Dipika Shukla vs Ashish Shukla - 2021 Supreme(MP) 401

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(MP) 401

IN THE HIGH COURT OF MADHYA PRADESH
Atul Sreedharan and B.K.Shrivastava,JJ.
Dipika Shukla (Smt.) v. Ashish Shukla
First Appeal No.403 of 2016(Jabalpur): against the judgment dated 3.5.2016 passed by the II Additional Principal Judge, Family Court, Jabalpur in Civil Suit No.259A/2015;
Decided on 29.6.2021

Advocates:
R.B.Dubey for appellant;
Shreyas Pandit for respondent.

Headnote:
(1) Hindu Marriage Act, 1955 -- Ss. 13 and 9 -- non-compliance of decree u/s. 9 -- wife/appellant filed first appeal -- due to non-compliance of peremptory order, appeal dismissed -- MCC for restoration pending -- filing of appeal in knowledge of trial Court -- first appeal is continuation of suit -- trial Court not correct in granting decree on ground of non-compliance of order u/s. 9, which was under challenge. AIR 1964 SC 993 referred to. [Paras 8 & 9]
(2) Hindu Marriage Act, 1955 -- S. 13 -- cruelty -- institution of criminal case -- per sewill not constitute cruelty unless held by Court of competent jurisdiction that said complaint/allegation was false and vexatious -- matter still pending before Court -- cannot be said that false report was lodged. AIR 2015 Pat. 119 relied on. [Paras 10 & 11]
(3) Hindu Marriage Act, 1955 -- S. 13 -- cruelty -- changing name of son in school without permission of husband -- both parties living separately in different towns -- not possible to obtain consent of husband -- only surname changed -- father's name mentioned in certificate -- cannot be said that wife committed cruelty against husband. [Para 14]
(4) Hindu Marriage Act, 1955 -- S. 13 -- cruelty -- restricting husband from meeting son -- wife and husband living separately since 1.6.2008 --- wife alone looking after child -- because of safety of child, instructed school to not permit anybody to meet child -- legal remedy available to husband -- ground of cruelty cannot be accepted. [Paras 16 to 18]
(5) Hindu Marriage Act, 1955 -- S. 13 -- cruelty -- child delivery expenses borne by husband -- wife residing with her parents at time of delivery -- may be presumed that expenses will be borne by wife or her parents -- husband claims that he paid all expenses -- liability to produce receipt on him -- adverse inference against him should be drawn because he did not produce any receipt of payment. [Para 19]
(6) Hindu Marriage Act, 1955 -- Ss. 9 and 13 -- cruelty -- whether filing application u/s. 9 amounts to condoning earlier act of cruelty -- if husband or wife files application u/s. 9, it may be presumed that all acts of alleged cruelty have been condoned by party filing said application. AIR 2006 (NOC) 1542(HP) relied on. (2010) 4 SCC 476 referred to. [Para 23]
(7) Evidence Act, 1872 -- S. 60 -- Hindu Marriage Act, 1955 -- S. 13 -- hearsay evidence -- wife having difficulty or torture in matrimonial home -- definitely she will tell her father, mother and brother -- these are natural witnesses -- their evidence cannot be discarded only on ground that they are hearsay witnesses -- father, mother and brother may give evidence only on basis of time-to-time information given by daughter/sister -- evidence should be examined very carefully. [Para 26]
