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2018 DIGILAW 259 (RAJ)

Madhusudan Rathore S/o Shri Tulsi Ram Rathore v. Hemlata, W/o Shri Madhusudan

2018-01-19

G.R.MOOLCHANDANI, PRADEEP NANDRAJOG

body2018
JUDGMENT : Mr. G.R. Moolchandani, J. 1. Heard learned Counsel for the appellant. 2. Unfortunately no such assistance has been rendered by the side of the respondent. 3. Appellant sought decree of divorce on ground of cruelty and adultery pleading that marriage between the appellant and the respondent was solemnized on 01.07.2007. The attitude of the respondent on the wedding night was weird. She took out a quarter bottle of liquor from her bag and consumed the same, denying sex to the appellant. The drunkenness of the respondent was daily and under influence of alcohol she used to use abusive language and shout at the appellant and his family members. That the respondent desired the appellant to separate from his parents and that on the occasion of Bhaidooj, immediately after Deepawali the respondent went to her parental house and never returned. 4. The respondent denied the allegations against her and pleaded that the attitude of her in-laws was rude to her. In the month of November-December she was told that the appellant would be going to Gujarat seeking employment and if he gets employment there she could join him in Gujarat. Till then she was requested to return to her parents house. She returned to her parents house accompanied by her husband's younger brother. When she was left in her parental house appellant's younger brother told that her parents should collect Rs. 5,00,000/- so that the appellant could buy a car. As per her there was no contact thereafter till when the petition seeking annulment of the marriage was filed and notice was received by her. She pleaded that the appellant had got married to another lady from whom a child had been born. 5. In support of his case, the appellant examined himself as his witness and in his testimony on oath stated facts in sync with the case pleaded in the divorce petition. He was cross-examined and we find from the cross-examination that suggestions have been given to him that he is deposing falsely. He denied the suggestions. AW-2 Mahendra Kumar and AW-4 Dharmendra Kumar were examined by the appellant who are his friends. They have supported the testimony of the appellant that the attitude of the respondent was cruel because she used to drink and under influence of alcohol used to use abusive words. He denied the suggestions. AW-2 Mahendra Kumar and AW-4 Dharmendra Kumar were examined by the appellant who are his friends. They have supported the testimony of the appellant that the attitude of the respondent was cruel because she used to drink and under influence of alcohol used to use abusive words. Appellant examined his mother Sheela as AW-5 who also supported the case pleaded by the appellant. One Madanlal was examined as AW-3. He is a neighbour. He deposed that immediately after the marriage he used to hear shouts suggesting a quarrel going on in the house everyday. The four witnesses of the appellant have been cross-examined and we simply find suggestions given to them which they have denied to the effect the suggestions being that they were deposing falsely. 6. The respondent examined herself as N.A.W.1 and denied the allegations made against her and supported the facts pleaded by her in her written statement save and except the allegations in the written statement that the appellant had married another lady through whom a child was born. 7. She examined her parental uncle Radheyshyam Atal as NAW-2, her mother Laxmi as NAW-3 and brother Umrao Atal as NAW-4. They have supported the case of the respondent. She examined one Dularam Sharma as NAW-5. Dularam is a person of the same community. Witnesses of the respondent supported the case of the respondent and in cross-examination suggestions put to them that they were deposing falsely were denied. 8. Indeed it was a tough call for the learned Judge, Family Court. It is a case of word of mouth versus a word of mouth. The cryptic cross-examination conducted by the learned Counsel for both the parties of the witnesses examined by the opposite party brings out nothing to discredit the version of the respective witnesses. 9. But one important aspect has been overlooked by the learned Judge, Family Court. In the impugned judgment the learned Judge, Family Court has discussed the issue concerning allegations by the respondent in the written statement that the appellant was having relationship with another lady whom he had married and a child was born. The learned Judge has noted that in her testimony the respondent said that her husband family members used to name one girl by the name of Abha and would discuss appellant getting married to her. 10. The learned Judge has noted that in her testimony the respondent said that her husband family members used to name one girl by the name of Abha and would discuss appellant getting married to her. 10. We have re-read the testimony of the respondent and do not find any such statement made by the respondent. It is a case where fairly serious allegations made by the respondent against the appellant i.e. that he had married some other lady through whom a child was born to him has been made in the written statement. That apart, the testimony of the witnesses of the two sides brings out that the marriage did not just take off. It had irretrievably broken down. Under the circumstances insistence by the respondent to retain the matrimonial bond would be proof of the fact that she wants to continue with a dead marriage only to harass the appellant. 11. We allow the appeal and set aside the impugned judgment and decree dated 30.04.2009. Petition filed by the appellant seeking divorce on ground of cruelty and adultery is allowed. 12. No costs.