Rajasthan High Court - Jodhpur
Neetu vs Vinod Kumar on 21 February, 2025
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2024:RJ-JD:40771-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 1239/2024
Neetu W/o Vinod Kumar, Aged About 35 Years, D/o Khetaram Ji,
Resident Of Kalandri, Tehsil And District Sirohi. Presently
Residing At Village Malwada, Tehsil Raniwara, District Jalore
(Raj.)
----Appellant
Versus
1. Vinod Kumar S/o Shri Tagaram, Aged About 35 Years,
Profession Private Job, R/o Kalandri, Tehsil And District
Sirohi (Raj.).
2. Praveen Kumar Alias Dinesh Kumar S/o Manaram Ji, R/o
Near Satyanarayan Temple, Harijan Basti, Kalandri, Tehsil
And Dist. Sirohi Raj.
----Respondents
For Appellant(s) : Mr. Prakash Kumar for
Mr. Jagatveer Singh Deora
For Respondent(s) : Mr. Hukam Singh Chouhan
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE KULDEEP MATHUR
Judgment
Reserved on:- 26/09/2024
Pronounced on:- 21/02/2025
Per, Kuldeep Mathur, J.
1. The present Appeal has been preferred on behalf of the
appellant- wife- Neetu against the judgment and decree dated 16 th
December 2023 passed by the learned Judge, Family Court, Sirohi
in Civil Misc. Case No.82/2019 whereby the petition preferred by
the respondent no.1- husband- Vinod Kumar under Section 13(1)
of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the
Act of 1955') for dissolution of marriage was allowed and a decree
of divorce between the parties was passed.
2. Succinctly stated facts of the present case are that the
respondent no.1- Vinod Kumar filed a divorce petition before the
[2024:RJ-JD:40771-DB] (2 of 17) [CMA-1239/2024]
learned Family Court, Sirohi, alleging inter alia that the marriage
of the appellant- wife and the respondent no.1 was solemnized on
02nd December 2009 at Village Malwada, Tehsil Raniwara, District
Jalore and two sons namely Sahil and Kunal were born out of their
wedlock. Upto two years of their marriage, they continued their
conjugal relations peacefully however, in the month of November/
December of 2011, the respondent no.1 discovered the extra-
marital affair of his wife- Neetu through her phone and her
personal diary. For the sake of their marriage, upon being
requested by the family members of Neetu and for the welfare of
his infant son Sahil, he forgave the appellant- wife and came with
her to live with his parents at Kalandri. Thereafter, in the year
2018, Govind (A.W.2)- brother of respondent no.1 saw the
appellant- Neetu in a compromising position with one Praveen
Kumar @ Dinesh Kumar (respondent no.2) and disclosed the
incident to his family, whereupon the appellant- Neetu threatened
her in-laws of dire consequences if they would interrupt her illicit
relations.
3. Being aggrieved by the conduct of the appellant- Neetu and
after suffering mental cruelty for so long, the respondent no.1
went to his in-laws for advice but to his utter dismay, instead of
reprimanding their daughter- Neetu of her miscreant and
unfaithful behavior, they threatened the respondent no.1 of
lodging a false case against him and ruining his life. Thereafter,
the appellant- Neetu along with her son- Kunal moved to live with
her parents on 11th July 2018, since when the appellant- Neetu
and her husband- respondent no.1 started living separately. It was
further averred that the appellant- Neetu threatened the
[2024:RJ-JD:40771-DB] (3 of 17) [CMA-1239/2024]
respondent no.1 that she would go and start living with
respondent no.2 who being a divorcee was ready and willing to
accept her. Thus, being aggrieved by the cruelty and adultery
committed by his wife- Neetu, respondent no.1- Vinod Kumar
prayed for a decree of divorce to be granted in his favor.
4. Denying the allegations levelled in the petition preferred by
respondent no.1- Vinod Kumar, the appellant- Neetu filed a reply
wherein she stated that she had no prior acquaintance with
respondent no.2, who is the divorced cousin of respondent no.1
and the respondent no.1 had falsely lodged a case against her in
order to defame her mainly because he had prior animosity with
respondent no.2 and they often had matrimonial discords as the
respondent no.1 was unable to maintain her and her children. He
used to mistrust her and hurl imputations upon her character
whenever she used to talk on phone with her family. It was further
alleged that her in-laws used to mistreat her, beat her, behave
cruelly with her and also hurled abuses to her on numerous
occasions on account of not bringing enough dowry articles.
Appellant- Neetu in her reply, thus alleged that the respondent
no.1 with an intention to marry someone else, ousted her and her
son Kunal out of her matrimonial home and thus implored the
Family Court to dismiss the divorce petition preferred by her
husband- Vinod Kumar.
