Rajasthan High Court - Jodhpur
Smt. Rukma vs Sahdev on 6 March, 2025
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2025:RJ-JD:10919-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 729/2024
Smt. Rukma D/o Kaludas, Aged About 28 Years, Resident Of
Village Alaniyawas Tehsil Riya Badi District Nagaur Rajasthan
----Appellant
Versus
Sahdev S/o Prahalad, R/o Chhapri Kalan Tehsil Merta District
Nagaur Rajasthan
----Respondent
CONNECTED WITH
D.B. Civil Misc. Appeal No. 1353/2023
Rukma D/o Kaludas, Aged About 28 Years, R/o Village
Alaniyawas, Tehsil Riya Badi, District Nagaur (Raj.).
----Appellant
Versus
Sahdev S/o Prahalad Das, R/o Chhapri Kalan, Tehsil Merta,
District Nagaur (Raj.).
----Respondent
For Appellant(s) : Mr. Sushil Kumar
For Respondent(s) : Mr. Karan Joshi
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE CHANDRA PRAKASH SHRIMALI
Judgment
Reserved on : 21/02/2025
Pronounced on : 06/03/2025
(Per Chandra Prakash Shrimali, J.)
1. By way of both the instant civil misc. appeals filed under
Section 19 of the Hindu Marriage Act, the appellant has raised her
grievance against the judgment dated 24.05.2023 passed by the
learned Judge, Family Court, Merta (hereinafter to be referred as
'the Family Court') in Civil Case Nos.185/2021 and 189/2021,
whereby the appellant's application filed under Section 13 of the
[2025:RJ-JD:10919-DB] (2 of 9) [CMA-729/2024]
Hindu Marriage Act for divorce was rejected and the respondent's
application filed under Section 9 of the Hindu Marriage Act for
restitution of conjugal rights was allowed.
1.1. The appellant has invoked magnanimity of this Court to set
aside the judgment impugned dated 24.05.2023, allow her
application under Section 13 of the Hindu Marriage Act, dismiss
the application of the respondent under Section 9 of the Hindu
Marriage Act and pass a decree of divorce accordingly.
2. The brief facts necessary for disposal of the instant appeals
are that the appellant solemnized marriage with the respondent
on 25.05.2013 and their siblings also married each other as per
'Aata Saata' rituals. Subsequently, the respondent deserted the
appellant shortly after the marriage, having treated her with
cruelty and even returned her belongings on 21.06.2013. Upon
such cruelty as well as desertion for more than 8 years, the
appellant preferred an application under Section 13 of the Hindu
Marriage Act for divorce before the learned Family Court on
12.11.2021. Afterward, the respondent preferred an application
under Section 9 of the Hindu Marriage Act for restitution of
conjugal rights before the learned Family Court on 13.09.2022
with the accusation that the appellant deserted him and subjected
him to cruelty.
2.1. The learned Family Court vide a common judgment dated
24.05.2023, dismissed the application filed by the appellant under
Section 13 of the Hindu Marriage Act and allowed the application
filed by the respondent under Section 9 of the Hindu Marriage Act,
[2025:RJ-JD:10919-DB] (3 of 9) [CMA-729/2024]
thereby directing the appellant to live with the respondent and
discharge her matrimonial obligations.
2.2. Being aggrieved by the judgment impugned dated
24.05.2023, the appellant has preferred these appeals for
quashing of the same.
3. In support of the above facts, learned counsel for the
appellant submits that the learned Family Court has erred in
passing the judgment impugned, as the reply and the affidavits
filed on behalf of the appellant remained unrebutted; therefore,
the judgment deserves to be set aside.
3.1. It is also submitted that the contradictory statements of
respondent, claiming a lack of children and physical relations
during the marriage, are inherently implausible, exposing a
calculated attempt to deceive and mislead the learned Family
Court in order to secure a sympathetic ruling. Thus, the impugned
judgment is flawed, manifestly perverse, illegal, unsupported by
the record and as such warrants reversal.
3.2. It is further submitted that the learned Family Court has
committed a significant error in not admitting the unrebutted facts
of cruelty and mistreatment mated out to the appellant at the
hands of the respondent, including ill-treatment, dowry
harassment, physical violence while he was intoxicated and
ultimately, her wrongful ouster from her marital house.
