Rajasthan High Court
Smt. Prem W/O Shri Hardayal D/O Shri Pusa ... vs Hardayal S/O Shri Mahadev, ... on 22 August, 2024
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
[2024:RJ-JP:35354-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Miscellaneous Appeal No. 3554/2023
Smt. Prem W/o Shri Hardayal D/o Shri Pusa Ram Ji,
Resident Of Village Bebanja, Tehsil Nasirabad, District
Ajmer, Rajasthan.
----Appellant
Versus
Hardayal S/o Shri Mahadev, Resident Of Nawab,
Panchayat Samiti, Srinagar, Tehsil Nasirabad, District
Ajmer.
----Respondent
For Appellant(s) : Mr. Ram Singh Gurjar
For Respondent(s) :
HON'BLE MR. JUSTICE AVNEESH JHINGAN
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
Judgment
22/08/2024
AVNEESH JHINGAN, J (ORAL):-
1. This appeal is filed against the judgment and decree
passed by Family Court on 04.09.2019 dissolving the
marriage.
2. The brief facts are that the marriage of the parties
was solemnized in the year 1993 and a male child was
born on 02.08.2004. As per the appellant she was
maltreated during her pregnancy and thrown out of the
matrimonial home. The appellant lodged an FIR
No.250/2004 at Police Station Nasirabad under Section
498-A and 406 of IPC and Section 4 of Dowry Prohibition
Act, 1961 against husband and his family members. The
respondent and family members were acquitted in the
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criminal case. In the application filed by appellant under
Section 125 Cr.P.C, the respondent took a stand that
though the marriage was solemnized in the year 1993 but
"Gauna" had taken place on 18.01.2004 and on that date
the appellant was three months pregnant. A full matured
child was delivered on 02.08.2004 i.e. after almost six and
half months of the Gauna. The Family Court while dealing
with the application under Section 125 Cr.P.C considering
the dispute, ordered DNA testing of the child. As per the
DNA report, the respondent was not biological father of the
child. The petition under Section 13 was filed on the
grounds of adultery, cruelty and desertion. To prove the
case, the respondent himself deposed and two witnesses
were examined. The DNA report was exhibited as Ex.1.
The appellant took a stand that during the subsistence of
the marriage, the respondent had remarried. She had filed
a civil suit in which an interim order was passed directing
the respondent not to remarry, yet the respondent
solemnized second marriage. Further objections were
raised that the sampling of the DNA was not done in the
prescribed manner and the seal of the sample was
tampered. After considering the facts and appreciating the
evidence, the issues of cruelty, adultery and desertion
were decided against the appellant and impugned decree
of divorce was passed. Hence, the present appeal.
3. None has put in appearance on behalf of the
respondent despite service.
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4. Learned counsel for the appellant submits that the
respondent had remarried before the grant of decree of
divorce. The contention is that the DNA sampling was not
proper.
5. Heard learned counsel for the appellant and perused
the record.
6. The Family Court framed issues with regard to
cruelty, adultery and desertion. The respondent was able
to prove that false FIR was registered by appellant against
him and his family members and ultimately there was
acquittal in the criminal case. The Family Court after
considering the evidence of the respondent, AW-2, AW-3
and the judgment of the acquittal (Ex.7) decided the issue
of cruelty in favour of the respondent.
7. The Supreme Court in Rani Narasimha Sastry Vs.
Rani Suneela reported in (2020) 18 SCC 247 held as
under:-
13. In the present case, the prosecution is
launched by the Respondent against the
Appellant Under Section 498-A of Indian Penal
Code making serious allegations in which the
Appellant had to undergo trial which ultimately
resulted in his acquittal. In the prosecution
Under Section 498-A of Indian Penal Code, not
only acquittal has been recorded, but
observations have been made that allegations
of serious nature are levelled against each
other. The case set up by the Appellant seeking
Decree of Divorce on the ground of Cruelty has
been established. With regard to proceeding
initiated by Respondent Under Section 498-A of
Indian Penal Code, the High Court made
following observation in Paragraph 14:
14. ...Merely because the
Respondent has sought for
Maintenance or has filed a
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Complaint against the Petitioner for
the offence punishable Under
Section 498-A of Indian Penal
Code, they cannot be said to be
valid grounds for holding that such
a recourse adopted by the
Respondent amounts to cruelty.