5. The learned Family Court after considering the averments
made in the petition on behalf of the respondent no.1- Vinod
Kumar and the reply filed on behalf of the appellant- Neetu and
after hearing the preliminary arguments advanced by the learned
counsel for both the parties at Bar, proceeded to frame the
[2024:RJ-JD:40771-DB] (4 of 17) [CMA-1239/2024]
following questions of fact/ issues to be determined during the
course of trial:-
"1) क्या अप्रार्थीया ने प्रार्थी के साथ, प्रार्थनापत्र में उल्लिखित विभिन्न
प्रकार से क्रूरतापर्ण
ू व्यवहार किया हैं?
2) आया अप्रार्थीया जारता में निवास कर रही हैं?
3) आया प्रार्थी विवाह विच्छे द की डिक्री प्राप्त करने का अधिकारी
है ?..."
English Translation:
"1) Whether the respondent inflicted cruelty in
various forms against the petitioner, as stated in the
application?
2) Has the respondent lived in adultery?
3) Is the petitioner entitled to obtain a decree of
divorce?..."
6. During the course of trial, three witnesses i.e. A.W.1 being
Vinod Kumar himself; A.W.2 and A.W.3 being Govind Kumar and
Genaram respectively; were examined by the respondent no.1 and
four documents were exhibited in support of his case. The
appellant- Neetu got herself examined as N.A.W.1 in support of
her case.
7. After examining the materials available on record, the
learned Family Court proceeded to decide all the issues against
appellant- wife Neetu and passed a decree of divorce in favor of
respondent no.1- husband Vinod Kumar, which is under challenge
in the present Appeal before this Court.
8. Heard learned counsel for the parties at Bar and perused the
entire record including the testimonies of the witnesses before the
learned Family Court.
9. Learned counsel for the appellant- wife vehemently
contended that the learned Family Court below has failed to
appreciate the evidence available on record in its entirety and
thus, committed grave errors in law and of facts while passing the
[2024:RJ-JD:40771-DB] (5 of 17) [CMA-1239/2024]
impugned judgment and decree. Learned counsel further
contended that the learned Family Court has passed the impugned
judgment and decree in a cursory manner, inasmuch as, it failed
to appreciate the averments made in the petition itself in their
truest sense which are clearly suggestive of the fact that
respondent no.1 and his family members forcefully ousted the
appellant- Neetu from her matrimonial home. Learned counsel
submitted that the respondent no.1 along with his close relatives
has concocted a false story so as to put imputations upon the
character of appellant- Neetu and remarry.
10. Learned counsel also contended that the learned Court below
has misconstrued the concept of cruelty while deciding the issue
no.1 against the appellant- wife as allegedly, the record of the
case speaks volumes of the cruelty being inflicted by the
respondent no.1- husband and his family members upon the
appellant- wife by hurling abuses towards her and beating her for
dowry demand and by levelling false accusations of she having
illicit relations with the others to prove that she is a person of
immoral character. It was submitted that no documentary
evidence worth a mention has been produced by the respondent-
husband to prove any of the allegations of cruelty and adultery
levelled against the appellant- wife and the learned Court below
has only relied upon the testimonies of Govind Kumar (A.W.2) and
Genaram (A.W.3), who being brothers of the respondent no.1 are
interested witnesses of the case. Lastly, learned counsel submitted
that the issue no. 3 has been decided in favor of respondent no.1
sans reasoning. In support of his contentions and arguments,
[2024:RJ-JD:40771-DB] (6 of 17) [CMA-1239/2024]
learned counsel has relied upon the judgment of the Hon'ble
Supreme Court rendered in the case of "Ballabha Das v. Sushila
Bai"1.
11. On the other hand, learned counsel for respondent no.1-
husband has vehemently contended that the relations between the
appellant- Neetu and respondent no.1- Vinod Kumar are
irreconcilable as soon after receiving a notice of the divorce
petition filed by the respondent no.1- husband, she lodged an FIR
no. 166/2019 dated 02nd August 2019 against the respondent
no.1- husband and his family members as a counterblast for the
offences punishable under Sections 498A, 323, 406 and 506 of
IPC with the sole intention to harass him, falsely implicate him in a
criminal case and cause mental torture to him. It was submitted
that in the aforesaid case as well, the learned Judicial Magistrate
Raniwara, District Jalore has acquitted respondent no.1- Vinod
Kumar and his mother of the offences punishable under Sections
498A and 323/34 of IPC by finding no force in the allegations
levelled by the appellant- wife.
11.1. Learned counsel thus submitted that the judgment and
decree dated 16th December 2023 have been passed by the
learned Family Court after due consideration of all the facts and
circumstances and upon a due appreciation of all the evidence
brought forth by the parties and thus prayed that the present
Appeal be dismissed as such. Reliance was placed on the
judgment of the Hon'ble Supreme Court passed in the case of
"Smt. Roopa Soni v. Kamalnarayan Soni"2.
AIR 1988 SC 2089.
[2023] 14 SCR 871.
