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Kailash Chandra vs Smt. Laxmi on 4 May, 2018

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.



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

entitled to.

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

commit suicide.

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

said facts.

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

Act, 1955.

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.



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