Research › Search › Judgment

Rajasthan High Court · body

2024 DIGILAW 701 (RAJ)

Kriti v. Vikas Kumar Swami

2024-04-29

PANKAJ BHANDARI, SHUBHA MEHTA

body2024
JUDGMENT : Pankaj Bhandari, J. - Appellant - wife - Smt. Kriti has preferred the instant appeal aggrieved by the judgment and decree dated 15.04.2021 passed by Family Court No.2, Jaipur, whereby divorce petition filed by respondent - husband - Vikas Kumar Swami under Section 13(1) (ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 was allowed. 2. Succinctly stated the facts of the case are that the appellant and the respondent got married on 24.02.2011. The respondent initially filed a divorce petition under Section 13(1)(ia) and 13(1) (ib) of the Hindu Marriage Act before the Family Court, Jhunjhunu, on 05.07.2013 alleging therein that the appellant is not cohabiting with the respondent and is not staying with the respondent at his village. It was also alleged in the earlier petition that the appellant left the house in June, 2011 and was staying at Jaipur. She also took Rs.40,000/- through cheque for continuing her studies at Jaipur. The said petition was not pressed by the respondent and the same was dismissed as not pressed on 09.07.2013. Thereafter, the present petition was filed by the respondent on 31.10.2017 with the allegation that the appellant doubts the character of the respondent; is not staying with the respondent; is continuously threatening to lodge false complaint against him. She has also lodged complaint before the Registrar (Vigilance) of High Court with the intention to humiliate the respondent in front of his colleagues; she even threatened to commit suicide after locking herself in the room. 3. It is also alleged that the respondent was brought up in a village environment, whereas the appellant right from the time of her birth was residing in Jaipur and it is for this reason that she was not willing to come and stay in the village with the respondent. It is also alleged that right from the date of marriage, appellant did not cohabit with the respondent and has always pressed upon the respondent to leave her at Jaipur. 4. It is further stated in the petition that time and again, the respondent along with his relatives went to the residence of the appellant to bring her back, but the appellant would return to the village for a few days and then would again return back to Jaipur. 4. It is further stated in the petition that time and again, the respondent along with his relatives went to the residence of the appellant to bring her back, but the appellant would return to the village for a few days and then would again return back to Jaipur. It is also pleaded in the petition that with great difficulty, the respondent would cohabit with the appellant, as a result of which, a daughter was born from the wedlock. Some specific incidents with regard to cruelty have also been quoted in the petition. 5. In reply to the petition, appellant - wife has denied the allegations levelled against her. She has in counter levelled allegations against the respondent of harassing her with regard to bringing insufficient dowry. She has also alleged that there was demand of dowry on behalf of the respondent and his family members. The appellant has stated that since 20.06.2017, the respondent has left the appellant as demand of dowry was not fulfilled. With regard to the allegation of not cohabiting soon after the marriage, the appellant has stated that she had taken some medicines to postpone her periods, because of which, she got some infection. She has alleged that the respondent did not like her and he would always tell her that he does not like her and was not wanting to marry her. She has also alleged that the respondent used to keep her in confinement in his house and would never allow her to meet the neighbours. The appellant has also alleged that when she became pregnant, the respondent's mother forced her to get the sex determination done. She has also alleged that after a female child was born, the respondent did not even come to meet the girl child and after due persuasion, took the appellant to Village Kakrana and not to the place of his posting i.e. Lalsot, Dausa. She has further alleged that the respondent physically assaulted her. She has also alleged that the respondent left her at his parents home on the pretext that he has to undergo some training. He did not return to bring her back, rather he purchased a Skoda Vehicle and was travelling from one place to another. 6. With regard to the complaint made to the Registrar (Vigilance), the appellant contends that she only informed them about her and her daughter's condition. He did not return to bring her back, rather he purchased a Skoda Vehicle and was travelling from one place to another. 