[2024:RJ-JD:40771-DB] (7 of 17) [CMA-1239/2024]
12. Having considered the rival submissions and the facts and
circumstances of the case, this Court finds that the marriage
between the parties which was solemnized on 02nd December 2009
at Village Malwada, Tehsil Raniwara, District Jalore is not in
dispute and, that, two children namely Sahil and Kunal were born
out of their wedlock. This Court also finds that the parties have
been living separately since 11th July 2018 and the divorce petition
was filed by respondent no.1 Vinod Kumar on 18 th July 2019. This
Court also finds that both the parties have levelled allegations of
cruelty against each other and specific allegation of adultery/
extra-marital affair has been levelled by the respondent no.1-
husband against the appellant- wife on two occasions with
respondent no.2- once in the year 2011 and the second instance
in the year 2018. Thereafter, a divorce petition under Section
13(1) of the Act of 1955 came to be filed on behalf of the
respondent no.1- husband before the learned Family Court, Sirohi.
The learned Family Court below, after hearing both the counsel for
the parties and after due consideration of evidence, framed the
aforementioned three issues in the matter.
13. The learned Family Court while deciding the issues no.1 and
2 in favour of the respondent no.1- has recorded a finding that the
appellant- wife had deserted her husband and inflicted mental
cruelty upon him. So as to record a finding of material
contradictions in her testimony, the learned Family Court has
relied upon the statements of the appellant- Neetu, recorded
during the course of trial in the matter pertaining to case No.
53/2020 (FIR No. 0166/2019- dowry demand case), before the
[2024:RJ-JD:40771-DB] (8 of 17) [CMA-1239/2024]
learned Judicial Magistrate, Raniwara, and has held that she had
stated that she was not acquainted with Praveen Kumar @ Dinesh
Kumar s/o Manaram, who lived in front of their house, and that
her husband had asked her not to engage in phone calls with him,
which made it evident that the appellant- Neetu had given self-
contradictory statements and thus, the same made her testimony
unreliable. It was further recorded that since the appellant had
lodged a false case against the respondent husband for demand of
dowry and since she was living separately from her husband
without just and reasonable cause, she on account of desertion as
well as by neglecting her matrimonial duties had caused mental
cruelty upon the respondent no.1- husband. The relevant portion
of the reasoning as given by the learned Family Court, Sirohi in
the impugned judgment dated 16 th December 2023 while deciding
the issues no. 1, 2 and 3 is reproduced herein below for ready
reference:-
"13& bl ekeys esa izkFkhZ dh vksj ls egRoiw.kZ xokg ,-MCY;w 01 fouksndqekj Lo;a izkFkhZ is"k
gqvk gSA bl xokg us vius eq[; ijh{k.k ds "kiFk i= esa viuh ;kfpdk esa of.kZr rF;ksa dks
gqcgw nksgjk;k gSA izkFkhZ us viuh ;kfpdk o eq[; ijh{k.k ds "kiFki= esa eq[; :i ls ;g crkus
dk iz;kl fd;k gS fd vizkFkhZ;k us vius fookg ds i"pkr~ izkFkhZ ls fHkUu vU; iq:'k dkyUnzh
fuoklh izoh.kdqekj mQZ fnus"kdqekj iq= ekukjke gfjtu ls "kkjhfjd laca/k@laHkksx LFkkfir
dj tkjdeZ esa jgus o izkFkhZ rFkk izkFkhZ ds ifjokj ds lkFk Hkh Øwjrkiw.kZ O;ogkj fd;kA ftjg
esa bl xokg us crk;k gS fd vizkFkhZ;k mn;iqj ls o'kZ 2012 esa dkyUnzh f"k¶V gks x;h FkhA
izkFkhZ "kd ugha djrk Fkk cfYd vizkFkhZ;k ls ckrksa dks iwNrk Fkk fd og fdlls ckr djrh gS]
eq>s mlls ckr djokvks ysfdu vizkFkhZ;k us viuk eksckbZy izkFkhZ dks ugha fn;k] cMh eqf"dy ls
ysuk iMkA vizkFkhZ;k dk pfj= lgh ugha gS rFkk vizkFkhZ;k ds "kkjhfjd laca/k izkFkhZ ds rkmth
ds yMds fnus"kdqekj ds lkFk gS blfy, izkFkhZ vizkFkhZ;k ds lkFk jgus ds fy, rS;kj ugha gS] u
gh vizkFkhZ;k dks lkFk ys tkuk pkgrk gSA vizkFkhZ;k fnus"kdqekj ls ckr djrh Fkh rc izkFkhZ dh
