SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Smt Heeramani vs Mukesh Kumar on 28 May, 2019

(1 of 4)

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 650/2012
Smt. Heeramani W/o Mukesh Kumar D/o Tikam Chand Ji
Jain, R/o Jyoti Colony Devli. At present Purani Tonk, Tehsil
District Tonk (Raj.)
—-Appellant
Versus
Mukesh Kumar S/o Shri Bhanwarlal Ji Jain, R/o Jyoti Colony,
Devli. At present Cell No.27, Central Jail, Kota (Raj.).

—-Respondent

For Appellant : Mr. Praveen Jain
For Respondent : Mr. Vikas Kabra

HON’BLE MRS. JUSTICE SABINA
Judgment
28/05/2019

Appellant has filed this appeal, challenging the

judgment and decree dated 24.09.2011, whereby, divorce

petition filed by the appellant, was dismissed.

Learned counsel for the appellant has submitted that

the appellant had been successful in establishing that she

had been treated with cruelty by the respondent and had

been deserted by the respondent without any justifiable

pose. Lower court has erred in dismissing the divorce

petition filed by the appellant. Learned counsel has further

submitted that vide order dated 31.05.2016, application

moved by the appellant under Section 24 of the Hindu

Marriage Act, 1955, was allowed and respondent was

directed to pay Rs.5,000/- per month by way of interim

maintenance to the appellant. However, respondent has

failed to pay the maintenance amount in pursuance to the

(Downloaded on 29/06/2019 at 04:24:08 AM)
(2 of 4 )

said order. Hence, the defence of the respondent was liable

to be struck off and the appeal filed by the appellant was

liable to be allowed. Learned counsel for the appellant has

submitted that he mainly challenging the findings of the trial

court on issue no.1. In support of his arguments, learned

counsel has placed reliance on the decision of this court in

S.B. Civil Misc. Appeal No.198/2009 titled as Smt. Pani

Vs. Bhagwana Ram, decided on 8.11.2012, wherein, it

was held as under:-

“It is evident from all the above judgments
that the defence of the husband having
been struck off on account of the
non-payment of interim maintenance, the
appeal filed by wife is to be allowed. The
facts as narrated in the cases above are
somewhat similar to the facts of the present
case. The respondent-husband not only
failed to pay the maintenance ordered by
the trial court in the application under
Section 24 of the Act but also failed to pay
maintenance in pursuance to the order
passed by this Court on 09.07.2010. His
defense was accordingly struck off. The
appeal, therefore, deserves to be allowed on
this ground.”

Learned counsel for the respondent, has opposed the

appeal.

Appellant had filed petition under Section 13 of the

Hindu Marriage Act, 1955, seeking decree of divorce on the

ground of cruelty and desertion.

Appellant appeared in the witness-box as AW-1 and

deposed that she had got married to the respondent on

29.01.2007. However, respondent treated her with cruelty as

the demand of dowry raised by him could not be met.

Respondent used to give beatings to her when she could not

(Downloaded on 29/06/2019 at 04:24:08 AM)
(3 of 4 )

satisfy his demand of dowry. She further deposed that she

had lodged FIR against the respondent under Section 498-A,

Section323, Section406 Indian Penal Code, 1860 and Section 4 of Dowry

Prohibition Act, 1961. She further stated that she had been

thrown out of the matrimonial home by the respondent after

giving beatings to her in May 2008. Respondent was in jail

from 10.06.2009 onwards.

Respondent appeared in the witness-box as NAW-1 and

deposed that he had performed marriage with the appellant

on 29.01.2007. He admitted in his cross-examination that

FIR under Section 498-A, Section323 Indian Penal Code, 1860 was

registered against him. He had borne the expenses incurred

at the time of their marriage. Appellant had left for her

parental home after 10-15 days of their marriage. He had

never fought with the appellant. He was arrested by the

police on 10.06.2009 and at that time, appellant was with

him in the matrimonial home. Appellant stayed in the

matrimonial home for about 6 months after he had gone to

jail. Appellant had come to jail on 2-3 occasions to meet

him.

Trial court dismissed the divorce petition filed by the

appellant mainly influenced by the fact that the appellant

had visited the respondent while he was in jail.

During the pendency of the petition vide order dated

31.05.2016, respondent was directed to pay interim

maintenance @ of Rs.5,000/- per month to the appellant.

However, respondent has failed to pay the said amount to

(Downloaded on 29/06/2019 at 04:24:08 AM)
(4 of 4 )

the appellant. Thus, the defence of the respondent is struck

off and the appeal filed by the appellant deserves to be

allowed on this ground alone.

Appellant while appearing in the witness-box has duly

deposed in her examination-in-chief that she had been

treated with cruelty by the respondent. Merely, because the

appellant had gone to meet the respondent while he was

lodged in jail is in itself no ground to disbelieve the

statement of the appellant to the effect that she had been

treated with cruelty by the respondent.

Hence, in the facts and circumstances of the case,

appellant was entitled for a decree of divorce on the ground

of cruelty. Therefore, issue no.1 is decided in favour of the

appellant and against the respondent.

Since, issue no.1 has been decided in favour of the

appellant, appeal filed by the appellant is liable to be

allowed.

Accordingly, this appeal is allowed. Impugned judgment

and decree of the trial court, are set aside. Consequently,

the divorce petition filed by the appellant is allowed and a

decree of divorce is passed in favour of the appellant and

against the respondent on the ground of cruelty.

(SABINA)J.

Mohita/16

(Downloaded on 29/06/2019 at 04:24:08 AM)

Powered by TCPDF (www.tcpdf.org)

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation