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2019 Supreme(All) 1038

IN THE HIGH COURT OF ALLAHABAD
SHASHI KANT GUPTA, PRADEEP KUMAR SRIVASTAVA, JJ.
Sanjeev Gupta - Appellant
Versus
Ritu Gupta - Respondent
First Appeal No. 296 of 2018
Decided On : 24-05-2019

Advocates Appeared:
For the Appellant : Sanjeev Gupta.
For the Respondent: Nitin Gupta.

Headnote:

Hindu Marriage Act, 1955 – Section 13(1) – Dissolution of marriage – Cruelty – Appeal against judgment and decree passed by Additional District Judge – Divorce under challenged – Held, Unnatural sex, sodomy, oral sex and sex against the order of the nature, against the wishes of a women or wife or anybody is not only a criminal offence but also a marital wrong and amounts to cruelty which is a good ground for dissolution of marriage – Any such thing which brings the wife to indignity and causes physical and mental agony and pain is cruelty – Forcible sex, unnatural or natural, is an illegal intrusion in the privacy of the wife and amounts to cruelty against her – Court find that the approach adopted by the learned court below and the conclusion arrived at in the impugned judgment is sound and based on legal principle and correct marshaling of the fact and evidence. We find no perversity and illegality in it – Hence, appeal is liable to be dismissed and the impugned judgment is liable to be affirmed. (Para 29 and 30)

Facts of the case:

This appeal has been preferred against the judgment and decree dated 29.03.2018, passed by Additional District Judge, Fast Track Court-II, Ghaziabad, in Case No. 2274 of 2013 (Ritu Gupta v. Sanjeev Gupta), under Section 13(1) of the Hindu Marriage Act by which the petition for divorce filed by the respondent-petitioner has been decreed against the appellant-opposite party.

Findings of the case:

Unnatural sex, sodomy, oral sex and sex against the order of the nature, against the wishes of a women or wife or anybody is not only a criminal offence but also a marital wrong and amounts to cruelty which is a good ground for dissolution of marriage – Any such thing which brings the wife to indignity and causes physical and mental agony and pain is cruelty – Forcible sex, unnatural or natural, is an illegal intrusion in the privacy of the wife and amounts to cruelty against her – Court find that the approach adopted by the learned court below and the conclusion arrived at in the impugned judgment is sound and based on legal principle and correct marshaling of the fact and evidence. We find no perversity and illegality in it.

Result: Appeal is liable to be dismissed and the impugned judgment is liable to be affirmed

JUDGMENT :

Pradeep Kumar Srivastava, J.

Heard the appellant Sanjeev Gupta in person, Sri Nitin Gupta, learned counsel for the respondent and perused the record.

2. This appeal has been preferred against the judgment and decree dated 29.03.2018, passed by Additional District Judge, Fast Track Court-II, Ghaziabad, in Case No. 2274 of 2013 (Ritu Gupta v. Sanjeev Gupta), under Section 13(1) of the Hindu Marriage Act by which the petition for divorce filed by the respondent-petitioner has been decreed against the appellant-opposite party.

3. Brief facts of the case are that the respondent-petitioner filed a petition for divorce seeking divorce under Section 13(1) of the Hindu Marriage Act for dissolution of marriage dated 01.07.2012 between the parties. The respondent-petitioner has stated that both the parties married according to Hindu rituals and tradition on 01.07.2012 in Arya Samaj Temple, Aryanagar, Ghaziabad. A reception ceremony was also organized in Hotel Country-Inn, Sahibabad, Ghaziabad. The marriage was got registered on 02.07.2012 before the Sub-Registrar, Ghaziabad. Enough dowry was given in the marriage and enough expenses were incurred by the father of the respondent-petitioner. Prior to marriage with the opposite party, she was married with one Omkar Chawala from whom, two children were born. The elder one is son Ekansh and the younger one is daughter Khushi. On 14.06.2011, in a road accident, her husband Omkar Chawala died and thereafter on 01.07.2012, the marriage between the parties took place. Prior to marriage, appellant-opposite party was married with one Priyambada but the marriage was dissolved by a decree of divorce. The respondent-petitioner, prior to marriage with appellant-opposite party had told that she has two children and if he accepts them, only then she will enter into marriage. In the beginning, he did not agree to it and she denied to marry but thereafter, he took her into confidence that he will accepts both of her children. He got both the children admitted in The British School at Chandigarh and she believed that he has accepted her both children. After the end of the reception of the marriage, both stayed in a room of the same hotel and in another room, the father of appellant-opposite party and his friend Sonaria stayed. His father took her gifts and ornaments in the pretence of keeping them safe. The appellant-opposite party on the very first night of marriage behaved in a very cruel way and forced her for unnatural sex and made physical relationship with her in a very vulgar and inhuman way which was worse than animal. She started bleeding and felt enough pain. When she tried to alarm his father, he forcefully dragged her in the room. On 02.07.2012, after attending the marriage of her sister, both went to their room and again he attempted for unnatural sex and on being prevented, he committed maar-peet with her and said that she is characterless. The appellant-opposite party enjoyed making unnatural sex and on being refused, he got very angry and used to commit violence against her. He also complained that her father did not give any vehicle in dowry. When she told him that according to his status, her father spent money in her marriage and it was not possible for him to give a vehicle, again maar-peet was committed by him. On 03.07.2012, she told about this happening to her family members, they came to her house and in the afternoon, she went to Ghaziabad to her parental house. His father also sided him. Due to his aforesaid behaviour, she refused to go to him. Thereupon, he came with his friends namely Sonaria and Manoj to her house and insisted for compromise. But she said that she will go with him only if he will not further commit unnatural sex with her nor he will commit cruelty with her. On 17.07.2012, the appellant-opposite party compromised before her family members accordingly and gave an affidavit which he brought with him after getting the same prepared in Faridabad, and therefore

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