ekrkth Vksdrh Fkh rc vizkFkhZ;k muls >xMk djrh Fkh o dgrh Fkh fd rsjs iksrs o rsjs csVs dh
ftUnxh cckZn dj nwaxhA xokg us ;g Hkh crk;k gS fd tcls fnus"k mQZ izoh.k o vizkFkhZ;k ds
chp voS/k laca/kksa dh tkudkjh gqbZ rc ls izkFkhZ o fnus"kdqekj dh cksypky ugha gS tks tqykbZ
2018 ls ugha gS rFkk vizkFkhZ;k ftlls ckr djrh Fkh oks fnus"k mQZ izoh.kdqekj gh gSA ftjg esa
bl xokg us ;g Hkh Lohdkj fd;k gS fd vizkFkhZ;k us izkFkhZ ds fo:) izFke lwpuk fjiksVZ ntZ
djokbZ tks ,d o'kZ ckn ntZ djokbZ gSA nLrkosth lk{; esa izn"kZ&2 izkFkhZ ds fo:) iqfyl
Fkkuk jkuhokMk esa vizkFkhZ;k }kjk ntZ djok;h x;h izFke lwpuk fjiksVZ gSA xokg us bl lq>ko
dks vLohdkj fd;k fd izkFkhZ mn;iqj gh jgrk gksA izkFkhZ us vizkFkhZ;k ij dsoy xyr "kd
fd;k gks vkSj fnus"k vkSj vizkFkhZ;k ds e/; dksbZ ysuk nsuk ugha gks vkSj izkFkhZ >wBs vkjksi
yxkrk gksA
[2024:RJ-JD:40771-DB] (9 of 17) [CMA-1239/2024]
14& bl ekeys esa izkFkhZ ds dFkuksa ds leFkZu esa xokg xksfoUn dqekj dks ,-M- 02]
xokg xsukjke dks ,-M- 03 us ,d jk; gksdj vizkFkhZ;k ds pkypyu dks [kjkc crk;k gS rFkk
vizkFkhZ;k la[;k ,d o vizkFkhZ;k la[;k nks ds e/; uktk;t laca/kksa dks lgh gksuk o ns[kuk
crk;k gSA xokg xksfoUn dqekj ,-M- 02 us vius c;ku esa dgk fd Þ;g dguk xyr gS fd
eq[; ijh{k.k ds "kiFk i= ds in la[;k 8 esa tks ?kVuk eSaus crkbZ gS] og ?kVuk eSaus viuh
vka[kksa ls ugha ns[kh gksAß Þeq[; ijh{k.k ds "kiFk i= ds in la[;k 8 okyh ?kVuk ds le; ogka
dksbZ ugha FkkA vt [kqn dgk fd og lquh xyh gS] xyh esa tSu&cf.k;ksa ds edkukr~ gS] ijarq os
lHkh ckgj jgrs gSaAß rFkk xokg xsukjke ,-M- 03 us Hkh vius c;kuksa esa ges"kk fnu esa fVfQu
ysus tSu Hkkstu"kkyk tkrs oDr ?kVuk ns[kus dk crk;k gS rFkk vizkFkhZ;k uhrw o vizkFkhZ;k
la[;k nks izoh.k dks izoh.k ds VªsDVj ij cSBrs gq, ns[kuk crk;k gSA
15& bl ekeys esa vizkFkhZ;k dh vksj ls egroiw.kZ xokg ,u-,-MCY;w- 01 uhrw nsoh
izLrqr gqbZA bl xokg us Hkh vius }kjk izLrqr fd, x, izkFkZuk i= ds tokc ds rF;ksa dks
nksgjkrs gq, viuk eq[; ijh{k.k dk "kiFk i= izLrqr fd;k gSA ftjg esa bl xokg us dFku
fd;s gSa fd Þ;g dguk lgh gS fd fouksn }kjk ;g eqdnek djus ds ckn o eq>s bl eqdnes esa
uksfVl feyus ds ckn fnukad 02-08-2019 dks eSaus iqfyl Fkkuk jkuhokMk esa fouksn] fouksn dh
ekrk] firk o mlds HkkbZ ds fo:) eqdnek ntZ djok;k FkkAß Þ;g dguk lgh gS fd fnukad
02-08-2019 dks jkuhokMk Fkkus esa eSaus ngst dk eqdnek ntZ djok;k FkkAß blls Li'V gksrk gS
fd vizkFkhZ;k us izkFkhZ }kjk fd;s x;s rykd ds eqdnes djus ds ckn ngst izrkMuk dk eqdnek
fd;k gSA vkxs dFku fd;k fd Þ;g dguk lgh gS fd esjs }kjk jkuhokMk dksVZ esa fd, x,
eqdnes dk fu.kZ; gks pqdk gS rFkk ml fu.kZ; esa fouksn o vU; lHkh dks nks'keqDr fd;k x;k
gSAß blls Li'V tkfgj gS fd vizkFkhZ;k us cnys dh Hkkouk ls dk;Zokgh dh x;h FkhA vizkFkhZ;k
us vius tokc izkFkZuk i= o c;kuksa esa ekjihV gksus o eqdnek ntZ djokus dh ckr dgh gS
ysfdu ml ckcr~ dksbZ nLrkost is"k ugha fd;k gSA vizkFkhZ;k us ekuuh; U;kf;d eftLVªsV
jkuhokMk tkyksj esa ngst ds izdj.k la[;k 53@2020 esa c;ku fn;s gS fd ÞeSaus ekukjketh ds
yMds izoh.kdqekj mQZ fnus"k dks ugha tkurh gwa ysfdu oks esjs ?kj ds lkeus jgrk gSA ;g
dguk lgh gS fd esjs ifr us eq>s izoh.kdqekj mQZ fnus"k ls eksckbZy ij ckr djus ds fy,
euk fd;k FkkAß tcfd vizkFkhZ;k us vius c;ku ,u-,-MCY;w- 01 esa dFku fd;k fd ÞdkyUnzh esa
esjs edku ds lkeus esjs cMs llqj yhykjke dk edku gS ekukjke dk edku esjs ?kj ls FkksMk
nwj gS fdruk nwj gS eq>s irk ugha gSAß bl izdkj ls vizkFkhZ;k ds c;kuksa esa fojks/kkHkkl gS] tks
fd fo"okl fd;s tkus ;ksX; ugha gksrs gS rFkk vizkFkhZ;k la[;k ,d o vizkFkhZ;k la[;k nks ds
laca/kksa dks fNikus dh dksf"k"k esa mDr dFkuksa dks djuk Li'V gks jgk gSA ysfdu vizkFkhZ;k }kjk
mDr dFkuksa o tkjrk esa fuokl ugha djus laca/k esa vizkFkhZ la[;k nks izoh.kdqekj mQZ
fnus"kdqekj dks lk{; esa izLrqr ugha fd;k x;k gS o ,slh fLFkfr esa izkFkhZ }kjk izLrqr ekSf[kd o
