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Smt. Kamla vs Bhawani Shankar & Anr on 5 March, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 1529 / 2016
Smt. Kamla W/o Bhawani Shankar Meena (Bheel), D/o Shri
Ratanlal Bheel, Age 31 years, Resident of Karukadia (Dhamana)
District Chittorgarh (Raj.)

—-Appellant
Versus

1. Bhawani Shankar S/o Sohanlal Meena (Bheel), Age 35 years,
Resident of House No.41, Sector No.8, Hiranmagri, Udaipur.

2. Anil Vyas S/o Shri Badri Lal Vyas, Resident of Dhamana,
Tehsil Kapasan, District Chittorgarh (Raj.).

—-Respondents
__
For Appellant(s) : Mr.Sandeep Saruparia
For Respondent(s) : None.

__
HON’BLE THE CHIEF JUSTICE

HON’BLE MR. JUSTICE VINIT KUMAR MATHUR
Judgment
05/03/2018

1. Heard learned counsel for the appellant.

2. Marriage between the appellant and the respondent as per

Hindu custom was solemnized on 20.5.1996.

3. The respondent filed a petition for divorce decree being

granted on 23.3.2011 alleging mental cruelty, adultery and

desertion against the appellant.

4. Case pleaded by the respondent was that after the marriage

was solemnized in the year 1996 the appellant stayed with her

parents for five years because she was pursuing her studies.

During this period of five years the appellant developed illicit

relationship with one Anil Vyas (impleaded as respondent no.2 in
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[CMA-1529/2016]

the divorce petition) through whom she conceived but underwent

an abortion. This fact respondent claims came to his knowledge

after the appellant joined consortium with him. Pleading further

that after the appellant joined him in their matrimonial house her

attitude was hostile towards his family members and she would

constantly threaten to hang herself, a threat to intimidate him and

his family members. A child named Rahul born to the appellant

was not conceived through him because at the alleged time of

conception he was not mentally fit and was undergoing a stage of

depression. The child was actually conceived through Anil Vyas.

That the appellant lodged false and frivolous criminal cases

against the respondent. That the appellant and her father

practiced ritual (jadu-tona) on him and his family members. That

since 3.11.2007 the appellant was living in adultery with Anil

Vyas.

5. In the written statement filed the appellant denied the

allegations made against her and pleaded dowry demand in sum

of ₹25,000/- as the cause of the discord with additional cause, as

pleaded in paragraph 3 of the written statement, “that the

respondent had kept another woman in his house through whom a

child was born”.

6. On the pleadings of the parties three issues were settled by

the learned Judge, Family Court. The first was whether the

appellant treated the respondent with cruelty. The second was

whether the appellant left the matrimonial house without a

justifiable cause. The third was whether the appellant was living in

adultery with Anil Vyas (respondent No.2).

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[CMA-1529/2016]

7. The respondent examined himself as AW1, his father as

AW2, Lokesh as AW3 and one Bhajja as AW4. The appellant

besides examining herself as NAW1 examined her father as NAW2,

Nandlal as NAW3 and one Ramesh as NAW4.

8. Suffice it to state as is expected in matrimonial cases where

oral evidence is led, the appellant’s witnesses supported her

version, the respondent’s witnesses supported his version.

9. The appellant could not prove her allegation that the

respondent had started living with another woman in his house

and a child was born to them. Similarly, the respondent could not

prove against the appellant that she was having illicit relationship

with Anil Vyas (respondent No.2) and had undergone an abortion

when she conceived through him, as also that the child named

Rahul was actually born from the relationship of Anil Vyas.

10. From the fact that the appellant had lodged FIR for offences

punishable under Section 498A read with Section 406 IPC the

learned Judge, Family Court concluded that this act constituted

the act of cruelty. Thus, issue No.1 was decided against the

appellant and so was issue No.2. Issue No.3 pertaining to the

adultery was decided against the respondent and in favour of the

appellant.

11. We agree with the submission advanced by learned counsel

for the appellant that merely because the appellant lodged

complaint against the respondent for offences punishable under

Section 498A read with Section 406 IPC it could not be said that

she had acted with cruelty, more so for the reason, by the time

the impugned decision was pronounced, the trial in said FIR was
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[CMA-1529/2016]

on.

12. It may also be correct when the appellant urges that upon

respondent not being able to prove allegations of adultery she

could not be expected to live with him and thus had a good cause

to withdraw from the consortium.

13. But the counter allegation of the appellant that respondent

was living in adultery with another woman and through whom a

child was born remains unproved.

14. It is thus a case of mutual cruelty. The appellant alleges

adultery against the respondent and vice versa. Neither of them

have been able to prove the same.

15. In a judgment dated October 21, 2016 MAT.APP.(F.C.)

36/2014 Sandhya Kumari vs. Manish Kumar the Delhi High Court

had noted that though irretrievable breakdown of marriage is not

a ground for divorce, but in the judgments reported as 2006 (2)

Mh.L.J.307 Madhvi Ramesh Dudani vs. Ramesh K.Dudani, 2007

(4) KHC 807 Shrikumar vs. Unnithan vs.Manju K.Nair, (1994) 1

SCC 337 V.Bhagat vs. D.Bhagat and (2006) 4 SCC 558 Navin

Kohli vs. Neelu Kohli the concept of cruelty has been blended by

the Courts with irretrievable breakdown of marriage. The ratio of

law which emerges from said decisions is that where there is

evidence that the husband and wife indulge in mutual bickering,

leading to remonstration and therefrom to the stage where they

target each other mentally, insistence by one to retain the

matrimonial bond would be a relevant factor to decide on the

issue of cruelty, for the reason the obvious intention of said

spouse would be to continue with the marriage not to enjoy the
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[CMA-1529/2016]

bliss thereof but to torment and traumatize the other.

16. Thus not for the reasons given by the learned Judge, Family

Court, for aforesaid reasons we maintain the decree of divorce

granted by the learned Judge, Family Court.

17. The appeal is dismissed.

(VINIT KUMAR MATHUR)J. (PRADEEP NANDRAJOG)CJ.

Parmar

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