IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH, JAIPUR

D.B. CIVIL MISC. APPEAL NO.3272/2024

Banarasi Devi W/o Naveen Kumar D/o Amraram, Aged about

37 years, Caste Jat, R/o Village Kanwarpur, Tehsil Dhod,

District Sikar (Raj.), presently at Village Gunathu, Tehsil

Dhod, District Sikar (Raj.)

APPEALLANT-NON-APPLICANT

VERSUS

Naveen Kumar S/o Bhagirath Mal, aged 34 years, Caste Jat

R/o Village Kanwarpura, Tehsil Dhod, District Sikar (Raj.).

RESPONDENT-APPLICANT

D.B. CIVIL MISC. APPEAL UNDER SECTION 19 OF

THE FAMILY COURTS ACT, 1984 AGAINST THE

JUDGMENT DATED 21.11.2024 PASSED BY SHRI

Sanjay Kumar Tripathi, R.J.S., (D.J. CADRE),

JUDGE, FAMILY COURT, SIKAR (RAJ.) IN H.M.A.

CASE NO. C.I.S. NO. 205/2020 TITLED AS “ NAVEEN

KUMAR V/S BANARASI DEVI” WHEREIN THE

APPLICATION FILED BY THE RESPONDENT UNDER

SECTION 13(1) OF HINDU MARRIAGE ACT, 1955

WAS ALLOWED

Memo of Appeal Rs. 20.00

Fixed Court Fees Paid Rs. 20.00

TO,
THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S

OTHER HON’BLE COMPANION JUDGES OF THE HIGH

 2

COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR

BENCH, JAIPUR.

MAY IT PLEASE YOUR LORDSHIP:

The humble appellant above-named most humbly and

respectfully begs to submit, as under: -

1. That the brief facts giving rise to the present appeal are

that the respondent filed a Divorce Petition against the

appellant under section 13 of the Hindu Marriage Act, 1955

with the averments that the marriage of the appellant and

respondent was solemnized as per Hindu Rites and Rituals

on 09.03.2012 in Sikar in very ordinary manner in the

presence of the relatives and family members and since

then the appellant is the legally wedded wife of the

respondent. Out of the wedlock, a daughter was born on

24/07/2013. It was stated that for few days of marriage the

behavior of the appellant wife was good but later on she

started teasing and harassing the family members of the

respondent husband. It was alleged that she refused to

participate in any family function and caused

embarassment to the family members of the respondent. It

was further stated that the appellant also got pregnant

second time in the year 2015 but she hereself aborted it.

It was further stated that the appellant wife also refused to

live in the village and insisted for living in the city and also

threatened that if her desire is not fulfill then she would

lodge false cases and also would get the respondent

husband removed from service. It was further stated that

the respondent husband tried to make the marriage

workable but the appellant wife was always interested in

 3

other things and enjoy her life bereft of any family

responsibility as a wife. It was further stated that the

appellant wife also started quarreling with the mother of

the respondent husband and she also lodged a false report

against the respondent in the year 2019. It was further

stated that finally an FIR No. 184/19 under Section 498A,

406 IPC was lodged at Police Station Sadar Sikar, District

Sikar. It was further stated that thus the respondent wife

has committed cruelty and there is no possibility of living

respondent husband as husband and wife under the same

roof, therefore, decree for divorce may kindly be granted.

2. That the present appellant filed her reply to the divorce

petition admitted the factum of marriage thus stated that

she herself has been subjected to the cruelty of the

respondent husband. She further stated that the

respondent husband and his family members are

demanding dowry and always taunting regarding the dowry

which she has brought at the time of marriage is not

sufficient. Other grounds were also raised and finally it was

prayed that the divorce petition may kindly be dismissed.

3. That on the basis of pleadings of both the parties as many

as two issues were framed including relief clause.

4. That during trial AW-1 Naveen applicant himself was

examined as applicant witness, while NAW-1 Smt. Banarasi

was examined as non-applicant witness.

5. That after completion of evidence and after hearing the

parties the learned court below allowed the divorce petition

filed by the respondent husband and issued decree of

divorce in favour of the respondent husband and against

 4

the appellant vide judgment and decree dated 21.11.2024.

Certified copy of judgment and decree dated 21.11.2024 is

being submitted herewith for perusal of this Hon’ble Court.

