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Rajasthan High Court · body

2005 DIGILAW 1671 (RAJ)

Sohan Sankhla v. Lakshmi Parewa

2005-06-03

AJAY RASTOGI, S.K.KESHOTE

body2005
Honble KESHOTE, J.–This appeal, under Section 19 of the Family Court Act, is directed by the appellant husband against the judgment and decree, dated 6.2.2003, of the Family Court No. 1, Jaipur in Petition No. 105/2001. (2). The respondent wife, on 30.3.2001, filed the petition under Section 13 of the Hindu Marriage Act, 1955 in the Family Court No. 1, Jaipur, for dissolution of her marriage with the appellant husband. The respondent wife prayed for the dissolution of marriage by a decree of divorce on the grounds, cruelty and desertion. (3). The appellant husband contested the divorce petition by filing a detailed reply thereto on 28.7.2001. (4). On the basis of the pleadings of the parties, the learned Family Court, on 22.2.2002 framed three issues for trial in the petition. In support of their cases, both the parties examined themselves. They did not produce any other oral evidence. (5). The learned Family Court, under the impugned judgment and decree, dated 6.2.2003, allowed the petition and dissolved the marriage of the respondent wife with the appellant husband by a decree of divorce. The learned Trial Court found both the grounds proved, on which divorce was sought for in the petition, thus this special appeal. In the appeal the appellant husband submitted many documents, which are not the part of the record of divorce petition. The respondent wife has not raised any objection against consideration of these documents and we have considered the same. (6). Out of those documents, one is the letter of the appellant husband addressed to Honble the Chief Justice of the Court. The learned Counsel for the appellant husband contended that the ground of cruelty pleaded by the respondent wife in the divorce petition and accepted by the Court below was not a ground available to her. In his submission there is no question of any cruelty as the `gauna ceremony was not performed of the husband and wife; the wife did not come to the matrimonial home and thus there was no occasion with the appellant husband to make her subjected to any cruelty as what she has pleaded and found proved by the learned Family Court. (7). (7). It has next been contended that as there was no `gauna ceremony, there was no cohabitation after marriage and thus no question does arise of desertion and the respondent wife was not entitled on this ground for dissolution of their marriage by a decree of divorce. (8). In support of her contentions, the learned Counsel for the appellant husband placed reliance on the decision of the Honble Apex Court in Savitri Pandey vs. Prem Chandra Pandey, 2002 WLC (SC) Civil 116. (9). Lastly it is contended that the marriage of the respondent wife and the appellant husband was solemnized on 27.6.1991. At the time of their marriage, both, the appellant husband and the respondent wife were minor and, therefore, their marriage was void; and the respondent wife could have filed a petition to get the same declared void but the petition for divorce on the grounds as pleaded, is not maintainable. (10). In contra, the learned Counsel for the respondent wife supported the judgment and decree of the learned Family Court No. 1, Jaipur. (11). The appellant husband filed an application bearing Stamp No. 1708, dated 25.1.2005; alongwith the application he has also filed certified copies of the documents, Xerox copy of which has already been filed by him on the record. Therein he has prayed for medical examination of the respondent wife on his expenses. On 10.2.2005 the Court ordered to consider this application at the time of final hearing of the appeal. (12). We have carefully gone through the contents of the application aforesaid, the entire documents produced on the record of the appeal as well as the record of the Family Court. (13). In para No. 2 of the application aforesaid the appellant husband stated that on the date of their marriage the respondent wife was aged 12 years and he was of 15 years. Due to their tender age, the respondent wife was not sent to the matrimonial home. It was settled that after she attained the age of majority and holding of `gauna ceremony, she would be sent to the matrimonial home. Due to their tender age, the respondent wife was not sent to the matrimonial home. It was settled that after she attained the age of majority and holding of `gauna ceremony, she would be sent to the matrimonial home. After respondent wife attained majority the appellant husband made all efforts to get the `gauna ceremony performed and to bring the respondent wife to the matrimonial home but the parents and relations of the respondent wife were avoiding holding of `gauna ceremony and they