Back
IN THE HIGH COURT OF ALLAHABAD
Sudhir Agarwal, Rajeev Misra, JJ.
Smt. Sarita – Appellant
Versus
Dr. Vikas Kanaujia – Respondent
First Appeal No. 31 of 2007
Decided On : 22-08-2019
Hindu Marriage Act 1955 – Section 13(1)& 9 – Family Courts Act, 1984 – Section 19 – Penal Code,1860 – Section 406 – Criminal Procedure Code, 1973 – Section 125 – Challenging judgment and decree passed by Principal Judge, Family Court, under Section 13 (i) of Act 1955 whereby Court decreed suit of plaintiff respondent and consequently, annulled marriage of parties from date of judgment – Held, Parties have not been living separately on account of their own free will record shows, it is plaintiff-respondent, who has refused to keep defendant-appellant with him. – Defendant-appellant herself not deserted plaintiff- respondent – Argument raised by learned counsel for plaintiff- respondent that there has been an irretrievable break down of marriage has no factual foundation apart this Court in Ashwani Kumar Kohli (supra) has held that divorce cannot be granted on aforesaid ground particularly when such plea is raised by one party alone – In addition decree of divorce was not prayed for on ground of irretrievable break down of marriage as parties are alleged to have been living separately – Appeal allowed. (Paras: 41 & 42)
Facts of the case:
Challenging judgment and decree passed by Principal Judge, Family Court, under Section 13 (i) of Act 1955 whereby Court decreed suit of plaintiff respondent and consequently, annulled marriage of parties from date of judgment – Whether on basis of allegations made in plaint, it can be said with certainty that plaintiff-respondent has duly pleaded and proved commission of physical/mental cruelty by defendant-appellant upon him and therefore, entitled to grant of a decree of divorce under section 13 (i) (a) of Act 1955 – Whether absence of any application filed under Order 41 Rule 27 C.P.C. any document filed by parties in appeal has to be ignored mandatorily as it is not part of evidence – Whether impugned judgment and decree passed by Court below has to be judged on the reasons recorded in judgment or independently of the same.
Findings of the court:
Parties have not been living separately on account of their own free will record shows, it is plaintiff-respondent, who has refused to keep defendant-appellant with him. – Defendant-appellant herself not deserted plaintiff- respondent – Argument raised by learned counsel for plaintiff- respondent that there has been an irretrievable break down of marriage has no factual foundation apart this Court in Ashwani Kumar Kohli (supra) has held that divorce cannot be granted on aforesaid ground particularly when such plea is raised by one party alone – In addition decree of divorce was not prayed for on ground of irretrievable break down of marriage as parties are alleged to have been living separately.
Result: Appeal allowed
JUDGMENT :
Rajeev Misra, J.
1. This is defendant's appeal under Section 19 of Family Courts Act, 1984 (hereinafter refereed to as ‘Act 1984’) challenging judgment and decree dated 20.12.2006, passed by Principal Judge, Family Court, Meerut in Matrimonial Case No. 123 of 2003, Dr. Vikas Kannaujia vs. Dr. Sarita, under Section 13 (i) of Hindu Marriage Act 1955 (hereinafter referred to as ‘Act 1955’), whereby Court below has decreed suit of plaintiff respondent and consequently, annulled marriage of parties from the date of judgment i.e. 20.12.2006.
2. We have heard Mr. Sujeet Kumar, learned counsel for defendant-appellant, Mr. Ravi Kiran Jain, learned Senior Counsel assisted by Mr. A.P. Paul, learned counsel appearing for plaintiff-respondent.
3. According to plaint allegations, marriage of plaintiff respondent, was solemnized with defendant-appellant on 20.2.2002 at Delhi in accordance with Hindu Rites and Customs. After marriage defendant-appellant came to her marital home i.e. house of plaintiff- respondent situate at Tope Khana Bazar, Meerut Cant, District Meerut. It is the case of plaintiff-respondent that consummation of marriage took place on the first night of defendant-appellant at her marital home. It is alleged by plaintiff-respondent that subsequently, relationship between the parties became strained as according to plaintiff- respondent, defendant-appellant refused to perform her marital obligations to the satisfaction of plaintiff-respondent. It was also alleged that defendant-appellant, misbehaved with mother of plaintiff-respondent, when she was requested to touch feet of elder relatives and obtain their blessings. On 22nd February, 2002, younger brother of defendant-appellant and her maternal aunt (mami) are alleged to have visited house of plaintiff-respondent for taking defendant-appellant to her parental home. According to plaintiff-respondent, behaviour of younger brother of defendant-appellant as well as her maternal aunt was neither friendly nor cordial and they started to allege complaint on behalf of defendant-appellant. Ultimately, they all left marital home of defendant-appellant and went to parental home of defendant-appellant at Delhi along with defendant-appellant. Plaintiff-respondent, brought defendant-respondent back to her marital home on 4.3.2002. In the evening of 4.3.2002, they both went to Udhampur (Jammu and Kashmir) where plaintiff was working as an eye surgeon at Kishan Lal Sharma Memorial, Rotary Eye Hospital Udhampur, However, according to plaintiff-respondent, behaviour of defendant- appellant with plaintiff respondent at Udampur was neither cheerful nor congenial. So much so, that according to plaintiff-respondent, though they were in cohabitation, yet there was no establishment of conjugal relations between the parties in their seven days of stay on account of cold and indifferent attitude of defendant-respondent. Accordingly, parties returned in the morning of 11.3.2002. The thirteenth day function (Terahi Ceremony) of elder brother of father of plaintiff-respondent was scheduled on 17.3.2002 as he expired on 10.3.2002.However, according to plaintiff-respondent, defendant appellant left her marital home in the evening of 17.3.2002, which conduct is unbecoming of a good daughter-in-law. Since then defendant-respondent is residing at her parental home. Repeated attempts are alleged to have been made by plaintiff-respondent to bring back defendant-appellant to her marital home but all went in vain. Plaintiff-respondent also filed a suit under section 9 of Act 1955, which was registered as Suit No. 598 of 2002, Dr. Vikas Kannaujia vs. Dr. Sarita for restitution of conjugal rights. The defendant-appellant appeared in aforesaid suit and filed an application under section 24 of Act 1955 claiming interim maintenance and litigation expenses. According to plaintiff-respondent, inspite of initiation of above mentioned proceedings, defendant-appellant refused to reside along with plaintiff- respond
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
