Rekha Kumari vs Hemendra Choudhary @ Hemraj
2022 Latest Caselaw 10217 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
              D.B. Civil Misc. Appeal No. 718/2022

Smt. Rekha Kumari W/o Hemendra Choudhary @ Hemraj, D/o
Tikamchand, Aged About 32 Years, R/o Dodwadiya Ka Kheda,
Taswariya. Presently Residing At Shivpura, Tehsil Hurda, Distt.
Bhilwara.
                                                                  ----Appellant
                                   Versus
Hemendra Choudhary @ Hemraj S/o Chhagan Lal Choudhary
(Jat), R/o Dodwadiya Ka Kheda, Taswariya, Tehsil Hurda, Distt.
Bhilwara.
                                                                ----Respondent


For Appellant(s)         :     Mr. Vishan Das.
For Respondent(s)        :     Mr. Kunal Bishnoi.



          HON'BLE MR. JUSTICE SANDEEP MEHTA
             HON'BLE MR. JUSTICE FARJAND ALI

                               JUDGMENT

04/08/2022

The instant misc. appeal has been filed by the appellant Smt.

Rekha Kumari for assailing the judgment-cum-decree dated

09.11.2021 passed by the Judge, Family Court (Additional District

and Sessions Judge), Gulabpura, District Bhilwara in Civil Misc.

Case No.39/2021 whereby, the application preferred by the

appellant and respondent under Section 13B of the Hindu Marriage

Act seeking decree of divorce by mutual consent was dismissed.

On the previous date of hearing, we had directed the

Superintendent of Police, Bhilwara to get an enquiry conducted to

find out as to whether the appellant had made any application

seeking Government employment under the 'Divorcee category'.

The Superintendent of Police, Bhilwara has forwarded a report

dated 03.08.2022 as per which, the appellant Rekha Kumari was

(2 of 3) [CMA-718/2022]

appointed as Panchayat Sahayak in the year 2017. She has not

procured any Government employment in the 'Divorcee category'.

Presently, she is posted in the Government Senior Secondary

School, Tokarwad, Tehsil Hurda, District Bhilwara.

Learned counsel Shri Vishan Das representing the appellant

and Shri Kunal Bishnoi, learned counsel representing the

respondent, urged that the learned Judge, Family Court was

totally unjustified in rejecting the application preferred by the

parties under Section 13B of the Hindu Marriage Act with the

observation that the very fact of their marriage was under a cloud

of doubt. They urged that there was a specific averment of the

parties in the divorce application that they were married by

following the Hindu rites and rituals in the year 2007. Photographs

of the marriage ceremony were also annexed with the application.

They thus urged that the conjectural view taken by the learned

Judge, Family Court that the divorce application had been filed so

as to procure a decree of divorce for facilitating the path of the

appellant in procuring Government employment under 'Divorcee

category', is absolutely unjustified.

We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the

impugned judgment-cum-decree and the material available on

record.

We feel that the observations made by the learned Judge,

Family Court in the impugned judgment-cum-decree dated

09.11.2021 that the parties could not prove the factum of their

marriage as per Hindu rites and rituals and thus, they were not

entitled to a decree of divorce, is absolutely unjustified and

hypothetical. Pertinent affidavits were filed by the appellant and

(3 of 3) [CMA-718/2022]

the respondent in support of the pleadings of the divorce

application that they were married to each other in the year 2007.

Photographs of the marriage ceremony were also annexed with

the divorce application. True it is that the exact date of marriage

was not mentioned in the divorce application but for that reason

alone, the divorce application could not have been thrown out. If

the learned Judge, Family Court was of the view that the

averments as made in the application on the aspect of marriage

were inconclusive, powers under Section 165 of the Indian

Evidence Act should have been exercised to put court questions to

the appellant and the respondent so as to verify the truthfulness

of the averments made in the application. The shypothetical view

taken by the learned Judge, Family Court that the decree of

divorce by mutual consent might be misused by the appellant for

procuring the Government employment, is also unsustainable in

view of the report dated 03.08.2022 procured from the

Superintendent of Police, Bhilwara.

In wake of the discussion made herein above, the impugned

judgment-cum-decree dated 09.11.2021 passed by the Judge,

Family Court (Additional District and Sessions Judge), Gulabpura,

District Bhilwara in Civil Misc. Case No.39/2021 cannot be

sustained and is hereby quashed and set aside. The marriage of

the appellant and the respondent is dissolved by mutual consent.

The appeal is allowed in these terms. Decree be prepared

accordingly.

                                   (FARJAND ALI),J                                          (SANDEEP MEHTA),J

                                    41-Tikam Daiya/-









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