nLrkosth lk{; Hkyh&Hkkafr vizkFkhZx.k dk tkjrk esa fuokl djuk lkfcr djrs gSaA vizkFkhZ;k us
mDr lk{; dks >wBs cuk;s tkus gsrq dFku fd;s gSa fd izkFkhZ ds ifjokjokys vizkFkhZ;k ds ekrk
firk ls ngst ekaxrs Fks o ngst ugha fn;s tkus ij bl rjg dh dk;Zokgh dh xbZ gSA ysfdu
vizkFkhZ;k }kjk vius ekrk firk ftuls izkFkhZ o mlds ekrk firk }kjk ngst dh ekax dh xbZ]
mUgsa Hkh vizkFkhZ;k }kjk lk{; eas izLrqr ugha fd;k x;k gS] ftlls vizkFkhZ;k ds ;g dFku fd
mlds ekrk firk ls ngst dh ekax dh tkrh Fkh] og Hkh lkfcr ugha gq, gSa rFkk vizkFkhZ;k }kjk
ngst dh ekax ds fy, izrkfMr fd;s tkus ds fy, izkFkhZ o mlds ifjokjtuksa ds fo:)
jkuhokMk dksVZ esa fd, x, eqdnes ds fu.kZ; esa fouksn o vU; lHkh dks nks'keqDr fd;k x;k gS
rFkk vizkFkhZ;k }kjk vius ,d iq= dks izkFkhZ ds ikl NksMdj fiNys ik¡p o'kZ ls fcuk izkFkhZ ls
"kkjhfjd laca/k cuk;s vius ihgj esa fuokl djuk ifr ds izfr Øwjrk dh Js.kh esa Hkh vkrk gSA
bl izdkj vizkFkhZ;k ds d`R; tkjrk o Øwjrk dh Js.kh esa vkrs gS]a ftUgsa izkFkhZ Hkyh&Hkkafr lkfcr
djus esa lQy jgk gSA vr% mDr nksuksa rufd;ka cgd izkFkhZ fo:) vizkFkhZx.k fuf.kZr dh tkrh
gSaA
rudh la[;k rhu %&
16& rudh la[;k 1 ,oa 2 ds foospu ls izkFkhZ vius lkFk gq, Øwjrkiw.kZ O;ogkj ,oa
vizkFkhZ;k la[;k ,d ds tkjrk esa fuokl djus ds rF;ksa dks vius i{k esa lkfcr djus esa lQy
jgk gS] blfy, og vizkFkhZ;k ls fookg&foPNsn dh fMØh ikus dk vf/kdkjh gSA vr% mDr
rudh cgd izkFkhZ fo:) vizkFkhZx.k r; dh tkrh gSA "
English Translation:-
"13- In this case, important witness A.W. 1 applicant Vinod
Kumar himself has appeared on behalf of the applicant. This
witness in his main examination and affidavit has repeated
the facts mentioned in his petition. The applicant has mainly
[2024:RJ-JD:40771-DB] (10 of 17) [CMA-1239/2024]
tried to tell in his petition and main examination affidavit that
after her marriage, the non-applicant had established physical
relations/ intercourse with a man other than the applicant,
Praveen Kumar alias Dinesh Kumar son of Manaram Harijan,
resident of Kalandri, and lived in adultery and also behaved
cruelly with the applicant and the applicant's family. In his
cross-examination, this witness has told that the non-
applicant had shifted from Udaipur to Kalandri in the year
2012. The applicant did not used to doubt, rather used to ask
the non-applicant about whom she talked to, and to let him
talk to that person, but the non-applicant did not give her
mobile to the applicant, he had to take it from her with great
difficulty. The character of the non-applicant is not good and
the non-applicant has physical relations with Dinesh Kumar,
the son of the applicant's uncle, therefore the applicant is not
ready to live with the non-applicant, nor does he want to take
the non-applicant with him. When the non-applicant used to
talk to Dinesh Kumar, the applicant's mother used to
interrupt, then the non-applicant used to quarrel with her and
used to say that I will ruin the life of your grandson and your
son. The witness has also told that ever since the illegal
relationship between Dinesh alias Praveen and the non-
applicant came to surface, since then, the applicant and
Dinesh Kumar are not in touch, that is, since July 2018 and
the person with whom the non-applicant used to talk is Dinesh
alias Praveen Kumar only. In the cross-examination, this
witness has also accepted that the non-applicant had lodged
the First Information Report against the applicant which was
lodged after one year. Exhibit-2 in the documentary evidence
is the First Information Report lodged by the non-applicant
against the applicant in Police Station Raniwada. The witness
rejected the suggestions that the applicant lives in Udaipur,
the applicant may have only wrongly suspected the non-
applicant and there is no connection between Dinesh and the
non-applicant and the applicant is making false allegations.
