Gujarat High Court
Chetaben W/O Ashwinbhai Maganlal Vasa ... vs Ashwinbhai Maganlal Vasa on 3 February, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/1179/2021 JUDGMENT DATED: 03/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1179 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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CHETABEN W/O ASHWINBHAI MAGANLAL VASA D/O ROHITBHAI
JAGDISHCHANDRA TRIVEDI
Versus
ASHWINBHAI MAGANLAL VASA
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Appearance:
NILAY H PATEL(7856) for the Appellant(s) No. 1
RULE SERVED BY DS for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 03/02/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. Heard learned advocate Mr. Nilay Patel for the appellant. Though served, none appeared for and on behalf of respondent No.1.
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NEUTRAL CITATION C/FA/1179/2021 JUDGMENT DATED: 03/02/2025 undefined
2. The present appeal is filed by the appellant - wife challenging the judgment and decree of dismissal of suit for divorce. It is alleged by the plaintiff that the respondent - husband was job-less and all the time demanding money from her. It is also alleged in the plaint that the husband was in habit of drinking alcohol and also used to beat the appellant time and again, whereby, the husband was making physical and mental cruelty to the wife. As the husband was in debt, the relatives of the husband used to come and demand money.
3. The appellant - wife deposed at Exh. 12 and reiterated the averments made in the plaint. It is further submitted that in the cross-examination, nothing has come on record whereby the wife can be denied decree of divorce. It is further submitted that the husband though had submitted examination-in-chief, did not remain present for cross-examination. When the allegations made in the plaint are not rebutted by the husband by offering Page 2 of 6 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:53:03 IST 2025 NEUTRAL CITATION C/FA/1179/2021 JUDGMENT DATED: 03/02/2025 undefined himself for cross-examination, the learned Family Court has committed an error by not believing the case of the appellant - wife.
4. It is the contention of the learned advocate for the appellant that the marriage between the appellant and respondent was solemnized on 2.6.1997 and a son is born out of the wedlock on 12.3.2002. As the time progressed, respondent started treating the appellant with physical and mental cruelty. The appellant was compelled to find a job for maintenance and got a job in ICICI Bank. Respondent used to demand money from appellant. Respondent never took care to maintain the appellant and the son. The respondent deserted appellant.
5. We have heard the submissions canvassed by learned advocate for the appellant and also perused the Record & Proceedings.
6. What can be seen from the papers is that the appellant - wife filed a suit for a decree of divorce against Page 3 of 6 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:53:03 IST 2025 NEUTRAL CITATION C/FA/1179/2021 JUDGMENT DATED: 03/02/2025 undefined the husband mainly on the ground of cruelty and the alleged cruelty which has been narrated in the plaint as well as in the examination-in-chief is nothing but the general wear and tear of the married life. The wife has neither examined any relatives nor examined any neighbors to substantiate the allegations of cruelty.
7. On perusal of the oral deposition of the wife, she has stated in paragraph No.12 that the husband was not earning and he used to come to Ahmedabad to meet her. The wife has refused the husband from visiting her at Ahmedabad. Except the bare allegation of misbehavior and beating her up by the respondent - husband, no other evidence is adduced by the appellant - wife. The fact that the husband has not offered himself for cross examination is of no relevance in the background of the fact that the wife herself has not established a ground of cruelty.
8. The learned Family Court has considered the evidence placed before it and dismissed the suit. We have Page 4 of 6 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:53:03 IST 2025 NEUTRAL CITATION C/FA/1179/2021 JUDGMENT DATED: 03/02/2025 undefined perused the examination in chief at Exh.12 filed by the appellant wife which is a reproduction of the averments made in the plaint. That the averments made in the plaint is no proof is a well settled principle of law. The appellant was supposed to prove allegations made in the plaint. Another cardinal principle of law which has been enunciated in various decisions is that the plaintiff has to succeed on his / her strength and not on the witnesses of the defendant. In the present case, on perusal of the evidence, we are of the opinion that except bare statements, plaintiff - wife has not proved the allegation of cruelty. Mere statements made in the examination in chief is not sufficient to establish the case of cruelty.
9. When on appreciation of evidence, learned Family Court has arrived at a conclusion by not declaring the marriage annulled, we are not inclined to interfere in the findings arrived at by learned Family Court, more particularly, when the appellant herein could not point out any illegality or irregularity in appreciating the evidence Page 5 of 6 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:53:03 IST 2025 NEUTRAL CITATION C/FA/1179/2021 JUDGMENT DATED: 03/02/2025 undefined which was available with the learned Family Court. Merely because a second view is possible, the appellate Court cannot replace the findings arrived at by the trial Court. Applying the said principle, we are not inclined to allow the appeal.
10. On perusal of the impugned judgment, we are of the view that the learned Family Court has not committed any error in dismissing the suit. Since we do not find any error having committed by the learned Family Court in dismissing the suit, the appeal is merit-less and the same is dismissed.
11. Record and Proceedings be sent back to the concerned Court, forthwith. No order as to costs.
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