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Naresh Kumar Nitharwal vs Smt Anju on 29 August, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

D.B. Civil Miscellaneous Appeal No.3043/2018
Naresh Kumar Nitharwal S/o Shri Puran Singh, B/c Jat, aged
about 38 years, R/o Subedarji Ka Kuwa, Near Kankad Ke Balaji,
Post Bharni, Tehsil Srimadhopur, District Sikar (Raj.)
—-Appellant
Versus
Smt. Anju D/o Vidhyadhar Meel, W/o Shri Naresh Kumar
Nitharwal, B/c Jat, aged about 35 years, R/o Subedarji Ka Kuwa,
Near Kankad Ke Balaji, Post Bharni, Tehsil Srimadhopur, District
Sikar (Raj.) Presently Residing At Meelo Ki Dhani, Near Purohiton
Ki Dhani, Tehsil and District Jhunjhunu.
—-Respondent

For Appellant(s) : Shri Mahesh Kalwania
For Respondent(s) : Shri Mahendra Kumar Jain

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

Order

19/08/2019
Order reserved on 19/08/2019
Order pronounced on 29/08/2019

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

D.B. Civil Misc. Applicaiton No.52/2019

For the reasons mentioned in application, eight days

delay in filing the appeal is condoned. The application is allowed.

D.B. Civil Miscellaneous Appeal No.3043/2018

1. This appeal has been preferred by the appellant Naresh

Kumar Nitharwal against the order of the learned Family Court,

Jhunjhunu passed on 17.4.2018 whereby the learned Family Court

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dismissed the matrimonial Civil Misc. Case No.622/2016

(94/2016) (17/2013) filed u/s 13 of the SectionHindu Marriage Act, 1955

(for short “the Act”).

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

marriage of the appellant was solemnized with respondent on

15.7.2005 as per Hindu rites and customs and spouses are

blessed with male child Yash on 20.12.2006. The appellant was

posted as Sub-Inspector at Mumbai Airport. For some time, the

spouses were maintaining good relationship but after passing of

few days there relations became strained and respondent started

quarreling with the appellant and his family members without any

reasons. But in order to maintain peace and harmony in family,

the appellant always tolerated bad and unacceptable behaviour of

the respondent. On misbehave of the respondent, the appellant

filed a divorce petition which was dismissed on 17.4.2018 by the

learned Family Court.

3. In reply, the respondent stated that she remained along

with appellant till 2015, thereafter the appellant did not talk or

behave like a spouse, till date. Although, the relationship with

parents of the appellant were good, she did not go her maternal

home. The respondent had not quarreled with any member of his

family. The respondent stated that the appellant wanted to marry

with Kusum Yadav, so he pressed her for divorce.

4. From the pleadings, the learned Family Court framed

issues :

“1- vk;k vizkfFA;k }kjk izkFAhZ ds lkFA fd;s x;s dzwjrkiq.kZ O;ogkj
ds dkj.k izkFAhZ fookg foPNsn dh fMdzh izkIr djus dk vf/Adkjh gS ?

—- izkFAhZ

2- vuqrks”k ?”

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5. Appellant Naresh Kumar Nitharwal examined himself as

AW-1 and three other witnesses as Suwa Lal AW-2, Laxmi Devi

AW-3 and Pooran Singh AW-4.

6. Respondent Anju Devi was examined herself as NAW-1

and two other witnesses as Vidhyadhar NAW-2 and Sumita

Choudhary NAW-3. Respondent exhibited documents as EX.-NA 1

to Ex. NA-8 and FIR as Ex. NA-16.

7. After hearing the learned counsel for the parties, the

learned Family Court decided both the Issues in favour of the

respondent and against the appellant.

8. Learned counsel for the appellant submitted that the

learned Family Court had committed serious error in dismissing

the divorce petition filed by the appellant. Learned Family Court in

routine and cursory manner and without application of judicial

mind, straightway dismissed the divorce petition. Learned counsel

for the appellant submitted that respondent wife herself deserted

the appellant on her own sweet will. At the time of marriage, the

respondent falsely stated that she was B.A. and B.Ed., but she

was only matriculate. After sometime of marriage, respondent

started mentally torturing the appellant and his family members.