Being aggrieved by the judgment and decree dated

21.11.2024 passed in H.M.A. Case No. CIS No. 205/2020

titled as “Naveen Kumar v/s Banarasi Devi”, this misc.

appeal is being preferred herewith before this Hon'ble High

Court on the following grounds amongst others:-

GROUNDS

a) That impugned judgment and decree dated 21.11.2024

passed by learned court below is ex-facie illegal,

arbitrary against the established principles of law as well

as provisions of Hindu Marriage Act and same is liable

to be quashed and set aside by this Hon'ble Court.

b) That the learned Family court has committed serious

error of law while deciding issue No. 1 as the respondent

husband has failed to plead and prove any incident or

cruelty and to prove that the appellant wife has

abandoned the matrimonial home. Surprisingly, the

issue with regard to desertion has not been framed, had

it been framed the appellant wife would have submitted

the evidence that the respondent husband is guilty of

constructive desertion as the respondent husband has

created such circumstances that he never allowed his

wife to live in the matrimonial home. It is humbly

submitted that the appellant-wife left the matrimonial

house not of her own volition, but as a consequence of

the cruel acts perpetrated by the respondent-husband

and his family members, thereby forcing her to reside at

 5

her parental home. The sequence of events leading to her

leaving the matrimonial house clearly demonstrates

continuous acts of cruelty. Soon after the marriage, the

respondent-husband and his family subjected the

appellant to mental and emotional cruelty. The appellant

was regularly harassed, humiliated, and taunted for

bringing inadequate dowry. For the same, as

aforementioned appellant also filled a FIR no. 184/2019

under section 498A and 406 of IPC before the Police

Station Sadar Sikar. The appellant’s departure from the

matrimonial house was due to the creation of unbearable

and hostile circumstances by the respondent which made

it impossible for the appellant to live with dignity under

the same roof. As claimed by the respondent- husband

that the appellant- wife left the matrimonial house

several times, these acts were result of constructive

desertion by the respondent himself. The supreme court

in the case of Bipinchandra Jaisinghbai Shah v.

Prabhavati emphasized on constructive desertion where

the Hon’ble court held the husband liable for the acts of

desertion by his wife. Similarly, in the present case, it

was the respondent- husband who acted in an ill manner

which made the appellant wife to desert the matrimonial

house.

c) Moreover, it is humbly submitted that the respondent

claimed that the wife deserted the matrimonial house, if

it was so, the respondent had a right granted under the

Section 9 of the Hindu Marriage Act, where he could have

filed for Restitution of Conjugal rights. The act of not

opting for restitution of conjugal rights clearly shows

 6

that the respondent- husband wanted to unreasonably

make his wife liable for desertion. Additionally, as

argued by the respondent- husband in the learned family

court’s order, that his wife intentionally tried to

terminate pregnancy. Notwithstanding to this argument,

it is humbly submitted that there are no medical

evidences of the same where it is proved that appellant-

wife has terminated her pregnancy. It is an unethical

claim which is imposed on the appellant as no mother

will willfully try to terminate her pregnancy unless there

is any external influence. As such impugned judgment

and decree dated 21.11.2024 is liable to be quashed and

set aside by this Hon'ble Court.

d) That the learned Family court further committed serious

error of law by taking into consideration the FIR No.

184/19 which has been lodged by the appellant wife only

in a very short span after the marriage. The reason for

registration of the FIR was that soon after the marriage

the appellant wife was subjected to the cruelty which

forced her to lodge the FIR, therefore, this fact goes in

favour of the appellant wife that she has been subjected

to the alleged cruelty but this fact has wrongly been

considered by the learned Family Court. As such

impugned judgment and decree dated 21.11.2024 is

liable to be quashed and set aside by this Hon'ble Court.

e) That the learned court below hascomitted grave error in

construing the act of forceful eviction by the family of

the respondent-husband as an act of desertion. No

prudent person can be expected to live in the house of

 7

the husabnd especially when there is a threat to life of

the person.

f) That the learned Family Court has granted the decree of

divorce mainly on the ground that the wife has

committed cruelty on the husabnd. A bare perusal of the

reasons given by the learned court below would show

that absurd reasons have been assigned. Desertion has

also been proved as the wife has been made guilty of

cruelty. Under the scheme of the Hindu Marriage Act the

divorce can be granted on fault finding theory and if any

spouse is guilty of any illegal act as defined under

section 13 of Hindu Marriage Act then the other spouse

of that marriage on proving those facts would be entitled

for a decree of divorce, therefore, impugned judgment is

liable to be quashed and set aside.

g) That a bare perusal of the entire evidence available on

record would go to show that there is no evidence

available on record to prove that the appellant wife has

been guilty of cruelty. The evidence available on record

has not been taken into consideration correctly by the

learned Family Court and in admissible and irrelevant

evidence and effect therefore has been taken into

consideration whereas the relevant and admissible

evidence and effect thereof has not rightly been taken

into consideration therefore, finding arrived on such

appreciation of fact is perverse and thus the impugned

judgment is liable to be quashed and set aside.

