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IN THE HIGH COURT OF RAJASTHAN
AJAY RASTOGI, ASHOK KUMAR GAUR, JJ.
JAGDISH PRASAD TANWAR SON OF LAXMAN SINGH TANWAR — Appellant
Vs.
KASTURI DEVI WIFE OF JAGDISH PRASAD TANWAR — Respondent
Civil Miscellaneous Appeal No. 1438 of 2008
Decided on : 04-08-2017
Hindu Marriage Act, 1955 – Section 13 23 – IPC – Penal Code – Divorce on Ground of Cruelty and Desertion – The present appeal is directed against the judgment and decree passed by the Family Court, wherein divorce petition filed by the appellant-husband has been dismissed – The learned counsel for the appellant has urged that the ground of cruelty once having been found proved, there was no condonation of such acts of cruelty of respondent and as such, the decree of divorce has wrongly been denied by the Family Court – Further argued that the ground of desertion- issue no.2 was also amply proved by evidence before the Family Court and that has been misread and the finding recorded is perverse and contrary to record, needs interference of this Court – Further argued that the issues no. 3, 4 & 5 have wrongly been decided by the Family Court and on the basis of settled legal principles and facts available on record, the finding of the Family Court needs to be set aside being contrary to facts on record and law on the subject – Held, The Family Court has committed an illegality and the finding recorded is per se perverse for the reason that few alleged subsequent events of staying together for few days that too is not supported by the tangible evidence will not condone the acts of cruelty – The court below has also erred in holding that due to physical relations being established between the parties, the acts of cruelty were condoned – It is no gain saying that relation between husband and wife are of intimate nature and by staying under one roof, necessary presumption cannot be drawn of having physical relations – The evidence which has come on record lacks credibility of their intimate relation as husband and wife – The finding of the Family Court on issue of condonation of cruelty is perverse and not sustainable and liable to be set aside – The Family Court has decided the issue of desertion against the appellant – The court below has drawn inferences from some incidents, which prove the fact that wife has not deserted the appellant-husband – In Court opinion, the findings recorded by the learned Family Court are not based on proper evaluation of evidence – The evidence which has come on record in no way establish the fact that husband and wife were staying together for a long duration or permanently – The statement of respondent-wife reveals that even after her alleged visits for certain days, she always came to her parents house and she never stayed continuously with the husband after August, 1998 – The appellant in his statement has deposed that he made all efforts to bring her wife back and even sent legal notice asking respondent-wife to join the matrimonial home – The excuse taken by the respondent in reply to notice of not going back to matrimonial home, was to ask the appellant to stay separately and not with his parents-family – The said attitude of respondent clearly established that she was not interested in staying with her husband at their matrimonial home and she was in fact had no desire to stay with the husband at all – Accordingly, the findings on issue No.2 with regard to desertion and findings on issues no.3, 4 & 5 about condonation of cruelty and relief for refusing the decree of divorce, are set aside – Consequently, the appeal filed by the appellant is allowed and the judgment & decree passed by the Family Court, is set aside – Their marriage solemnized as on 10.12.1993 stands dissolved and the appellant-husband is held entitled for the decree of divorce – Appeal Allowed
Ashok Kumar Gaur, J
The present appeal is directed against the judgment and decree dated 19.02.2008 passed by the Family Court, Ajmer wherein divorce petition filed by the appellant-husband has been dismissed.
2. Briefly stated facts of the case are that the appellant got married to respondent-Kasturi Devi as per Hindu rites on 10.12.1993. The appellant filed an application under Section 13 of the Hindu Marriage Act seeking a decree of divorce against his wife-respondent on 19.01.2004. The appellant pleaded in his application that after his marriage on 10.12.1993, the respondent-wife stayed with him for two years of their marriage and she was working as Nurse in Jahawarlal Nehru Hospital, Ajmer and she used to go to her parents house very frequently.
It was alleged that the respondent-wife had left the matrimonial home on 22.05.1998 and she was living separately from last 5 years on her own. It was pleaded in the application that the respondent filed a criminal case against the appellant and his three sisters for offence under Section 498-A IPC registered at P.S. Mahila Thana, Ajmer by lodging FIR No.120/1998.
3. The police had filed charge-sheet against the appellant and his three sisters and the court of Judicial Magistrate No.2, Ajmer tried the criminal case against all of them and one of the sister of the appellant, Smt. Nathi, could not bear the shock of being arrested and prosecuted fell sick and ultimately died on 11.05.2001 and her husband also died on 14.05.2001. In the criminal case, all the three sisters of the appellant were acquitted vide judgment dated 30.10.2002 but the appellant was convicted and sentenced for 2 years' simple imprisonment and fine of Rs.1000/-. It was alleged that on conviction of the appellant, the respondent-wife distributed sweets and celebrated like an occasion. The appellant filed appeal against his conviction order dated 30.10.2002 before the Sessions Judge, Ajmer and appeal was accepted and he was acquitted of the criminal offence vide judgment dated 24.02.003. The appellant pleaded that had his criminal appeal not been accepted, he would have been terminated being an employee of Indian Railways. The appellant pleaded that he suffered mental agony and pain on account of the rude behaviour of the respondent and it was not possible to live with the respondent-wife any more. The appellant also pleaded that she has deserted him without cause and is entitled to seek a decree of divorce.
4. The respondent-wife filed reply and denied the allegations levelled in the divorce application. The respondent pleaded that it was appellant who had kept her in her father's house and used to come to meet her and also used to cohabit with her. The respondent pleaded that since she was not able to give birth to any child, as such, the appellant-husband used to beat her. It was pleaded in reply that sister of the appellant used to give beating to her and as such, she had to lodged a report with police station. In additional plea, the respondent pleaded that she had not deserted her husband and the appellant from time to time was having physical relation with her. The respondent pleaded that on different dates, she went out with the appellant to different places in the year 2000, 2001, 2003 and stayed with him and had sexual intercourse with him. The respondent also pleaded that she had participated in the social functions organized at the residence of the appellant.
5. On the basis of the pleadings of the parties, the Family Court framed following 5 issues:-
6. The appellant in support of his case produced 3 witnesses: AW-1 Jagdish Tanwar (appellant), AW-2 Sohan Lal and AW-3 Bhanwar Lal. The respondent-wife in support of her case also produced 4 witnesses: NAW-1 respondent-Kasturi Devi herself, NAW-2 Yashoda, NAW-3 Heera Singh and NAW-4 Shanti Devi. The Family Court after considering the entire evidence decided issue no.1 in favour of the appellant and found that lodging of false criminal case of demand of
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