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2014 DIGILAW 1301 (RAJ)

Anil Kumar v. Mamta

2014-07-01

BANWARI LAL SHARMA, DINESH MAHESHWARI

body2014
JUDGMENT : ” This appeal under Section 19 of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 is directed against the judgment and decree dated 10.12.2013 whereby the Family Court, Bikaner has allowed the petition for dissolution of marriage in Case No. 93/2012 as filed by the respondent-wife essentially on the ground of fraud by the appellant-husband while entering into matrimony as regards his name and job status as also his attempt to contact second marriage and cruelty of conduct. 2. Put in brief, the relevant background aspects of the matter could be noticed as follows: The respondent-wife filed the petition seeking dissolution of marriage on 21.12.2006 with the submissions that her marriage with the appellant was solemnised on 23.11.2005 at Bikaner and thereafter, she lived with her husband at Sujangarh. In the petition, the particulars of the present appellant were stated as ' Dr. Ajay Kumar alias Anil Kumar Sharma S/o Subhashchand Sharma, resident of village Sorai, Tehsil Khandoli, District Agra (Uttar Pradesh)' . The respondent-wife asserted in the petition that at the time of marriage, the appellant-husband gave out his name as ' Dr. Ajay Sharma S/o Om Prakash Sharma' and described himself as a qualified MBBS doctor and had shown a certificate from Medical College, Udaipur to that effect carrying his photograph. It was further alleged that on 07.05.2006, upon receiving a phone call from one Kishan Lal Bhanbhu, it transpired that the appellant-husband attempted to contact second marriage with one Monika Sharma D/o Rajendra Kumar Sharma, resident of Sawai Madhopur but such an attempt failed when the status and particulars of the appellant were disclosed by the reputed persons at the time of ceremonies; and it was found that the correct particulars of the present appellant were ' Anil Kumar S/o Subhash Chand Sharma, resident of Sorai, Tehsil Khandoli, District Agra (UP)' . 3. The respondent-wife alleged that the appellant, his sister, brother, sister ” s husband and father were the part of the conspiracy whereby the appellant entered into matrimony with her while describing himself as a qualified doctor and serving as such in Rathi Hospital at Sujangarh. 4. It was also alleged that after the marriage, the appellant treated the respondent-wife with cruelty and also made a demand of an amount of Rs. 2 lacs and subjected her further to physical and mental torture. 4. It was also alleged that after the marriage, the appellant treated the respondent-wife with cruelty and also made a demand of an amount of Rs. 2 lacs and subjected her further to physical and mental torture. It was pointed out that upon his attempt to contract second marriage having been noticed, the aid Rajendra Kumar, the father of Monika, lodged an FIR bearing number 130/2006 at Police Station Tonk; and the appellant-husband was arrested in connection therewith. 5. While asserting that the appellant-husband has treated her with cruelty, the respondent-wife also pointed out that he had even given in writing the prescriptions to the patients describing himself as a doctor whereas he was not qualified to do so. The respondent-wife also pointed out herself having been driven out of the matrimonial house on 04.04.2006 and later on she having filed an FIR bearing number 57/2006 at Mahila Thana, Bikaner for the offences under Sections 498-A, 406, 419, 467, 468, 471 and 120-B IPC. It was also pointed out that challan had been filed in the said FIR against the appellant and her family members. The respondent-wife, therefore, sought a decree of divorce against the appellant. 6. In his reply, the appellant denied the allegations made in the petition and suggested that it had been the respondent-wife, who was forcing him to live at Bikaner as she was not used to live at smaller places. It was also alleged that the respondent-wife had continuously entered into altercations with the appellant and only after two months after the marriage, she came down to her parental house and did not return to the matrimonial house. The appellant asserted that he had never given out his name as ' Dr. Ajay Kumar Sharma S/o Om Prakash Sharma' nor suggested himself to be a qualified doctor; and rather the father of the respondent-wife contacted the parents of the appellant at village Sorai, Tehsil Khandoli, District Agra (U.P.) and entered into the relation only after being satisfied on all the relevant aspects. 7. On the pleadings of parties, the Trial Court framed the following issues for determination of the questions involved in the case:- (Vernacular matter is omitted) 8. 7. On the pleadings of parties, the Trial Court framed the following issues for determination of the questions involved in the case:- (Vernacular matter is omitted) 8. In evidence, the applicant-wife examined herself as AW-1 and produced 22 documents, inclusive of the papers relating to the FIR lodged by her as also those relating to the alleged attempt by the appellant of entering into second marriage and his ration card of village Sorai. The father of the applicant-wife Shri Shanker Lal was also examined as AW-2 and her maternal uncle, Shri Ashok Kumar was examined as AW-3. On the other hand, the appellant-husband examined himself as NAW-1 and his father as NAW-2. 