 8

h) That impugned judgment and decree dated 21.11.2024 is

based on conjectures and surmises and liable to be

quashed and set aside by this Hon'ble Court.

i) That, the other grounds will be urged at the time of

arguments.

6. That this Hon’ble Court has got jurisdiction to hear and

decide this appeal.

P R A Y E R

It, is therefore, most humbly prayed that Your

Lordships may graciously be pleased to admit and allow this

civil misc. appeal and may quashed and set aside the

impugned decree and judgment dated 21.11.2024 passed by

Judge, Family Court, Sikar (Raj.) in H.M.A. Case No. C.I.S.

No. 205/2020 titled as “Naveen Kumar v/s Banarasi Devi”

and dismiss the divorce petition filed by the respondent.

Any other order or relief, which this Hon’ble High

Court deems fit and proper, may also kindly be passed in

favour of the appellant.

HUMBLE APPELLANT

THROUGH COUNSEL

(ARPIT DOTASRA/MOHIT SHARMA)

ADVOCATES
MOB. 9928505399
E-MAIL: arpitdotasra@gmail.com

Notes:-
1. No such appeal has been filed earlier to it.
2. P.F., Notices and extra copies will be filed within time.
3. It has been typed by my private steno who is not the
employee of this Hon’ble High Court.
 9

4. Pie papers are not readily available so it has been typed on

stout papers.

COUNSEL FOR THE APPELLANT

 10

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH JAIPUR

D.B.CIVIL MISC. STAY APPLICATION NO.___/2024

IN
D.B. CIVIL MISC. APPEAL NO.________/2024

Banarasi Devi W/o Naveen Kumar D/o Amraram, Aged about

37 years, Caste Jat, R/o Village Kanwarpur, Tehsil Dhod,

District Sikar (Raj.), presently at Village Gunathu, Tehsil

Dhod, District Sikar (Raj.)

APPEALLANT-NON-APPLICANT

VERSUS

Naveen Kumar S/o Bhagirath Mal, aged 34 years, Caste Jat

R/o Village Kanwarpura, Tehsil Dhod, District Sikar (Raj.).

RESPONDENT-APPLICANT

D.B. CIVIL MISC. STAY APPLICATION ORDER 41

RULE 5 READ WITH SECTION 151 C.P.C.

TO,

Hon’ble the Chief Justice and his other companion

Judges of Judicature for Rajasthan High Court at Jaipur

Bench, Jaipur.

MAY IT PLEASE YOUR LORDSHIPS;

The humble appellant submits the present stay

application as under :-

1. That the appellant has preferred an appeal today

challenging the order dated 21.11.2024 passed by Judge,

Family Court, Sikar (Raj) in H.M.A Case No. CIS No.

205/2020 titled as “ Naveen Kumar v/s Banarasi Devi”

 11

wherein the petition filed by the respondent had been

allowed and decree of divorce was granted in his favour.

2. That the appellant seeks grave indulgence of the Hon’ble

Court to treat the facts and grounds of the appeal as part

and parcel of this stay application.

3. That a bare perusal of the facts and grounds of the memo

of appeal- it is evident that appellant has strong prima

facie case in her favour and she has every hope of

success in the appeal filed by her.

4. That if the operation of the impugned judgment and

decree dated 21.11.2024 is not stayed, the appellant

would suffer irreparable loss which will not be

compensated in any terms.

5. That balance of convenience also lies in favour of the

appellant in staying the operation of the impugned order

dated 21.11.2024.

It is, therefore humbly prayed that this appeal may

kindly be allowed and during the pendency of the appeal

the operation and effect of the judgment and decree

dated 21.11.2024 passed by Judge, Family Court, Sikar

(Raj.) in H.M.A. Case No. CIS No. 205/2020 titled as “

Naveen Kumar v/s Banarasi Devi” be stayed and the

respondent further be directed not to solemnize second

marriage during pendency of the appeal.

Any other order which this Hon’ble Court may

deems think fit and proper be passed in favour of the

appellant.
 12

HUMBLE APPELLANT

THROUGH HER COUNSEL

(ARPIT DOTASRA/MOHIT SHARMA)

ADVOCATES
MOB. 9928505399
E-MAIL: arpitdotasra@gmail.com

Notes :

1. No such application has been filed prior to this one.

2. This stay application has been drafted by my counsel.

3. It has been typed on stout paper as pie papers were not

readily available.

