Here in this post, we bring judgment digest from the most recent judgment of Allahabad High Court where the appeal was made for Dissolution of Marriage dismissed by Family Court and now petitioner has preferred FAO (First Appeal against Order) under Section 19 of the Family Courts Act seeking declaration that his marriage with respondent be declared nullity.
Let’s have the judgment digest straightaway.
TOPIC: Dissolution of Marriage
NAME OF COURT: IN THE HIGH COURT OF ALLAHABAD
NAME OF PARTIES:
Deepak …..Appellant
Vs.
Smt. Radha Rani …..Respondent
CASE NUMBER: FAO 815 of 2017
DATE OF DECISION: 10 March, 2021
FACTS OF CASE:
Read- Null and Void Marriage Chandigarh Panchkula Mohali
The facts pleaded by the appellant-husband in his petition are that his marriage with respondent was solemnized on 10.12.2009 according to Hindu Rites and Ritual and on 25.10.2010 they were blessed with the son, who is now 11 year of age and is in the custody of the defendant.
The appellant being the only child and used to live with his parents. The respondent along with her father started harassing appellant and pressurizing him to stay separate from his parents and threatened the appellant that if did not separate from his parents, she would file false cases against him. He even succumbed to pressure and started staying separately in a rented house. She forced the appellant to leave Meerut and was forcing him to move and take a job in Delhi, which would be arranged by her uncle. The appellant being the only child of his parents did not wish to leave Meerut and go to Delhi. On 07.05.2012, the opponent herein complained against the appellant that he had perpetrated cruelty and had demanded dowry and that is how he and his parents had committed an offence under Section 498A/323/504/506 of I.P.C. and 3⁄4 Dowry Prohibition Act, Police Station – Lisadi Gate, Meerut. It is averred that no dowry was offered by the opponent or taken by the appellant or his family members.
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The appellant herein had preferred a petition for divorce which was numbered as 39 of 2013 and respondent had also filed an application for maintenance under Section 24. On 3.11.2014 the said litigations were to be withdrawn as the party has decided to cohabit and the application under Section 498A came to be decided in favor of the appellant herein and the learned Judge dismissed the complaint vide order dated 1.2.2016. The Compromise Agreement/ Deed of Settlement dated 3.11.14 was signed and the party has decided to cohabit Pursuant to the earlier litigations, the parties started cohabiting on 6.11.2014 but was lasted only for 25 days. The plaint divulges the fact that there was a marriage in the house of the younger sister of the respondent and the applicant had to withdraw the litigation on 14.3.2015 but the respondent herein refused to even withdraw the criminal proceedings despite the fact that post mediation in the matrimonial petition no.39 of 2013. It was pleaded that the brother-in-law Sonu demanded Rs. 20,000/- on the marriage of his sister-in-law dated 22.3.2015. After about 8 – 10 days, the respondent and her sister demanded Rs. 15,000/- from the appellant and he refused to oblige them thereafter she re-started to harass them. It is stated that she had severed all relations the day the appellant withdrew the Suit for divorce. She had stopped cooking; she had stopped cohabiting. The appellant would cook himself before leaving and after coming back from the shop at night. The respondent would harass him mentally to such a level that he even tried to commit suicide but could not succeed. The behavior and action of the appellant’s wife with her husband/appellant was not according to sacrament as per the Hindu Marriage Act. The public interest as well as social interest in the society demands not only that the married status should, as far as possible, and whenever possible, be maintained. It is alleged that after the appellant left for his job, the respondent would go to her parental home and to meet with her boyfriends and spends whole day with them. The appellant tried his level best to improve the relationship but the wife and her relative at every stage did not make any endeavor to settle marriage/relationship and did not do any act in welfare of the child.
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The police refused to lodge the complaint which the appellant wanted to lodge against the respondent and on 14.4.2015 she summoned her parents and took all her belongings in a mini truck. The appellant herein filed a petition for desolation and harassment on 20.4.2015 and instituted a suit for Dissolution of marriage Case No.544 of 2015, and are leaving separately since 2015.
