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2019 DIGILAW 291 (UTT)

Ruchi Saxena v. Sunil Saxena

2019-04-26

R.C.KHULBE, SUDHANSHU DHULIA

body2019
JUDGMENT : Sudhanshu Dhulia, J. 1. This first appeal has been filed by the appellant/wife against the decree of divorce. The curious facts' of this case are that a suit for divorce was instituted by none else but by the appellant herself. The suit was also decreed vide order dated 13.04.2015 by the Principal Judge, Family Court, Dehradun (Suit No. 145 of 2015), 'Smt. Ruchi Saxena v. Sri Sunil Saxena'. 2. The grounds alleged by the appellant/wife for grant of a decree of divorce were desertion as well as cruelty. Half-heartedly, the respondent/husband filed his written statements, broadly denying the allegations. Thereafter, the examination-in-chief of the appellant/wife was done on 04.04.2015 by way of an affidavit. The appellant was present in the court and on the same day, the defendant was directed to cross-examine the appellant. The defendant refused to cross-examine the appellant/plaintiff. No other witnesses were produced and ultimately the suit was decreed on 13.04.2015. 3. The appellant/wife has now filed the present first appeal before this Court on grounds that her signatures were actually obtained by her husband on a pretext that he would be transferring some property in her name, and the fact is that she had never filed a suit for divorce! 4. In this matter, notices were sent to the opposite party/husband on the delay condonation application on 04.09.2015. Office report dated 16.10.2015 shows that notices were sent to the respondent by the registered post as well as by 'dasti'. The appellant was initially represented by Sri Manish Arora, Advocate. After service upon the respondent, Sri Pawan Mishra, Advocate has put in appearance on behalf of the respondent, who is present before this Court. On 26.10.2015 in the presence of both the counsels, the Court granted time till 18.11.2015 to the respondent to file its objections to the delay condonation application. Thereafter, the objections to the delay condonation application were filed by the respondent and on 20.11.2015 the delay was condoned by this Court. On 01.12.2015, the matter was sent for mediation by a Division Bench of this Court. The mediator's report dated 17.12.2015 shows as under:- "The matter was taken up today in mediation. Sunil Saxena is present today and Smt. Ruchi Saxena is not present, but appellant Smt. Ruchi Saxena's counsel is present, in the absence of Smt. Ruchi Saxena mediation is not possible today. The mediator's report dated 17.12.2015 shows as under:- "The matter was taken up today in mediation. Sunil Saxena is present today and Smt. Ruchi Saxena is not present, but appellant Smt. Ruchi Saxena's counsel is present, in the absence of Smt. Ruchi Saxena mediation is not possible today. Accordingly, the matter is fixed for 25.02.2016 for further mediation session. Submitted." 5. Thereafter the matter was again taken up on 25.02.2016 by the Mediator/Advocate for mediation. The report shows as under:- "The matter was taken up today in mediation. Both the parties are absent today, but appellant Smt. Ruchi Saxena's counsel is present. The mediation is not possible today in absence of the parties. The matter requires further session for mediation. Accordingly, on the request of the appellant counsel the matter is fixed for 10.03.2016 for further mediation session. Submitted." 6. The next report dated 10.03.2016 of the Mediator/Advocate shows as under:-- "The matter was taken up today in mediation. Smt. Ruchi Saxena is present today and Shri Sunil Saxena is not present, but appellant Smt. Ruchi Saxena also not interested for further mediation. Since the parties have failed to arrive at any settlement in this matter today. Accordingly, at this stage the mediation proceedings are closed as failed. Let a report to this effect be submitted to the Hon'ble Court. Submitted." 7. When the matter came up before a Division Bench of this Court on 03.07.2017, the counsel for the appellant was not present, and therefore, the Division Bench of this Court appointed Ms. Khushboo Sharma, Advocate as Amicus Curiae in the matter. Thereafter, on 10.08.2017, a Division Bench of this Court passed the following order:- "Ms. Khushboo Tiwari Sharma, Amicus Curiae, for the appellant. Mr. Pawan Mishra, Advocate for the respondent. Paper-book is ready. Learned Amicus Curiae for the appellant is requested to collect the same. List this case after two weeks." 8. This matter was admitted on 29.08.2017. On 03.10.2017, the Court changed the Amicus Curiae and Sri S.R.S. Gill, Advocate was appointed as Amicus Curiae in the matter. The order passed by the Division Bench of this Court on 03.10.2017 reads as under:- "Mr. Vipul Sharma, Advocate holding brief of Ms. Khushboo Tiwari Sharma, Amicus Curiae, for the appellant Mr. Pawan Mishra, Advocate for the respondent. There is a request made on behalf of the Amicus Curiae for adjournment. The order passed by the Division Bench of this Court on 03.10.2017 reads as under:- "Mr. Vipul Sharma, Advocate holding brief of Ms. Khushboo Tiwari Sharma, Amicus Curiae, for the appellant Mr. Pawan Mishra, Advocate for the respondent. There is a request made on behalf of the Amicus Curiae for adjournment. The Amicus Curiae is supposed to be present on each and every hearing. Accordingly, Mr. S.R.S. Gill, Advocate, is appointed as Amicus Curiae in place of Ms. Khushboo Tiwari Sharma, Advocate to assist the Court on behalf of the appellant. Registry is directed to prepare the paper book and supply the same to the Advocate so appointed, by tomorrow." 9. On 29.11.2017, since the Division Bench of this Court was of the view that the matter can be settled in Lok Adalat, the matter was hence referred to Lok Adalat to be convened on 09.12.2017. 