14- In support of the statements of the applicant in this
case, witness Govind Kumar A.W. 02, witness Genaram A.W.
03 have unanimously described the character of the non-
applicant as bad and have stated that the illicit relationship
between non-applicant No. 1 and non-applicant No. 2 was
true and they had seen it. Witness Govind Kumar A.W. 02 has
stated in his statement: "It is wrong to say that the incident
which I have described in paragraph No. 8 of the affidavit, I
have not seen it with my own eyes." "At the time of the
incident mentioned in paragraph No. 8 of the affidavit in, no
one was there. He himself said that it is an empty lane, there
are houses of Jain- Baniya's in the lane, but they all live
outside." And witness Genaram A.W. 03 in his statement has
also stated that he saw the incident while going to Jain
Bhojanshala to get tiffin during the day and also that he saw
the non-applicant Neetu and non-applicant number two
Praveen sitting on Praveen's tractor.
15- In this case, important witness N.A.W. 01 Neetu
Devi appeared on behalf of the non-applicant. This witness
has also presented her affidavit of chief examination
repeating the facts of the reply to the application submitted
by her. In cross-examination, this witness has stated:"It is
correct to say that after Vinod filed this case and after I
received notice in this case, on 02.08.2019, I had lodged a
case against Vinod, Vinod's mother, father and his brother in
Raniwada Police Station." "It is correct to say that on
[2024:RJ-JD:40771-DB] (11 of 17) [CMA-1239/2024]
02.08.2019, I had lodged a dowry case in Raniwada Police
Station." This makes it clear that the non-applicant has filed
a dowry harassment case after the applicant had filed a
divorce case. She further stated that "It is correct to say that
the case filed by me in Raniwada Court has been decided and
in that decision, Vinod and all others have been acquitted." It
is clear from this that the action was taken by the non-
applicant out of a feeling of revenge. The non-applicant has
mentioned about the assault and filing of a case in her reply
application and statements but has not presented any
document in that regard. The non-applicant has given a
statement in dowry case number 53/2020 in the Hon'ble
Judicial Magistrate Raniwada Jalore that "I do not know
Praveen Kumar alias Dinesh, son of Manaram ji, but he lives
in front of my house. It is correct to say that my husband
had forbidden me to talk to Praveen Kumar alias Dinesh on
mobile." Whereas the non-applicant has stated in her
statement N.A.W. 01 that "My elder father-in-law Leela
Ram's house is in front of my house in Kalandri. Manaram's
house is a little far from my house, I do not know how far it
is." In this way, there is contradiction in the statements of
the non-applicant, which are not worthy of being relied upon.
And it is evident that the above statements were made in an
attempt to hide the relationship between non-applicant No.01
and non-applicant No.02. But non-applicant No.02, Praveen
Kumar alias Dinesh Kumar has not been produced in
evidence in relation to the above statements and not living in
adultery by the non-applicant and in such a situation, the
oral and documentary evidence presented by the applicant
clearly proves that the non-applicants reside in adultery. In
order to make the above evidence false, the non-applicant
has stated that the applicant's family members used to
demand dowry from the non-applicant's parents and that
such action was taken when dowry was not given. But the
non-applicant has not produced her parents from whom
dowry was demanded by the applicant and his parents in
evidence, due to which the non-applicant's statement that
dowry was demanded from her parents has also not been
proved and in the judgment of the case filed in Raniwada
Court against the applicant and his family members for
harassing the non-applicant for dowry, Vinod and all others
have been acquitted and the non-applicant's leaving one of
her sons with the applicant and living in her parental house
for the last five years without having physical relations with
the applicant also comes under the category of cruelty
towards the husband. Thus the non-applicant's acts come
under the category of adultery and cruelty, which the
applicant has been successful in proving well. Therefore, The
respondent leaving one of her sons with the applicant and
staying in her parental home for the last five years without
having physical relations with the applicant also comes under
the category of cruelty towards the husband. Thus the acts of
the respondent come under the category of adultery and
cruelty, which the applicant has been able to prove well.