6. With regard to the complaint made to the Registrar (Vigilance), the appellant contends that she only informed them about her and her daughter's condition. She has also alleged that the respondent did not help in the school admission of their daughter and he also did not provide the OBC Certificate to the appellant. She has also alleged that right from the time of marriage, the appellant is tolerating the cruelty of the respondent and his family members. The appellant has alleged that the respondent has caused mental and physical cruelty with her and the environment of the house was not such wherein the appellant could reside with her daughter. Rejoinder to the reply was also filed by the respondent. 7. Learned Family Court after considering the pleadings of the parties framed issues. Thereafter, on behalf of the respondent, Vikas Kumar Swami (AW-1), Bihari Lal Swami (AW-2), Shishram Khatana (AW-3), Anil Kumar (AW-4) and Sumer Kumar Saini (AW- 5) were produced in evidence. On behalf of the appellant, Smt. Kriti (NAW-1), Murli Manohar (NAW-2), Damodar Prasad Swami (NAW-3) and Laukik (NAW-4) were produced in evidence. Documents were also got exhibited by both the parties. Learned Family Court, after hearing the arguments and after considering the statements as well as written arguments submitted by the parties, has decided the issue of cruelty in favour of the respondent - husband and has decreed the petition for divorce, aggrieved by which, the appellant - wife has filed the present appeal. 8. It is contended by learned counsel for the appellant that the respondent in fact has thrown the appellant out of the house and no cruelty whatsoever has been done by the appellant, rather it is the respondent, who has demanded dowry and has not looked after his own daughter and is bent upon to take the divorce. It is also contended that the appellant never treated the respondent with cruelty, rather the respondent and his family members immediately after the marriage treated the appellant with cruelty by demanding more money and by always taunting her with regard to dowry. The respondent never loved the appellant, rather he kept creating mutual distance and he told the appellant that he was married against his wish. 9. The respondent never loved the appellant, rather he kept creating mutual distance and he told the appellant that he was married against his wish. 9. It is argued that the respondent and his family members forced the appellant to get the sex determination done and when she gave birth to a girl child, they did not talk to her. It is also contended that after persuasion, the respondent took her back on 24.01.2015 and again left her on 01.05.2016 and when the appellant submitted an application to the Registrar (Vigilance), after mediation, the respondent took her back. However, after a lot of cruelty and harassment, the appellant left the house and went to her parental home on 20.06.2017 and since then, she is residing with her parents. It is also argued that after filing of the application before the Registrar (Vigilance) by the appellant, the respondent has filed this petition for divorce on baseless grounds and the Family Court has erred in passing the divorce decree. It is also contended that after the respondent got appointment in the Judicial Service, he and his family members started more cruelty with the appellant and also created an atmosphere in the house to get divorce from the appellant. The appellant continued to bear the torture to save her matrimonial life. 10. It is also contended that the respondent is serving in the Judicial Service whereas, the appellant is not having any source of income. The appellant has recently joined the legal profession as an advocate. The appellant and her minor daughter are dependent on the father of the appellant and so, is legally entitled to permanent alimony and maintenance from the respondent, but learned Family Court has neither passed any order regarding permanent alimony nor has given any finding while passing the decree of divorce with regard to maintenance. In the grounds of appeal, it is urged that the judgment and decree passed by learned Family Court is liable to be modified on this ground also. It is also contended that the judgment and decree of divorce of learned Family Court is based on surmises and conjectures. It is also argued that learned Family Court has not considered the question of cruelty raised by the appellant and thus, the impugned judgment and decree passed by the learned Family Court deserve to be quashed and set aside by this Court. 11. It is also argued that learned Family Court has not considered the question of cruelty raised by the appellant and thus, the impugned judgment and decree passed by the learned Family Court deserve to be quashed and set aside by this Court. 11. Learned counsel for the respondent has opposed the appeal. It is contended that in 13 years of marriage, the appellant has not stayed with the respondent for even three months. From the very beginning, the appellant stayed away from the respondent and did not cohabit on one pretext or the other, a complaint of which was made to the person who was the middle-man. It is also contended that there is no evidence that there was any demand of dowry rather the appellant herself has given an affidavit that there was no demand of dowry. 