Rajasthan High Court - Jodhpur
Krishna Kumar Menaria vs Kusum Menaria on 22 January, 2018
Bench: Gopal Krishan Vyas, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 946 / 2017
Krishna Kumar Menaria S/o Late Panna Lal Menariya, Aged About
56 Years, B/c Sharma, Resident of House No. 191, Sector-6, Hiran
Magri, Behind Shiv Temple, Udaipur (Raj.)
----Appellant
Versus
Kusum Menaria W/o Krishna Kumar Menaria, D/o Late Shri
Chhabbilalji Mehta, Resident of Inside Chandpole, Rishabhdev,
District Udaipur, At Present Plot No. 30-31, Kila No. 14-15,
Murabba, No. 76, Chak No. 1-A Chhoti, Lal Chand Ki Dhani,
Sriganganagar.
----Respondent
_____________________________________________________
For Appellant(s) : Mr. Suryendra Bera
For Respondent(s) : Mr. Falgun Buch
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Judgment / Order Per Hon'ble Mr. Justice Gopal Krishan Vyas 22/01/2018 The instant misc. appeal has been filed by the appellant Krishna Kumar Menaria against the impugned judgment dated 22.12.2016 passed by the learned Judge, Family Court, Sri Ganganagar whereby the application filed by the appellant under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the HM Act for short) was dismissed and the learned Family Court refused to grant decree of divorce to the appellant.
Admittedly, the divorce petition was filed on the basis of cruelty to dissolve the marriage of appellant with respondent (2 of 4) [CMA-946/2017] Kusum Menaria on 6.12.1982. Number of allegations were levelled by the appellant to prove the allegation of cruelty, so also, adultery and in support of those allegations oral evidence of appellant Krishna Kumar Menaria (AW-1) and Kulvindera Singh (AW-2) were recorded. No other evidence was produced by the appellant so as to prove the allegation of adultery against the respondent wife, so also, no reliable or trustworthy evidence was led by the appellant so as to prove the allegation of cruelty and adultery.
Learned counsel for the appellant submits that although specific allegations were levelled by the appellant in his statement on oath, but the learned Judge, Family Court without considering those allegations made on oath, held that appellant has not proved its case to prove the cruelty. Therefore, the judgment impugned deserves to be quashed and appellant is entitled for the decree of divorce.
Per contra, learned counsel appearing on behalf of the respondent submits that both the issues were decided by the learned Family Court while considering evidence on record and find that there is no trustworthy and reliable evidence so as to prove the allegation of cruelty and rejected the application filed by the appellant for divorce, therefore, no interference is called for.
After hearing learned counsel for the parties, we have perused the judgment and decree passed by the learned Family Court. Admittedly, the following issues were framed by the learned Family Court so as to adjudicate the controversy raised in (3 of 4) [CMA-946/2017] the application filed under Section 13 of the HM Act, which reads as under:-
"¼1½ vk;k izkFkhZ vizkfFkZ;k ds fo:) muds e/; 6 fnlEcj 1982 dks vuq"Bkfir fookg dks ;kfpdk esa of.kZr vuqlkj vizkfFkZ;k }kjk izkFkhZ ds lkFk dh xbZ dzwjrk ds vk/kkj ij foPNsn dh fMdzh }kjk fookg fo?kfVr djk ikus dk vf/kdkjh gS\
------izkFkhZ ¼2½ vk;k vizkfFkZ;k vius ifr izkFkhZ ds vykok vU; O;fDr;ksa ls voS/k laca/k cuk;s gq, gS] ;fn ,slk gS rks ;kfpdk ij D;k vlj gS\
------izkFkhZ ¼3½ vuqrks"k\ "
After recording evidence of appellant as well as the respondent, the issues nos.1 and 2 were decided jointly and learned Family Court gave clear cut finding that on the basis of oral and documentary evidence it is obvious that marriage of appellant was solemnized with the respondent wife on 6.12.1982 and this application for divorce has been filed after 29 years and in between this period from the wedlock of both appellant and respondent, two issues were born and both the issues were daughter and they were not physically and mentally healthy and appellant husband desirous to give divorce so as to solemnize second marriage. It is also observed by the learned Family Court that wife was not ready to permit for second marriage, so also, adduced evidence that the sterilization operation was conducted with the permission of appellant as well his family members, (4 of 4) [CMA-946/2017] therefore, it is not a case in which the appellant applicant has proved the allegation of cruelty. Further, an allegation is levelled by the appellant applicant for illicit relation but those allegations are not proved for want of any evidence.
In our opinion, the finding of the learned family court that the appellant has failed to prove the allegation of cruelty and illicit relation, therefore, we are of the firm opinion that no error has been committed by the learned Family Court so as to reject the application under Section 13 of the HM Act for divorce decree.
In view of the above, no case is made out for interference. Consequently, this misc. appeal is hereby dismissed. (VINIT KUMAR MATHUR) J. (GOPAL KRISHAN VYAS) J. cpgoyal/ps