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2024 DIGILAW 352 (UTT)

Chhavi Aggarwal v. Vilakshan

2024-05-16

RAKESH THAPLIYAL, RITU BAHRI

body2024
JUDGMENT : RITU BAHRI, C.J. 1. The appellant Chhavi Aggarwal has come up in appeal against the judgment of the Family Court dated 06.01.2022, passed in Original Suit No. 237 of 2017, titled as Chhavi Aggarwal Vs. Vilakshan, whereby her petition under Section 13 of the Hindu Marriage Act, 1955, for grant of decree of divorce has been dismissed. 2. As per plaint averments, marriage of the appellant-wife was solemnized with respondent-husband on 31.05.2015, as per Hindu rites and customs. As per the appellant, sufficient dowry and gifts were given at the time of marriage. Few days after the marriage, the appellant started receiving taunts from the two brothers of the respondent namely Nishkar and Divakar, and their wives. They started pressurizing her for getting rupees five lakhs in cash, and a four wheeler. Appellant tried to explain that her father does not have means to fulfill their demand of dowry, on this the family members of her husband used to fight and harass the appellant physically and mentally. On 03.12.2015, it was the birthday of the appellant, on which her brother came to her matrimonial house with some items of gift, but her in-laws misbehaved with her brother and taunted the appellant. The appellant got a job at Roorkee on 13.08.2015, but the respondent used to keep a track on her presence at an interval of every five minutes, and if there was delay in coming back to her matrimonial house, the respondent used to abuse and commit maar peet with her. The ATM card of the appellant was also taken by her brother-in-law Nishkar Agarwal and her salary amounting to Rs.3,26,520/- till June 2016 was withdrawn. Appellant’s bank account was with Punjab National Bank, Roorkee, in which her salary used to come. 3. In the month of August 2015, Jyoti Goyal, elder sister of the appellant, visited her matrimonial home and gifted her a statue of ‘Bal Swaroop of Lord Shri Krishna’ on this the respondent and his family members objected saying that they are atheist and will not allow the appellant to perform pooja-path in their house. Respondent used to taunt the appellant on account of her physical appearance and compare her with his two sisters-in-law. Respondent always provide the appellant the used apparel of his sisters-in-law, and on being objected, used to beat her. Respondent used to taunt the appellant on account of her physical appearance and compare her with his two sisters-in-law. Respondent always provide the appellant the used apparel of his sisters-in-law, and on being objected, used to beat her. Every now and then, the respondent used to abuse and commit physical and mental cruelty with the appellant raising false allegations on her character. On 20.11.2015, the respondent ousted the appellant from her matrimonial home, but on the mediation of their family members, it was decided that the appellant along with the respondent will stay in a separate household, but the behaviour of the respondent did not change and he used to leave her at the bus station at 06:00 A.M. every morning, and return back to his shop and from there in the evening every day visit her sisters-in-law house, and came back from their at 11-11:30 P.M., in the night. On being asked, the respondent used to commit cruelty with the appellant, and asked her to bring the share from the house of her father, and then he will keep her with him. 4. On 18.12.2015, at 12.00 noon, the respondent and his family members ousted the appellant from her matrimonial home for non-fulfillment of demand of dowry, and the appellant came back to her parental house on 18.12.2015. Appellant, while she was staying with the respondent, came to know the fact that he is incapable of making physical relationship, and to beget a child. Despite this, the appellant tried to counsel the respondent for the sake of her and her family’s respect. It is alleged that on 18.01.2017, the respondent and his family members came to the parental house of the appellant, and started demanding dowry from her parents, and even started hurling abuses and committed maar peet with them. Respondent badly assaulted the appellant, and somehow she managed to save herself. A case, bearing suit No. 16 of 2017, in this regard was filed in the court of Judicial Magistrate I, Roorkee under Section 125 Cr.P.C. and a separate case was also filed under Section 12 of the Protection of Women from Domestic Violence Act, but the said cases were subsequently got dismissed as withdrawn by the appellant. A case, bearing suit No. 16 of 2017, in this regard was filed in the court of Judicial Magistrate I, Roorkee under Section 125 Cr.P.C. and a separate case was also filed under Section 12 of the Protection of Women from Domestic Violence Act, but the said cases were subsequently got dismissed as withdrawn by the appellant. With the aforementioned plain averments, the appellant-wife got instituted petition under Section 13 of the Hindu Marriage Act, for dissolution of marriage between the parties before the Family Court, Roorkee, District Haridwar. 