HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

D.B. Civil Miscellaneous Appeal No.5853/2011

Laxmi Gehlot D/o Late Mr. Chain Singh Kachwaha, aged about 48
years, R/o Gulabbari, Near R.C. Gate 4, Naka Madar, Ajmer
(Rajasthan).
—-Appellant
Versus
Badri Narayan Gehlot S/o Bhanuram Gehlot, R/o Sulia Farm,
Chokha, Chopasani Road, Tehsil Jodhpur, Jodhpur, Rajasthan.
—-Respondent

For Appellant(s) : Shri Hans Kumar Sharma
For Respondent(s) : Shri Vinod Kumar Rajoria

HON’BLE MR. JUSTICE MOHAMMAD RAFIQ
HON’BLE MR. JUSTICE NARENDRA SINGH DHADDHA

Order

ORDER RESERVED ON 30/09/2019
ORDER PRONOUNCED ON 21/10/2019

BY THE COURT : (PER HON’BLE DHADDHA, J.)

1. This appeal has been preferred by appellant Laxmi

Gehlot against the order of the learned Family Court, Ajmer

passed on 14.12.2010 in Divorce Petition No.82/2004 filed by Shri

Badri Narayan (husband) u/s 13 of the SectionHindu Marriage Act, 1955

(for short “the Act”) against Smt. Laxmi Gehlot (wife) whereby the

learned Family Court annulled the marriage with effect from the

date of the order i.e. 14.12.2010.

2. Brief facts giving rise to this appeal are that the

marriage between the parties was solemnized on 23.6.1978 at

Jodhpur according to the Hindu rites and customs. The spouses

are blessed with two daughters, one of them died on 8.10.1985.

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The respondent husband was working in Kendriya Vidhalaya

Jodhpur. When the respondent husband came his village at

Dhrangdhra, the appellant wife would like to remain at her parents

house and when the respondent husband came at Jodhpur, the

appellant wife used to come her in-laws house. Thus the

behaviour of appellant wife became cruel towards respondent

husband and his family members. The appellant wife did not take

interest in the household work and used filthy language. On this

account, the respondent husband and his family members felt

insult before their relatives and neighbours. The appellant wife

used to go her parental house at Jodhpur without any information.

In the year 1979, when respondent husband decided to remain at

his parental house at village Chokha, District Joahdpur but the

appellant wife clearly refused to remain in village. Father of the

appellant wife went to Jodhpur for pressurizing to live Ghar Janwai

and this was impossible for respondent husband. On 10.6.1980,

father of appellant wife went to respondent’s house along with a

team of punk of Nagauri Bera and threatened to respondent to

remain at Jodhpur. Father of respondent expired on 24.7.1980.

Appellant wife went to Jodhpur on 8.8.80 taking her all ‘Stridhan’.

The respondent husband complained to the relatives of appellant

wife. The appellant wife deserted the respondent husband since

16.8.19890.

3. In reply, the appellant wife denied all the facts except

marriage and two daughter. She stated that her second daughter

expired due to his misbehave. She stated that she used to live at

in-laws house at Jodhpur. She stated that she or her parents

never told to remain him at Ghar Janwai. So, the petition be

dismissed.

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4. On the basis of the pleadings and arguments advanced

by both the parties, the following issues were framed by the

learned Family Court :-

“1. Whether the respondent wife treated petitioner
husband with cruelty as mentioned in the in the
petition ?

2. Whether the non-applicant wife has without any
reasonable cause deserted the applicant husband
continuously more than two years ?

3. Whether the applicant is entitled to get decree of
divorce against the non-applicant ?

4. Relief.”

5. The respondent husand examined himself as AW-1 and

one witness – Moti Lal AW-2.

6. The appellant wife examined herself as NAW 1 and one

witness – Neelam Kachhawa NAW -2.

7. Learned Family Court after hearing the arguments of

both the sides, all the issues were decided in favour of the

respondent husband and against the appellant wife and annulled

the marriage solemnized between them with effect from the order

i.e. 14.12.2010.

8. Learned counsel for the appellant submitted that the

impugned order dated 14.12.2010 is illegal, arbitrary and against

the material available on record. He submitted that the

respondent husband filed petition u/s 13 of the Act after a period

of alleged desertion by wife of 28 years which itself belies the

entire fabricated tale of the respondent. Learned counsel for the

appellant submitted that the respondent did not made any effort

to restore the troubled matrimonial ties viz he did not file any

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application u/s 9 for restitution of conjugal rights which makes

crystal clear that the respondent never fulfilled his duty of a good

husband.

9. Learned counsel for the appellant submitted that the

the respondent husband had not fulfilled the matrimonial

obligations and he had not cared of his daughters and neglected

them. He submitted that the respondent had not made any effort

to restore the relationship between them. He submitted that the

appellant wanted to resume the ties conversely greeting cards

etc. sent by her came back unserved. It shows that the

respondent wanted to neglect her. Learned counsel for the

appellant submitted that in Criminal Case No.420/1988, the

learned Family Court observed that the respondent had left the

appellant. So, the learned Family Court wrongly decided the issue

of desertion against the appellant.