The appellant without any objection allowed to complete her

further studies and also borne educational expenses. The

respondent falsely made statement in her affidavit that the

appellant had illicit relationship with Kusum Yadav. The respondent

had not stopped to harass the appellant mentally and physically

by cruel behaviour. She also lodged a false FIR against the

appellant and his family members and compelled the appellant to

submit his resignation from service. Despite misbehaviour of

respondent, the appellant always wanted to keep the respondent

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and his son Yash with him. In her statement, the respondent

clearly stated that she was not willing to live with the appellant.

Learned Family Court had not considered this fact. The respondent

had tarnished the image of appellant and his family members by

registering false case under Section 376/Section511 IPC against her

father-in-law and uncle-in-law (Umesh). Learned Family Court had

wrongly interpreted that on account of pending cases, it could not

be assumed that these were falsely registered. During the course

of arguments, the appellant bonafidely expressed his willingness

to keep the respondent with him, but the respondent had refused

to live with him. Thus, it was crystal clear from the conduct of the

respondent that the marriage between appellant and respondent

had broken down. The appellant in his support placed reliance in

D.B. Civil Miscellaneous Appeal No.45/2000, Smt. Anita Jain

Versus Rajendra Kumar Jain, decided on by this Court on

30.11.2009.

9. Learned counsel for the respondent submitted that the

appellant in his pleadings had not mentioned any specific evidence

about cruelty. He submitted that the appellant Naresh Kumar

Nitharwal in his statement stated that the respondent and his son

remained with him after 2½ years of filing the divorce petition. He

also stated that “I had pardoned the respondent and ready to live

with her.”

10. Learned counsel for the respondent submitted that the

appellant had not come with clean hand. Learned counsel for the

respondent submitted that the appellant had filed divorce petition

when the respondent and her son were living with him. Two

witnesses of the appellant; namely, Laxmi Devi AW-3 and Pooran

Singh AW-4 had admitted in their cross examination that

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respondent was living with them when the appellant had filed

divorce petition. This shows that the respondent had not

committed any cruelty against the appellant. The learned counsel

for the respondent submitted that the appellant wanted to marry

with Kusum Yadav, therefore he had filed divorce petition to get

rid of respondent. The learned counsel for the respondent

submitted that the appellant produced vague false evidence

regarding cruelty. He had committed cruelty against the

respondent and therefore he could not take any advantage of his

own mistake. The learned counsel for the respondent submitted

that the learned Family Court had rejected the suit on cogent and

valid ground and therefore no interference is required.

11. We have given our thoughtful consideration to the

arguments advanced by both the parties, perused the impugned

order and the material available on record.

12. The appellant had not pleaded any specific evidence

regarding cruelty. The appellant had not come with clean hand. He

had filed divorce petition when respondent and her son were living

with him. Smt. Laxmi Devi AW-3 – mother of appellant and Shri

Puran Singh – father of the appellant, both clearly stated in their

statements that respondent was living with them and the

appellant had filed divorce petition against her. The appellant in

his statement clearly stated that he had pardoned the respondent

and he wanted to live with her. The respondent in her statement

clearly stated that if the appellant had withdrawn the cases, she

would have to live with him. The learned Family Court in its order

clearly stated that there was no evidence regarding marriage

between appellant and respondent irretievable broke down. The

learned Family Court clearly observed that the cases lodged by the

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respondent regarding attempt to rape, harassment and dowry

were still pending, therefore it could not be inferenced that these

were falsely instituted.

13. Therefore, we are of the considered opinion that the

learned Family Court had not committed any error in rejecting the

divorce petition filed by the appellant. Therefore, we are

persuaded to reject the appeal and accordingly, it is dismissed.

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

RAJ KUMAR CHAUHAN /17

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