were also not interested to send the respondent wife to the matrimonial home. (14). The appellant husband, on 10.4.1998, sent a notice through his Advocate Shri Vinod Agarwal, under Section 9 of the Hindu Marriage Act, 1955 (for short, `the Act, 1955) i.e., for restoration of conjugal rights. That notice, as per the application, remained unattended on the side of the respondent wife. (15). The appellant husband filed the petition under Section 9 of the Act, 1955, on 21.5.1998 in the Family Court No. 1, Jaipur and the copy thereof is produced on the record of this appeal. The petition under Section 9 of the Act, 55 was registered as Matrimonial Petition No. 268/1998. The appellant husband averred in the application that the respondent wife put appearance in the proceedings of restitution of conjugal rights and there she made a statement not to go back to the matrimonial home and was interested to get the decree of divorce. Later on, as what it is stated in the application, he came to know that his Advocate Vinod Agarwal has colluded with the father of the respondent wife and also with Khatik Samaj; he got signature of the appellant husband on the blank papers and thereon prepared a petition under Section 13-B of the Act, 1955 and present it in the Family Court No. 1, Jaipur which was registered as Matrimonial Petition No. 181/2000. The divorce petition by mutual consent failed due to withdrawal of the consent by the appellant husband. The copy of the order, dated 6.1.2001 of the Court below, of dismissal of the petition aforesaid is there on the record. The learned Counsel for the appellant husband, during the course of arguments, submitted that as the respondent wife has refused to go to the matrimonial home, the appellant husband withdrew his application filed by him under Section 9 of the Act, 1955. (16). The learned Counsel for the appellant husband, during the course of arguments, submitted that as the respondent wife has refused to go to the matrimonial home, the appellant husband withdrew his application filed by him under Section 9 of the Act, 1955. (16). In para No. 3 of the petition for divorce by mutual consent it is stated that on the date of the marriage both, the husband and wife, were minor. The appellant husband submitted that the respondent wife filed her affidavit in the petition under Section 13-B of the Act, 1955 and therein she stated that they are residing separately for the last nine years. (17). In para No. 4 of the application the appellant husband has made reference to the application filed by the respondent wife under Section 125 of the Cr.P.C. on 25.6.2001 before the Family Court No. 1, Jaipur where it was registered as Case No. 335/2003. The appellant husband admitted that the respondent wife is holding the post of Lecturer, College Education. The respondent wife was present in the Court and made that she has been selected by the Rajasthan Public Service Commission on the post of Lecturer, College Education and has been appointed and working on that post. From the contents of the application we find that the respondent wifes sister has been married to the elder brother of the appellant husband. There appears a matrimonial problem or dispute between the brother of the appellant and the sister of the respondent in connection therewith matrimonial case has been filed and appeal is pending in this Court. (18). The appellant husband is praying for the prosecution of the respondent wife on the ground that she made a false statement in the Court. (19). Reference may have to the application submitted by the appellant husband in this appeal, being Stamp No. 1708, dated 25.1.2005; therein two fold prayers have been made, first prayer is for a direction for medical examination of the respondent wife and second to take necessary action against her for giving false evidence. The appellant husband submitted that the respondent wife has made false statement in the divorce petition, out of which this appeal arises. The appellant husband submitted that the respondent wife has made false statement in the divorce petition, out of which this appeal arises. She stated that after marriage she lived with the appellant husband for two or three years but in the petition filed for dissolution of their marriage by a decree of divorce by mutual consent, she stated that she is living separately from her husband for nine years. (20). Having carefully gone through the application and upon hearing the learned Counsel for the parties we are satisfied that it is not the case where any direction is to be given to the respondent wife to appear before the Medical Board for her medical examination. Otherwise also it is not the stage where the medical examination of the respondent wife is ordered. (21). The appellant husband has put utmost pressure on the point that the