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2018 DIGILAW 1054 (RAJ)

Birdhi Chand Chouhan v. Santosh Kachawa

2018-04-23

G.R MOOLCHANDANI, PRADEEP NANDRAJOG

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JUDGMENT : Pradeep Nandrajog, J. Birdhi Chand, husband, has preferred the instant appeal laying a challenge to a judgment dated 07.03.2000 passed by the learned Judge, Family Court, Ajmer in Civil Petition No.323/1998 dismissing the petition filed by him seeking decree of divorce on ground of cruelty and desertion i.e. Section 13 of the Hindu Marriage Act. 2. In the petition Birdhi Chand pleaded that the marriage between the two was solemnised as per Hindu Rites at Ajmer on 27.04.1994. From his previous marriage two sons and a daughter was born to him. His first wife Nakesh Devi died after 10 years of their marriage. During the subsistence of his marriage with the respondent two sons were born on 30.03.1995 and 17.03.1997. He pleaded that attitude of the respondent was hostile towards him and his children and his parents from the day next of the marriage. She used to quarrel with him and his family members on trivial issues and would force him to live separately, requiring him to abandon his parents. Since he refused, the respondent started misbehaving with his family members and would frequently visit her parental house in Ajmer. The matrimonial house was in Pushkar. That on 28.08.1996 his sister Tara Devi came to his house. At that time the respondent became extremely aggressive and started abusing his sister and his parents. In the night the respondent started beating Ashok, his son born from the previous marriage. On 29.08.1996 the respondent attempted to assault Ashok Chouhan using a knife and left the matrimonial house on 29.08.1996. The second child born to the couple on 17.03.1997 was when the respondent was in her parental house. Appellant's brother got married on 18.06.1998. The respondent refused to participate in the marriage ceremony of his brother. Sumitra, younger sister of the respondent was married in May, 1997 and when he went to participate in the marriage ceremony he was insulted. 3. The respondent denied the allegations and pleaded that the matrimonial house was in Pushkar. She got employment at JNL Hospital, Ajmer as a Nurse and she would travel from the matrimonial house at Pushkar to Ajmer for work and return. She would not visit her parental house. She pleaded that Nakesh Devi committed suicide due to cruel behaviour of the appellant. As per her appellant's sister used to misguide the appellant. She pleaded that she was carrying a second pregnancy. She would not visit her parental house. She pleaded that Nakesh Devi committed suicide due to cruel behaviour of the appellant. As per her appellant's sister used to misguide the appellant. She pleaded that she was carrying a second pregnancy. She was beaten and thrown out of the matrimonial house on 29.08.1996. She was seriously ill after giving birth to second child but neither the appellant nor his family members visited her to enquire about her health. Despite being informed the appellant did not attend the marriage of her younger sister. 4. Vide impugned decision dated 07.03.2000 the learned Judge, Family Court, Ajmer has dismissed the petition pleading that appellant failed to prove cruelty at the hands of his wife. The fact that the wife left the matrimonial house on 29.08.1996 was admitted by her, but the intention to abandon the appellant's company was missing. She was forced to leave the matrimonial house. There are observations made in the impugned decision which are irrelevant. The observations are that the appellant and the respondent are in Government service. They are major persons. They should resolve their issues. That decree of divorce at the stage would adversely affect the future of their children. 5. We had heard learned counsel for the parties on 17.04.2018. 6. A bird's eye view of the evidence led by the parties reveal that appellant examined himself as AW-1 and deposed facts as pleaded in the petition. In his examination-in-chief Birdhi Chand deposed that on 28.08.1996 his wife left the matrimonial house after fighting with him. That it was the day of 'Raksha Bandhan'. His sister came to the house. She knocked the door. The respondent fought with him and during the fight hit her mother and his sister. His paternal aunt Shiv Pyari intervened. His wife hit his aunt. His children, on hearing the quarrel came to the room and his wife fought with them also. In a disjunctive deposition of further events he deposed that he was sleeping in his room in the night. He went to the toilet. His wife locked the door from inside. He was forced to sleep in open. Next day morning his son Ashok came to their room to pick up the clothes and books. Abusing him the respondent told him not to enter their room. He went to the toilet. His wife locked the door from inside. He was forced to sleep in open. Next day morning his son Ashok came to their room to pick up the clothes and books. Abusing him the respondent told him not to enter their room. He told his son to go inside the room and take his clothes and books and at which the respondent picked up a knife and chased his son. He yielded. The family members intervened. That what he deposed just before happened on the intervening night of 28th and 29th August, 1996. 