12. It is also contended that the fact of cruelty is established as the appellant has filed complaint before the Registrar (Vigilance). Any complaint, which is filed before the Registrar (Vigilance), can have dire consequences including termination from the service. Thus, this tantamounts to cruelty. It is further contended that from the evidence adduced before the learned Family Court, the cruelty is established. It is also contended that in the evidence adduced by the appellant, it has come that the respondent had made several attempts to take the appellant with him and that after every such attempt, she returned back after staying for sometime. 13. We have considered the contentions raised by learned counsel for the parties and have carefully gone through the material on record. 14. The core issue, which arises for consideration before us, is whether the appellant treated the respondent with cruelty or not? As far as pleadings of the parties are concerned, both the parties have levelled allegations and counter-allegations with regard to cruelty. The respondent has alleged that he was treated with cruelty. In reply, the appellant has alleged that she was treated with cruelty by the respondent and his family members. As per the respondent, soon after the marriage, the appellant did not cohabit with him, a complaint of which, was made to the parents of the appellant and they came to the house of the respondent and took away the appellant with them. As per the respondent, soon after the marriage, the appellant did not cohabit with him, a complaint of which, was made to the parents of the appellant and they came to the house of the respondent and took away the appellant with them. As per the appellant, she did not cohabit as her periods were delayed and she had some infection, for which, she was taking some medicines, however, no prescription or name of the medicine has been stated by the appellant in her reply as well as in her evidence. The fact that the appellant hardly stayed with the respondent and would return back to her parental home at Jaipur is established from the evidence of the appellant herself, who has admitted in her cross-examination that in the entire term of the marriage, she has stayed with the respondent for only 82 days. The allegation of the respondent that the appellant did not cohabit with him, inspite of his efforts, is categorically denied by the appellant and she has stated that it is the respondent, who would keep a pillow between them and would of-fen sleep with his mother. However, contrary to this, in her evidence, the appellant has stated that whenever she was with the respondent, they used to cohabit every day and in the same statement, she has stated that respondent - Vikas used to keep a pillow between the appellant and himself. Thus, the statement of the appellant is contradictory. 15. The appellant has levelled allegations of physical as well as mental cruelty against the respondent. With regard to physical cruelty, she has stated that the respondent had twisted her arm and had also hanged his own daughter from the second floor. She has also stated that due to the arm twisting, her arm got dislocated, however, no medical report has been produced before the Court to establish this fact. As per the appellant, the child, was hanged upside down from the second floor on 29.04.2016, the birth date of the girl child is 29.10.2014, meaning thereby that the child was aged one and a half years at the time of the alleged incident. However, no complaint whatsoever has been filed before any authority in this regard. As per the appellant, the child, was hanged upside down from the second floor on 29.04.2016, the birth date of the girl child is 29.10.2014, meaning thereby that the child was aged one and a half years at the time of the alleged incident. However, no complaint whatsoever has been filed before any authority in this regard. We do not find any force in this allegation for the very reason that the appellant continued to reside with the respondent even after the alleged incident, no mother would stay with her husband, if her young child aged one and a half years is turned upside down from the second floor of the building. 