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2016 DIGILAW 1075 (RAJ)

Vijaylaxmi Dayma v. Chandra Kumar

2016-07-26

GOVIND MATHUR, KAILASH CHANDRA SHARMA

body2016
JUDGMENT : Govind Mathur, J. 1. This appeal is before us to examine correctness of the judgment and decree dated 21.5.2015, passed by Family Court, Bhilwara in Civil Misc. Case No. 103/2012 (Old No. 260/2009). 2. Succinctly, facts of the case are that appellant Smt. Vijaylaxmi entered into a wedlock with the respondent on 26.1.2000 as per Hindu rites. She gave birth to a girl child on 29.6.2001 and to a boy on 27.5.2003. On 17.2.2005 Smt. Vijaylaxmi came to be employed as Teacher in a Government School. In the year 2009 she preferred an application as per Section 13 of the Hindu Marriage Act, 1955 to get her marriage annulled on the count of cruelty said to be advanced by the respondent. As per the appellant, her husband was in habit of harassing and humiliating her on the count of dowry and was also snatching the entire salary earned by her. He also threatened to deface the appellant by pouring acid. Looking to the cruel attitude of the respondent she left her matrimonial house and proceeded for Badaut (Uttar Pradesh), her parental house. 3. The respondent contested the application with assertion that whatever allegations made are false, he never demanded dowry and also not grabbed the wages earned by the appellant. As per the respondent, the appellant had extra marital relations with one Shri Devendra Singh Chouhan with whom he was keeping bigamous relations since March, 2009. It was also stated that the wages earned by the appellant were used to be deposited in her own bank account and 'stridhan' was also with her. 4. By way of filing rejoinder, the appellant denied the fact relating to her marriage with Devendra Singh. She also reiterated the allegations with regard to demand of dowry and grabbing of her wages. 5. On basis of the pleadings available, the trial court framed six issues as under:- 1. Whether the behaviour of the respondent was cruel against the appellant for demand of dowry? (to be proved by the appellant) 2. Whether the respondent is not discharging his matrimonial responsibility? (to be proved by the appellant) 3. Whether the respondent deserted his wife and children? (to be proved by the appellant) 4. Whether the appellant entered into a second marriage with Shri Devendra Singh Chouhan son of Manmohan Singh Chouhan, resident of Asind in the month of March, 2009? Whether the respondent is not discharging his matrimonial responsibility? (to be proved by the appellant) 3. Whether the respondent deserted his wife and children? (to be proved by the appellant) 4. Whether the appellant entered into a second marriage with Shri Devendra Singh Chouhan son of Manmohan Singh Chouhan, resident of Asind in the month of March, 2009? (to be proved by the respondent) 5. Whether the appellant took the ornaments of 50 Tolas and a policy of life insurance? Its effect? (to be proved by the respondent. 6. Relief? 6. After examining the entire evidence available on record the trial court decided the issues No. 2, 3 and 4 against the appellant in and in favour of the respondent. With regard to issue No. 5 the court was of the view that the same is having no relevance and effect in a case relating to divorce. The issue No. 1 was considered by the trial court in detail culminating into a finding against the appellant. Accordingly, the application was rejected and decree sheet was prepared. 7. In appeal, the appellant contended that the Family Court failed to appreciate the entire evidence in correct perspective, thus, arrived at a conclusion contrary to the material available on record. 8. This Court by an order dated 4.1.2016, referred the matter for mediation, which came to be successful and the parties had no grievance with each other on being arrived at a amicable settlement with the terms and conditions as under:- 1. The parties are agreeable to get the decree of dissolution of marriage and accordingly the respondent husband has consented that the appeal pending before the Hon'ble Court may be allowed. 2. The appellant herein Smt. Vijay Laxmi shall withdraw the complaint filed by her before the learned magistrate at Bhilwara against her husband and his relatives, under the Domestic Violence Act. 3. The appellant shall not claim any maintenance or monthly arrear for her self or for her minor children, from the respondent or his relatives, in future also. 4. There shall be no claim of any party regarding any movable or immovable property from each other in future. The parties are agreed that as on date no dues are pending between them. 5. The respondent Chandra Kumar shall withdraw the criminal prosecution launched by him under section 494 of the I.P.C. against the appellant, before the trial court at Bhilwara. The parties are agreed that as on date no dues are pending between them. 5. The respondent Chandra Kumar shall withdraw the criminal prosecution launched by him under section 494 of the I.P.C. against the appellant, before the trial court at Bhilwara. On 27.5.2016, the parties sought time to do needful for disposal of the criminal cases pending against each other. Accordingly, the appeal was adjourned for 11.7.2016. 