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2024 DIGILAW 1107 (ALL)

Dilip Kumar Jaiswal v. Poonam Devi

2024-04-23

ARUN BHANSALI, VIKAS BUDHWAR

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JUDGMENT : Arun Bhansali, C.J. - This appeal is directed against judgment and decree dated 14.03.2018 passed by Family Court, Varanasi in Marriage Petition No.1014 of 2016, whereby the petition filed by the appellant under section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') has been rejected. The proceedings were initiated by the appellant, inter alia, with the submissions that the marriage between the parties was solemnized on 15.02.2004 and on account of family issues, dispute started between the parties for the first time in the year 2007 and on 26.07.2007, the respondent-wife on her own left the matrimonial home and went to her paternal home and refused to come back. 2. The appellant filed application under Section 9 of the Act on 13.08.2007 seeking restitution of conjugal rights. On receipt of summons in the said proceedings, on 23.12.2007, the respondent initiated proceedings under Section 125 Cr.P.C. for maintenance and in March, 2008, by filing complaint under Section 156(3) Cr.P.C. regarding dowry harassment, case under Section 498A IPC and 3/4 Dowry Prohibition Act was registered. Proceedings under Section 482 Cr.P.C. were filed before this Court and the same led to mediation. During the said period, a son was born, who is about eight years of age. Based on the mediation proceedings, order was passed on 11.02.2010, wherein the parties agreed to live together. However, on 15.02.2010, the family members of the respondent took away the respondent and as such the appellant instituted proceedings under Section 98 Cr.P.C. in Varanasi. The proceedings initiated under Section 9 of the Act were also disposed of on 27.02.2011 based on the compromise between the parties regarding living together. Again, on 13.03.2011, the respondent returned back to her paternal home and in proceedings under Section 98 Cr.P.C., she gave statement that she would not live with the appellant and would live with her father, based on which, the complaint was rejected on 13.12.2011. 3. It was also averred in the plaint that since 2009 based on the proceedings initiated by the respondent, the appellant was paying a sum of Rs. 1500/- per month as interim maintenance. The case registered against the appellant for dowry was closed by the High Court on 11.09.2014. 3. It was also averred in the plaint that since 2009 based on the proceedings initiated by the respondent, the appellant was paying a sum of Rs. 1500/- per month as interim maintenance. The case registered against the appellant for dowry was closed by the High Court on 11.09.2014. It was alleged that after the proceedings under Section 98 Cr.P.C. were concluded, a document indicating second marriage by the appellant, was prepared and produced in the proceedings for maintenance. When the Family Court did not take cognizance of the said allegation, an F.I.R. was lodged under Section 494 IPC at Police Station Aurai, wherein fraudulently charge sheet was got filed. On coming to know of the same, proceedings were initiated under Section 482 Cr.P.C. by the appellant before this Court, wherein further proceedings were stayed on 23.01.2015. It was submitted that on account of the order passed in mediation, the respondent stayed with the petitioner from 11.02.2010 to 15.02.2010, for 05 days and for 13 days on account of order passed in 125 Cr.P.C. proceedings, where after based on order passed by the Family Court, Varanasi from 16.02.2011 to 13.03.2011, for 25 days i.e. for a total of 43 days lived together. It was alleged that despite all efforts made by the appellant, the respondent was not prepared to live with the appellant and false allegations have been made and proceedings were initiated. It was alleged that after 13.03.2011, there has been no matrimonial relations between the parties. Allegations were also made that the respondent has deserted the appellant, she was intolerant qua his family members, used to misbehave with the appellant, false F.I.R. was lodged, resulting in police harassment and, therefore, the marriage between the parties be dissolved. 4. The respondent appeared and filed her written statement admitting filing of proceedings under Section 125 Cr.P.C. after Section 9 of the Act proceedings were initiated by the appellant. Rest of the averments were denied. In additional plea, it was indicated that she wants to spend her matrimonial life with the appellant. However, the appellant and his relatives used to commit cruelty on account of their dowry demands and she was thrown out of the matrimonial home. On filing of the application under Section 9 of the Act, she came back to matrimonial home. The appellant was not paying the amount of maintenance. However, the appellant and his relatives used to commit cruelty on account of their dowry demands and she was thrown out of the matrimonial home. On filing of the application under Section 9 of the Act, she came back to matrimonial home. The appellant was not paying the amount of maintenance. The respondent has always been willing to live with the appellant. He himself has indicated before the Family Court at Gyanpur that he was not willing to live with her. It was prayed that the petition may be dismissed. 5. The Family Court framed three issues pertaining to cruelty, desertion and the relief. On behalf of appellant, he himself was examined as PW-1 and Vidya Devi was examined as PW-2 and they were cross-examined. Documentary evidence was also produced. On behalf of respondent, she herself was examined as DW-1 and Kailash Nath Jaiswal as DW-2. She also produced documentary evidence. 