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Smt. Chandrakanta Vs. Rajesh S/O Om Prakash and Usha Sindhi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc. Appeal No. 100 of 1981
Judge
Reported in1985(1)WLN457
AppellantSmt. Chandrakanta
RespondentRajesh S/O Om Prakash and Usha Sindhi
DispositionAppeal allowed
Excerpt:
.....section 13--divorce--broken marriage on account of adulterous conduct of husband--held, compelling wife to remain wife would be great injustice to wife and crime on womanhood.;it is case of broken marriage on account of adulterous conduct of the husband. compelling wife to remain as wife of such a husband would be great injustice not only to smt. chandrakanta appellant but to the womanhood, as a whole. no self-respecting wife can tolerate adulterous conduct of her husband and by rejecting the divorce petition, it would be perpetuating serious crime on the womanhood.;appeal allowed with costs - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] ..........petition on the ground that, in cross-examination, smt. chandrakanta has stated that both, the husband and wife, have consented to have divorce.3. no one has appeared on behalf of the appellant before this court. the rejection of divorce petition exhibits latest tendency of the indian courts to become victim of old out dated obsolete thinking of segments of the society that women are to be treated as 'chattel' and they are to be made sex-dowry cocktail for satisfying 'lust of sex' and 'money' of the males. it should be kept in view that after coming into force of the indian constitution, the women have been given prime place in the indian nation and they are equals in all respects. the women are not subservient and dependent on males and they have got constitutional legal rights to.....
Judgment:

G.M. Lodha, J.

1. This is an appeal under Section 28 of the Hindu Marriage Act, 1955 against the judgment and decree dated 7th April, 1981 passed by the District Judge, Ajmer.

2. Smt. Chandrakanta-wife appellant sought divorce on various grounds including the ground of adultery against her husband, Rajesh, the respondent No. 1. The adultery partner Usha Singhi was also made a party. The District Judge, after trial of the case, found that the charge of adultery was proved though other charges regarding cruelty and desertion were not proved. However, after holding that, the adultery was proved; the District Judge dismissed the divorce petition on the ground that, in cross-examination, Smt. Chandrakanta has stated that both, the husband and wife, have consented to have divorce.

3. No one has appeared on behalf of the appellant before this Court. The rejection of divorce petition exhibits latest tendency of the Indian courts to become victim of old out dated obsolete thinking of segments of the society that women are to be treated as 'chattel' and they are to be made sex-dowry cocktail for satisfying 'lust of sex' and 'money' of the males. It should be kept in view that after coming into force of the Indian Constitution, the women have been given prime place in the Indian nation and they are equals in all respects. The women are not subservient and dependent on males and they have got constitutional legal rights to live respectfully with equal status and not to suffer indignities and humiliation. Rejecting a prayer of divorce in cases where the court has found that the husband was leading adulterous life, is violating the Indian Constitution by denial 'social justice' to woman spouse and perpetuating the atrocities and suffering on her.

4. Judicial courts by this process become abettor in the barbarous crime of atrocities on women and indignity to sex which is yet weaker section in the society and requires extra ordinary protection by judicial courts to provide them an equal status with males.

5. I am constrained to observe that the denial of decree of divorce in this case, if affirmed by this Court, would result in abetment of such a serious crime and, I refuse to become an abettor by rejecting the appeal in default only because the counsel has not come and the poor lady never knows as to what is happening to his fate having entrusted her case to the counsel. Also looking to the facts mentioned here in above I am not inclined to dismiss the appeal in default because it is a matrimonial matter and in view of the finding of the trial court with regard to the adultery. It would be grave injustice to compel the wife Smt. Chandrakanta to live with her husband Rajesh. So far as the finding with regard to the collusion is concerned, I am of the opinion that the learned trial court has committed a serious error in not making the distinction between the consent and collusion. The consent divorce is permissible under the law. The speaking facts of the adulterous life of the husband and consequent agreement to have divorce cannot be called collusion between the husband and wife. In fact, it is antithesis of the collusion as his wife is aggrieved by the adulterous conduct with some other lady. I am therefore, convicted that the finding with regard to the collusion is wholly unjustified.

6. No one has appeared before this Court to oppose the appeal also.

7. It is obvious that it is a case of broken marriage on account of adulterous conduct of the husband, Compelling wife to remain as wife of such a husband would be a great injustice not only to Smt. Chandrakanta appellant but to the womanhood, as a whole. No self-respecting wife can tolerate adulterous conduct of her husband and by rejecting the divorce petition, it would be perpetuating serious crime on the womanhood. I, therefore, allow this appeal and grant a decree of divorce in favour of the appellant Smt. Chandra Kanta and against the respondent husband Rajesh Kayasth. Since no one has appeared on behalf on the appellant, the office should inform the appellant of this judgment. In the special facts and circumstances of the case, the appellant-wife would get costs of Rs. 1,000/- from the respondents.


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