The respondent did not state any pleadings in written statement is an admitted position of fact and avoided coming to the witness box so that she may be put to examination-in-chief or cross-examination. This itself is enough to come to the conclusion that the averments made in the Suit are unrebutted. A party must state his or her own case on oath and if that is done, a presumption would arise that the case set out by the petitioner or the plaintiff or the applicant as in our case is correct and that she had filed an application under Section 24 of the Hindu Marriage Act. A copy of Affidavit on her behalf on 26.5.2015 was also filed to which reply was filed by the present appellant herein.
Also Read- Difference Between Void and Voidable Marriages
In our case, therefore, a situation is akined to the decisions passed by the various High Courts and Privy Council in the case of Vidhyadhar Vs. Manikrao, AIR 1999 SC page 1441 and also in Sardar Gurbaksh Singh Vs. Gurdial Singh and another. This was followed by the Lahore High Court in Kripa Singh Vs. Ajaipal Singh and others, AIR (1930) Lahore 1 and the Bombay High Court in Martland Pandharinath Chaudhari Vs. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter Vs. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh’s case (supra). The Allahabad High Court in Arjun Singh Vs. Virender Nath and another, held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass Vs. Bhishan Chand and others, drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.
It is stated in the plaint that the relations have become so strained that there is no chance of reconciliation between the parties, which has been recorded by the learned Judge that the conciliator also failed in his efforts to reconcile both the parties. The respondent stopped coming to the Court and, therefore, on 30.1.2017 the learned trial Judge decided her matter ex-parte.
Now, the appellant has knocked the door of High Court by FAO and stated that he has been treated with cruelty. The reasons are as follows:
The appellant had preferred a petition for claiming conjugal rights under Section 9 of the Hindu Marriage Act. Unfortunately, the same came to be dismissed for non-prosecution but the fact that the respondent did not appear nor did she show any willingness to cohabit with the petitioner is also one of the grounds which can be said to be against the respondent. The Apex Court and the High Courts judgment relied upon by the learned Advocate for the appellant have categorically held that if criminal litigations are filed and if they culminate into acquittal then it amounts to cruelty.
Also Read- Annulment of Marriage Chandigarh Panchkula Mohali Zirakpur
The matter had gone before the mediator where both the parties rather the appellant showed his desire to take the respondent back to the matrimonial home where also she has not showed any desire in continuing the marriage which showed that the learned Judge ought to have pressed into service the provisions of Order XII Rule 6 of the Code of Civil Procedure which are made applicable to the proceedings before the Family Courts. As, in our case, there is clear admission though not in the Form No. 10 of the Appendix, the admission of facts should have been taken into consideration while passing the judgment. The provisions of Order 12 Rule 6 read as follows: –
Judgment on admissions. -(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.
Read- FAO-M-208 of 2013 IN THE HIGH COURT OF PUNJAB AND Haryana
Much emphasis has been placed on record by the Counsel for the appellant. The Hon’ble Supreme Court in the case of K. Srinivas Vs. K. Sunita reported in (2014) 16 SCC 34, has held that the respondent wife filed a false criminal complaint resultant acquittal of husband and his family members, such complaint is sufficient to constitute matrimonial cruelty.
In another matter, the Hon’ble Supreme Court in the case of Rani Narsimha Sastry Vs. Rani Suneela Rani, civil Appeal No.8871 of 2019, decided on 19.11.2019 held that when a person undergoes a trial in which he is acquitted of the allegation of offence under Section 498A of IPC, levelled by the wife against the husband, it cannot be accepted that no cruelty has meted out to the husband.
Also Read- Divorce within or before One year of Marriage Possible But?
CONCLUSION:
The court finds that the respondent did not appear nor did she show any willingness to cohabit with the petitioner and made false allegations against appellant u/s 498A I.P.C, so the appeal for dissolution of marriage is allowed. The order of maintenance will not be passed/permitted as wife is not present before us.
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