Court: RAJASTHAN HIGH COURT
Bench: JUSTICES A.M. Kapadia & Gopal Krishan Vyas,
VARDHI Vs. NARAYAN LAL & ORS. On 16 March 2010
Ex parte decree upon application filed by respondent-husband under Section 9 of Act, was passed against appellant-wife, before she filed application under Section 13 of Act — Appellant did not attend Court even after service of notice — She did not comply with decree and living separately in spite of fact that decree under Section 9 has already been passed by Family Court Judge — Trial Court rightly concluded that respondent husband has not deserted appellant — There is no question to accept application under Section 13 of Hindu Marriage Act for grant of divorce on ground of desertion — With regard to allegation of cruelty, appellant admitted that before filing divorce petition, FIR under Sections 498-A and 406, IPC filed against respondent and he was acquitted from charges levelled against him — Appellant-wife pleaded that she had no knowledge of acquittal — Family Court committed no error rejecting application filed by appellant for granting divorce under Section 13 of Act in view of decree granted in favour of respondent under Section 9 of Act.
1. The appellant has filed this appeal under Section 19 of the Family Courts Act, 1984 against the judgment and decree dated 23.7.2007 passed by Judge, Family Court, Udaipur in Civil Misc. Case No. 238/2003 whereby the Judge, Family Court dismissed the application filed by the appellant under Section 13 of the Hindu Marriage Act for seeking divorce.
2. As per facts of the case an application under Section 13 of the Hindu Marriage Act was filed by the appellant. Smt. Vardhi stating therein that she got married with the respondent Naryan Lal nine years back and thereafter she was living with her husband and his family. It is alleged in the application that after sometime of marriage, the respondent was regularly harassing and beating the appellant and at last sent out from the house without any reasons. So many allegations were levelled by the appellant in the application filed under Section 13 of the Hindu Marriage Act with regard to cruelty and prayed that on the ground of cruelty and desertion, a divorce decree may be passed in her favour.
3. In the application filed under Section 13 of the Hindu Marriage Act, notice was issued to the respondent by the Family Court. In pursuance of which, the respondent filed reply and refuted all the allegations levelled against him and further it is stated that no cruelty was committed by him towards the appellant. Moreover, an application for restitution of conjugal rights was filed by him in which the learned Family Court passed ex parte decree on 25.7.2002 because even after service the appellant did not attend the Court but she did not comply the said decree. Further, it is pointed out that a criminal case has also been filed by the appellant on false grounds and she is leaving separately without reason. Therefore, it is obvious that he has not deserted her nor any cruelty has been committed by him and all the allegations levelled in the application are false. Therefore, the application may be dismissed.
4. After filing reply by the respondents to the application filed under Section 13 of the Hindu Marriage Act, the Judge, Family Court framed the following issues :
“(Hindi matter omitted)”
5. Thereafter to prove the above issues from the side of appellant, three witnesses were produced before the Judge, Family Court namely AW-1 Vardhi-appellant herself, AW-2 Bhuri Lal, AW-3 Meghraj and from the side of respondent, statement of four witnesses were recorded as NAW-1 Narayan Lal-respondent himself, NAW-2 Ramlal, NAW-3 Vagat Ram and NAW-4 Shankarji. After taking evidence oral and documentary from both the sides, the learned Family Court finally decided the application filed by the appellant under Section 13 of the Hindu Marriage Act vide judgment dated 23.7.2007 whereby the application filed by the appellant for divorce was rejected. Against which this appeal has been filed by the appellant.
6. Learned Counsel for the appellant argued that the judgment rendered by the Family Court is wholly illegal and based on perverse finding because while passing the impugned order, the Court has neither looked into the record of the case nor considered the law applicable to the case. As per learned Counsel for the appellant learned Family Court has committed a grave error in deciding issue No. l on the ground of missing of the material facts in the pleading relating to the ground of cruelty. The finding of learned Family Court is also erroneous on the ground that the findings are contrary to the facts on record although specific dates with regard to cruelty is not pleaded but appellant pleaded that the respondent and his parent made physical violence on her and kicked her out from the house before eight years. Therefore, in presence of these pleadings, it cannot be said that no specific date on which the respondent made physical violence and demand of dowry has not been mentioned by the appellant. Learned Family Court has dismissed the petition on technical ground. Therefore, no such technical approach can be practised by the Trial Judge because issue cannot be decided ignoring all the material evidence available on record because there is evidence of truth on record. As per learned Counsel for the appellant literally the issue No. l has not been decided on merit and same is decided on the ground of defective pleadings and proof. Therefore, finding with regard to issue No. l deserves to be quashed.
7. Learned Counsel for the appellant further submitted that a criminal case is pending for offence under Section 498-A against the respondent and the said fact is admitted by the respondent in his evidence but the learned Trial Court rejected this fact that the appellant has failed to produce any document. Such finding is totally baseless and have no foundation to stand before eye of law. With regard to maintenance, the appellant also produced the order passed upon application filed under Section 125, Cr.PC by the same Court and was exhibited in which a clear cut finding of fact of cruelty was in existence but learned Trial Court overlooked the same while deciding the issue No. 1 Hence finding arrived at by the Trial Court with regard to issue No. 1 deserves to be set aside.
8. With regard to issue No. 2, it is submitted that appellant has proved the ground of desertion because in her statement by the appellant that she was kicked out from the house by the respondent himself and parents five years back from the date of filing the application for divorce. But this aspect of the matter has not been considered properly. Therefore, the finding arrived at by learned Trial Court with regard to issue No. 2 is also perverse and illegal so also have no foundation to stand before eye of law. Learned Trial Court has erroneously arrived at with the finding that all the efforts were made by the respondent for bringing the appellant in his house though she has pleaded that due to bad conduct and cruelty towards her, the appellant was living separately and has been deserted by the respondent himself.
