Rajasthan High Court - Jodhpur
Kamlesh Bagora vs Smt. Preeti Paliwal on 14 November, 2017
Author: Ajay Rastogi
Bench: Ajay Rastogi
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 656 / 2017
Kamlesh Bagora S/o Shri Damodar Bagora, Aged About 34 Years,
Resident of A/21, Nai Abadi, Bhilwara Road, Kankroli, Tehsil and
District Rajsamand.
----Appellant
Versus
Smt. Preeti Paliwal W/o Kamlesh D/o Gopal Lal Joshi, Resident of
Nathuvas, Tehsil Nathdwara, District Rajsamand.
----Respondent
_____________________________________________________
For Appellant(s) : Mr.C.S.Kotwani, Adv.
_____________________________________________________
HON'BLE MR. JUSTICE AJAY RASTOGI
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Order 14/11/2017 Office has pointed out delay in filing of the instant appeal, in support whereof application under Section 5 of the Limitation Act has been filed, duly supported by the affidavit.
Having gone through the application, we are satisfied that the delay has been satisfactory explained and deserves to be condoned.
Consequently, the application filed under Section 5 of the Limitation Act stands allowed and the delay stands condoned.
Heard on merits.
The appellant-husband is aggrieved against the finding returned by the ld.Family Court in impugned judgment dt.15.11.2016 wherein it was held that the appellant treated his wife, the respondent Smt.Preeti Paliwal, with cruelty.
(2 of 5) [CMA-656/2017] Briefly stated, on 23.11.2010 the appellant and respondent were married at village Nathuwas. The respondent-wife instituted divorce petition before the ld.Family Court, Rajsamand seeking divorce on the ground of desertion and cruelty. It is averred in the grounds of appeal that on 14.10.2016, ld. Family Court had struck the defence of the appellant. Thereafter the ld.Family Court vide impugned judgment dt.15.11.2016 granted divorce in favour of the respondent-wife by returning a finding that the appellant had treated his wife with cruelty.
In the present appeal, the appellant has not assailed the decree of divorce but has made a grievance that since the ld.Family Court has returned a finding that the appellant had treated his wife with cruelty, that shall be having a far-reaching consequences, hence, this court should set aside the above finding. It would be apposite here to reproduce ground-(ii) as averred in para-5 of the appeal. The said ground reads as under:-
"Para 5:
(i) ... ... ...
(ii) That it is further pertinent to mention here that the humble appellant does not challenge the validity and propriety of the grant of decree of divorce but so far as finding on issue No.1 is concerned i.e. derogatory against humble appellant as the respondent wife was never treated with cruelty at any point of time and the learned court below without even considering the important aspect has proceeded to grant the decree of divorce on the ground of cruelty, which was not established before it as finding on issue No.1 vitiates on this ground and the same is liable to be quashed and set aside on this ground as well."
During the course of arguments, we called upon counsel for the appellant to spell out the reasons as to why we should set (3 of 5) [CMA-656/2017] aside the finding returned by the ld.Family Court regarding the ground of cruelty once he has accepted the decree of divorce.
The ld.counsel has expressed an apprehension that the said finding after the defence of the appellant was struck off, can be used by the respondent-wife in other proceedings. The ld.counsel has urged that it cannot be ruled out that the said finding can be used adverse to the interest of the husband in criminal proceedings or in other rounds of litigation.
We have drawn the attention of the counsel to Section 41 of the Indian Evidence Act (hereinafter called 'Act'). Sections 40 to Section 44 of the Indian Evidence Act specify as to how judgments of courts of justice shall be relevant in other proceedings. We in the present proceedings are concerned with the Section 41 of the Act, which is reproduced below:-
"41. Relevancy of certain judgments in probate, etc. jurisdiction.- A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to an specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.
Such judgment, order pr decree is conclusive proof--
that any legal character which it confers accrued at the time when such judgment, order or decree came into operation;
that any legal character, to which it declares any such (4 of 5) [CMA-656/2017] person to be entitled, accrued, to that person to be entitled, accrued, to that person at the time when such judgment, [order or decree] declares it to have accrued to that person;
that any legal character which it takes away from any person ceased at the time from which judgment, [order or decree] declared that it had ceased or should cease;
and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, [order or decree] declares that it had been or should be his property."
In matrimonial matters, the judgment so far it affects legal character of the parties is relevant in other proceedings. Once divorce is accepted by the appellant-husband, as result thereof appellant and respondent are no longer husband and wife and their legal character to this effect stands determined. However, any ancillary finding given qua determination of legal character of the parties in itself is not relevant in the criminal proceedings or the proceedings before any court of law.
It is well settled legal position that the criminal court or for that matter any other court has to rely upon the evidence led before that court and ipso facto finding given by the ld.Family Court cannot be read as a binding upon any other court. Therefore, because of non-challenge to the impugned decree, it stands conclusively determine that the appellant and the respondent wife are no longer husband and wife, however, so far any connected or ancillary findings given by the ld.Family Court are concerned, they cannot be transposed in any other proceedings as the same have to be proved by the parties by (5 of 5) [CMA-656/2017] leading evidence in accordance with the provisions of law.
In view of the above observations made by us, the above apprehension expressed by the appellant is unfounded and therefore, calls for no adjudication by this court.
Consequently, the present appeal is disposed of without causing any interference in view of the observations made by us above.
(KANWALJIT SINGH AHLUWALIA) J. (AJAY RASTOGI) J. Solanki DS, PS/4