Therefore, both the above mentioned issues are decided in
favour of the applicant and against the non-applicant.
Issue No. 3:-
16- From the consideration of issue No. 1 and 2, the
applicant has been able to prove in his favour the facts of
cruelty meted out to him and the fact that non-applicant No.
1 is residing in adultery, therefore, he is entitled to get a
decree of divorce from the non-applicant. Therefore, the said
[2024:RJ-JD:40771-DB] (12 of 17) [CMA-1239/2024]
case is decided in favour of the the applicant and against
the non-applicants.
14. Pertinently, in the present case, both the parties have taken
a stand that their matrimonial relations have not been a bed of
roses and there have been multiple discords and quarrels between
them. A bare perusal of the record of the case shows that the
petitioner- respondent no. 1 has sought divorce from the
appellant- wife on two counts- firstly, on account of his wife
having voluntarily entered into sexual intercourse with a man
other than her spouse; and thus living in adultery; and secondly
on account of the cruelty inflicted upon him due to her incorrigible
conduct and lodging of false and frivolous criminal case against
him, and his family members.
15. We will now proceed to evaluate and appreciate the evidence
brought on record on the above-mentioned grounds. In respect of
establishing that the appellant- wife was living in adultery or had
voluntarily engaged in sexual intercourse with a person other than
the respondent no. 1, the witnesses A.W.02 Govind and A.W.03
Genaram were produced before the learned Family Court.
15.1. A.W.02 Govind is the real brother of the respondent no.
1 Vinod Kumar who also used to reside with appellant- Neetu. The
witness in his statements recorded in the affidavit produced by
him as well as in his statements recorded during the course of trial
has stated in great detail that he had seen the appellant- Neetu in
a compromising position with one Praveen Kumar @ Dinesh Kumar
(respondent no. 2) in an under-constructed house at Porwalon ki
Gali, at village Kalandri in the month of June, 2018. Upon seeing
them, he had shouted upon which respondent no. 2 came towards
[2024:RJ-JD:40771-DB] (13 of 17) [CMA-1239/2024]
him and threatened him of dire consequences. Thereafter, upon
reaching home, he had disclosed the incident to the respondent
no.1 and his family. The witness has maintained his stance in the
cross-examination as well.
15.2. A.W.03 Genaram is the elder cousin of respondent no. 1
who in the written affidavit submitted by him has put forth grave
allegations of extra- marital affair upon the appellant- Neetu and
has deposed of being acquainted with the love affair of the
appellant- Neetu with respondent no. 2 since 2016. The testimony
of this witness is also unwavered and he too in his cross-
examination has clearly stated that he had seen the appellant-
Neetu in the company of respondent no. 2 on many occasions.
16. With regard to the burden of proof resting upon the
petitioner- respondent no.1, this Court is conscious of the
judgments rendered by the Hon'ble Supreme Court of India in a
plethora of cases wherein it has been held that in case of a
matrimonial matter, stricter burden of proof as required in the
case of a criminal offence i.e. proving a case beyond reasonable
doubt is not casted upon the parties and the parties have to prove
their case only to the extent of preponderance of probabilities. The
Hon'ble Supreme Court of India while dealing with a divorce
petition filed on ground of cruelty in "N.G. Dastane v. S. Dastane"
[see also "Shobha Rani v. Madhukar Reddy"4] has held:
24. The normal rule which governs civil proceedings is that
a fact can be said to be established if it is proved by a
preponderance of probabilities. This is for the reason that
under the Evidence Act, Section 3, a fact is said to be
proved when the court either believes it to exist or
AIR 1975 SC 1534.
AIR 1988 SC 121.
[2024:RJ-JD:40771-DB] (14 of 17) [CMA-1239/2024]
considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to
act upon the supposition that it exists. The belief regarding
the existence of a fact may thus be founded on a balance
of probabilities. A prudent man faced with conflicting
probabilities concerning a fact-situation will act on the
supposition that the fact exists, if on weighing the various
probabilities he links that the preponderance is in favour of
the existence of the particular fact. As a prudent man, so
the court applies this test for finding whether a fact in
issue can be said to be proved. The first step in this
process is to fix the probabilities, the second to weigh
them, though the two may often intermingle. The
impossible is weeded out at the first stage, the improbable
at the second. Within the wide range of probabilities the
court has often a difficult choice to make but it is this
choice which ultimately determines where the
preponderance of probabilities lies. Important issues like
those which affect the status of parties demand a closer
scrutiny than those like the loan on a promissory note:
"the nature and gravity of an issue necessarily determines
the manner of attaining reasonable satisfaction of the 3AIR
1975 SC 1534. 4AIR 1988 SC 121. 18. truth of the issue"
Per Dixon, J. in Wright v. Wright (1948) 77 C.L.R. 191 or
as said by Lord Denning, "the degree of probability
depends on the subject-matter. In proportion as the
offence is grave, so ought the proof to be clear" Blyth v.