16. With regard to mental cruelty, the appellant has levelled allegation of demand of dowry and harassment with regard to the demand of dowry. The said allegation is also not substantiated as it has come in evidence that Rs.40,000/- was given by father of the appellant for future studies of the appellant and admittedly, no amount or demand was fulfilled by the appellant's family. The appellant has also admitted in her evidence that the respondent and his family members came several times and took her back to the matrimonial home. If there was any demand, there is no reason as to why the respondent and his family members would pursue the appellant to return back to the matrimonial home. 17. The appellant has also made complaint with regard to the demand of dowry before the Registrar (Vigilance). She herself has admitted that she has given an affidavit that there was no demand of dowry on behalf of the respondent and his family members. Leveling allegations against a Judicial Officer and that too before the Registrar (Vigilance), High Court can bear an adverse effect on the future prospects of a Judicial Officer and his image will be shattered amongst his colleagues. The appellant in her statement has mentioned that she has levelled many allegations against the respondent, still she wants to reside with him. 18. As regards the allegation of dowry, Murli Manohar (NAW-2) - father of the appellant, in his cross-examination has admitted that from marriage till Pagphera Ceremony, no cash was given to the respondent and his family members. The appellant in her statement has mentioned that she has levelled many allegations against the respondent, still she wants to reside with him. 18. As regards the allegation of dowry, Murli Manohar (NAW-2) - father of the appellant, in his cross-examination has admitted that from marriage till Pagphera Ceremony, no cash was given to the respondent and his family members. This witness has also admitted that the demand of the respondent was not fulfilled and even then the respondent and his family would take the appellant to their house. He has admitted that Rs.40,000/- was given by father of the appellant for preparation and coaching of IAS Exams for the appellant. This witness has also admitted that 4-5 times, the respondent and his family members came to take back the appellant. Thus, it is established from the evidence that the appellant stayed at her parent's house at Jaipur and it is the respondent and his family members, who time and again took the appellant from Jaipur. If there would have been any demand of dowry, there is no reason why the respondent would take the appellant without fulfilling of the demand. 19. Damodar Prasad Swami (NAW-3) - neighbour of the appellant, has stated that mother of the respondent called him up and said that the girl has not gone to the respondent even on the first night. He has narrated the said fact to the parents of the appellant. He has also admitted that there were no talks with regard to demand of dowry and even at the time of Tilak Ceremony, there were no talks with regard to dowry. This witness has also stated that the appellant told him that she would die, but would not take any steps against the respondent. However, the fact that the appellant had given complaint to the Registrar (Vigilance) and has also levelled allegations in her written statement, falsifies the above fact. 20. We are of the considered view that not staying with the respondent, returning back to her father's house and staying with the husband for just 82 days in thirteen years of marriage, levelling allegations of demand of dowry and physical cruelty, filing complaint before Registrar (Vigilance) tantamounts to cruelty. 21. Learned Family Court has rightly appreciated the evidence and has rightly concluded that the appellant treated the respondent with cruelty. We do not find any error in the said finding. 21. Learned Family Court has rightly appreciated the evidence and has rightly concluded that the appellant treated the respondent with cruelty. We do not find any error in the said finding. The issue of cruelty thus stands decided in favour of the respondent. 22. As far as permanent alimony is concerned, it is an admitted position that respondent - Vikas Kumar Swami is working as a Judicial Magistrate and appellant has recently joined the legal profession. It is also admitted that appellant is looking after the young daughter aged about 11 years. 23. We are of the considered view that respondent should be directed to pay Rs.20,00,000/- to the appellant as permanent alimoney and Rs.20,00,000/- to the minor child. The respondent shall get an FD of Rs.20,00,000/- made in a Nationalized Bank in favour of the minor child. This FD shall be for a term of seven years. The appellant will be free to withdraw the interest part on FD for the maintenance and expenses of the minor child. 24. The appeal is thus partly allowed. The judgment and decree dated 15.04.2021 passed by the Family Court No.2, Jaipur is upheld, in addition to the same, prayer for permanent alimony is allowed. The respondent - husband shall deposit Rs.20,00,000/- in favour of the appellant - wife and Rs.20,00,000/-, FD be made in favour of the minor child. It must be mentioned in the FD that it shall not be encashed till the child attains majority. However, the appellant will be entitled to withdraw the interest on FD for the maintenance of the child. FD to be made within six weeks from the date of this order. The appellant will not be entitled to any other maintenance.