IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

: J U D G M E N T :

S.B. Civil Misc. Appeal No.109/2002.

(Ajeet Kumar Vs. Smt. Asha)

DATE OF ORDER : August 10, 2006

P R E S E N T

Hon'ble Mr. Justice Gopal Krishan Vyas

___________________________________

Mr. Parikshit Nayak for the appellant.

Mr. Bhagat Dadhich and Mr. Mridul Jain for respondent.

BY THE COURT :

The instant appeal has been filed by the appellant

Ajeet Kumar under Section 28 of the Hindu Mariage Act,

1955 (for short, “the Act” hereinafter) challenging

the judgment dated 18.10.2001 passed by the learned

District Judge, Banswara in Civil Misc. Case No.19/97

whereby the Court below rejected the application filed

by the appellant under Section 13 of the Act and

refused to grant decree of divorce.

The appellant husband sought decree of divorce

under Section 13 of the Act on the allegations against

respondent wife of cruelty, desertion and unsound

mental state. The respondent wife turned up before

the Court below and opposed the divorce sought by her

husband. Accordingly, on the pleadings of the parties

before the Court, the trial Judge framed issues and

since the appellant husband sought to establish his

case on the grounds of cruelty, desertion and unsound

mental state of the respondent wife Smt. Asha, the

burden to prove the allegations relating thereto was

upon the shoulders of the appellant husband. At the

trial, the appellant led oral evidence of as many as 7

witnesses including himself.

In defence, the

respondent wife examined herself as NAW-1 and Yogesh,

NAW-2 and Kesarimal, NAW-3.

The conspicuous facts of the case revealed at the

trial showed that the appellant husband is high-school

pass and earning Rs.800/- per month at the time of the

marriage. With this meagre earning both husband and

wife, living at Udaipur in rented premises, found life

hard and with the consent of the appellant the

respondent wife who is graduate took up government

employment as Lab Assistant at Ghatol in Banswara.

Before the trial Court, about the conduct of the

husband it was revealed that an FIR was registered

against him with Police Station Gadhi for abduction of

a girl named Sheela of Punjpur. Moreover, posing

himself to be unmarried after his marriage with the

respondent wife the appellant introduced himself for

marriage at a introduction meet of Jain Samaj in

Indore for marriage. At this juncture, the respondent

wife obtained temporary injunction from the civil

Court restraining the husband from contracting second

marriage. Before the Court below nothing came on

record to show that the respondent wife has unsound

mental state. The appellant has termed desertion what

the respondent wife stated to be her posting at Ghatol

for which she had to leave Udaipur. Thereafter, while

both husband and wife were living at Banswara, the

respondent wife alleged that her husband, the

appellant left her and went to his village. On behalf

of the appellant, before the Court below, it was

contended that the wife was expected to give up her

employment and come to her husband's village to live

with him. Obviously, the plea did not merit attention

and consideration in the eye of law when it was on

record that the family was facing hardships of penury

due to highly insufficient earning of the husband.

Having discussed and considered the entire evidence on

record the trial Court reached conclusion that the

plaintiff husband has failed to prove his case for

desertion and crulty and, accordingly, the trial Court

dismissed the application under Section 13 of the Act

filed by the husband with cost.

I have heard learned counsel for the parties. I

have also carefully gone through the record.

There are allegations and counter-allegations in

the case. The facts coming on rec