5. In reply, the respondent-husband filed his counter-claim. He admitted the factum of marriage, but denied the fact of taking any dowry and it was stated that his family members got ready for the marriage looking at the educational qualification of the appellant-wife, and that the marriage was solemnized in a simple manner without taking any dowry. Respondent also denied the fact that he ever committed cruelty with the appellant. It was stated that it was the family members of the appellant, who tried to put obstacles in their married life, due to which he got agreed to live with the appellant in a separate household, but unfortunately, he got seriously ill in the month of September 2016, and had to be admitted in higher medical center at Jolly Grant Hospital. It was alleged that the appellant did not look after him, even his father-in-law never visited him in the hospital, and his brothers used to look after him in the hospital and when he got fully recovered, they took him with them. On this, the appellant got infuriated, and started quarreling with him. On 18.09.2016, the appellant left for her parental home after taking her entire goods, apparel and jewellery, and did not come back even after much persuasion. It was further alleged that the appellant instituted false cases, one under Section 125 Cr.P.C. and the other in respect of Protection of Women from Domestic Violence Act, and for this reason alone both the cases were got withdrawn by her. Respondent never asked the appellant for dissolution of marriage, and she had instituted false cases in the court under the influence of her father in order not to return a sum of Rs.8,50,000/- which they had taken from his family members on the pretext of loan. Respondent never asked the appellant for dissolution of marriage, and she had instituted false cases in the court under the influence of her father in order not to return a sum of Rs.8,50,000/- which they had taken from his family members on the pretext of loan. It was further alleged that appellant-wefe was appointed as L.T. Grade teacher in Ram Swaroop Inter College, Roorkee and remained as such till 2015 only, but her brother is still continuing there as a teacher in the primary section. It was also alleged, that on 31.05.2015, after three weeks of their marriage, father of the appellant requested in front of the respondent and his brothers to lend him rupees ten lakhs as Chhavi and his brother had a interview call in K.L.D.A.V. Inter College, and he told them that he will return the said amount in installments. On this an amount of Rs.8,50,000/- was lent to father of the appellant in the presence of both the brothers of the respondent. In the month of August 2015, the appellant got appointed as a L.T. Grade Assistant Teacher in K.L.D.A.V. Inter College, Roorkee, and her brother Nikhil Agarwal got appointment in B.D. Inter College, Bhagwanpur as Assistant Teacher, L.T. Grade in May 2016. Finally, it was stated that the respondent-husband is ready to live with the appellant-wife by accepting all her conditions. 6. On the basis of pleading between the parties, the Family Court framed the following issues: (i) Whether the defendant committed cruelty on the plaintiff. If yes, its effect? (ii) To which relief the plaintiff is entitled for? 7. The Family Court after going through the evidence brought on record held that after the marriage the parties have no children and the appellant-wife was working as a teacher, and at her behest false cases have been registered against the respondent-husband under Section 125 of Cr.P.C. and under Protection of Women from Domestic Violence Act. It is also observed that P.W.1, the wife, had herself admitted in her cross-examination that the statements made in the proceedings under Section 125 Cr.P.C. and Section 12 of the Protection of Woman from Domestic Violence Act were false. Finally, the divorce petition filed by the appellant-wife was dismissed. 8. It is also observed that P.W.1, the wife, had herself admitted in her cross-examination that the statements made in the proceedings under Section 125 Cr.P.C. and Section 12 of the Protection of Woman from Domestic Violence Act were false. Finally, the divorce petition filed by the appellant-wife was dismissed. 8. In the appeal before this Court the facts which are not in dispute between the parties are that the marriage took place in the year 2015, they have no child from this marriage, and they are living separately since 2017. As on today 07 years have gone by and they had no positive relationship with each other. It is a dead marriage. They have been staying separately since 2017. Keeping in view the above facts, reference can now be made to a recent Supreme Court judgment in the case of Rakesh Raman Vs. Kavita, 2023 SCC Online SC 497, decided on 26.04.2023. In that case the marriage was solemnized on 16.04.1994, and there was no child from this marriage, and the parties merely stayed together for four years, and by the time the matter went to the Supreme Court the marriage had