14. The above observation of the High Court
cannot be approved. It is true that it is open for
anyone to file Complaint or lodge prosecution for
redressal for his or her grievances and lodge a
First information Report for an offence also and
mere lodging of Complaint or FIR cannot ipso
facto be treated as Cruelty. But when a person
undergoes a trial in which he is acquitted of the
allegation of offence Under Section 498-A of
Indian Penal Code, levelled by the Wife against
the Husband, it cannot be accepted that no
cruelty has meted on the Husband. As per
pleadings before us, after parties having been
married on 14.8.2005, they lived together only
18 months and thereafter they are separately
living for more than a decade now.
15. In view of forgoing discussion, we conclude
that Appellant has made a ground for grant of
Decree of Dissolution of Marriage on the ground
as mentioned in Section 13(1)(i-a) of the Hindu
Marriage Act, 1955.
8. The fact that the gauna had taken place on
18.01.2004 and a male child was delivered on 02.08.2004
i.e. after six and a half months of gauna coupled with DNA
report proved adultry. The DNA testing was done with the
consent of the appellant and due procedure was adopted.
The consent letter of the appellant was annexed as Ex.3.
The sample was taken in the presence of the Presiding
Officer of Family Court and two witnesses. The DNA test
report specifically mentioned that the sample was received
with the seal intact. The order of DNA sampling and the
DNA report was not challenged by the appellant.
[2024:RJ-JP:35354-DB] (5 of 6) [CMA-3554/2023]
9. From the evidence adduced, Family Court concluded
that the parties were living separately without reasonable
cause for a period exceeding two years. Hence, the
desertion was proved.
10. The Supreme Court in the case of BipinChandra
JaiSinghBai Shah Vs. Prabhavati reported in AIR 1957
SC 176 has held the following prerequisites for dissolution
of marriage on ground of desertion:-
"(1) the factum of separation;
(2) animus deserendi;
(3) absence of his or her consent; and
(4) absence of his or her conduct giving
reasonable cause to the deserting spouse
to leave the matrimonial home."
The Supreme Court in the case of Debananda
Tamuli Vs. Kakumoni Kataky reported in (2022) 5 SCC
459 has held as under:-
"7. We have given careful consideration to her
submissions. Firstly, we deal with the issue of
desertion. The learned Counsel appearing for the
Appellant relied upon the decision of this Court in
the case of Lachman Utamchand Kirpalani (supra)
which has been consistently followed in several
decisions of this Court. The law consistently laid
down by this Court is that desertion means the
intentional abandonment of one spouse by the
other without the consent of the other and
without a reasonable cause. The deserted spouse
must prove that there is a factum of separation
and there is an intention on the part of deserting
spouse to bring the cohabitation to a permanent
end. In other words, there should be animus
deserendi on the part of the deserting spouse.
There must be an absence of consent on the part
of the deserted spouse and the conduct of the
deserted spouse should not give a reasonable
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cause to the deserting spouse to leave the
matrimonial home.........."
11. The ground of cruelty and adultery has remained
unchallenged even in the appeal. The contention of the
DNA report being doubtful, lacks merit considering that the
order of DNA sampling and the DNA report remained
unchallenged. Moreover, the appellant consented for DNA
testing, the sample was taken in presence of the Presiding
Officer and two independent witnesses by the staff of the
Government Hospital.
12. No case is made out for interference in the well
reasoned judgment passed by the Family Court.
13. This appeal is dismissed.
(ASHUTOSH KUMAR),J (AVNEESH JHINGAN),J
Chandan/Tanisha/27
Whether Reportable: Yes
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