9. Learned Counsel for the appellant finally argued that there is evidence on record to prove the ground of cruelty but finding arrived at by the Trial Court is totally perverse and without any basis, therefore, the judgment impugned in this appeal deserves to be set aside. Likewise, for the ground of desertion, it is submitted that the appellant was deserted by the respondents and she was living separately from last five years from the date of filing application for divorce, because the respondent has deserted her, therefore, she is entitled for decree of divorce on both the grounds which is cruelty and desertion but learned Trial Judge has failed to consider entire evidence in right prospects and illegally rejected the application filed under Section 13 of the Hindu Marriage Act and refused to grant decree of divorce.
10. Per contra, learned Counsel for the respondent submitted that the divorce petition was filed by the appellant on two grounds one; cruelty and second, desertion but to refute both the grounds it was brought to the notice of the Trial Court that a criminal complaint was filed by the appellant against the respondent upon which an FIR was registered by the Police Station Kherwada District Udaipur on 2.12.2003 in which after due trial the respondent was acquitted from the charge under Section 498-A, IPC vide judgment dated 1.6.2005. Therefore, the ground of cruelty automatically goes when allegations levelled by the appellant with regard to cruelty was not accepted by the criminal Court. Likewise, for refuting the ground of desertion, it was brought to the notice of the Trial Court that a decree for restitution of conjugal rights was passed by the Judge, Family Court, Udaipur upon application filed under Section 9 of the Hindu Marriage Act by the respondent on 25.7.2002 in which decree of restitution of conjugal rights was passed against the appellant but she did not comply the said decree nor challenged the said decree. Therefore, the ground of desertion is also deserves to be rejected on the ground that the fact of passing decree for restitution of conjugal rights has not been brought to the notice of the Court when petition under Section 13 of the Hindu Marriage Act was filed in the year 2004. In this view of the matter, totally on false grounds, the application under Section 13 of the Hindu Marriage Act was filed and the same has rightly been rejected by learned Trial Court while giving issuewise cogent reasons. Therefore, no interference is required in the judgment impugned in this appeal.
11. Lastly, learned Counsel for the respondent submits that conduct of appellant is also objectionable because in affidavit filed by her before the Court in the year 2006, it is nowhere stated by her that in the criminal case, the respondent has already been acquitted by the competent Court from the charge levelled against him under Section 498-A, IPC. Likewise, there is not disclosure in the affidavit that there was a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights in which the decree for restitution of conjugal rights was passed though the said decree was passed in the year 2002 and affidavit was filed in the year 2006, therefore, on the basis of concealment of fact, it can be said that learned Trial Court has rightly arrived at with the finding that no ground is made out for granting divorce. The statement of appellant were recorded by Trial Court as AW-1 and in examination-in-chief only assertion was made by the appellant that she filed an FIR under Section 498-A, IPC in which charge-sheet has been filed, which is Ex. 1 and matter is pending whereas the matter was already decided in the year 2005 but a false statement was made before the Court by the appellant and hence, she is not entitled to get any relief and judgment passed by Trial Court deserves to be upheld.
12. We have considered the rival submissions made by both the parties and scanned the evidence on record. Upon perusal of the entire evidence, it emerges that an application under Section 13 of the Hindu Marriage Act was filed by the appellant on 2.1.2004, before the said date, an ex parte decree upon application filed by the respondent under Section 9 of the Hindu Marriage Act for restitution of conjugal rights was passed against the appellant because the appellant did not attend the Court even after service of notice upon the appellant. But she did not comply with the said decree and living separately inspite of the fact that a decree for restitution of conjugal right has already been passed by the Judge, Family Court. Therefore, in our opinion, learned Trial Court has rightly arrived at with the finding that the respondent has not deserted the appellant. More so, he made his all efforts for living together but inspite of decree passed under Section 9 of the Hindu Marriage Act for restitution of conjugal rights, the appellant did not choose to live with the respondent, therefore, there is no question to accept the application filed under Section 13 of the Hindu Marriage Act for divorce on the ground of desertion. The learned family Court has rightly considered the evidence on record for the purpose of deciding the issue of desertion.
13. With regard to allegation of cruelty, it is admitted case of the appellant that before filing divorce petition, an FIR under Sections 498-A and 406, IPC was filed against the respondent in which after investigation, challan was filed and respondent faced trial and ultimately he was acquitted from the charges levelled against him in the year 2005 but this fact of acquittal was not brought to the notice of the Court when affidavit was filed by the appellant herself and in the cross-examination, when this question was put to her, then too she did not accept the said fact and said that she had no knowledge with regard to acquittal. In the cross-examination, it is also stated by her that she had no knowledge with regard to order of restitution of conjugal rights.
14. In this view of the matter, after appreciation of entire evidence and considering the fact of the decree granted in favour of the respondent under Section 9 of the Hindu Marriage Act for restitution of conjugal right and acquittal of the respondent in the criminal case filed by the appellant, we are of the opinion that the learned judge, Family Court has not committed any error while rejecting the application filed by the appellant for granting divorce under Section 13 of the Hindu Marriage Act. Therefore, there is no force in this appeal. Hence, this appeal is hereby dismissed.
DISCLAIMER: The above judgement is posted for informational purpose ONLY. Printout/ Copy from this website are not admissible citation in the Court of Law. For a court admissible copy contact your advocate.
You may contact me for legal consultation or advice by visiting Contact Us
If you have any query related to gender biased laws join SahodarWhatsapp Groups by sending Whatsapp message “Subscribe” to Sahodar Trust No. 9811850498