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
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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
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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
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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.
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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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