Rajasthan High Court - Jaipur
Manoj Kumar vs Sharda Bai on 24 July, 2018
Bench: Chief Justice, G R Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Miscellaneous Appeal No. 3817/2017
Manoj Kumar S/o Shri Biharilal, aged 39 years, B/c Jatav , R/o
Opposite Kartar Kirana Store, Balakund, Dadabari Kota District
Kota Rajasthan
----Appellant
Versus
Sharda Bai D/o Phoolchand W/o Manoj Kumar B/c Jatav , R/o
Khajurpura Crossing, Jhalawar Road, Baran, District Baran
Rajasthan.
----Respondent
For Appellant(s) : Mr. Jagdish Nagar
For Respondent(s) : Mr. Sanjay Kumar Singhal
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE G R MOOLCHANDANI
Judgment
24/07/2018
1. Heard learned counsel for the parties.
2. Appellant sought decree of divorce pleading that
marriage between the parties was solemnized as per Hindu Custom and two sons named Nitin and Punit were born during the wedlock. That the respondent's attitude was not of a kind which was conducive for a healthy matrimonial bond. Her conduct was not proper. Three years prior to the filing of the petition she left the matrimonial house and started living at Baran. The two children are being looked after by the appellant. That the respondent lodged a false case under Section 498A/406 IPC against him. She also instituted proceedings under Section 125 Cr.P.C.
(2 of 4) [CMA-3817/2017]
3. It is apparent that divorce was sought on ground of desertion.
4. In the written statements filed the respondent admitted the factum of marriage and the children born to the couple. She admitted that the two sons were living with the father. She pleaded that her husband never treated her with love and affection and used to trouble her on account of dowry. She was ready to live with him provided there was an assurance that he would not beat her and trouble her on account of dowry and additionally he would abjure relationship with other females. That she had herself seen her husband speak to females over the telephone and had seen him moving around with females.
5. On the pleadings of the parties two issues were settled. The first was whether the respondent had deserted the appellant without a justifiable cause. The second was whether the appellant used to demand dowry or was maintaining relationship with other females and said fact had compelled the respondent to leave the matrimonial house.
6. At the trial the appellant examined himself as AW-1 and the son Punit as AW-2. The respondent examined herself as NAW-
1. She examined two relations Gajendra Singh as NAW-2 and Sanju as NAW-3.
7. In his testimony the appellant deposed facts in support of his pleadings. Punit (AW-2) deposed that his mother used to suspect his father and on that account there was constant bickering in the house. This was the reason why his mother left the house.
8. In her deposition the respondent deposed as per her defence but during cross-examination could not give particulars of (3 of 4) [CMA-3817/2017] any female with whom her husband was maintaining relationship or was in connection with them. The two witnesses of the respondent deposed facts in her favour.
9. Vide impugned judgment dated 21.04.2017 the learned Judge, Family Court has dismissed the petition filed by the appellant and the reasoning is that the weight of the evidence leans towards the fact that in all probability the respondent was thrown out of the matrimonial house due to dowry demand. Surprisingly while discussing issue No.2 the learned Judge has held that keeping in view the testimony of the son Punit it emerges that there used to be quarrels in the house on account of the respondent suspecting appellant maintaining relationship with females. The learned Judge has held that the respondent has not been able to prove said assertion of her.
10. The discussion afore-noted by us concerning issue No.2 has led the learned Judge to discuss the two elements of issue No.2. The first element was whether the cause for the respondent leaving the house was dowry demand or was it her belief that the appellant was maintaining relationship with other women. The finding is that the respondent could not establish the fact asserted by her but there was a suspicion in her mind. The finding returned is that there was dowry harassment as well.
11. Technically, there could be two reasons for the respondent to leave the appellant. The first would be she being forced to do so on account of dowry harassment. The second would be her suspicion. The latter, if not proved as a matter of fact, would mean that the cause for the respondent to withdraw from the matrimonial house could not be sustainable in law.
(4 of 4) [CMA-3817/2017]
12. Punit is the son of the couple and would be a neutral witness notwithstanding he was living with his father. Truth has emerged from the testimony of this young witness inasmuch as the respondent herself pleaded that her husband could not give her the respect and love which a wife deserves because her husband was maintaining relationship with other females. The son has deposed that due to suspicion by his mother that his father was having relationship with females there was constant bickering and quarreling in the house.
13. We find no suggestions given to the son that the father used to ill-treat the mother on account of dowry. It also assumes importance that divorce was sought for after the couple had resided together for over a decade. In our opinion, the weight of the evidence leans in support of the finding that the respondent suspected her husband of having relationship with females and this was the cause for her to withdraw from the matrimonial house. The respondent has not been able to prove said assertion i.e. of her husband maintaining relationship with other females. The factum of desertion was not denied but the issue whether the respondent withdrew without or with a justifiable cause is returned with the finding by us that the respondent withdrew from the consortium on suspicion which was not a justifiable cause.
14. The appeal is allowed. Impugned judgment dated 21.04.2017 is set aside. The marriage between the parties is annulled by passing a decree of divorce on account of desertion by the respondent as pleaded by the appellant.
(G R MOOLCHANDANI),J (PRADEEP NANDRAJOG),CJ KKC/9 Powered by TCPDF (www.tcpdf.org)