Rajasthan High Court - Jodhpur
Smt Reena Devi vs Manoj Kumar on 11 May, 2018
Bench: Chief Justice, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 1401 / 2016
Smt Reena Devi W/o Shri Manoj Kumar, Aged 37 years D/o Shri
Kishan Lal, by profession service, resident of Nayakan Mohalla,
Near Choukhanti Phatak, Bikaner.
----Appellant
Versus
Manoj Kumar S/o Late Shri Aasuram, by caste Swami, resident of
C-133, Bajrang Bihar, Near Sai Baba Temple, Shibadi, Bikaner.
----Respondent
_____________________________________________________
For Appellant(s) : Mr.B.K.Vyas
For Respondent(s) : Mr.P.C.Solanki
_____________________________________________________
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
Order 11/05/2018
1. With consent of parties we set aside the impugned judgment dated 7.5.2016 and remand the matter to the learned Judge, Family Court, Bikaner for decision afresh. The reason is that the decree of divorce has been declined on cruelty but allowed on desertion without there being any finding of the intention on the part of the appellant to desert the respondent. Only the factum of desertion has been highlighted.
2. The problem with the impugned judgment is that two separate issues were required to be framed. The first was whether the respondent is entitled to decree of divorce on ground of cruelty and the second issue was whether the respondent is entitled to divorce on ground of desertion. Evidence relating to (2 of 2) [CMA-1401/2016] cruelty had to be discussed separately. Evidence relating to desertion had to be discussed separately.
3. At the remand stage the learned Judge, Family Court would discuss the evidence concerning cruelty separately and concerning desertion separately. On the issue of desertion the requirement of law is that the spouse alleged to be in the wrong should be proved to be having the intention to desert; for if a wife is compelled to leave her matrimonial house it cannot be said that she had the intention to desert.
4. Both parties shall remain present before the learned Judge, Family Court, Bikaner on 10th July, 2018.
5. The appeal is disposed of setting aside the impugned judgment dated 7.5.2016.
(VINIT KUMAR MATHUR)J. (PRADEEP NANDRAJOG)CJ. Parmar