Rajasthan High Court - Jaipur
Smt Kamlesh vs Sita Ram on 6 September, 2016
Author: Alok Sharma
Bench: Alok Sharma
[1] SBCMA 1119/2002
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
JUDGMENT
S.B. CIVIL MISC. APPEAL NO.1119/2002
SMT. KAMLESH Vs. SITA RAM
DATE:06.09.2016
HON'BLE MR. JUSTICE ALOK SHARMA
Mr. Anoop Dhand, for the appellant.
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Heard Counsel for the apellant and perused the judgment and decree dated 12.04.2002, passed by the District Judge, Sikar, allowing the divorce petition filed by the respondent-plaintiff (hereinafter referred to as 'the plaintiff') on the ground of desertion, as defined under Section 13(1)(i-b) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act').
Counsel for the appellant submitted that no case of desertion as defined under Section 13((1)(i-b) of the Act was made out inasmuch as the sister of the appellant-defendant (hereinafter referred to as 'the defendant') married to the brother of the respondent suffered a dowry death and the defendant herself was subjected to cruelty within the meaning of Section 498-A IPC for the reason of which she could not stay with the husband (respondent before this Court). It was submitted that far from the defendant having deserted the plaintiff, it was the plaintiff who was responsible for obstruction of a happy marital [2] SBCMA 1119/2002 life and constructive desertion by himself. Counsel submitted that these aspects of the matter were not taken into consideration by the trial Court for reason of defendant's absence, who was not informed by her counsel about the dates from time to time in the divorce petition before the District Court, Sikar.
The plaintiff filed a petition under Section 13(1)(i-b) of the Act against the defendant stating that subsequent to their marriage in 1989, the defendant resided with him till 1994 during which period a daughter by name of Babli was born to them. It was submitted that however the defendant left the matrimonial home in February, 1994 and thereafter continued to remain at her parental home in village Gokulpura without ever making any attempt to rejoin the plaintiff in the matrimonial home. It was stated that efforts made on two occasions to bring back the defendant by the plaintiff visiting the defendant's parental home at Gokulpura fist in 1995 and thereafter in 1997, yet the defendant bluntly refused to accompany the plaintiff back to the matrimonial home. It was stated that in fact in the year 1997 the plaintiff had gone to fetch the defendant-wife back to the matrimonial home along with Girdhari Lal, Ramdevaram, Lichmanaram, Kanaram and others the witnesses. The case set up by the plaintiff was proved through his own evidence as AW1 and that of one Lichmanaram (AW2). Both remained unshaken in the witness box. The defendant-wife remained ex parte despite having been served and her Counsel also did not appear during [3] SBCMA 1119/2002 the trial despite filing a validly executed Vakalatnama.
From the unchallenged testimony of the respondent- plaintiff, the trial Court held that the defendant had left the company of the plaintiff willingly for a period of more than two years (about 5 years) without any cause at all immediately prior to filing of the divorce petition on 14.02.2001 and consequently a clear case of desertion under Section 13(1)(i-b) of the Act was made out entitling the plaintiff to a decree of divorce and dissolution of marriage with the defendant.
The contentions of the Counsel for the appellant as recorded hereinabove are of no avail. This Court in exercise of the appellate jurisdiction under Section 24 of the Hindu Marriage Act cannot take into consideration the evidence which were not laid by defense before the trial Court. There is no error of fact and law in the impugned judgment dated 12.04.2002 passed by the trial Court.
Consequently, there is no force in the appeal, the same is dismissed.
The appellant-defendant shall however be free to take her remedy for claiming permanent alimony against the respondent-plaintiff by resorting Section 25 of the Hindu Marriage Act, 1955.
(ALOK SHARMA),J.
/KKC/