HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Miscellaneous Appeal No. 400/2008 Radhey Shyam S/o Shri Kesra, Aged about 45 years, R/o Rethi Mohalla Ward No. 8, Malpura, District Tonk.

----Appellant Versus Smt. Maina W/o Shri Radhey Shyam, D/o Bhanwar Lal, R/o Deval, Tehsil Malpura, District Tonk.

----Respondent For Appellant(s) : Ms. Mamta For Respondent(s) : Mr. Swaraj Panwar HON'BLE MR. JUSTICE SUDESH BANSAL HON'BLE MR. JUSTICE SANDEEP TANEJA

Order

20/01/2026

1. Under challenge is the judgment dated 04.12.2007 passed in Divorce Petition No. 29/2004 by the Additional District Judge, Malpura, Tonk, dismissing Divorce Petition filed by and on behalf appellant-husband against respondent-wife under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act of 1955”).

2. From the record, the factual matrix of the case in brief, is as under:-

2.1 The marriage between parties was solemnized as per rites and ceremonies prevailing in the Hindus and although accurate date of marriage has not been disclosed by either party, but in the Divorce Petition, it has been averred that after marriage, out of the said wedlock, one son was born in the year 1982, who later on, passed away in the year 1983, hence, parties have no living child out of their wedlock.

2.2 Husband has pleaded that wife committed mental and physical cruelty with him in manifold manner; she usually was in habit of quarreling and fighting with husband; she poured kerosene oil to commit suicide; she creates such an atmosphere and circumstances that it was not possible for them to live together as husband and wife, hence, finally with the mediation of the people of their community, she herself went to live with her parents at Deval and left the matrimonial company of husband since 14.01.1994, as much as took away her entire belongings and streedhan.

2.3 That apart, husband also averred that his wife arbitrarily implicated him in the false criminal proceedings for offences under Section 498-A, 406 and 494 IPC and he is facing criminal prosecution.

2.4 The Divorce Petition was filed by the husband on 17.08.2004, alleging the ground of cruelty and desertion with a prayer that his marriage with respondent be dissolved and a decree of divorce be passed in his favour.

2.5 Reply to the divorce petition was filed by and on behalf of respondent-wife on 06.05.2005 wherein she admitted the factum of death of her sole child and having no living child from the wedlock with appellant. Wife also admitted in her reply about filing of a criminal case against appellant for offences under Section 498-A, 406, 494 IPC and stated that he had entered into re- marriage with another woman viz. Chandrakanta and both are residing together as husband and wife. She denied the allegations of cruelty, though, admitted to live with her mother at parental home since 1994 onwards and stated that her husband turned her out of matrimonial home. Finally wife prayed for dismissal of Divorce Petition.

2.6 Learned trial Court settled issues based on the rival pleadings and recorded evidence of both parties.

2.7 In the evidence, husband appeared as AW-1 and produced two witnesses, Polu S/o Ramdev (AW-2) and Ratanlal (AW-3). In rebuttal, wife appeared as NAW-1 and produced two witnesses, Hansraj (NAW-2) and Nanu (NAW-3).

2.8 It is noteworthy that during course of evidence, criminal case pending against husband for offences under Section 498-A, 406 & 494 IPC has been decided and husband has been acquitted vide judgment dated 13.06.2007 by the Court of ACJM, Malpura, District Tonk. The certified copy of this judgment of acquittal of husband dated 13.06.2007 was also placed on record as Exhibit-1. 2.9 Learned trial Court, vide judgment dated 04.12.2007 dismissed the Divorce Petition with findings and observation that from the evidence of husband, the grounds of cruelty and desertion are not established, hence, this appeal has been filed by the husband.

3. We have heard counsel for both partie