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2009 DIGILAW 340 (UTT)

YOGESH MALHOTRA v. SONAM

2009-07-01

B.S.VERMA, PRAFULLA C.PANT

body2009
JUDGMENT [Per : Hon’ble Prafulla C. Pant, J. (Oral)] This appeal, preferred under Section 19 of Family Courts Act, 1984, read with Section 28 of Hindu Marriage Act, 1955, is directed against the judgment and decree dated 18.01.2008, passed by Principal Judge, Family Court, Dehradun, in Suit No. 138 of 2006, whereby petition under Section 13 of Hindu Marriage Act, 1955, filed by the respondent-Sonam has been allowed and decree of divorce has been granted. 2. Heard learned counsel for the parties and perused the Lower Court Record. 3. Brief facts giving rise to this appeal are that on 30th March 2004, plaintiff/respondent Sonam got married to defendant/appellant Yogesh Malhotra according to Hindu rites at Dehradun. In her petition, she pleaded that defendant/appellant made demand of excessive dowry, and for non-fulfillment of demand of dowry, she was treated with cruelty. It is further pleaded that in the first night after marriage defendant/appellant took excessive drugs and fell down and did not behave well with the plaintif/respondent. It is also pleaded that in May 2004, specific demand of Rs. 50,000/- as dowry was made which could not be fulfilled. Thereafter, plaintiff/respondent came back to her parental house, made a report to the Police, and moved the petition under Section 13 of Hindu Marriage Act, 1955, seeking divorce against the defendant/appellant. 4. The defendant/appellant contested the petition before the trial court (Principal Judge, Family Court, Dehradun) and filed his written statement. The marriage between the parties is admitted to him, but it is pleaded that the marriage was performed at Nagina, Bijnore. As to the demand of dowry, the allegations are denied. Also, allegations relating to taking drugs or treating the petitioner with cruelty are denied. It is stated in the written statement that defendant/appellant is a small shopkeeper, who runs a bicycle repairing shop at Nagina, Bijnore, while the parental side of the plaintiff/respondent are rich and they have their business establishment in Paltan Bazar, Dehradun. The plaintiff/respondent is not inclined to live with the defendant/appellant and wants to make him live at Dehradun. 5. On the basis of the pleadings of the parties, the trial court framed following four issues :- (i) Whether the defendant treated the plaintiff with cruelty as alleged, if so, its effect? (ii) Whether the court has no territorial jurisdiction to hear the case? (iii) Whether there is no cause of action to the plaintiff? 5. On the basis of the pleadings of the parties, the trial court framed following four issues :- (i) Whether the defendant treated the plaintiff with cruelty as alleged, if so, its effect? (ii) Whether the court has no territorial jurisdiction to hear the case? (iii) Whether there is no cause of action to the plaintiff? (iv) To what relief, if any, plaintiff is entitled? The parties filed their evidence in the form of affidavits. It is mentioned in the order sheet of the Lower Court Record and also in the impugned judgment, that several opportunities were given to the defendant (present appellant) to cross examine the plaintiff, but he failed to cross examine her. As such, the case proceeded further and after hearing the case, the suit was decreed holding that the defendant treated the plaintiff with cruelty. The trial court further held that it had jurisdiction to try the suit. It further held that there was cause of action to the plaintiff to institute the suit. Aggrieved by the impugned judgment and decree dated 18.01.2008, passed by the trial court, whereby decree of divorce has been passed, this appeal is preferred by the defendant (husband). 6. Learned counsel for the defendant/appellant argued that the trial court has erred in law in proceeding under Rule 3 of Order XVII of Code of Civil Procedure, 1908, as it could have proceeded either under clause (e) of sub rule (2) of Rule 1 of Order XVII or under explanation of Rule 2 of the Order. We have considered the arguments advanced on behalf of defendant/appellant. It is pertinent to mention here that Rule 1 of Order XVII of the Code applies where an adjournment has been sought and sufficient reason has been shown for the same. Perusal of the Lower Court Record shows that no application either oral or in writing was made to the trial court for adjournment, as such we are of the view that Rule 1 of Order XVII of the Code was inapplicable to the present case. Similarly, Rule 2 of Order XVII of the Code was also not applicable to the present case for the simple reason that both the parties were present in the court. Rule 2 of Order XVII C.P.C. applies only when a party fails to appear on the day fixed for hearing. Similarly, Rule 2 of Order XVII of the Code was also not applicable to the present case for the simple reason that both the parties were present in the court. Rule 2 of Order XVII C.P.C. applies only when a party fails to appear on the day fixed for hearing. As such, the trial court has rightly proceeded under Rule 3 of Order XVII of the Code, which makes provision as to how the court has to proceed where a party fails to produce evidence on the adjourned date. It provides that if a party on the adjourned date fails to produce evidence, and the parties are present, the court may proceed to decide the suit forthwith. 7. Sri Siddharth Sah, learned counsel for the appellant drew attention of this Court to the case Thakur Ji Ram Janki Ji and another versus Shankar Dayal (2006) 9 Supreme Court Cases 187, and contended that it was not necessary for the court to decide the case forthwith on that very day. We do agree with the learned counsel for the appellant that it was not mandatory for the court to decide the case on that very day, but if the trial court has done so it has committed no illegality as the procedure contained under Rule 3 of Order XVII of the Coe allows the court to do so. In the circumstances, the case referred on behalf of the appellant is of no help to him. 8. Our attention has been drawn on behalf of appellant also to the case of Sayed Muhammed Mashur Kunhi Koya Thangal versus Badagara Jumayath Palli Dharas Committee and Others (2004) 7 Supreme Court Cases 708. Relying on said judgment, it is submitted on behalf of appellant that the plaintiffs suit for divorce could have been decreed only on the evidence adduced by the plaintiff and not on the weaknesses of the defendant. We have gone through the impugned judgment and decree, passed by the trial court. Also, we have examined the evidence on record. We do not find that suit for divorce has been decreed by the trial court on the weaknesses of the defendant. We have gone through the impugned judgment and decree, passed by the trial court. Also, we have examined the evidence on record. We do not find that suit for divorce has been decreed by the trial court on the weaknesses of the defendant. What the trial court has discussed is that the plaintiff has proved the alleged cruelty by filing affidavit (which is permissible under the amended Rule 1 of Order XIX C.P.C.), which remained un-rebutted as even after being given several opportunities to cross examine the plaintiff, the defendant failed to cross examine her. Affidavit of Sonam (plaintiff/respondent), which is paper no. 24A in the trial court’s record, proves all the allegations of cruelty made in the petition. It has not only been pleaded but proved by filing affidavit that the defendant/appellant treated the plaintiff/respondent with cruelty as she was harassed for non-fulfillment of demand of dowry. We agree with the trial court that since the evidence adduced by the plaintiff remained un-rebutted for neither the plaintiff was cross-examined nor the defendant filed any affidavit in reply to it, as such the trial court has no option but to accept the evidence adduced by the plaintiff. We also agree with the trial court that since the evidence as to the fact that marriage had taken place at Dehradun remained un-rebutted, the trial court had jurisdiction to try the suit. 9. For the reasons as discussed above, we do not find force in this appeal, which is liable to be dismissed. The appeal is dismissed. However, costs easy.