Research › Search › Judgment

Rajasthan High Court · body

2014 DIGILAW 1049 (RAJ)

Sunita v. Shri Ashok Kumar

2014-04-29

AMITAVA ROY, VEERENDR SINGH SIRADHANA

body2014
JUDGMENT 1. Heard Mr.Shashi Kumar Shekhawat, learned counsel for the appellant. 2. The records reveal that the respondent, in-spite of service of notice, has neither entered appearance nor has arranged for his representation. 3. In the above view of the matter, having regard to the urgency expressed, we propose to dispose of this appeal without further adjourning the hearing thereof. 4. The facts in brief are that the parties are Hindus by religion and were married according to the Hindu rites and rituals on 23.05.2005 at village Khanpur, Tehsil and District Ajmer. According to the appellant-wife, her Gauna (Muklawa) was performed on 05.03.2008 where-after she went to her matrimonial home. She alleged that thereafter she was maltreated by her husband and other members of the family. She was also subjected to persistent dowry demands and was eventually on 08.06.2008 assaulted and ousted from her matrimonial home. That in the process, the respondent-husband and his family members demanded Rs. 50,000/- or a motorcycle by way of dowry, was mentioned in her application before the learned court below for dissolution of marriage. According to her, since thereafter she was residing with her parents and that though several attempts were made for reconciliation, neither the respondent-husband nor her in-laws did show any interest in the process. 5. On receiving the summons in the proceedings of the learned trial court, the respondent-husband entered appearance and in his written statement, denied the imputation of dowry demand and torture. According to him, Gauna was performed immediately after the marriage, where-after on 26.05.2005 the appellant left her matrimonial home and since thereafter started residing with her parents and that in-spite of his best efforts made by him and the common friends and well-wishers, she did not return. The respondent-husband alleged, on the other hand, that his in-laws did also comment that as he had no earning capacity, they would not like to send their daughter to him. He, therefore, denied the allegation of cruelty as alleged by the appellant-wife. 6. After framing of the issues, the parties adduced evidence and on an analysis thereof, the learned trial court by the impugned judgment and order dismissed the application of the appellant-wife. In doing so, the learned court below took into account her statement in course of her testimony that she was not willing to return to the respondent-husband and that the marriage had not been consummated. In doing so, the learned court below took into account her statement in course of her testimony that she was not willing to return to the respondent-husband and that the marriage had not been consummated. The learned trial court returned a finding that on assessment of the evidence on record, the allegation of cruelty was not proved and that instead the appellant-wife was trying to take advantage to her wrong. 7. Mr.Shekhawat has argued that the learned trial court having totally failed to appreciate the evidence on record in the correct perspective and that as the findings are vitiated by non-consideration of vital pieces thereof, the impugned judgment and order ought to be interfered with in the interest of justice. Learned counsel has further argued on the basis of a certificate issued by the Rajasthan State Open School, Government of Rajasthan indicating that she had passed the Second Examination in October-November, 2012. As would be apparent therefrom, the date of birth of the appellant-wife is 06.08.1991, and that she was thus a minor on the date of marriage i.e. 23.05.2005 rendering the same (marriage) voidable under the Hindu Marriage Act, 1955. Learned counsel has argued as well that in the facts and circumstances of the case, the marriage between the parties has broken down irretrievably. Further as per his instructions, the respondent-husband has remarried and thus, for all intents and purposes, there being no meaningful marital relationship between the parties, the instant appeal, even on this consideration, ought to be allowed. 8. The pleadings of the parties have been summarised here-in-above. The relevant records, in original, laid before us contain their affidavit evidence along-with the testimony of their witnesses. A bare perusal of the statements made by the appellant-wife in her affidavit indicates that the same are in corroboration of her pleadings alleging cruelty and maltreatment meted out to her by the respondent-husband and his family members. In her cross-examination, though she admitted that the marriage had not been consummated, she did reiterate the dowry demand and the ill treatment, to which she had been subjected to therefor. In her cross-examination, though she admitted that the marriage had not been consummated, she did reiterate the dowry demand and the ill treatment, to which she had been subjected to therefor. Her statement that she, at the point of time of recording of her evidence, was not in state of mind to return to her matrimonial home has to be, in our opinion, construed in the background of her bitter experience thereat, and thus, cannot be acted upon as a sole basis to discredit her wholly. The evidence of Heera Lal, the witness examined by the appellant-wife also in substantial terms, does support her version and could not have been discarded lightly as done by the learned trial court. 9. The endeavour of the respondent-husband in his deposition has been to the effect that after the marriage, when the appellant-wife was a child, she had come to the matrimonial home to offer obeisance to the family deity, but had thereafter not returned thereto. He mentioned about cases under Section 498A of the IPC and 125 of the Cr.P.C. lodged against him by the appellant-wife and represented that he was ever ready to accept her and was ignorant as to why she desired a decree of divorce. The evidence of his mother Sita is also to the above effect. 10. On a consideration of the rival pleadings of the evidence on record, we are of the opinion by applying the rule of preponderance of probability that the appellant-wife has been able to prove the allegation of cruelty stemming from dowry demands resulting in her ouster from nuptial home on 08.06.2008. 11. In this view of the matter, her disinclination to return to her respondent-husband, cannot be construed to be a disqualification to deny her the decree for dissolution of marriage. The evidence adduced by the respondent-husband on an evaluation thereof does not inspire confidence so as to reject the case of the appellant-wife on merits as false or concocted. 12. In the above view of the matter, we are inclined to accept the case of the appellant-wife for dissolution of marriage on its own merit on the ground of cruelty. As it is a bare perusal of the certificate issued by Rajasthan State Open School, Government of Rajasthan referred to here-in-above, discloses her date of birth to be 06.08.1991. 12. In the above view of the matter, we are inclined to accept the case of the appellant-wife for dissolution of marriage on its own merit on the ground of cruelty. As it is a bare perusal of the certificate issued by Rajasthan State Open School, Government of Rajasthan referred to here-in-above, discloses her date of birth to be 06.08.1991. Computed on the basis thereof, on the date of her marriage, she was even under 15 years of age. In absence of any specific pleading on her part before the learned court below, we do not wish to dilate further on this aspect of the matter. Prima facie, however, having regard to the above dates, the appellant-wife was below 15 years on the date of her marriage on 23.05.2005. 13. On a cumulative consideration of all above and, more particularly, on an assessment of the rival pleadings and the evidence on record, we are of the view that the impugned judgment and order ought to be interfered with. 14. Ordered accordingly. 15. The appeal stands allowed. The judgment and order dated 06.09.2011 is hereby set aside. The marriage between the parties is hereby dissolved by decree of divorce. The mutual rights and obligations of the parties stand concluded by this determination in all respects. Let a decree in terms of this judgment be prepared.Appeal Allowed. *******