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2018 DIGILAW 979 (RAJ)

Nikita v. Deepak Khamesara

2018-04-11

PRADEEP NANDRAJOG, VINIT KUMAR MATHUR

body2018
JUDGMENT & ORDER : 1. None appears for the respondent today in spite of service being effected. 2. Heard learned counsel for the appellant and perused the trial court record. 3. The appellant sought divorce alleging cruelty. The petition which was filed in the year 2014 pleading that marriage between the parties was solemnized as per Hindu Customs on 12.12.2011. At the time of marriage dowry commensurate with the social status of the parties was given by her parents. She resided with her husband and her in-laws after the marriage and initially the conduct of the family members towards her was fine. But after some time dowry in a sum of Rs. 2,00,000/- and a Centro Car was demanded. On account of demand not being fulfilled, she was confined in a room and beaten on 28.12.2013. Her Stridhan was taken in possession by her in-laws. After being beaten she was thrown out of the house. She reached house of her parents. Repeated efforts made by her parents for amicable resolution were frustrated by her in-laws. Because her stridhan was misappropriated by her in-laws, she was forced to lodge a complaint in Mahila Thana, Bhilwara for offences punishable under Section 498A/406 IPC. In the said proceedings settlement took place between the parties as per which it was agreed that her dowry articles would be returned and the couple would file an application for divorce by mutual consent. An application under Section 13-B of the Hindu Marriage Act was thereafter filed but was dismissed on account of respondent's not appearing. In the interregnum she withdrew the complaint made at the Mahila Thana. She pleaded that since she was turned out from the matrimonial house on 28.12.2013, she was residing with her parents. 4. In the written statement filed, the respondent denied raising any dowry demand or beating the appellant on 28.12.2013 or throwing her out of the house. He admits settlement between the couple for getting divorce by mutual consent but pleaded that the same was under duress. 5. We need not pen a lengthy order noting the evidence led at the trial for the reason we find that after settlement took place between the couple to dissolve marriage by mutual consent, agreements Ex.6 and Ex.7 were executed on 30.01.2014. 5. We need not pen a lengthy order noting the evidence led at the trial for the reason we find that after settlement took place between the couple to dissolve marriage by mutual consent, agreements Ex.6 and Ex.7 were executed on 30.01.2014. The appellant filed an application (Ex.3) followed by another application (Ex.4) dated 30.01.2014 and 31.01.2014 respectively praying to the In charge of the Mahila Thana that her complaint for the offences punishable under Section 498A/406 IPC be treated as withdrawn and proceedings be closed. 6. We are surprised that in spite thereof learned Judge, Family Court by the impugned order dated 26.11.2015 has dismissed the petition seeking divorce filed by the appellant. 7. Learned Judge, Family Court has overlooked the fact that pursuant to the settlement between the parties the appellant withdrew her complaint under section 498A/406 IPC because the parties had agreed for divorce by mutual consent. Both the parties executed agreements to the said effect and the respondent backed out. He did not appear before the Family Court. It means that respondent wanted to continue the matrimonial bond to inflict torture upon the appellant. 8. We simply highlight that in her testimony as AW1 the appellant stated the facts on oath as pleaded by her in the petition seeking divorce. We find no suggestion given to her that settlement between the parties was result of any kind of undue pressure or influence upon the respondent. Appearing as NAW1 the respondent admits having entered into settlement with the appellant for the marriage to be annulled by mutual consent but pleaded that it was result of undue influence upon him. So called undue influence was the complaint made by the appellant at Mahila Thana. Now if the complaint was false, the respondent would have contested the proceedings concerning the complaint. Lodging of complaint by itself can never be treated as an act of undue influence. That apart, if there was an undue influence upon the respondent to have entered into the settlement which took place on 30.01.2014, we see no reason why he did not make any complaint to any authority that he was under pressure to enter into the compromise. 9. The appeal is allowed. The impugned order dated 26.11.2015 is set aside. The petition seeking divorce filed by the appellant is allowed. 9. The appeal is allowed. The impugned order dated 26.11.2015 is set aside. The petition seeking divorce filed by the appellant is allowed. Marriage between the parties dated 12.12.2011 is annulled by passing a decree of divorce in favour of the appellant and against the respondent.