Blyth [1966] 1 A.E.R. 534. But whether the issue is one of
cruelty or of a loan on a pronote, the test to apply is
whether on a preponderance of probabilities the relevant
fact is proved. In civil cases this, normally, is the standard
of proof to apply for finding whether the burden of proof is
discharged...."
16.1. It is a settled law that when imputations upon the
character of a woman or she having committed a matrimonial
offence is alleged by her husband, the same is to be viewed
strictly by the Court as such a conduct is considered to be highly
disgraceful conduct by the society. (refer, "Shantibai v.
Rambilas"5). This Court finds that the unimpeachable testimony of
A.W.02 Govind clearly establishes that the appellant-Neetu had
[1999] DMC 111 (Mad.).
[2024:RJ-JD:40771-DB] (15 of 17) [CMA-1239/2024]
entered into sexual relations with a man other than her husband.
In the case at hand, both the witnesses produced by respondent
no. 1 are though close relatives of respondent no. 1- Vinod Kumar,
yet they did not deny that they were well aware of the
questionable antecedent of the appellant- Neetu.
16.2. It is peculiar in the present case that the respondent
no. 2 being a relative, did not step in the dock to depose in favour
of the appellant- wife or refuted the allegations levelled against
him. In that view of the matter, this Court does not find any
cogent and relevant material on the record of this case to hold
that appellant- Neetu was able to sufficiently discharge her onus
to prove the case put forth by her, particularly when, there is
unimpeachable and reliable testimony of an eye-witness against
her. There is no direct or corroborative evidence led by the
appellant- wife apart from her own statement which is self-
contradictory. This Court thus finds that the findings of facts
recorded against the appellant- Neetu that she entered into
physical relations with a man other than her husband and having
lived in adultery do not suffer from any infirmity or perversity
whatsoever.
17. Now, with regard to the evidence brought forth by
respondent no. 1 as to the allegations of cruelty levelled upon the
appellant- wife, this Court upon careful scanning of the materials
produced on the record, pertinently, from the divorce petition as
well as the reply submitted by the parties, finds that the wife as
well intended to live separately from the husband. This has been
brought forth by the husband that she had been blackmailing him
[2024:RJ-JD:40771-DB] (16 of 17) [CMA-1239/2024]
consistently to go and live with someone else which clearly shows
that she did not intend to reconcile her relations with him (refer,
"Lachman Uttamchand Kriplani v. Meena"6). Manifestly, in the case
at hand, the parties are living separately since 2018 and the wife
did not make any attempt to reconcile her relations with her
husband which proves that she was not interested in sustaining
her matrimonial relationship, thereby depriving the husband of
mutual companionship and conjugal relations and now sufficient
time has passed since the divorce decree was passed by the
learned Family Court, Sirohi.
17.1. This Court further finds that both the parties have
alleged cruelty to have been inflicted upon them by each other.
However, from a perusal of the record of the case, it is manifest
that a criminal case for offences punishable under Sections 498-A,
323, 406 and 506 of IPC was lodged against the respondent No.1
by the appellant- Neetu in which after due trial, no offences so
alleged was found to be proved by the learned trial Court. In the
opinion of this Court, the conduct of the appellant- Neetu in
launching false and frivolous case against the respondent no. 1
and his family amounts to cruelty being inflicted upon the
respondent no. 1 by his wife. This Court cannot lose sight of the
fact that apart from living separately from her husband, the
appellant- Neetu had on previous occasions also falsely levelled
serious allegation of dowry demand upon respondent no. 1 and his
family which clearly amounts to cruelty for which there can be no
condonation.
[1964] 4 SCR 331.
[2024:RJ-JD:40771-DB] (17 of 17) [CMA-1239/2024]
18. In light of the aforementioned facts and circumstances as
well as the precedent law cited above, this Court finds that the
conduct of the wife towards her husband is not that of normal
wear and tear of a married life. The finding of fact recorded by the
learned Family Court that the appellant Neetu had inflicted mental
cruelty upon her husband (respondent no.1) does not suffer from
any illegality, perversity or infirmity whatsoever.
19. This Court thus does not find any illegality or perversity in
the impugned judgment warranting interference therewith.
20. Accordingly, D.B. Civil Misc. Appeal No.1239/2024 is
dismissed as being devoid of any merit.
(KULDEEP MATHUR),J (SHREE CHANDRASHEKHAR),J
85-DivyaJasmatiya/-
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