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2017 DIGILAW 560 (UTT)

Anirudh Guru Pratap Singh v. Harmit Kaur

2017-10-25

RAJIV SHARMA, SHARAD KUMAR SHARMA

body2017
JUDGMENT : Sharad Kumar Sharma, J. The petition under Section 13 of the Hindu Marriage Act filed by the husband-appellant has been dismissed by the impugned judgment dated 04.03.2010 which has been put under challenge in the present Appeal. 2. The brief facts emanating to the filing of the present appeal are that according to the appellant-husband, he has contended that his marriage was solemnized with the respondent-wife in accordance with the Sikh rites and rituals prevailing amongst the appellant and the respondent who happens to be the follower of Sikhism. 3. It is an admitted case that prior to the marriage both of them were quite close to one another. They fell in love and ultimately they decided that they cater enough understanding amongst themselves and they went on to solemnize their marriage to strengthen their bonds of affection. Their marriage was ultimately held on 15.07.2005. At the time when the marriage was solemnized, respondent was pursuing her MBBS course. Later on after the marriage she felt that looking to her standard of living was found not compatible to the standard of living of the husband. Gradually she started feeling that the two family members are not compatible so far as their standard of living is concerned, some complexes started gradually dwelling amongst them. 4. But still out of the wedlock a son was born on 16.02.2006. According to the plaint allegations, the case of the appellant-husband was that the attitude of the respondent-wife was so damaging and painful that it was gradually become impossible for him to discharge his matrimonial obligations, the reason behind that being that the wife often now and then on visiting the office of the husband and at his working place she used to abuse the husband. She accused him before all the staff members as per husband it became so difficult for the appellant-husband and embarrassing too because he has to suffer severe humiliation at the hands of the respondent-wife in front of all the other members of the staff. 5. Not even this she also used to give phone calls to the parents of the husband and used to abuse them for no good reasons. 5. Not even this she also used to give phone calls to the parents of the husband and used to abuse them for no good reasons. According to the husband’s case that on 17.07.2006, she misbehaved with the mother, abused her, physically assaulted her and after misbehaving with her with the threat that she will entrap the entire family in false cases and threatened that she will commit suicide if they do not accept the demands raised by her. 6. The husband's case was that after the incident of 17.07.2006, the respondent-wife has gone to her parent’s home at Kotdwar on her own, as a result of which there was no one at home to take care of the parents of the husband where they could be looked after by anyone in an event if they were admitted in hospital or any contingency arises. When the husband found that the situation prevailing is beyond his control and looking to the incident of voluntarily desertion the husband in his plaint allegation submitted that when he was left remedy less, he filed a complaint before Senior Superintendent of Police on 28.07.2006 about the threat given by the respondent-wife. 7. Immediately after having felt that the wife has deserted the appellant for no valid reason, he visited the home of the in-laws along with some relatives to settle the disputes, despite of harassment which according to the husband he has suffered at the hands of the respondent-wife. As per husband, he made efforts to somehow the relation may be restored but according to the plaint allegation she refused to join back the husband and to discharge her matrimonial obligations. Even while the discussions for joining back was going on she posed various conditions for the revival of the relationship. One of the conditions imposed by the wife as per husband was to the effect that on her return the husband would be living separately from his parents along with her. 8. According to the husband she never accepted even to the terms of settlement rather on 30.11.2006, she yet again misbehaved with the parents in law and had beaten the parents and the appellant-husband. The conditions in family became so deteriorated that she even hit the husband by a stone resulting into serious fracture on his forehead. 8. According to the husband she never accepted even to the terms of settlement rather on 30.11.2006, she yet again misbehaved with the parents in law and had beaten the parents and the appellant-husband. The conditions in family became so deteriorated that she even hit the husband by a stone resulting into serious fracture on his forehead. Thus the appellant had to file a Matrimonial Case No. 39 of 2007 under Section 13 of the Hindu Marriage Act seeking for dissolution of marriage. 9. Similarly the wife too filed a petition under Section 125 of the Code of Criminal Procedure, claiming maintenance of pendente lite on 12.05.2007. Both the cases were consolidated together and ultimately a conciliation proceedings was held by the learned family Court in which the settlement was arrived at on 19.06.2007. Ultimately, based on the settlement dated 19.06.2007 the Matrimonial Case No. 39 of 2007 was dismissed as withdrawn on 28.03.2008, but according to the appellant’s contention is that he never perused the case, be it so resultant effect was that petition under Section 13 filed by the appellant was dismissed, may it be for whatsoever reason. 