6. After hearing the parties, the Family Court came to the conclusion that the allegations pertaining to cruelty were very sketchy and no evidence was produced to support the allegations of cruelty. With regard to allegations of initiating false cases, the court came to the conclusion that proceedings initiated under Section 498A IPC were settled between the parties and the respondent stayed with the appellant thereafter. The order on petition filed in relation to proceedings under Section 498-A was not decided on merits and consequently, the allegations pertaining to cruelty were not proved. In relation to the allegations pertaining to desertion on issue no.2, the court noticed that the dispute started from 2007 onwards and found that a son was born in between and on account of intervention of Court on three occasions, the respondent stayed with the appellant. The court, based on the facts, came to the conclusion that animus deserendi had not been proved, as repeatedly the respondent has come to stay with the appellant. The court also came to the conclusion that the appellant cannot take advantage of his own wrongs. Further, where the appellant was not willing to keep the respondent in matrimony, it cannot be a reason to alleged desertion. Based on the said determination, the allegation of desertion was also not found proved. Based on findings on both the issues, the petition was dismissed. 7. Further, where the appellant was not willing to keep the respondent in matrimony, it cannot be a reason to alleged desertion. Based on the said determination, the allegation of desertion was also not found proved. Based on findings on both the issues, the petition was dismissed. 7. Learned counsel for the appellant made vehement submissions that the Family Court fell in error in deciding the issues pertaining to cruelty and desertion against the appellant. Submissions have been made that the appellant has all along been making efforts for restitution by filing proceedings under Section 9 of the Act and 98 Cr.P.C., wherein the respondent has clearly refused to accompany the appellant. The three efforts, which were made for restitution and for about 43 days the respondent stayed with the appellant, have always resulted in again deserting the appellant which clearly shows her intention to desert. Further submissions were made that false cases were fastened against the appellant and only on account of intervention of this Court, the proceedings have been stayed, which amounts to cruelty and on that count also, the judgment impugned deserves to be set aside. 8. Learned counsel for respondent supported the judgment impugned. It was submitted that the appellant has failed to prove the allegations of cruelty and desertion. On the other hand, during course of proceedings before the Family Court, it became apparent that the appellant was not willing to have matrimonial relationship with the respondent, though she was willing to continue in the matrimony and, therefore, the appeal deserves dismissal. 9. We have considered the submissions made by counsel for the parties and perused the material available on record. 10. A bare look at the averments made in the plaint reveals that the appellant instituted the proceedings for dissolution of marriage by alleging that the dispute started between the parties in the year 2007 when the respondent allegedly left the matrimonial home on her own and refused to come back and proceedings under Section 9 of the Act were initiated, which led to filing of proceedings under Section 125 Cr.P.C. and complaint pertaining to harassment for dowry. A son was born apparently in the year 2008-09 (as it is indicated that a son was born, who is about eight years old and the proceedings were initiated on 19.08.2016). A son was born apparently in the year 2008-09 (as it is indicated that a son was born, who is about eight years old and the proceedings were initiated on 19.08.2016). Mediation was held in the High Court, based on which, the parties stayed together and it is claimed that the respondent again left the matrimonial home, resulting in proceedings under Section 98 Cr.P.C. and on two occasions again, she stayed with the appellant. Very cursory allegations have been made pertaining to the cruelty. The allegations are non specific and only based on the proceedings initiated by the respondent under Section 498A and 494 IPC. In the proceedings initiated under Section 498-A, the dispute was settled between the parties based on compromise and, therefore, there is no determination on the said aspect. 11. Insofar as initiating the proceedings under Section 494 IPC is concerned, therein also submissions have been made that the proceedings are stayed by this Court and, therefore, apparently, it cannot be said that the said proceedings also are false so as to give rise to a ground of launching false cases against the appellant for making out a case of cruelty. 12. Further, coming to the aspect of desertion by the respondent, from the evidence which has come on record, it cannot be said that there has been any intention on part of the respondent to desert the appellant, inasmuch as on every occasion based on the mediation between the parties, she has returned back to the matrimonial home. Even during the present proceedings before the Family Court as well as before this Court, the respondent has been insisting to stay in matrimony with the appellant and, therefore, the allegations of desertion, also have not been proved by the appellant. 13. Learned counsel for the appellant attempted to make submissions that as the parties are living separately for now over 17 years, the same is a case of irretrievable break down of marriage and, therefore, also the decree for dissolution of marriage may be passed. 14. 13. Learned counsel for the appellant attempted to make submissions that as the parties are living separately for now over 17 years, the same is a case of irretrievable break down of marriage and, therefore, also the decree for dissolution of marriage may be passed. 14. Having considered the submissions on the said aspect also, we are of the opinion that the plea raised, has no basis, inasmuch as the appellant by insisting in not taking the respondent back in matrimonial home, cannot allege/succeed on the ground of irretrievable break down of marriage, even if the same is taken as a ground for grant of divorce in the circumstances of the case. 15. In view of the above discussion, we do not find any reason to interfere with the findings recorded by the Family Court. There is no substance in the appeal. The same is, therefore, dismissed.