10. Learned counsel for the appellant submitted that the

respondent misbehaved her and due to cruel behaviour, she had

lost her daughter Santosh. He submitted that the respondent had

not cared the appellant wife and also at the time of their illness,

he left them alone. He submitted that the respondent husband

thrown out them on 16.8.1980. Thereafter, she had to reside

with her parental house. Learned counsel for the appellant

submitted that the appellant wife wanted to live with him. So, the

appeal be allowed.

11. Learned counsel for the respondent submitted that

there is no illegality and infirmity in the order of the learned

Family Court. He supports the order passed by the learned Family

Court.

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12. Learned counsel for the respondent submitted that

behaviour of the appellant was cruel and disrespectful towards

respondent and his family members. She did not want to do

household work. She used to filthy language to insult him and his

family members. Learned counsel for the respondent submitted

that the appellant left the matrimonial home without taking

permission and used to go her parents’ house on trivial matters.

In May, 1979 she got made golden rings without any permission of

the respondent on the occasion of her brother’s marriage. Learned

counsel for the respondent submitted that on several time, the

appellant came with her family members to quarrel with

respondent. He submitted that on 16.8.1980, the appellant left

the house of the respondent without his permission and had not

come to live with him till today. He submitted that the appellant

had not informed about birth of daughter Santosh and also not

informed of her death. Learned counsel for the respondent

submitted that the appellant deserted the respondent without any

reasonable and bonafide cause. So, the appeal be dismissed.

13. We have given our thoughtful consideration to the

arguments advanced by both the parties, perused the impugned

order and the material available on record.

14. The Supreme Court in the case of SectionShobha Rani v.

Madhukar Reddi, reported in AIR 1988 SC 121, observed as

under:

“Section 13 13(1)(i-a) uses the words “treated
the petitioner with cruelty”. The word “cruelty”
has not been defined. Indeed it could not have
been denied. It has been used in relation to
human conduct or human behavior. It is the
conduct in relation to or in respect of matrimonial
duties and obligations. It is a course of conduct
of one which is adversely affecting the other. The
cruelty may be mental or physical, intentional or

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unintentional. If it is physical the Court will have
no problem to determine it. It is a question of
fact and degree. If it is mental, the problem
presents difficulty. First the inquiry must begin as
to the nature of the cruel treatment. Second, the
impact of such treatment on the mind of the
spouse. Whether it caused reasonable
apprehension that it would be harmful or
injurious to live with the other. Ultimately, it is a
matter of inference to be drawn by taking into
account the nature of the conduct and its effect
on the complaining spouse. There may, however,
be cases whether the conduct complained of
itself is bad enough and per se unlawful or illegal.
Then the impact or the injurious effect on the
other spouse need not be enquired into or
considered. In such cases, the cruelty will be
established if the conduct itself is proved or
admitted.”

15. The Supreme Court in the case of SectionV. Bhagat v. Mrs.

D. Bhagat, reported in 1994 SCC(1) 337, has defined mental

cruelty in the following manner:

“Mental cruelty in Section 13(1)(ia) can broadly
be defined as that conduct which inflicts upon the
other party such mental pain and suffering as
would make it not possible for that party to live
with the other. In other words, mental cruelty
must be of such a nature that the parties cannot
reasonably be asked to put up with such conduct
and continue to live with the other party. It is not
necessary to prove that the mental cruelty is such
as to cause injury to the health of the petitioner.
While arriving at such conclusion, regard must be
had to the social status, educational level of the
parties, the society they move in, the possibility
or otherwise of the parties ever living together in
case they are already living apart and all other
relevant facts and circumstances which it is
neither possible nor desirable to set out
exhaustively. What is cruelty in one case may not
amount to cruelty in another case. It is a matter
to be determined in each case having regard to
the facts and circumstances of that case. If it is a
case of accusations and allegations, regard must
also be had to the context in which they were
made.”

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16. It is evident from the record that behaviour of the

appellant towards respondent and his family members was cruel

and disrespectful. The appellant wife used to threat them.

Appellant’s father also threatened to the respondent without any

reasonable cause. The appellant wife had not informed about birth

of daughter Santosh to the respondent husband and even of her

death. Even after information, the appellant had not come to her

matrimonial home at the time of death of her mother-in-law and

brother-in-law. The appellant wife had deserted the respondent

husband for last 28 years without any reasonable cause. She had

not made any effort to restore the matrimonial relationships. The

conduct and behaviour of the appellant wife comes in the category

of cruelty. The learned Family Court had not committed any error

to decide the issue of cruelty and desertion against the appellant.

Therefore, the appeal being devoid of merit, is liable to be

dismissed.

17. Accordingly, the appeal along with stay application is

dismissed.

(NARENDRA SINGH DHADDHA),J (MOHAMMAD RAFIQ),J

RAJ KUMAR CHAUHAN /17

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