Rajasthan High Court - Jaipur
Radheyshyam vs Smt Natti Bai on 16 January, 2018
Bench: Chief Justice, G R Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Miscellaneous Appeal No. 4176 / 2009
Radheyshyam alias Shyam son of Shri Banshilal, by caste Dhakad,
resident of Kishanpura Takiya Tehsil Ladpura District Kota.
----Appellant-Plaintiff
Versus
Smt Natti Bai wife of Shri Radheyshyam alias Shyam D/o Shri
Birdhilal, by caste Dhakad, resident of Kishanpura Takiya Tehsil
Ladpura District Kota.
----Respondent-Defendant
_____________________________________________________ For Appellant(s) : Mr. Dhurv Atrey.
For Respondent(s) : Mr. Govind Choudhary. _____________________________________________________ HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE G R MOOLCHANDANI Judgment 16/01/2018 (1) Heard learned Counsel for the parties. (2) The appellant sued the respondent claiming decree of divorce on the ground of cruelty and desertion i.e. clause (ia) and (ib) of sub-section 1 of Section 13 of the Hindu Marriage Act, 1955. In the petition, the appellant stated that marriage was solemnized as per Hindu Customs in the year 1986 and after the customary Gauna the respondent started residing with him. That after two to three years attitude of the respondent changed and she desired that the appellant should reside separately from his parents. She insisted that the appellant should seek partition of the ancestral property. That all of a sudden one day the respondent left the matrimonial house. That during the (2 of 4) [CMA-4176/2009] subsistence of the marriage a daughter and a son were born. That in the month of February 1999 during a quarrel the respondent attempted to commit suicide.
(3) The respondent denied the allegations against her and pleaded that she was harassed for dowry. Her in-laws used to beat her and locked her in the room. She was compelled to leave the matrimonial house.
(4) Relevant would it be to highlight that neither in the petition the appellant pleaded that the respondent living in adultery with one Ramlal who is the brother-in-law of the respondent and neither the respondent pleaded in defence that the appellant is living with another woman. We have noted as aforesaid at this stage for the reason one argument advanced is that the impugned judgment makes a reference to the evidence led by the appellant in the form of the statement that the respondent was living in adultery with Ramlal. The grievance is that the learned Judge has not rendered any finding thereon. As we have highlighted hereinabove this was not the pleading of the appellant. In his testimony, the appellant said that his wife was living with Ramlal. In our opinion no evidence can be led outside the pleadings of the parties and thus said statement was rightly ignored by the learned trial Judge.
(5) We note that in his testimony the appellant did not state on oath the facts which he pleaded in the petition. He simply said that when his son was three years of age his wife left the matrimonial house and inspite of efforts made she did not come back. He did not state that the respondent desired him to separate (3 of 4) [CMA-4176/2009] him from his father both in mess as well as in property. He did not state that his wife ever attempted to commit suicide. On being cross-examined he admitted that Ramlal is his brother-in- law. He admitted that he had married one Premlata and a son and a daughter had been born to him through her. (6) Suffice it to state that when the appellant entered the witness box he did not state on oath the facts which he pleaded in the divorce petition. The appellant examined two witnesses as AW-2 Chantaram and AW-3 Prabhu Lal. The testimony of both is cryptic. AW-2 Chantaram simply stated that the respondent used to fight with the appellant and without cause left the matrimonial house. That she used to threaten committing suicide. No date or for that matter even the month has been referred to by AW-2 Chantaram. AW-3 Prabhulal simply said that the respondent left her matrimonial house voluntarily.
(7) The respondent examined herself as her witnesses and denied that she ever asked the appellant to separate from his parents. She deposed that appellant wanted her father to give money as dowry and used to beat her. She examined one Birdhi Bai as DW-2 who deposed that she lived in the neighbourhood where the appellant and the respondent had their matrimonial house and that the appellant used to beat the respondent. She had to intervene sometimes to save the respondent. (8) In view of the sketchy evidence led by the appellant the learned Judge, Family Court has dismissed the petition filed by the appellant.
(4 of 4) [CMA-4176/2009] (9) In view of the fact that the appellant did not depose on oath facts which he pleaded in the petition seeking divorce the petition has to fail on account of allegations of cruelty not being proved.
(10) As regards desertion, the respondent admitted the fact of leaving the matrimonial house but pleaded it to be her compulsion on account of being beaten and harassed for dowry. The respondent has thus proved constructive desertion. (11) The appeal is accordingly dismissed.
(12) No costs. (G R MOOLCHANDANI)J. (PRADEEP NANDRAJOG)C.J. N.Gandhi/Ashwani/29