been 25 years old. There was no child from the wedlock. The Supreme Court held that the matrimonial bond had completely broken and was beyond repair, and the fact that it was long separation and absence of cohabitation and the complete breakdown of all meaningful bonds has to be read as cruelty under Section 13(1)(ia) of the 1955 Act. Since the dissolution of marriage would affect only the two parties, and there was no child out of the wedlock, the Supreme Court allowed the appeal of the husband, and held that the marriage stood dissolved. Keeping in view the income of the appellant, permanent alimony of rupees 30 lakhs was awarded to the wife. While passing the said judgment, the Supreme Court also referred to its earlier judgment rendered in Munish Kakkar Vs. Nidhi Kakkar, 2019 SCC Online SC 1636, decided on 17.12.2019. Relevant paragraphs of Munish Kakkar’s case (supra) are reproduced below: “18. No doubt there is no consent of the respondent. But there is also, in real terms, no willingness of the parties, including of the respondent to live together. There are only bitter memories and angst against each other. Nidhi Kakkar, 2019 SCC Online SC 1636, decided on 17.12.2019. Relevant paragraphs of Munish Kakkar’s case (supra) are reproduced below: “18. No doubt there is no consent of the respondent. But there is also, in real terms, no willingness of the parties, including of the respondent to live together. There are only bitter memories and angst against each other. This angst has got extended in the case of the respondent to somehow not permit the appellant to get a decree of divorce and “live his life”, forgetting that both parties would be able to live their lives in a better manner, separately, as both parties suffer from an obsession with legal proceedings, as reflected from the submissions before us. 19. We may note that in a recent judgment of this Court, in R. Srinivas Kumar Vs. R. Shametha, (2019) 9 SCC 409 , to which one of us (Sanjay Kishan Kaul, J.) is a party, divorce was granted on the ground of irretrievable breakdown of marriage, after examining various judicial pronouncements. It has been noted that such powers are exercised not in routine, but in rare cases, in view of the absence of legislation in this behalf, where it is found that a marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably. That was a case where parties had been living apart for the last twenty-two (22) years and a re-union was found to be impossible. We are conscious of the fact that this Court has also extended caution from time to time on this aspect, apart from noticing that it is only this Court which can do so, in exercise of its powers under Article 142 of the Constitution of India. If parties agree, they can always go back to the trial court for a motion by mutual consent, or this Court has exercised jurisdiction at times to put the matter at rest quickly. But that has not been the only circumstance in which a decree of divorce has been granted by this Court. In numerous cases, where a marriage is found to be a dead letter, the Court has exercised its extraordinary power under Article 142 of the Constitution of India to bring an end to it. 20. We do believe that not only is the continuity of this marriage fruitless, but it is causing further emotional trauma and disturbance to both the parties. 20. We do believe that not only is the continuity of this marriage fruitless, but it is causing further emotional trauma and disturbance to both the parties. This is even reflected in the manner of responses of the parties in the Court. The sooner this comes to an end, the better it would be, for both the parties. Our only hope is that with the end of these proceedings, which culminate in divorce between the parties, the two sides would see the senselessness of continuing other legal proceedings and make an endeavour to even bring those to an end.” 9. The ratio of the Munish Kakkar’s case (supra) is directly applicable to the facts of the present case. The appellant as well as the respondent both are working. Apart from the divorce petition, there were cases under Section 12 of the Protection of Women from Domestic Violence Act as well as under Section 125 Cr.P.C. which were later on withdrawn by the appellant-wife. Counsel for the appellant has stated in the Court that the appellant-wife is not interested in having any permanent alimony, she only wants that the marriage be dissolved keeping in view the fact that they both are living separately since 2017. 10. In the present case also, as in the case of Munish Kakkar (supra), the matrimonial bond has come to an end, and no useful purpose would be served in making an effort to ask both the parties to go to the Mediation Center for counselling. The non-grant of divorce to both the parties at this stage would amount to cruelty as both of them are educated persons and they should part their ways and go ahead in life. 11. In view of the foregoing discussion, the appeal deserves to be allowed. The same is, accordingly, allowed. The marriage between the parties is being dissolved by a decree of divorce.