Furthermore, it is submitted that the aforesaid facts were
corroborated by the affidavits of the appellant and her family
members, which remained uncontested as the respondent failed to
appear before the learned Family Court and as such there was no
[2025:RJ-JD:10919-DB] (4 of 9) [CMA-729/2024]
legitimate reason for the learned Family Court to disregard these
unrebutted facts; nevertheless, the learned Family Court
overlooked the same and arbitrarily passed the impugned
judgment, thereby allowing the application of the respondent and
dismissing the application of the appellant. Thus, the impugned
judgment is per se illegal and arbitrary and requires to be
overturned.
3.3. Lastly, learned counsel for the appellant submits that it is
pertinent to mention here that the respondent deserted the
appellant solely to exert pressure on her and her family members
because the respondent's sister, who got married with the
appellant's brother as per 'Aata Saata' rituals, left her marital
house to live at her parental house. Thus, without considering this
fact, the learned Family Court has erred in passing the decree and
impugned judgment for restitution of conjugal rights, which
deserves to be set aside.
4. On the contrary, learned counsel for the respondents has
opposed the prayer of the appellant and submitted that the
respondent did not harass the appellant for dowry, subject her to
cruelty or physical torture, and expel her from the house. Thus,
the learned Family Court has rightly passed the impugned
judgment and decree for restitution of conjugal rights, and as
such, no interference is required in the present cases.
4.1. Learned counsel for the respondent has further submitted
that the appellant left her marital house as per her own accord,
being unhappy with the fact that the respondent's sister, who was
married with appellant's brother as per 'Aata Saata' rituals, had
[2025:RJ-JD:10919-DB] (5 of 9) [CMA-729/2024]
filed a dowry case against the appellant's family, after being
ousted from marital house due to dowry issue and started living at
her parental house i.e. house of the respondent. Thus, learned
Family Court has not committed any error in passing the
impugned judgment, thereby allowing the respondent's application
filed under Section 9 of the Hindu Marriage Act for restitution of
conjugal rights and directing the appellant to live with the
respondent and discharge her matrimonial obligations. Hence, no
interference is called for in the case in hand.
5. Heard learned counsel for the parties and perused the
impugned judgment as well as material available on record.
6. Under Section 13(1)(ia) of the Hindu Marriage Act, a
marriage can be dissolved by a decree of divorce on a petition
presented either by the husband or the wife on the ground that
the other party has, after solemnisation of the marriage, treated
the petitioner with cruelty. The cruelty may be physical and
mental.
6.1. In the series of judgments the Hon'ble Supreme Court has
repeatedly stated the meaning and outlined the scope of the term
'cruelty'. The cruelty is evident where one spouse has so treated
the other and manifested such feelings towards her or him as to
cause in her or his mind reasonable apprehension that it will be
harmful or injurious to live with the other spouse. The cruelty may
be physical and mental.
6.2. The Hon'ble Supreme Court in the case of Smt. Roopa Soni
Vs. Kamalnarayan Soni (Arising out of SLP (C)
No.15793/2014) decided on 06.09.2023 while dealing with the
[2025:RJ-JD:10919-DB] (6 of 9) [CMA-729/2024]
judgment rendered in V. Bhagat Vs. D. Bhagat reported in
(1994) 1 SCC 337 has held that the mental cruelty in Section
13(1)(ia) of Hindu Marriage Act can broadly be defined as that
conduct which inflicts upon the other party such mental pain and
suffering as would make it not possible for that party to live with
the other. In other words, mental cruelty must be of such a nature
that the parties cannot reasonably be expected to live together.
The situation must be such that the wronged party cannot
reasonably be asked to put up with such conduct and continue to
live with the other party. It is not necessary to prove that the
mental cruelty is such as to cause injury to the health of the
petitioner. While arriving at such conclusion, regard must be had
to the social status, educational level of the parties, the society
they move in, the possibility or otherwise of the parties ever living
together in case they are already living apart and all other
relevant facts and circumstances which it is neither possible nor
desirable to set out exhaustively. What is cruelty in one case may
not amount to cruelty in another case. It is a matter to be
determined in each case having regard to the facts and
circumstances of that case. If it is a case of accusations and
allegations, regard must also be had to the context in which they
were made.
6.3. Conversely, Section 9 of the Hindu Marriage Act provides that
if one spouse withdraws from the society of the other without
reasonable excuse, the aggrieved spouse may file application for
restitution of conjugal rights, essentially seeking to compel the
other spouse to resume marital cohabitation.
