Gujarat High Court
Chetaben W/O Ashwinbhai Maganlal Vasa ... vs Ashwinbhai Maganlal Vasa on 3 February, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
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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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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
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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
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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
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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
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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.
(BIREN VAISHNAV, J)
(D. M. DESAI,J)
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