10. This Court has been informed that none of the parties were present before the Lok Adalat, when it was held. Since Sri S.R.S. Gill, the learned counsel for the appellant in the capacity of Amicus Curiae was not having any instruction from the appellant and he was not in touch with' the appellant, the Court sent further notice to the appellant on 13.08.2018. Meanwhile, since the lower court record could not be traced,' this Court on 11.03.2019 directed the Registry to trace the record and place the same before this Court on 13.03.2019. On 13.03.2019, this Court had passed the following order:-- "Mr. S.R.S. Gill, Amicus Curiae, present for the appellant. Mr. Pawan Mishra, Advocate, present for the respondent. A suit for dissolution of marriage was filed, by the present appellant which was decreed vide order dated 13.04.2015. Now the appellant has challenged the order dated 13.04.2015, before this Court on the ground that she had never filed such a suit and her signatures were taken by deceit by her husband. Learned counsel for the appellant is presently not available as he is in police custody in relation to a criminal case. For this reason, Mr. S.R.S. Gill, Advocate was appointed as Amicus Curiae in the matter. Later notice was also issued to the appellant to engage another counsel in the matter by this Court vide order dated 13.08.2018, which has not been served. For this reason, Mr. S.R.S. Gill, Advocate was appointed as Amicus Curiae in the matter. Later notice was also issued to the appellant to engage another counsel in the matter by this Court vide order dated 13.08.2018, which has not been served. We would like to have the personal presence of both the appellant as well as the respondent before us, before proceeding any further in the matter. Mr. Pawan Mishra, learned counsel for the respondent has given an undertaking that the respondent will be present before this Court on the next date of listing which is fixed for 27.03.2015. As regarding the appellant, we are of the opinion that Mr. S.R.S. Gill being the Amicus Curiae be authorized to contact the appellant and inform her. However, for abundant precaution, it is directed that notice be also served to the appellant at her address through the Chief Judicial Magistrate, Dehradun. List this matter on 27.03.2019 in the daily cause list." 11. In this case, we had requested the learned counsel for the respondent to get instruction from the lawyers who had represented the appellant as well as the respondent before the court below. They had also appeared before this Court. 12. On the above sequence of dates, as we have stated above, it is clear that this Court wanted to go to the bottom of the matter and find out as to why this appeal has been filed. The only ground which has been raised by the appellant before this Court is that she had never filed the suit for divorce and her signatures have been obtained by fraud. Although this is an appeal of the appellant herself but after filing this appeal, the appellant has not pursued this matter before this Court. In this case, two Amicus Curiae have been appointed by this Court. For abundant precaution, on 13.03.2019 order was also passed by this Court for service to the appellant through Chief Judicial Magistrate, Dehradun and the Chief Judicial Magistrate, Dehradun ultimately served the notice on the appellant on 28.03.2019. Therefore, effectively the appellant has the notice that the proceedings which have been filed by the appellant before this Court is presently going on, yet the appellant has not put in her presence nor are there any instructions on her behalf. Therefore, effectively the appellant has the notice that the proceedings which have been filed by the appellant before this Court is presently going on, yet the appellant has not put in her presence nor are there any instructions on her behalf. Regretfully, we have to state that the appellant both in the capacity of plaintiff before the court below and in the capacity of the appellant before this Court, has abused the process of the court. Her plea before this Court is that her signatures have been obtained by fraud and she had not filed any petition before the court below. On the face of it, this is both false and vexatious. 13. This is so because the order-sheet of the court below clearly shows that appellant was present in person before the court below and she had filed her examination-in-chief by way of an affidavit on 04.04.2015 and on the same day, she was present for the cross-examination. It is another matter that her cross-examination was not done. Apparently, there may be collusion between the parties in this case, which is also a matter of concern, but definitely it is not a case as is being shown before this Court that the plaintiff/appellant had never filed a petition before the court as she has alleged. These are absolutely false claims. 14. In view thereof, this first appeal is dismissed. We have also perused the order of the court below. Under the facts and circumstances of the case and in view of the averments made in the plaint as well as in the written statement and the fact that allegations made by the appellant of cruelty as well as desertion in her examination-in-chief before the court below and she was never cross-examined by the respondent/defendant, the court below had no alternative but to grant a decree of divorce to the appellant/plaintiff, we therefore, see no ground to interfere with the decree dated 13.04.2015. 15. However, since the appellant has not approached this Court with clean hands and in fact she filed the false and frivolous petition, we dismiss this first appeal with a cost of Rs. 25,000/- (Rupees Twenty Five Thousand Only), which shall be recovered from the appellant by the court below in accordance with law. 16. Let the lower court record be sent back to the court concerned for onward compliance.