[2025:RJ-JD:10919-DB] (7 of 9) [CMA-729/2024]
6.4. The Hon'ble Supreme Court in plethora of judgments clarified
that Section 9 of the Hindu Marriage Act is an important legal
remedy aimed at encouraging the resumption of marital
cohabitation, and the Hon'ble Supreme Court has upheld this
provision in cases where the spouse's withdrawal is deemed
unreasonable or unjustified.
7. This Court finds that the factum of marriages being
solemnized between the appellant and respondent as well as
between their respective siblings, as per 'Aata Saata' rituals, is
undisputed. It is observed that apart from the appellant and the
respondent, neither any eyewitness nor any other witness was
examined; nor any documents other then their statements were
produced to support the accusation of cruelty levelled by them
against each other and the accusation of ill-treatment, dowry
harassment, physical violence in a drunken state as well as her
eviction from her marital house levelled by the appellant against
the respondents.
7.1. It is further observed that though the appellant has levelled
the allegations of cruelty, demand of dowry, physical abuse by the
respondent after consuming liquor; however, she has stated in her
cross-examination that she never saw him consuming liquor. It is
also admitted by the appellant in her cross-examination that she
neither lodged any criminal complaint regarding physical violence
against the respondent nor underwent a medical examination by
any doctor. It is further admitted in the cross-examination that
after lodging of a criminal case by the respondent's sister against
the appellant's family regarding demand of dowry and her eviction
[2025:RJ-JD:10919-DB] (8 of 9) [CMA-729/2024]
by them, the appellant left her marital house as per her own free
will and resided at her parental house without any pressure from
anyone. Not even this, the respondent has also not admitted the
allegations of cruelty, demand of dowry, physical abuse in drunken
state levelled by appellant.
7.2. There is distinction between intention to commit cruelty and
the actual act of cruelty, as absence of intention may not, in a
given case, make any difference if the act complained of is
otherwise regarded as cruel. The deliberate and willful intention,
therefore, may not matter. Whereas in the case in hand, any
intention to commit cruelty and even the actual act of cruelty are
absent.
7.3. Furthermore, the burden of proving the allegations lies with
the appellant; but she has failed to substantiate the same before
the learned Family Court as well as before this Court.
7.4. In view of the authoritative pronouncements of the Hon'ble
Supreme Court, this Court is of the opinion that the absence of
cruelty, willful desertion, voluntary conversion etc. are crucial
factors in determining the viability of a marriage. The Court noted
that if a marriage has not been marred by cruelty, willful
desertion, voluntary conversion etc., it may be more appropriate
to seek restitution of conjugal rights under Section 9 of the Hindu
Marriage Act; rather than dissolution under Section 13 of the
Hindu Marriage Act. Therefore, in the absence of cruelty, willful
desertion, voluntary conversion etc., an application under Section
13 of the Hindu Marriage Act is likely to be rejected, while an
application under Section 9 may be more favorably considered.
[2025:RJ-JD:10919-DB] (9 of 9) [CMA-729/2024]
7.5. It is also an admitted position that though the mediation
proceedings conducted by the Mediation Centre of this Court,
pursuant to its directions, failed on several occasions; but the
appellant admitted in her cross-examination that in a mediation
proceeding conducted by the prestigious persons of the society as
well as village, she had agreed to live with the respondent and she
and her father had signed the mediation document.
7.6. In view of the above discussions, this Court is of the firm
opinion that since the appellant had left her marital house as per
her own accord, without any pressure or any reasonable sufficient
cause, which have been admitted in her cross-examination, and
the allegations of cruelty, demand of dowry, physical violence as
well as her desertion from marital house are either absent or
unproven; therefore, the learned Family Court has rightly rejected
the appellant's application filed under Section 13 of the Hindu
Marriage Act for divorce and accepted the respondent's application
filed under Section 9 of the Hindu Marriage Act for restitution of
conjugal rights.
8. With these observations, the instant civil misc. appeals, stay
applications, all the pending applications, if any, are dismissed.
The judgment and decree dated 24.05.2023 passed by the learned
Judge, Family Court, Merta in Civil Case Nos.185/2021 and
189/2021 are hereby affirmed.
(CHANDRA PRAKASH SHRIMALI),J (DR.PUSHPENDRA SINGH BHATI),J
Abhishek Kumar
S.Nos.161-162
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