HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
D.B. Civil Misc. Appeal No. 1755 / 2015
Shivanshu Atre S/o Vinod Kumar Atre aged 28 years, resident of
4-56-D, Anutash Colony, Rawatbhata District Chittorgarh.
Smt. Reenu Atre W/o Shivanshu Atre D/o P.D.Kaushik, aged 27
years, resident of A-63, Brijdham Nagar, Rampura, Tehsil Ladpura
District Kota. At present residing at 72, Sukhdham Colony,
Forkheda, Khejda Road, Kota.
For Appellant(s) : Mr.J.D.S.Bhati
For Respondent(s) : None.
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE VINIT KUMAR MATHUR
1. Alleging acts constituting mental cruelty, the appellant
sought annulment of the marriage solemnized between the parties
on 29.10.2009. It was pleaded that the respondent left the
matrimonial house on 23.12.2009 and that during the period
between the date of the marriage and the respondent leaving the
matrimonial house the respondent evinced characteristic of mental
disorder. She would always remain angry and would abuse the
appellant and his parents. She would threaten to lodge false cases
against them. On 1.1.2010 the respondent lodged a false
complaint under Section 498A/406 IPC against the appellant and
his parents. She filed a complaint under the Domestic Violence Act
and initiated proceedings under Section 125 Cr.P.C. That in the
(2 of 5)
complaint for offences punishable under Section 498A/406 IPC the
appellant was sent to prison.
2. In the written statement filed the respondent denied the
allegations made against her and pleaded that on account of not
fulfilling the illegal demand for dowry she was thrown out of the
matrimonial house and as regards the proceedings initiating by
her under the Domestic Violence Act, Cr.P.C. and for return of the
istri dhan she pleaded that law conferred said rights on her.
3. Needless to state that the only issue which came to be
settled was whether the respondent had committed acts of cruelty
entitling the appellant to a decree for divorce.
4. At the trial the appellant examined only himself as his
witness and so did the respondent.
5. In his examination-in-chief by way of an affidavit the
appellant stated on oath the facts which he pleaded in the petition
seeking divorce. But, on cross-examination admitted the
suggestion that during the period the respondent lived in the
matrimonial house no quarrel took place between the two and that
it was correct that during said period the respondent’s conduct
towards him was fine. He admitted that he did not have any
evidence to support his plea that the respondent’s mental
condition was not proper.
6. Interestingly, the appellant introduced the story during
cross-examination containing the reason why the respondent left
the matrimonial house. He stated that the respondent’s father was
a drunkard. A fact not pleaded in the petition seeking divorce was
stated by him during cross-examination, that one day the
(3 of 5)
respondent consumed sleeping pills; but admitted that he had no
proof for the same.
7. Notwithstanding the respondent not having taken any plea in
her written statement that the appellant was having some kind of
a relationship with a girl named Vidushi, a suggestion was put to
the appellant by the respondent’s counsel that he was maintaining
some kind of relationship with a girl named Vidushi. He denied the
same. He also denied the suggestion that Vidushi was pressurizing
the appellant to obtain a divorce. He denied the suggestion that
for said reason he was seeking divorce. He admitted that Vidushi
had lodged an FIR against him for offence punishable under
Section 354 IPC. He stated that Vidushi was the cousin sister of
8. Relevant would it be to highlight that the line of cross-
examination concerning facts as noted in para 7 above was
outside the pleadings of both parties.
9. In her examination-in-chief by way of an affidavit the
respondent stated the facts as pleaded by her in the written
statement and we find that during cross-examination of the
respondent, the appellant put suggestions to the respondent that
since her father was drunkard and her sisters were married she
wanted to go to her parental house to look after her father.
Needless to state that she denied the same. Interestingly, the
respondent admitted that once in her matrimonial house she took
sleeping pills. In cross-examination she stated that she read in the
newspaper some report regarding appellant and Vidushi.
10. Giving reasons that the suggestions and admissions during
(4 of 5)
cross-examination which were outside the pleadings of the parties
had to be ignored and highlighting the admission made by the
appellant in cross-examination and that for the period the
respondent resided in the matrimonial house there was no dispute
between the couple and the respondent’s attitude towards
appellant was good, the petition seeking divorce filed by the
appellant has been dismissed.
11. From a narration of the facts noted by us hereinabove it
emerges that in the petition seeking divorce the only case pleaded
by the appellant was that on account of being mentally disturbed
the respondent would constantly fight with him and his parents.
She would abuse them. This case he himself demolished when he
made admissions in the cross-examination which admissions we
have noted hereinabove. Thus, it has to be held that the appellant
failed to prove the case set up by him.
12. Whilst it may be true that during cross-examination of both
parties it emerges that the actual probable reason for the
matrimonial discord is the girl named Vidushi, but unfortunately
neither party laid any foundation in their pleadings regarding
Vidushi. The appellant did not plead that the respondent starting
alleging against him that he was having some relations with
Vidushi and therefore she left the matrimonial house on said false
reason. Likewise, the respondent did not plead that she had to
leave the matrimonial house due to the appellant’s relationship
13. It is settled law that there cannot be any variance between
the pleadings and proof.
(5 of 5)
14. The appellant had to succeed on the strength of the case
pleaded by him. He had to prove the case pleaded by him. The
appellant could not make out a different case.
15. The appeal is dismissed.
16. No costs.
(VINIT KUMAR MATHUR)J. (PRADEEP NANDRAJOG)CJ.