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Smt. Shanti Maru vs Vishal Maru on 4 July, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR

D.B. Civil Misc. Appeal No. 1599/2016

Smt. Shanti Maru W/o Shri Vishal Maru D/o Shri Heera Lal Tirgar
(Sargara) age 32, resident of Bori, Tehsil Garhi District
Banswara.

—-Appellant
Versus
Vishal Maru S/o Shri Laxman Maru, by caste Sargara, resident of
Savina, Udaipur.

—-Respondent

For Appellant(s) : Mr.Parikshit Nayak
For Respondent(s) : Mr.Ram Singh Rawal

HON’BLE THE CHIEF JUSTICE MR.PRADEEP NANDRAJOG
HON’BLE MR. JUSTICE VINIT KUMAR MATHUR

Judgment

04/07/2018

1. Heard learned counsel for the parties. Trial Court record has

been perused.

2. Vide judgment dated 31.5.2016, the petition filed by the

respondent has been allowed granting decree of divorce to the

respondent on two counts. Proof of cruelty. Desertion for over two

years preceding filing of the petition without any justifiable cause.

3. Marriage between the parties was solemnized as per Hindu

customs on 23.11.2010. No child has been born to the couple.

4. As per the respondent attitude of the appellant in the

matrimonial house was normal for a period of one month. But

after that she started quarrelling with his parents. She fought with
(2 of 6) [CMA-1599/2016]

him and his family members in December, 2011. Her parents were

informed. Her father came to the matrimonial house and the

appellant left the matrimonial house in the company of her father.

When the respondent contacted the appellant she said that she

would live with him if he took up separate residence. He was thus

forced to take separate residence on rent. She fought with him in

the said rented house and left him on 24.6.2012. He filed a

petition on 14.9.2012 seeking restitution of conjugal rights. The

appellant could not be served. He therefore withdrew the petition

because he learnt that on 23.9.2012 she had lodged a complaint

pursuant whereof FIR for offences punishable under Sections

498A, 323, 504 IPC was registered.

5. We note that the petition seeking divorce was filed by the

respondent in July, 2014.

6. The appellant denied the assertions made against her in the

petition seeking divorce filed by the respondent. She pleaded that

she was constantly harassed for dowry and was beaten in the

month of May, 2011 due to which she suffered a miscarriage on

5.5.2011. She pleaded that since her in-laws would always trouble

her and threw her out of the house her husband i.e. respondent

was constraint to take a house on rent but in said rented house

her husband did not even give food to her. She pleaded that the

respondent was prone to alcohol and whatever he would earn

would be spent on liquor. He would not pay the rent on time. For

days he would be missing from the house. She pleaded that she

was forced to move to her parents’ house because the landlord

compelled the respondent to vacate the rented accommodation on

account of rent not being paid.

(3 of 6) [CMA-1599/2016]

7. On the pleadings of the parties two issues were settled. The

first was whether the appellant committed acts of cruelty against

the respondent and the second whether the appellant withdrew

from the consortium for a period of two years preceding filing of

the petition without any sufficient cause.

8. Record shows that the respondent examined himself as AW1,

his mother Vidhya Devi as AW2, his brother Shelja as AW3 and

one Uma Sharma as AW4. He proved 15 documents as Ex.1 to

Ex.15.

9. The appellant examined herself as NAW1, her sister Kokila as

NAW2 and her mother Narbada as NAW3.

10. The testimony of the respondent and his witnesses, and in

particular concerning the date 5.5.2011 i.e. the date when

appellant claims to have suffered an abortion on account of

beating given to her, through the medium of Ex.P/1, P/8 and P/10

brings out that respondent’s father was admitted at the Railway

Hospital, Jaipur in a serious condition on 15.3.2011. He was

discharged from the hospital on 2.4.2011. He was re-admitted on

4.4.2011 at Fortis Escort Hospital, Jaipur. Ex.P/8 brings out that

even respondent’s mother was admitted at the Railway Hospital,

Jaipur on 4.5.2011 wherefrom she was discharged on 11.5.2011.

11. The learned Judge, Family Court has opined from said

evidence that appellant’s assertion that she was ill-treated in her

matrimonial house and so severe was the ill-treatment that she

aborted is disproved. We shall comment upon this evidence a

little later.

12. Concerning the appellant, she claims in her testimony that

on 5.5.2011 abortion took place at JP Hospital, Udaipur. On being

cross-examined she admitted that she had no document to prove
(4 of 6) [CMA-1599/2016]

the same. She admitted that for experience she had worked at the

said hospital i.e. JP Hospital. To the question that JP Hospital was

an orthopedic hospital she replied that she does not know.

13. From said testimony of the appellant the learned Judge,

Family Court has opined that this is an additional reason to hold

that her version of forced abortion was false.

14. Concerning appellant’s leaving the rented house where the

couple had set up their matrimonial home, during cross-

examination the appellant admitted that she and her husband

resided in the rented house and that her husband left the house

informing her that to undergo training he had to go to Gurgaon.

She stated that she was forced to leave the house because a

snake entered the house due to rain during monsoon period. She

stated that she left the house to live with her parents informing

the respondent that when he returns he should contact her and

she would return. As per her the respondent never contacted her.

15. We need not note the testimony of the witnesses for the

reason, as usual in matrimonial cases witnesses of the parties

parrot the case of the party who produces them as witnesses.

16. From the facts and the evidence noted hereinabove we

expected from learned counsel for the appellant to address

arguments on the evidence concerning appellant’s plea of being

beaten in her matrimonial house and as a result whereof she

suffered a forced abortion on 5.5.2011. The contours of the

evidence has been noted by us hereinabove.

17. Learned counsel for the appellant makes no submissions

concerning said evidence and the conclusions which one needs to

draw therefrom.

(5 of 6) [CMA-1599/2016]

18. Indeed, the appellant has no proof of having undergone an

abortion at the JP Hospital, Udaipur. Her admission that she had

worked in the said hospital does not justify her answer during

cross-examination that she cannot affirm or deny whether the

hospital was an orthopedic hospital. The medical papers

concerning respondent’s parents establish that both parents were

seriously unwell and were admitted in different hospitals in the

city of Jaipur and respondent’s version that on 5.5.2011 he was in

Jaipur gets substantiated therefrom.

19. Now, a false allegation that so severely was the spouse

beaten by the other spouse that she aborted, if proved to be false

would itself constitute an act of cruelty.

20. That the respondent separated from his parents, as

admitted by the appellant herself, lends credence to respondent’s

version that he was compelled to take up separate residence due

to the hostile attitude of the appellant towards his parents.

21. As per the appellant, as pleaded by her the landlord forced

her to vacate rented house because the respondent did not pay

the rent is bellied from her testimony wherein she says that the

reason for leaving the house was a snake entering the house

during monsoon period when her husband was in Gurgaon for

purpose of training. The appellant has not been able to render any

explanation for deserting the matrimonial house. The factum of

desertion is admitted. The reasonable cause had to be established

by the appellant but she has failed to do so.

22. We note at this stage that learned counsel for the appellant

has not been able to puncture any hole in the appreciation of the

evidence by the learned Judge, Family Court and the impugned
(6 of 6) [CMA-1599/2016]

decision proceeds on the evidence noted by us hereinabove. We

find no infirmity in the impugned judgment.

23. The appeal is dismissed.

24. No costs.

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

Parmar

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