4. It has been typed by my private steno/typist.

THROUGH HER COUNSEL

 13

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JAIPUR BENCH JAIPUR

D.B. CIVIL MISC. STAY APPLICATION NO……/2024

IN
D.B. CIVIL MISC. APPEAL NO. ….../2024

BANARASI DEVI VS NAVEEN KUMAR

AFFIDAVIT IN SUPPORT OF STAY APPLICATION

I, Banarasi Devi W/o Naveen Kumar D/o Amraram, Aged

about 37 years, Caste Jat, R/o Village Kanwarpur, Tehsil

Dhod, District Sikar (Raj.), presently at Village Gunathu,

Tehsil Dhod, District Sikar, do hereby take oath state as under:-

1. That I am the appellant in this case and hence, well conversant

with the facts of the case.

2. That the annexed application has been drafted by my counsel

under my instructions and I have gone through and understood the

same.

3. That the contents of para No. 1 to 5 of the annexed stay application

are true and correct to my personal knowledge.

VERIFICATION

I, the above named deponent do hereby verify that the contents of

para No. 1 to 3 of the above affidavit are true and correct to my personal

knowledge. Nothing material has been concealed and no part of it is

false.

So help me GOD.
 14

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH, JAIPUR

D.B. CIVIL MISC. APPEAL NO. ……./2024

BANARASI DEVI

VERSUS

NAVEEN KUMAR

I N D E X

S.No. Particulars Page Nos.

1. Memo Of Appeal

2. Stay Application

3. Affidavit in support of stay

application

4. Certified Copy of the judgment

and decree dated 21.11.2024

5. Copy of divorce petition and reply of the

Divorce petition, Copy of issues framed

by Family Court, and evidence of applicant

and defendant.

JAIPUR

DATED :

COUNSEL FOR THE APPELLANT

 15

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JAIPUR BENCH, JAIPUR

D.B. CIVIL MISC. APPEAL NO. ….../2024

BANARASI DEVI VS NAVEEN KUMAR

SYNOPSIS

1. The brief facts giving rise to the present appeal are that

the respondent filed a Divorce Petition against the

appellant under section 13 of the Hindu Marriage Act,

1955 with the averments that the marriage of the

appellant and respondent was solemnized as per Hindu

Rites and Rituals on 09.03.2012 in Sikar in very ordinary

manner in the presence of the relatives and family

members and since then the appellant is the legally

wedded wife of the respondent. Out of the wedlock, a

daughter was born on 24/07/2013. It was stated that for

few days of marriage the behavior of the appellant wife

was good but later on she started teasing and harassing

the family members of the respondent husband. It was

alleged that she refused to participate in any family

function and caused embarassment to the family

members of the respondent. It was further stated that the

appellant also got pregnant second time in the year 2015

but she hereself aborted it. It was further stated that the

appellant wife also refused to live in the village and

insisted for living in the city and also threatened that if

her desire is not fulfill then she would lodge false cases

and also would get the respondent husband removed from

service. It was further stated that the respondent

husband tried to make the marriage workable but the

 16

appellant wife was always interested in other things and

enjoy her life bereft of any family responsibility as a wife.

It was further stated that the appellant wife also started

quarreling with the mother of the respondent husband

and she also lodged a false report against the respondent

in the year 2019. It was further stated that finally an FIR

No. 184/19 under Section 498A, 406 IPC was lodged at

Police Station Sadar Sikar, District Sikar. It was further

stated that thus the respondent wife has committed

cruelty and there is no possibility of living respondent

husband as husband and wife under the same roof,

therefore, decree for divorce may kindly be granted.

2. The present appellant filed her reply to the divorce

petition admitted the factum of marriage thus stated that

she herself has been subjected to the cruelty of the

respondent husband. She further stated that the

respondent husband and his family members are

demanding dowry and always taunting regarding the

dowry which she has brought at the time of marriage is

not sufficient. Other grounds were also raised and finally

it was prayed that the divorce petition may kindly be

dismissed.

3. On the basis of pleadings of both the parties as many as

two issues were framed including relief clause.

4. During trial AW-1 Naveen applicant himself was examined

as applicant witness, while NAW-1 Smt. Banarasi was

examined as non-applicant witness.

5. After completion of evidence and after hearing the

parties the learned court below allowed the divorce

 17

petition filed by the respondent husband and issued

decree of divorce in favour of the respondent husband and

against the appellant vide judgment and decree dated

21.11.2024.

Hence this Civil Misc. Appeal.

COUNSEL FOR THE APPELLANT