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2018 DIGILAW 1719 (RAJ)

ABHISHEK RAI v. PAYAL KHAROLIWAL

2018-08-14

G.R.MOOLCHANDANI, PRADEEP NANDRAJOG

body2018
JUDGMENT Pradeep Nandrajog, J. On 23.09.2011, the appellant filed a petition under Section 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal rights in which he pleaded that his wife i.e. the respondent has left the matrimonial house without any justified cause. The respondent was served with a notice in said petition and settlement took place between the parties evident from the fact that on 15/09/2012 the appellant withdrew the petition filed by him. Unfortunately, the order dated 15/09/2012 simply records that in the spirit of a settlement the appellant was withdrawing the petition filed by him seeking restitution of conjugal rights. Surprisingly, on the same day i.e. 15/09/2012 the appellant got drafted a petition seeking decree of divorce on ground of cruelty which has been dismissed by the learned Judge Family Court vide impugned-order dated 11/11/2016. 2. Case of the appellant was that marriage was solemnised between the couple on 09/10/2010. After marriage, she lived with the appellant as his wife for 3 or 4 days and went to her parents house with consent of the appellant. She stayed there for five months. She returned with him to the matrimonial house. She told the appellant that she cannot stay in the matrimonial house for long and had to go back to her parental house because she was preparing to sit for the ensuing Rajasthan Administrative Services examination. That the respondent would prefer stay at her parental house and would try to show appellant in small light by emphasizing that she was in government service. She insisted that the appellant should live separate from his father. He told the respondent that being the only son he could not do so and especially for the reason his mother had died and there was nobody to lookafter his aging father and his sisters were married. That on the pretext of taking the Rajasthan Administrative Services examination she would delay returning to her matrimonial house. Since 2011, she did not return to the matrimonial house. That at the time of the marriage the respondent's age was wrongly informed to him, whereas she was aged 35 years. It was informed that her age was 28 years. That when he sought confirmation of said fact from the respondent she became abusive. 3. In the reply filed the respondent denied the assertions made that she would prefer to stay with her parents. It was informed that her age was 28 years. That when he sought confirmation of said fact from the respondent she became abusive. 3. In the reply filed the respondent denied the assertions made that she would prefer to stay with her parents. As per her the appellant had abandoned her. She affirmed that she was born in the year 1981 and denied that her parents or she disclosed a much lesser age to the appellant when the marriage was solemnised. 4. Appearing as AW1 the appellant deposed facts in support of his pleadings in the petition seeking divorce. Regarding his plea in the petition that his wife used to compel him to separate from his father he deposed that said demand was made by the respondent after one year of the marriage. He proved Exhibit-A1 being the particulars of the respondent furnished by her father in response to a matrimonial advertisement published by his father in which age of respondent is not mentioned. He also proved Exhibit-A3 being a school leaving certificate dated 02.12.2014 issued in name of respondent. 5. Appellant's father Surendra Kumar deposed that the respondent used to pressurise his son to live separately from him. He categorically deposed that this demand was made by the respondent 3-4 days after the marriage. He admitted during cross examination that he wanted to perform the second marriage of his son and gave reason for his son to withdraw the petition filed under Section 9 of the Hindu Marriage Act being respondent seeking maintenance from his son. 6. In her testimony the respondent stated that she was born in the year 1981 and in respect to the certificate Exhibit-A3 proved by the appellant which records that she was a regular student of St. John's Senior Secondary School, Kota from the Academic Session 1978-79 and left the school on 30.06.1992 with date of birth recorded in the school records being 30.08.1975 she pleaded that at the time of admission her father gave wrong date of birth. 7. Vide impugned judgment dated 11.11.2016, petition seeking divorce filed by the appellant has been dismissed highlighting that no particulars with reference to the date with further no particulars of the conduct alleging cruelty was brought out in the evidence by the appellant. No case was made out to grant divorce on ground of cruelty. 8. 7. Vide impugned judgment dated 11.11.2016, petition seeking divorce filed by the appellant has been dismissed highlighting that no particulars with reference to the date with further no particulars of the conduct alleging cruelty was brought out in the evidence by the appellant. No case was made out to grant divorce on ground of cruelty. 8. Learned counsel for the appellant urged while arguing the appeal that Exhibit-A3 records that the respondent was admitted as a student in the school on 29.06.1979 and thus the question of respondent's father incorrectly disclosing respondent's date of birth does not arise keeping in view the fact that as per the respondent her date of birth was 20.06.1981. 9. There is merit in said submission for the reason if the respondent was not born on or before 29.06.1979 and her date of birth is 20.06.1981, the question of her father giving a wrong date of birth does not arise for the reason on 29.06.1979 how could respondent's father seek admission of a child who was yet to be born. 10. But, unfortunately for the appellant that would be at best a situation where his consent to marry the respondent was obtained by fraud and would entitle him to seek annulment of the marriage as per Section 12 of the Hindu Marriage Act which prescribes period of limitation of one year from the date when the fraud came to the knowledge of the appellant. 11. As per appellant's father, NAW2 he deposed that persons from the community disclosed actual date of birth of the respondent. No date has been mentioned as to when said information was given. Even the appellant has not disclosed the date when he got knowledge of said fact. 12. On the issue of cruelty in the form of compelling the appellant to live separately from his father we find contradiction between the testimony of the appellant and his father. Whereas, as per the appellant this demand was made by the respondent after one year of the marriage, as per the father this pressure was brought about on the son after 3-4 days of the marriage. 13. Learned counsel for the appellant could not show anything in the evidence wherefrom specific instances of cruelty allegedly committed by the respondent were established. 14. 13. Learned counsel for the appellant could not show anything in the evidence wherefrom specific instances of cruelty allegedly committed by the respondent were established. 14. It is also relevant to note that on 15.09.2012 the appellant withdrew the petition seeking restitution of conjugal rights on basis of a compromise between the parties and on the same day he filed the petition seeking decree of divorce on ground of cruelty. 15. As regards contention of the appellant's Counsel that there was cruelty in the form of threat to implicate the appellant in a false dowry case, we find that no such plea has been taken in the petition seeking divorce but in his statement the appellant said so on oath. It is obviously a case where said act of threat by the respondent was deposed to as an afterthought. 16. In view of the hazy evidence led by the appellant we find no merit in the appeal and dismiss the same. 17. No costs.