9. On 11.7.2016 the parties to the appeal sought some more time to facilitate the filing of a joint affidavit in tune of the terms of the conditions agreed before the mediator. The appeal then was listed before the Court on 22.7.2016. On that day the appellant was present before the Court but the respondent failed to appear, as such, the case was adjourned for 25.7.2016 with a direction to the parties to remain personally present. 10. On 25.7.2016 the appellant and the respondent appeared before the Court and accepted the compromise arrived between them as per the report of mediator, however, the respondent while stating that he want to get rid from the appellant, mentioned that he is not desirous to adhere the condition No. 5 as he want the appellant to be punished for her bigamous relationship. The Court made efforts to explain the appellant that after getting the marriage annulled he should be having no grudge with the appellant and for the allegation of bigamy and further that he himself agreed before the mediator to withdraw the criminal prosecution launched by him under Section 494 Indian Penal Code. The appellant, however, remain quite stubborn and insisted that let a decree of divorce be granted with liberty to pursue the prosecution under Section 494 Indian Penal Code and further to make complaint to the employer for violating conduct rules by the appellant. On asking, the respondent reiterated that he is not going to continue with the marriage and he also want that both the children should remain with the appellant without having any liability on him. 11. In these circumstances, we heard learned counsels on merits. 12. Having considered the factual background noticed above, while examining the other issues, we also examined conduct of the respondent before the appellate court. 11. In these circumstances, we heard learned counsels on merits. 12. Having considered the factual background noticed above, while examining the other issues, we also examined conduct of the respondent before the appellate court. As already stated, the appellant before the mediator accepted to get the marriage annulled with certain terms and conditions including to withdraw the criminal prosecution launched by him under Section 494 Indian Penal Code. On 27.5.2016 he sought time from the Court to do needful for disposal of the criminal cases and on 11.7.2016 time was again granted to facilitate the parties to file a joint affidavit. The respondent on both the days did not object about any of the conditions referred in the report of the mediator. Even on 25.7.2016 he mentioned that the condition No. 5 relating to withdrawal of criminal prosecution launched by him was agreed before the mediator, he wanted to pursue the same just to give a lesson to the appellant. In an unambiguous terms he stated before us that he is not at all interested in continuing the marriage with the appellant and keeping two children with him but he desires to continue the prosecution. We are of considered opinion that this conduct of the appellant is nothing but a serious effort to harass, humiliate and victimise the appellant, and as such is nothing but cruelty. On this count alone this appeal deserves acceptance. 13. Accordingly, this appeal is allowed. The judgment and decree dated 21.5.2015 passed by learned Family Court, Bhilwara in Civil Misc. Case No. 103/2012 (Old No. 260/2009) are set aside. The application preferred by applicant Smt. Vijaylaxmi as per provisions of Section 13 of the Hindu Marriage Act, 1955 is allowed. The marriage of the appellant with the respondent is annulled. The complaint filed by the appellant before learned Magistrate at Bhilwara against the respondent and his relatives as per provisions of the Protection of Women from Domestic Violence Act, 2005 as well as the criminal prosecution launched by the respondent against the appellant for the offence punishable under Section 494 Indian Penal Code before the trial court at Bhilwara stand quashed. The appellant shall not claim any maintenance or monthly arrears for herself or for her minor children from the respondent or his relatives for all times to come. The appellant shall not claim any maintenance or monthly arrears for herself or for her minor children from the respondent or his relatives for all times to come. There shall be no claim of any party regarding any movable or immovable for each other in future. Let a decree be prepared accordingly. Appeal allowed.