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2019 Supreme(All) 839
IN THE HIGH COURT OF ALLAHABAD
SUDHIR AGARWAL, RAJEEV MISRA, JJ.
Anil Kumar Jain - Appellant
Versus
Kalpana Jain - Respondent
First Appeal No. 167 of 2012
Decided on : 01-07-2019
Advocate Appeared:
Swapnil Kumar, Adv., S.K. Purwar, Adv.
Headnote:
Hindu Marriage Act, 1955 – Section 9 ,13 – Family Courts Act, 1984 – Section 19 – Protection of Women from Domestic Violence Act, 2005 – Appeal filed by plaintiff (husband) assailing judgment and decree passed by Principal Judge, Family Court, in Divorce Petition whereby suit of plaintiff-appellant for divorce has been dismissed – Held, As per Testimony of P.W.-2 is neither credible nor reliable witness – Firstly, her statement is tutored as is reflected from statement in chief itself. She herself states that oral testimony is being given by her as per advice of advocate – Secondly, deliberate omissions in her statement regarding date of various occurrences referred to her statement and also absence of material facts which substantiate her statement make her statement wholly doubtful – For the aforesaid reasons, the Court below disbelieved testimony of P.W.-2 We do not find any illegality in view taken by Trial Court to discard testimony of witnesses – Appeal dismissed. (Paras: 26, 28 & 31)
Facts of the case:
Appeal filed by plaintiff (husband) assailing judgment and decree passed by Principal Judge, Family Court, in Divorce Petition whereby suit of plaintiff-appellant for divorce has been dismissed – Later defendant-wife filed Restitution of Conjugal Rights. At initiated proceedings before Rajasthan State Commission for Women in which plaintiff-husband specifically stated that he shall not keep defendant-wife with him – Whether plaintiff-appellant was able to establish same before Court below and findings recorded by Court below are illegal, perverse and erroneous or not.
Findings of the court:
As per Testimony of P.W.-2 is neither credible nor reliable witness – Firstly, her statement is tutored as is reflected from statement in chief itself. She herself states that oral testimony is being given by her as per advice of advocate – Secondly, deliberate omissions in her statement regarding date of various occurrences referred to her statement and also absence of material facts which substantiate her statement make her statement wholly doubtful – For the aforesaid reasons, the Court below disbelieved testimony of P.W.-2 We do not find any illegality in view taken by Trial Court to discard testimony of P.W.-2.
Result: Appeal dismissed
JUDGMENT :
1. This appeal under Section 19 of the Family Courts Act, 1984 (hereinafter referred to as Act of 1984) has been filed by the plaintiff (husband) assailing the judgment and decree dated 29.02.2012 passed by Principal Judge, Family Court, Agra in Divorce Petition No. 457 of 2004 whereby the suit of the plaintiff-appellant for divorce filed under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as Act of 1955) has been dismissed.
2. We have heard Sri Swapnil Kumar, Advocate for plaintiff-appellant and Sri S. K. Purwar, learned counsel for the defendant-respondent.
3. From record it transpires that initially marriage of the appellant Anil Kumar Jain was solemnized with Smt. Nishi Jain on 12.04.1991. From aforesaid wedlock, two daughters namely Gazal Jain and Geetika Jain were born. Unfortunately, Smt. Nishi Jain, wife of the appellant, died on 12.04.1991. Accordingly, plaintiff-appellant performed his second marriage with the defendant Smt. Kalpana Jain on 14.11.1994. The aforesaid marriage was solemnized in accordance with Hindu Rites and Customs. It is the case of the appellant that after almost more than nine years of marriage, the defendant-wife deserted the appellant on 25.05.2004 and went to her paternal home, without disclosing the grounds for leaving the matrimonial home. The appellant thereafter filed Marriage Petition No.457 of 2004 (Sri Anil Kumar Jain Vs. Smt. Kalpana Jain) before the Family Court, Agra, for a decree of divorce on the ground of cruelty.
4. At this stage, the defendant-wife filed Misc. Case No. 155 of 2005 under Section 9 of the Hindu Marriage Act i.e regarding Restitution of Conjugal Rights. At this very juncture, the defendant-wife also initiated proceedings before the Rajasthan State Commission for Women in which the plaintiff-husband appeared. On 28.12.2005 the plaintiff-husband specifically stated before the Rajasthan State Commission for Women that he shall not keep the defendant-wife with him.
5. While the aforesaid Marriage Petition was pending, the defendant-wife filed Case No. 146 of 2007 (Smt. Kalpana Jain Vs. Anil Kumar Jain) under Sections 12, 18, 19, 20, 22 and 23 of the Protection of Women from Domestic Violence Act, 2005. However, the aforesaid case came to be dismissed vide order dated 08.03.2010.
6. Ultimately, Misc. Case No. 155 of 2005 (Kalyani Jain Vs. Anil Kumar Jain) for Restitution of Conjugal Rights was decreed by the Family Court, Kota Rajasthan vide judgment and decree dated 16.03.2011. Against the aforesaid judgment and decree, the plaintiff-husband has preferred Civil Misc. Appeal No. 2088 of 2006 (Anil Kumar Jain Vs. Kalpana Jain) before the Rajasthan High Court and the same is said to be pending.
7. The Court Below by means of the judgment and decree dated 29.02.2014 has dismissed the divorce Suit filed by the plaintiff-husband. Thus, feeling aggrieved by the aforesaid judgment and decree the plaintiff-husband has now approached this Court by means of the present Family Court Appeal.
8. The plaintiff-appellant filed Marriage Petition No. 457 of 2004 (Anil Kumar Jain Vs. Smt. Kalpana Jain) on the ground of cruelty. As per the allegations made in the divorce petition, it was alleged by the plaintiff-husband that though the plaintiff had performed all the marriage obligations towards his wife but the wife has failed to reciprocate the same. It was further alleged that after marriage the defendant-wife resided substantially at her parental home and spend very short time with the plaintiff at his home in Agra. The defendant-wife used to frequently leave her matrimonial home and went to her parental home at Kota, Rajasthan. It was also alleged that while the defendant resided with the plaintiff at Agra, her conduct towards the plaintiff was always full of harassment and cruelty, which amounted to commission of physical and mental cruelty upon the plaintiff-husband by the defendant-wife. It was also alleged that the defendant has refused to perform the dail
