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2019 DIGILAW 2340 (RAJ)

Naresh Kumar Nitharwal v. Anju

2019-08-29

MOHAMMAD RAFIQ, NARENDRA SINGH DHADDHA

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JUDGMENT Narendra Singh Dhaddha, J. - D.B. Civil Misc. Applicaiton No.52/2019 For the reasons mentioned in application, eight days delay in filing the appeal is condoned. The application is allowed. D.B. Civil Miscellaneous Appeal No.3043/2018 1. This appeal has been preferred by the appellant Naresh Kumar Nitharwal against the order of the learned Family Court, Jhunjhunu passed on 17.4.2018 whereby the learned Family Court dismissed the matrimonial Civil Misc. Case No.622/2016 (94/2016) (17/2013) filed u/s 13 of the Hindu Marriage Act,1955 (for short "the Act"). 2. Brief facts giving rise to this appeal are that the marriage of the appellant was solemnized with respondent on 15.7.2005 as per Hindu rites and customs and spouses are blessed with male child Yash on 20.12.2006. The appellant was posted as Sub-Inspector at Mumbai Airport. For some time, the spouses were maintaining good relationship but after passing of few days there relations became strained and respondent started quarreling with the appellant and his family members without any reasons. But in order to maintain peace and harmony in family, the appellant always tolerated bad and unacceptable behaviour of the respondent. On misbehave of the respondent, the appellant filed a divorce petition which was dismissed on 17.4.2018 by the learned Family Court. 3. In reply, the respondent stated that she remained along with appellant till 2015, thereafter the appellant did not talk or behave like a spouse, till date. Although, the relationship with parents of the appellant were good, she did not go her maternal home. The respondent had not quarreled with any member of his family. The respondent stated that the appellant wanted to marry with Kusum Yadav, so he pressed her for divorce. 4. From the pleadings, the learned Family Court framed issues : 5. Appellant Naresh Kumar Nitharwal examined himself as AW-1 and three other witnesses as Suwa Lal AW-2, Laxmi Devi AW-3 and Pooran Singh AW-4. 6. Respondent Anju Devi was examined herself as NAW-1 and two other witnesses as Vidhyadhar NAW-2 and Sumita Choudhary NAW-3. Respondent exhibited documents as EX.-NA 1 to Ex. NA-8 and FIR as Ex. NA-16. 7. After hearing the learned counsel for the parties, the learned Family Court decided both the Issues in favour of the respondent and against the appellant. 8. Learned counsel for the appellant submitted that the learned Family Court had committed serious error in dismissing the divorce petition filed by the appellant. NA-8 and FIR as Ex. NA-16. 7. After hearing the learned counsel for the parties, the learned Family Court decided both the Issues in favour of the respondent and against the appellant. 8. Learned counsel for the appellant submitted that the learned Family Court had committed serious error in dismissing the divorce petition filed by the appellant. Learned Family Court in routine and cursory manner and without application of judicial mind, straightway dismissed the divorce petition. Learned counsel for the appellant submitted that respondent wife herself deserted the appellant on her own sweet will. At the time of marriage, the respondent falsely stated that she was B.A. and B.Ed., but she was only matriculate. After sometime of marriage, respondent started mentally torturing the appellant and his family members. The appellant without any objection allowed to complete her further studies and also borne educational expenses. The respondent falsely made statement in her affidavit that the appellant had illicit relationship with Kusum Yadav. The respondent had not stopped to harass the appellant mentally and physically by cruel behaviour. She also lodged a false FIR against the appellant and his family members and compelled the appellant to submit his resignation from service. Despite misbehaviour of respondent, the appellant always wanted to keep the respondent and his son Yash with him. In her statement, the respondent clearly stated that she was not willing to live with the appellant. Learned Family Court had not considered this fact. The respondent had tarnished the image of appellant and his family members by registering false case under Section 376/511 IPC against her father-in-law and uncle-in-law (Umesh). Learned Family Court had wrongly interpreted that on account of pending cases, it could not be assumed that these were falsely registered. During the course of arguments, the appellant bonafidely expressed his willingness to keep the respondent with him, but the respondent had refused to live with him. Thus, it was crystal clear from the conduct of the respondent that the marriage between appellant and respondent had broken down. The appellant in his support placed reliance in D.B. Civil Miscellaneous Appeal No.45/2000, Smt. Anita Jain Versus Rajendra Kumar Jain, decided on by this Court on 30.11.2009. 9. Learned counsel for the respondent submitted that the appellant in his pleadings had not mentioned any specific evidence about cruelty. The appellant in his support placed reliance in D.B. Civil Miscellaneous Appeal No.45/2000, Smt. Anita Jain Versus Rajendra Kumar Jain, decided on by this Court on 30.11.2009. 9. Learned counsel for the respondent submitted that the appellant in his pleadings had not mentioned any specific evidence about cruelty. He submitted that the appellant Naresh Kumar Nitharwal in his statement stated that the respondent and his son remained with him after 21/2 years of filing the divorce petition. He also stated that "I had pardoned the respondent and ready to live with her." 10. Learned counsel for the respondent submitted that the appellant had not come with clean hand. Learned counsel for the respondent submitted that the appellant had filed divorce petition when the respondent and her son were living with him. Two witnesses of the appellant; namely, Laxmi Devi AW-3 and Pooran Singh AW-4 had admitted in their cross examination that respondent was living with them when the appellant had filed divorce petition. This shows that the respondent had not committed any cruelty against the appellant. The learned counsel for the respondent submitted that the appellant wanted to marry with Kusum Yadav, therefore he had filed divorce petition to get rid of respondent. The learned counsel for the respondent submitted that the appellant produced vague & false evidence regarding cruelty. He had committed cruelty against the respondent and therefore he could not take any advantage of his own mistake. The learned counsel for the respondent submitted that the learned Family Court had rejected the suit on cogent and valid ground and therefore no interference is required. 11. We have given our thoughtful consideration to the arguments advanced by both the parties, perused the impugned order and the material available on record. 12. The appellant had not pleaded any specific evidence regarding cruelty. The appellant had not come with clean hand. He had filed divorce petition when respondent and her son were living with him. Smt. Laxmi Devi AW-3 - mother of appellant and Shri Puran Singh - father of the appellant, both clearly stated in their statements that respondent was living with them and the appellant had filed divorce petition against her. The appellant in his statement clearly stated that he had pardoned the respondent and he wanted to live with her. Smt. Laxmi Devi AW-3 - mother of appellant and Shri Puran Singh - father of the appellant, both clearly stated in their statements that respondent was living with them and the appellant had filed divorce petition against her. The appellant in his statement clearly stated that he had pardoned the respondent and he wanted to live with her. The respondent in her statement clearly stated that if the appellant had withdrawn the cases, she would have to live with him. The learned Family Court in its order clearly stated that there was no evidence regarding marriage between appellant and respondent irretievable broke down. The learned Family Court clearly observed that the cases lodged by the respondent regarding attempt to rape, harassment and dowry were still pending, therefore it could not be inferenced that these were falsely instituted. 13. Therefore, we are of the considered opinion that the learned Family Court had not committed any error in rejecting the divorce petition filed by the appellant. Therefore, we are persuaded to reject the appeal and accordingly, it is dismissed.