9. After examining the evidence on record, both oral and documentary, the Trial Court came to the conclusion that the applicant-wife had been able to establish that the correct particulars of her husband were ' Anil Kumar S/o Subhash Chand Sharma, resident of village Sorai (Khandoli), District Agra' and he had entered into matrimony with the respondent-wife while describing himself as ' Dr. Ajay Kumar' . The Trial Court found that the conduct of the appellant-husband had been of physical and mental cruelty. As regards other aspects, on which criminal cases were pending, the Trial Court chose not to record any finding but proceeded to allow the petition filed the applicant-wife and to order dissolution of marriage between the parties by a decree of divorce. 10. Seeking to question the judgment and decree aforesaid, it has strenuously been contended on behalf of the appellant-husband that there is nothing on record to establish if the appellant, in any manner, cheated the respondent-wife by describing himself as a qualified doctor at the time of marriage. It is also submitted that while the petition seeking dissolution of marriage was filed on the ground of cruelty but the same was proceeded essentially on the ground of alleged fraud and cheating; and there was no occasion for the Trial Court to pass a decree of divorce in this petition where the ground of cruelty was not made out nor the alleged fraud and falsehood by the appellant were established. Per contra, the learned learned counsel for the respondent has duly supported the judgment and decree impugned. 11. Per contra, the learned learned counsel for the respondent has duly supported the judgment and decree impugned. 11. Having given thoughtful consideration to the entire matter and having examined the record, we are clearly of the view that the marriage between the parties was required to be and has rightly been ordered to be dissolved. 12. In the present case, though there is no direct documentary evidence available on record to establish as to what documents were shown by the appellant-husband at the time of entering into matrimony with the respondent-wife but then, the statements of the respondent-wife and her father, read as a whole, make it clear that they had agreed for this matrimony while taking the appellant-husband a qualified doctor serving in Rathi Hospital at Sujangarh. It has also definitely been come on record that the appellant-husband was not having any qualification beyond intermediate. The respondent-wife has given out in detail the conduct of the appellant where he not only described himself as a doctor but even acted as such. 13. The ration card (Ex. 22) as produced in this case by the respondent, and remains rather an indisputable document, indeed carries the photograph of the appellant. In this document, the appellant has curiously been described as ' Dr. A.K. Sharma' . The name of the respondent-wife has also been given therein. The father ” s name of the appellant had been stated as ' Om Prakash Sharma alias Pandit Subhash Chand Sharma' . Admittedly, when the appellant carried no qualification beyond intermediate, it remains inexplicable as to how the prefix of ' Dr.' came to be put before his name in this ration card. The respondent-wife has produced this document and referred the same in her examination-in-chief. It does not appear if she has been cross-examined in this regard. The appellant himself, who was examined later on, did not try to explain this document. The father of the appellant though referred to this document in his cross-examination but admitted that the photograph was of his son and nothing concrete has come out in his testimony so as to disbelieve this document. The respondent-wife has otherwise pointed out even the matrimonial advertisement in the newspaper (Ex. 22), said to have been given for the purpose of appellant ” s further marriage, wherein too, bride has been desired for an MBBS doctor. 14. The respondent-wife has otherwise pointed out even the matrimonial advertisement in the newspaper (Ex. 22), said to have been given for the purpose of appellant ” s further marriage, wherein too, bride has been desired for an MBBS doctor. 14. In an overall comprehension of the matter, it appears that the consent of respondent-wife for the purpose of marriage was obtained by fraud in relation to the facts and circumstances concerning the present appellant and on this count alone, the marriage between the parties deserves to be annulled. 15. Apart from the above, the other aspect concerning the attempt on the part of the present appellant to contract second marriage with a resident of Sawai Madhopur is also prima facie shown on record and there had not been any explanation as to how the photograph of the appellant-husband appeared on the consent form (Ex.14) for such a marriage. It has also not been shown if the respondent-wife had left the matrimonial house at her own and would at all be interested in levelling such false allegations against the appellant-husband. We would, of course, hasten to observe that the criminal cases being pending, we are not returning a final finding in this regard but in an overall comprehension of the matter, this much is clear that neither before nor after the marriage, the appellant-husband treated the respondent-wife fairly and rather, his conduct definitely fell short of fair conduct so as to maintain the matrimony. 16. In an overall analysis, there appears no reason to consider interference in this appeal. Hence, the appeal stands dismissed with costs quantified at Rs. 11,000/- (Rupees eleven thousand), to be paid by the appellant to the respondent. Appeal dismissed.