7. Relevant would it be to note that he admitted during cross examination that it was correct that in the morning of 28.08.1996 his wife accompanied him from Jodhpur where he was transferred but immediately retracted to say that she did not accompany him from Jodhpur. In fact, on said day he rang up his wife from Jodhpur to meet him at the bus stand at Ajmer. Strangely he said that as discussed he brought her from the bus stand, Ajmer. 8. The appellant examined Suraj Narain, his younger brother as AW-2 who deposed facts substantially the same as were deposed by the appellant. Ashok Chouhan: AW-3, son of the appellant also supported his father. 9. The respondent examined herself as NAW-1 and deposed facts in sync with her written statement pleading that on 28.08.1996 when she was carrying a pregnancy of two months, at the intervention of his sister-in-law she was thrown out of the matrimonial house. Jagdish, brother of the respondent appeared as NAW-2 and supported the case pleaded by his sister. 10. Now, there are contradictions in the testimony of the appellant, his pleadings and the admissions made in the cross examination. As noted above, as per him 'Raksha Bandhan' was celebrated on 28.08.1996. In the petition he pleaded that his wife deserted him on 29.08.1996 but in cross examination he firstly stated that in the morning of 28.08.1996 he came from Jodhpur along with his wife where he was transferred but then corrected himself by saying that his wife did not accompany him from Jodhpur. In fact, from Jodhpur he contacted his wife on said day requesting her to meet him at Ajmer Bus Stand. In the next sentence he spoke disjunctively by saying that he took his wife from the bus stand. In fact, from Jodhpur he contacted his wife on said day requesting her to meet him at Ajmer Bus Stand. In the next sentence he spoke disjunctively by saying that he took his wife from the bus stand. In his examination-in-chief he stated that on the intervening night of 28/29.08.1996 when he went to the toilet his wife locked the door from inside and he had to sleep in the open. He deposed that next day morning when his elder son came to their room to collect the books and clothes the respondent chased him with knife. 11. He deposes that it was winter time and he had to sleep in the cold. August is not winter time anywhere in India. Relevant would it be to highlight that the manner in which the appellant has deposed about the incident has not been pleaded in the petition and no suggestions have been given to the respondent on said lines. During his cross examination the testimony of the other two witnesses of the appellant also do not inspire confidence. 12. It needs to be highlighted that the manner in which appellant deposed regarding incidents of 28.08.1996 and 29.08.1996 is at variance with what he pleaded in the petition. What is extremely relevant to be noted is that in cross examination he stated that he came from Jodhpur in the morning of 28.08.1996 because he was transferred there and the respondent accompanied him. He immediately corrected himself to say that the respondent did not accompany him from Jodhpur. In fact he contacted the respondent from Jodhpur requesting her to meet at Ajmer Bus Stand. In the next sentence he spoke disjunctively by saying that he took his wife from the Bus Stand. But one thing is clear. As per him he came from Jodhpur in the morning of 28.08.1996 and his version as deposed that he was forced to spend the intervening night of 28th and 29th August, 1996 outside the house was not in his pleading. The answer is obvious. The appellant has been pleading and deposing at variance and the same discredits the testimony of the appellant and his witnesses. 13. As regards the respondent, her pleading and her testimony is consistent that her in-laws used to ill-treat her. That she was thrown out of the matrimonial house when she was carrying the second pregnancy. The answer is obvious. The appellant has been pleading and deposing at variance and the same discredits the testimony of the appellant and his witnesses. 13. As regards the respondent, her pleading and her testimony is consistent that her in-laws used to ill-treat her. That she was thrown out of the matrimonial house when she was carrying the second pregnancy. That her in-laws did not attend the marriage of his younger sister. No suggestions have been given during cross examination that said version of the respondent is incorrect. 14. Thus, we find no infirmity in the view taken by the learned Judge, Family Court and thus dismiss the appeal filed by the appellant.