10. After the said settlement of 19.06.2007 admittedly they live together as husband and wife and as a consequence of living together once again the wife became pregnant and had given birth to a girl child. According to the appellant-husband the respondent-wife was so unpredictable that even after the settlement, even after having physical relationship, after giving the birth to a child, she yet again on 17.04.2009 solely with an intention to harass the family members of the husband lodged a case under Protection of Women from Domestic Violence Act, 2005 proceedings, invoking Section 18, 21 and 23 of the said Act. 11. The relationship between the husband and wife was not only limited to the misunderstanding amongst themselves, but it was as if both were bent upon to find out ways to assert pressure on one another for the reason best known to them. According to the plaint allegations on 17.04.2009 the wife entered into the house of the husband physically assaulted the mother in law and broke her canine teeth of the mother. Looking to this attitude any son would get irritated and hence the appellant according to the plaint submitted on 17.04.2009 he lodged a complaint before the police about the incident. 12. Looking to this attitude any son would get irritated and hence the appellant according to the plaint submitted on 17.04.2009 he lodged a complaint before the police about the incident. 12. On the basis of aforesaid pleading which was brought on record by the appellant he contended that it was practically impossible to continue with the matrimony as the relationship has deteriorated to such an extent that it would be better for both of them that the relationship of the husband and the wife is severed. 13. On filing of the petition for dissolution of marriage the same was registered and learned family Court had send the notices to respondent-wife by registered post which was received back with the noting of the process server that the person noticed is not residing at the given address hence on the basis of order passed by the Court, a substitutive mode of service of notice under Order 5 Rule 20 of Code of Civil Procedure was issued. 14. Despite of publication which as per law service under Order 5 Rule 20 would be deemed sufficient service yet, respondent-wife has not appeared nor filed any pleading before the family Court. The Court directed the case to be proceeded ex-parte. Husband was called upon by the family Court to lead his ex-parte evidence. 15. The husband led his ex-parte evidence and also placed on record paper No. 7 ga 1 i.e. the complaint lodged to Senior Superintendent of Police dated 28.04.2006 as well as FIR dated 13.11.2006, the treatment which has been undertaken by him in government hospital and various other documents to show cruelty at the hands of wife. Learned Trial Court while considering the assertion made by the husband in support of his contention raised in the application under Section 13 of the Hindu Marriage Act, held that whatsoever evidence has been given on record by the husband, it has come in an ex-parte proceedings which remains un-controverted in the absence of respondent putting in appearance and contesting the matter. 16. The learned family Court had dismissed the petition and held that based on the assertion as made by the husband. The allegation of cruelty has not been established and in the absence of establishment of cruelty, the decree of divorce could not be granted. 16. The learned family Court had dismissed the petition and held that based on the assertion as made by the husband. The allegation of cruelty has not been established and in the absence of establishment of cruelty, the decree of divorce could not be granted. This Court feels that looking to the plaint allegations and the allegations which stands supported by the appellant by various complaints which he has lodged to the police, and which he has supported by his affidavit-in-chief, shows that the attitude of the wife was acrimonious, coupled with the fact that when she has dishonoured the notice issued by the Court, as well as by the husband, about pending proceedings, despite the notice by publication, it shows that their happens to some element of adamancy prevailing with the wife and this is what is spoiling matrimonial relationship between the appellant and respondent. 17. The intention of the legislation is at least to consider the rival contentions of the parties to matrimony and when there is sufficient material on record to show that the ingredients of under Section 13 are made out, and under the given circumstances there is cruelty, the Court should either made effort to settle the dispute or relationship had to be brought to a complete end. One party to the proceedings cannot be permitted to take advantage and cannot be permitted to abuse the process of law Court and on the other hand simultaneously resorting to all the process of misbehaving with the husband and harassing the appellant. Such type of attitude of respondent cannot be permitted coupled with the fact that the order happens to be an ex-parte because the wife has deliberately avoided participating in the proceedings, despite the notice being served by the publication which would deemed to be served under law. 18. The Appeal is allowed. Impugned order dated 04.03.2010 is set aside. Let the matter be remitted back to Family Court, Rishikesh, District Dehradun for fresh decision on merits. Since the respondent-wife had appeared in the present appeal, through her Advocate, Mr. Vipul Sharma, who takes notice on her behalf of the proceedings before the Family Court, Rishikesh, District Dehradun filed by the husband, seeking dissolution of marriage. Let the matter be remitted back to Family Court, Rishikesh, District Dehradun for fresh decision on merits. Since the respondent-wife had appeared in the present appeal, through her Advocate, Mr. Vipul Sharma, who takes notice on her behalf of the proceedings before the Family Court, Rishikesh, District Dehradun filed by the husband, seeking dissolution of marriage. Both the parties assure that they will appeal before the learned Family Court, Rishikesh, District Dehradun on the date fixed and would participate in the proceedings so as to get the lis decided on merits. 19. Hence both the parties are directed to appear before the Family Court, Rishikesh, District Dehradun on 06.11.2017, or on any other date, fixed thereafter by the Court below. 20. No fresh notices are required to be issued by respondent. 21. Since the dispute is pending between the parties for a considerable long time, the Family Court, Rishikesh, District Dehradun is requested to decide the case strictly within the period of 6 months without granting any unnecessary adjournments. 22. Subject to above directions, Appeal is allowed. Impugned judgment dated 04.03.2010 is quashed. No order as to cost.