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2023 DIGILAW 319 (UTT)

Neetu Rawat v. Umesh Rawat

2023-05-17

RAKESH THAPLIYAL, VIPIN SANGHI

body2023
JUDGMENT : Vipin Sanghi, J. The present Appeal is directed against the impugned judgment dated 11.01.2021 passed by the Principal Judge, Family Court, Dehradun in Original Suit No. 1023 of 2017, whereby the petition preferred by the respondent-husband under Section 9 of the Hindu Marriage Act against the appellant-wife was allowed. 2. The parties got married on 10.03.2008 according to the Hindu rites and ceremonies. They have one son, who was born on 21.10.2009. 3. The case of the respondent-husband is that the appellant left her matrimonial home on 11.11.2017 finally, along with the minor child, and since the appellant did not return to her matrimonial home, the respondent filed the aforesaid petition under Section 9 of the Hindu Marriage Act to seek restitution of conjugal rights. The said petition was contested by the appellant by filing a written statement, where she made allegation of cruel treatment meted out to her by the respondent-husband. The respondent filed his replication denying those allegations and re-affirming his averments in his petition under Section 9 of the Hindu Marriage Act. The respondent led his evidence before the Family Court, which was closed on 25.09.2019. Thereafter, the case was fixed for the appellant-wife to lead her evidence. On 02.11.2019, it appears that the appellant was present with her counsel before the Family Court. She endorsed on the order-sheet dated 02.11.2019 that in the present case, she does not wish to lead any evidence. This endorsement has been made by the appellant in her own hand and dated as 02.11.19. Consequently, the learned Presiding Judge passed order, which reads “Case called out. Counsels are present. The respondent has closed her evidence.” The matter was adjourned to 05.01.2020. Thereafter, it appears from the order-sheet placed on record that the matter was adjourned time and again till the passing of the impugned judgment proceeding on the basis that the respondent-husband had proved his case by leading his evidence. Pertinently, he had also been cross-examined by the appellant’s counsel. 4. On the other hand, the appellant has failed to lead any evidence to substantiate her allegations of cruel treatment allegedly meted out by the respondent-husband. 5. In her memo of Appeal, the appellant claims that she had made the statement to the effect that she does not wish to lead evidence on the wrong advice of her Advocate. 4. On the other hand, the appellant has failed to lead any evidence to substantiate her allegations of cruel treatment allegedly meted out by the respondent-husband. 5. In her memo of Appeal, the appellant claims that she had made the statement to the effect that she does not wish to lead evidence on the wrong advice of her Advocate. It is so stated in the Dates & Events as well as in the Ground No. 7, where she states that “she engaged a lawyer but this endorsement was made under the wrong advice of the lawyer of appellant, for which she should not be made to suffer”. 6. We have inquired from the appellant’s counsel whether any notice has been issued to the erstwhile lawyer and whether any action was taken against him by filing any proceedings either in a Court or before the Bar Council. Counsel for the appellant candidly states that none of these steps have been taken. 7. Learned counsel for the respondent submits that even after making the said endorsement on 02.11.2019, the matter remained pending before the Family Court, Dehradun till the passing of the impugned judgment on 11.01.2021, i.e. for a period over one year. Even during this period, the appellant never approached the Court to claim that she had made the said endorsement on the wrong advice or that her right to lead her evidence should be revived. He has pointed out that the appellant is an educated person, who is employed and she has led her evidence in other inter se proceedings between the parties. Thus, it cannot be said that she was not given the opportunity to lead evidence. 8. We have heard learned counsels, and have also considered the evidence and the impugned judgment available on the record. 9. In our view, there is no explanation whatsoever provided by the appellant to justify her reneging from her statement made before the Principal Judge, Family Court that she does not wish to lead her evidence in support of her defense. 10. As noticed above, the matter remained pending for over a year even after that statement was made by the appellant before the Court, and she made an endorsement in this regard in the order-sheet in her own hand. 10. As noticed above, the matter remained pending for over a year even after that statement was made by the appellant before the Court, and she made an endorsement in this regard in the order-sheet in her own hand. Though she makes an allegation against the said counsel engaged by her, no document is placed on record to show that she has taken any action against him, and has put him to any notice in this regard. Behind the back of the counsel, it is very convenient for the appellant to claim that she had made the endorsement on the wrong advice of her counsel. 11. The appellant is an educated lady and she knew the consequences of what she had stated before the Court in writing. 12. In these circumstances, we are not inclined to interfere with the impugned judgment, which, even otherwise, appears to be well-reasoned and based on the evidence led by the respondent. 13. The Appeal is, accordingly, dismissed. 14. We may observe that the counsel for the respondent, on instructions, states that since this Court has granted visitation right to the respondent in respect of the minor child, and the child is well rooted at his home with the appellant, the respondent does not wish to press for custody of the minor child, and for this reason, has not even preferred the execution petition till date. He submits that the respondent would be satisfied with the continuation of the visitation right as granted by this Court. 15. We, accordingly, direct the appellant to continue to enable the respondent to meet the child in terms of the visitation right granted by this Court. However, in case there is breach of the said direction, it shall be open to the respondent to proceed to execute the decree granting custody of the minor child to him.