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2008 DIGILAW 824 (RAJ)

Chotu Lal v. Madhu.

2008-03-18

BHANWAROO KHAN, PRAKASH TATIA

body2008
JUDGMENT 1. - This appeal has been preferred by the appellant-husband of the respondent against the judgment and decree passed by the Judge, Family Court, Jodhpur dated 11.11.2006 by which the respondent's application under Section 13 of the Hindu Marriage Act was allowed. 2. It is pertinent to mention here that initially the appellant filed petition no.167/2000 under Section 9 of the Hindu Marriage Act against respondent on 13.6.2000, whereas respondent submitted petition no.215/2002 under Section 13 of the Hindu Marriage Act on 1.10.2002. It appears that separate issues were framed in both the above cases and even evidence was recorded separately in both the matters. Only on 22.8.2006, when order was passed in respondent's petition no. 215/2002, then the matters were consolidated and have been decided by the trial court vide impugned judgment dated 11.11.2006. The trial court dismissed the appellant's application under Section 9 of the Hindu Marriage Act and allowed the respondent's application under Section 13 of the Hindu Marriage Act and granted divorce decree in favour of the respondent. 3. The appellant's appeal to challenge the judgment of the trial court impugned rejecting the application under Section 9 of the Hindu Marriage Act, which is D.B.Civil Misc. Appeal No.1964/06 has been dismissed by the order of this Court vide order dated 4.7.2007 because of the non-compliance of the order of this Court dated 20.12.2006 by which the Court directed the appellant to deposit Rs.5000/- as provisional cost of litigation and the appellant did not deposit the said amount even upto 4.7.2007 when the appellant's appeal was dismissed. Therefore, the judgment dismissing the appellant's petition under Section 9 of the Hindu Marriage Act has attained the finality and this appeal of the appellant is only against the divorce decree passed in favour of the respondent. 4. From the facts which are substantially not in dispute and in fact stated by the appellant in his petition under Section 9 of the Hindu Marriage Act and pleaded in reply to respondent's divorce petition no.215/2002 by the appellant, show that the marriage of the appellant and respondent took place on 31.1.1996 according to Hindu rites. The contention of respondent in the divorce petition was that she was minor at the time of her marriage. The contention of respondent in the divorce petition was that she was minor at the time of her marriage. The appellant non-applicant in reply to the divorce petition though stated that age of the respondent at the time of marriage was 15 years 8 months and 28 days but it appears from the appellant's own evidence produced in respondent's divorce petition (no.215/2002) that the appellant and his witnesses DW-2 Nirmla and DW-3 Govind Ram clearly admitted that on 31.1.1996, the respondent was of tender age. She was not sent to appellant's house because of her tender age. According to the appellant himself and his witnesses, for the first time in the year 1998, after two years from the time of marriage, the respondent came to the house of the appellant and at that time, she was of age of 18 years. This fact has been denied by the respondent-wife and according to her, she never went to the house of the appellant. In backdrop of this fact, Ex.1 dated 4.12.2001 is very relevant over which the appellant has admitted his signatures,however, with the plea that his signatures were obtained fraudulently on Ex.1. The appellant failed to plead material fact how fraud was played and failed to give any evidence about his allegation of obtaining signatures of appellant on Ex.1 by fraud. This document was signed by the appellant during pendency of his application under Section 9 of the Hindu Marriage Act in the court below. The contention of the respondent is that she never went to the house of the appellant and in support of her said contention, the respondent gave her own statement and produced her close relative PW-2 Mishri Lal, her sister PW-3 Rekha and her father PW-4 Ram Chandra, who clearly stated that the respondent was never sent to the house of the appellant, whereas the appellant's witness DW-2 Nirmla admitted that there is some family dispute between her and her brother-in-law and respondent is younger sister of her brother-in-law wife. DW-3 Govind Ram in cross-examination, stated that he only heard that Madhu lived with the appellant for 15 days. He further admitted that respondent Madhu's sister is married to witness Govind Ram's brother and they have no cordial relation. 5. In sum and substance, this is a case of marriage of a minor girl with the appellant. DW-3 Govind Ram in cross-examination, stated that he only heard that Madhu lived with the appellant for 15 days. He further admitted that respondent Madhu's sister is married to witness Govind Ram's brother and they have no cordial relation. 5. In sum and substance, this is a case of marriage of a minor girl with the appellant. The respondent since the time of her marriage in 1996 did not went to the house of the husband and in fact the appellant and respondent agreed to separate on dissolution of their marriage. Now since last twelve years the appellant and respondent are living separate. In view of the above, we do not find any illegality in the judgment of the trial court granting decree for divorce on application of the respondent and particularly when the appellant's prayer for restitution of conjugal rights has already been denied by the court and the said judgment attained finality. 6. In view of the above, the appeal of the appellant is dismissed. No order as to costs.Appeal dismissed. *******