respondent wife may be prosecuted to make false statement. In this regard it is suffice to say that the petition filed under Section 13-B of the Act, 1955 has been signed by both the appellant husband and the respondent wife. In the joint application under Section 13-B of the Act, 1955 both, the appellant husband and the respondent wife, have given out as if they have not lived together after their marriage. The petitioner under Section 13-B of the Act, 1955, has been filed on 26.6.2000. They filed a joint application praying therein for grant of permission to amend the petition filed under Section 13-B of the Act, 1955. It is stated in the application that due to the bona fide mistake the petition has not been verified and further the fact that they are living separately, has also not been mentioned. The application aforesaid reads as under,– ^^Jheku th] ;g fd mijksDr izdj.k esa lgou ls lR;kiu o vyx jgus dk rF; fy[kus ls jg x;k Fkk tks fuEu izdkj ls gSA ;g fd izkFkhZ;k foi{kh ls 9 lky ls vyx jgrs gSA yfEcr ;kfpdk foMªk dj yh x;h gSA lR;kiu eSa] mijksDr Jherh y{eh ijsok tkfr [kVhd D/o ghjkyky ijsok vkt eqdke t;iqj lR;kfir djrh gwa fd izkFkZuk-i=k ds en la- 1 rk- 6 esjh futh Kku o fookl esa lgh o lR; gSA bZoj esjh enn djsaA izkFkhZ;k** (22). It is a joint application meaning thereby the appellant husband himself is responsible for making that application; the appellant husband has made a statement therein that they are living separately for nine years and it is most unfair, unreasonable and in fact dishonest approach on his part for this joint statement made to pray for action against the respondent wife. Though the appellant husband urged that his Advocate got his signatures on blank papers and therein a petition under Section 13-B of the Act, 1955 was prepared but he has not taken any action against the Advocate, which shows that what he has stated may not be correct. (23). The marriage of the appellant and respondent was solemnized on 27.6.1991. In her examination-in-chief recorded in the matrimonial proceedings, out of which this appeal arises, the respondent wife stated that after her marriage she remained for two or three years at her matrimonial home. In her examination- in-chief it is further stated she is living with her parents for last seven to eight years. Her statement was recorded on 5.6.2002. Where if we go by this statement of the respondent wife, her statements to which reference has been made by the appellant husband in the affidavit filed by her in the divorce petition under Section 13-B of the Act, 1955, that she is living separately for nine years do not appears false one. (24). That apart it was not the case of the appellant husband before the Family Court that his Advocate prepared the same on blank papers signed by him. The petition filed under Section 13-B of the Act, 1955 failed for the reason that the appellant husband has withdrawn his consent. For the reasons stated above we are satisfied that the prayer made by the appellant husband in the application bearing Stamp No. 1708, dated 25.1.2005, deserves no acceptance and accordingly the same is dismissed. (25). The appellant husband is a practicing lawyer, he was present in the Court on the date of hearing of the arguments in the appeal. On being put by the Court, the appellant husband stated that where they lived together he would not permit the respondent wife to work. As said earlier, the Rajasthan Public Service Commission, Ajmer, selected the respondent wife for the post of Lecturer, College Education and she is in the permanent Government service. On being put by the Court, the appellant husband stated that where they lived together he would not permit the respondent wife to work. As said earlier, the Rajasthan Public Service Commission, Ajmer, selected the respondent wife for the post of Lecturer, College Education and she is in the permanent Government service. She is an educated lady and has not committed a sin to apply for government service. The graph of career orientation in the educated women in the country is increasing day by day. Imposing of a condition by the husband upon her wife not to do the service and more-so a Government service i.e., to Lecturer, College Education, may amount to mental cruelty to her. That apart this approach of the appellant husband may result in suppression of personality and development of educated woman. The women, in the country, have equality in all respect with the men. She has a fundamental right of consideration for employment. Imposition of condition not to work by the appellant husband upon the respondent wife, an educated lady, who is capable of securing good permanent Government service, is certainly not befitting to him and further detrimental to the welfare, development and future prospects of the lady. In our opinion, it is stated at the