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Khayali Lal Choudhary vs Smt. Hemlata on 12 November, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 2593/2017

Khayali Lal Choudhary Son Of Sh. Dal Chand, Aged 35 years,
Resident Of- Village- Rndeda, Tehsil- Vallabhnagar, District-
Udaipur.

—-Appellant
Versus
Smt. Hemlata W/o Khayali Lal Choudhary, D/o Roshan Lal
Choudhary, Present R/o Gogunda, Udaipur.

—-Respondent

For Appellant(s) : Mr.R.S.Mankad
For Respondent(s) : Mr.J.V.S.Deora

HON’BLE THE CHIEF JUSTICE PRADEEP NANDRAJOG
HON’BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

12/11/2018

1. Heard learned counsel for the parties. Trial court record has

been perused.

2. Appellant sued for divorce pleading mental cruelty and

desertion by the respondent.

3. The petition has been dismissed vide impugned judgment

dated 12.7.2017.

4. Marriage between the parties was solemnized on 17.5.2005.

A male child was born to the couple on 10.5.2008. As per the

petition, case pleaded by the appellant was that for sometime

after the marriage respondent’s behaviour was cordial but after a

while she started taunting his parents in whose house the couple

had set up their matrimonial home. The taunts were that she

would not live with them and that she was forced into the
(2 of 6) [CMA-2593/2017]

marriage. Due to insistence by the respondent the appellant took

the respondent to the place where he was posted i.e. Dhariyawad.

The respondent refused to live in the rented house stating that he

should purchase his own house. The respondent used to threat

him that she would commit suicide or implicate him in a false

case. In December, 2007 she left the matrimonial house and

shifted to her parents house. A son was born on 10.5.2008. After

3-4 months of the birth of the son when he went to bring the

respondent and his son to his house she refused. With the

intervention of community people a settlement agreement was

drawn up, as per which the respondent agreed to live with him.

She joined consortium but within a few days once again she

started quarrelling with his parents and started abusing them.

After 10-12 days, taking alongwith her the jewellery which were

gifted to her at the marriage she returned to her parents house

and lodged a false complaint for offences punishable under

Section 498A-406 IPC.

5. In the written statement filed the respondent admitted the

factum of the marriage and child being born to the couple. She

denied having taunted appellant’s parents. She pleaded that she

was troubled by them on account of dowry. Being in the family

way she went to her parents house because atmosphere in the

matrimonial house was oppressive. After the son was born nobody

came to visit her. She alongwith the son went to the house of her

in-laws but they refused to let her enter. She was forced by the

community people to enter into the settlement on 21.10.2008.

6. On the pleadings of the parties two issues were settled. The

first was whether the respondent committed acts of cruelty

against the appellant and the second was whether the respondent
(3 of 6) [CMA-2593/2017]

was living separately without any justifiable cause for a period of

two years preceding the filing of the petition.

7. Appearing as his witness the appellant filed an affidavit by

way of evidence which was treated as examination-in-chief in

which he verbatim repeated the pleadings in the divorce petition.

The cryptic cross-examination of the appellant, translated reads as

under:-

“I made various attempts to take Hemlata with me, so did
members of our Society. In Court Hemlata agrees to live
with me but refused to live with me. It is correct that my
son studies in school. It is correct that since 10.9.2008 we
are living separately. It is wrong that we entered into a
written settlement due to societal pressure. I can produce
the written statement.”

8. Respondent appeared as her witness and filed an affidavit by

way of evidence in which she repeated her pleadings in the written

statement. Respondent’s cross examination by the appellant is

equally cryptic. Translated into English it reads as under:-

“It is correct that criminal case for offence punishable under
Section 498A lodged by me against my husband is pending.
It is incorrect that the case filed by me under Section 125
Cr.P.C. has been dismissed as not pressed. That she did not
press the case on the advice of her lawyer. It is correct that
case lodged by her under the Domestic Violence Act has
been decided. It is correct that in said case ₹3000/- p.m.
has been directed to be paid to her. It is correct that she is
receiving ₹3000/- p.m. It is correct that since the year 2008
both of them are living separately. It is correct that a son
was born to them and he is studying in school. It is wrong to
(4 of 6) [CMA-2593/2017]

suggest that criminal case for offence punishable under
Section 498A IPC lodged by her is a false case.”

9. The impugned judgment dated 12.7.2017 notes the

pleadings of the parties, the issues settled and the testimony of

the witnesses. Without a discussion of the evidence the learned

Judge has held that he believes the version of the respondent.

Thus, both issues settled have been decided against the appellant.

10. Contention of learned counsel for the appellant is that the

respondent did not even challenge the testimony on oath of the

appellant and thus cruelty and desertion stand proved.

11. The response of learned counsel for the respondent is the

same. The appellant did not challenge the testimony of the

respondent when he cross-examined the respondent and thus the

learned Judge, Family Court has rightly dismissed the petition filed

by the appellant.

12. Indeed, neither parties has effectively cross-examined the

opposite party. But the onus would be on the appellant.

13. Reading the case of the appellant and his testimony the first

act of cruelty alleged is that the respondent started taunting his

parents after few months of the marriage. What were the words

used to taunt? None have been pleaded nor deposed to. The

taunts were directed against the appellant’s parents as pleaded by

him but he has not examined them.

14. The second act of cruelty pleaded is the insistence by the

respondent that the appellant should buy a house and that she

would not live in a rented house. Though there is no cross-

examination of the appellant on this aspect of the matter, but the

appellant admits that the respondent continued to live with him in
(5 of 6) [CMA-2593/2017]

the rented house. When she was in the family way in December,

2007 she went to her parents house. In her testimony the

respondent has denied having extended any threats of not living

in the rented house. She has not been cross-examined. The plea,

supported with the testimony of the appellant that the respondent

threatened suicide, is sans any dates. The written settlement

between the couple pleaded in the petition has not been proved.

15. The vague pleadings without material particulars would dis-

entitle the appellant to any relief as prayed for.

16. Handicapped as we are by the cryptic cross-examination and

abjuring to decide the matrimonial dispute applying technical

principles of law because neither party has cross-examined the

other on the rival versions pleaded and deposed to We note that

the evidence brings out that married on 17.5.2005 the couple

enjoyed conjugal bliss evidenced by the fact that on 10.5.2008 a

male child was born. Parents of the appellants at whom taunts

were directed not being produced leads us to accept the version of

the respondent that it was dowry harassment by her in-laws which

was the cause for her to be compelled to leave the matrimonial

house. The appellant has himself pleaded that the couple set up

the matrimonial home in the house of his parents. But his plea

that on the insistence of the respondent he took her to the place

where he was working shows that the appellant left his wife in his

parents house. He was working in a different city. The respondent

wanted to live with her husband and not with her in-laws. The

appellant admits that he took his wife to the place where he was

working. Meaning thereby, the so-called matrimonial home in the

house of the parents of the appellant was not a place where the

couple resided as a married couple is expected to reside.

(6 of 6) [CMA-2593/2017]

17. We find no infirmity in the impugned judgment dated

12.7.2017.

18. The appeal is dismissed.

(PUSHPENDRA SINGH BHATI),J (PRADEEP NANDRAJOG),CJ

Parmar

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