pleaded is the threat of
suicide, the impugned decision in so far as it returns a finding that
the appellant has not established mental cruelty is affirmed.
11. On the issue of desertion, the learned Judge, Family Court
has highlighted that during cross-examination the appellant stated
that he was not willing to live with the respondent and therefrom
has concluded that it was the appellant who was the cause for the
respondent to leave the matrimonial house.
12. The said finding over-looks the fact that by the time parties
recorded evidence the respondent had lodged a complaint against
(4 of 5)
the appellant for an offence under Section 498A IPC and he was
facing a trial and it was in this context he stated that now he is
not ready to live with the respondent.
13. The error in the impugned judgment is that the learned
Judge, Family Court has not proceeded to analyze the
requirements of law concerning desertion with reference to the
14. The factum of the respondent leaving the matrimonial house
in the year 2004 was admitted by her. She pleaded a justifiable
cause to withdraw from the consortium in the form of alleging
harassment on account of dowry.
15. Thus, the sufficient cause for withdrawing from the
matrimonial house was on the respondent.
16. Neither in her testimony could she give particulars of the
dates when she was harassed on account of dowry nor could her
witnesses do so. The learned Judge, Family Court has over-looked
17. The learned Family Court did not have the benefit of the
decision dated 17th February, 2014 in which the appellant has been
acquitted, for the reason the impugned decision was pronounced
on 12th February, 2014. But we have the benefit of the decision
acquitting the appellant.
18. From the fact that the respondent lodged a complaint for
dowry harassment in the year 2011 after she was served with a
notice in the petition seeking divorce filed by the appellant, we
have proof of the fact that she retaliated. She never made a
(5 of 5)
complaint to any authority that her husband was committing acts
of cruelty against her on account of a dowry demand.
19. Thus, the respondent has failed to establish a sufficient
cause to withdraw from the consortium.
20. In our opinion, case was made out to grant decree of divorce
to the appellant under Section 13(1)(i-b) of the Hindu Marriage
21. The appeal is allowed granting decree of divorce and as a
result of annulling the marriage under Section 13(1)(i-b) of the
Hindu Marriage Act, 1955. Impugned judgment is set aside to said
extent. Alimony awarded to the respondent-wife is maintained.
(VINIT KUMAR MATHUR)J. (PRADEEP NANDRAJOG)CJ.