cost of repetition that the act of the appellant husband not to permit the respondent wife to work amounts to mental cruelty. (26). The act of the appellant husband to withdraw the petition for restitution of conjugal rights leaves no doubt in our mind that he was also not desireous of restoration of the respondent wife to her matrimonial home. (27). The appellant husband filed the petition under Section 13-B of the Act, 1955 for dissolution of his marriage with the respondent wife by a decree of divorce by mutual consent. It is a different matter that later on he withdrew his consent and it is another fact, which fortifies his conduct that he is also not willing to keep the respondent wife with him and he desired a decree of divorce. (28). It is a different matter that later on he withdrew his consent and it is another fact, which fortifies his conduct that he is also not willing to keep the respondent wife with him and he desired a decree of divorce. (28). From the proceedings, out of which this appeal arises and what it is contended by the learned Counsel for the appellant husband before us, we are satisfied that the appellant husband is, in sum and substance, not opposing this divorce petition filed by the respondent wife for dissolution for their marriage by a decree of divorce; his objection is that at the time of their marriage both were minor and their marriage was void and one could have filed a petition to get the same declared void marriage but not the petition for divorce on the ground of cruelty or desertion. (29). Clause (iv) of Sub-section (2) of Section 13 of the Act, 1955 provides that wife may also present a petition for dissolution of her marriage by a decree of divorce on the ground that her marriage, whether consummated or not, was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. The appellant husbands case before the Trial Court as well as before us is that the respondent wife has not come to the matrimonial home as `gauna ceremony was not performed. In this background of the case of the appellant husband it can reasonably presumed and assumed that the respondent wife has repudiated the marriage after attaining the age of 15 years and before attaining the age of 18 years, she filed the petition for dissolution of their marriage by a decree of divorce by mutual consent and then she filed the petition for decree of divorce on the ground of desertion and cruelty. Despite of this approach and state of mind of the appellant husband, still he has challenged the judgment and decree passed by the Court below of dissolution of their marriage by a decree of divorce. The substance of the matter is relevant and to be looked into and where we go thereby, there remains no doubts that the appellant husband is also desireous to get rid of this marriage. (30). The substance of the matter is relevant and to be looked into and where we go thereby, there remains no doubts that the appellant husband is also desireous to get rid of this marriage. (30). We have carefully gone through the entire evidence come on the record of the matrimonial case, out of which this appeal arises and after scanning thereof we are satisfied that the learned Trial Court has not committed any error to grant the decree of divorce in favour of the respondent wife on the ground of cruelty and desertion. (31). In her statement the respondent wife has given out that during her stay for two to three years at her matrimonial home she was subjected to cruelty. She has also made a categorical statement that the appellant husband took her to Sanganer where his three friends were present and he asked her to oblige them. Both the statements of the respondent wife stood uncontroverted as the appellant husband felt countended and satisfied to take defence that the respondent wife did not come to matrimonial home as `gauna ceremony was not performed. We do not find any ground to disbelieve the statement of the respondent wife and replying thereon the learned Trial Court has not committed any illegality to grant the decree of divorce in her favour. Judgment on which reliance is placed by the learned Counsel for the appellant husband is not of any help in the facts of his case. (32). The respondent wife was present in Court on the day on which arguments were heard in this appeal and she made a categorical statement before us that she does not want to take permanent alimony from the appellant husband. She further states that there remains no dispute whatsoever between the parties regarding dowry or gifts etc. given to her at the time of the marriage by relations, friends etc. (33). As a result of the aforesaid discussion the appeal fails and the same is dismissed. (34). Consequently, upon the dismissal of the appeal, the stay application, filed therewith, does not survive and the same is also dismissed.