(8) Hindu Marriage Act, 1955 -- S. 13 -- desertion -- not to be tested by merely ascertaining which party left matrimonial home first -- one spouse forced by conduct of other to leave -- desertion could be by such conduct of other spouse. (2010) 4 SCC 476 followed. MAT.APP. (F.C.) No. 82 of 2014 decided on 6.1.2017 (Del.) relied on. [Paras 33 & 36]
¼1½ fganw fookg vf/kfu;e] 1955 & /kkjk 13 rFkk 9 & /kkjk 9 ds v/khu fMØh dk vuuqikyu & iRuh@vihykfFkZuh us ÁFke vihy Qkby dh & vfuok;Z vkns'k ds vuuqikyu ds dkj.k vihy [kkfjt & ÁR;korZu ds fy, Ádh.kZ flfoy okn yafcr & U;k;ky; dks vihy dh ÁLrqfr dh tkudkjh & ÁFke vihy okn dh fujarjrk esa gksrh gS & /kkjk 9 ds v/khu vkns'k ds vuqikyu ds vk/kkj ij] tks fd vk{ksfir Fkk] fopkj.k U;k;ky; }kjk fMØh Ánku dh tkuk lgh ughaA , vkb vkj 1964 ,l lh 993 fufnZ"VA ¼iSjk 30½
¼2½ fganw fookg vf/kfu;e] 1955 & /kkjk 13 Øwjrk & nkafMd ekeys dk laLFkkiu vius&vki esa Øwjrk xfBr ugha djsxk tc rd fd l{ke vfèkdkfjrk okys U;k;ky; }kjk vfHkfu/kkZfjr ugha fd;k x;k gks fd mDr f'kdk;r@vfHkdFku feF;k vkSj rqPN Fkk & ekeyk vHkh Hkh U;k;ky; ds le{k yafcr & ;g ugha dgk tk ldrk fd feF;k fjiksVZ nkf[ky dh xbZ FkhA , vkb vkj 2015 iVuk 119 voyafcrA ¼iSjk 10 ,oa 11½
¼3½ fganw fookg vf/kfu;e] 1955 & /kkjk 13 & Øwjrk & ifr dh vuqefr ds fcuk fo|ky; esa iq= dk uke ifjofrZr djuk & nksuksa i{kdkj fHkUu&fHkUu uxjksa esa i`Fkd~&i`Fkd~ fuokljr & ifr dh lgefr vfHkÁkIr djuk laHko ugha & dsoy dqyuke ifjofrZr & Áek.ki= esa firk dk uke mfYyf[kr & ;g ugha dgk tk ldrk fd iRuh us ifr ds fo#) dksbZ Øwjrk dhA ¼iSjk 14½
¼4½ fganw fookg vf/kfu;e] 1955 & /kkjk 13 & Øwjrk & ifr ds iq= ls feyus ij fucZ/ku & iRuh vkSj ifr 1-6-2008 ls i`Fkd~ fuokljr & iRuh vdsys larkus dh ns[kHkky dj jgh & larku dh lqj{kk ds dkj.k fo|ky; dks vuqns'k fn;k fd fdlh dks mlls feyus ugha fn;k tk, & ifr dks fof/kd mipkj miyCèk & Øwjrk dk vk/kkj Lohdkj ugha fd;k tk ldrkA ¼iSjk 16 ls 18½
¼5½ fganw fookg vf/kfu;e] 1955 & /kkjk 13 & Øwjrk & Álo O;; dk ifr }kjk ogu & Álo ds le; iRuh vius ekrk&firk ds lkFk fuokljr & mièkkj.kk dh tk ldrh gS fd O;; iRuh ;k mlds ekrk&firk }kjk ogu fd;k tk,xk & ifr dk nkok fd mlus leLr O;;ksa dk lank; fd;k & ikorh is'k djus dk nkf;Ro ml ij & mlds fo#) Áfrdwy fu"d"kZ fudkyk tkuk pkfg, D;ksafd mlus fdlh lank; dh ikorh is'k ugha dhA ¼iSjk 19½
¼6½ fganw fookg vf/kfu;e] 1955 & /kkjk 9 rFkk 13 & Øwjrk & /kkjk 9 ds v/khu & vkosnu ÁLrqr djuk Øwjrk ds iwoZrj ÑR; dh ekQh dh dksfV esa vkrk gS ;k ugha & ;fn ifr ;k iRuh /kkjk 9 ds v/khu vkosnu ÁLrqr djrk@djrh gS rks mi/kkj.kk dh tk ldrh gS fd mDr vkosnu ÁLrqr djus okys i{kdkj }kjk vfHkdfFkr Øwjrk ds leLr ÑR; ekQ dj fn, x, gSaA , vkb vkj 2006 ¼,u vks lh½ 1542 ¼fgŒÁŒ½ voyafcrA ¼2010½ 4 ,l lh lh 476 fufnZ"VA ¼iSjk 23½
¼7½ lk{; vf/kfu;e] 1872 & /kkjk 60 & fganw fookg vf/kfu;e] 1955 & /kkjk 13 & vuqJqr lk{; & iRuh dks nkEiR;x`g esa dfBukbZ ;k ;kruk & fuf'pr :i ls og vius firk] ekrk vkSj HkkbZ dks ckr,xh & ;g LokHkkfod lk{kh gSa & mudk lk{; dsoy bl vk/kkj ij R;Dr ugha fd;k tk ldrk fd og vuqJqr lk{kh gSa & firk] ekrk vkSj HkkbZ le;≤ ij iq=h@cgu }kjk nh xbZ tkudkjh ds vk/kkj ij gh lk{; ns ldrs gSa & lk{; vfr lw{erk ls ij[kk tkuk pkfg,A ¼iSjk 26½
¼8½ fganw fookg vf/kfu;e] 1955 & /kkjk 13 & vfHkR;tu & dsoy ;g vfHkfuf'pr dj ij[kk ugha tkuk gksrk fd dkSuls i{kdkj us nkEiR;x`g igys NksM+k & ifr ;k iRuh nwljs ds vkpj.k ds dkj.k NksM+dj tkus dks foo'k & vfHkR;tu vU; ifr ;k iRuh ds ,sls vkpj.k ls gks ldrk gSA ¼2010½ 4 ,l lh lh 476 vuqlfjrA eSVªhŒ,iŒ ¼,QŒlhŒ½ 82 lu~ 2014 fu.khZr fnukad 6-1-2017 ¼fnYyh½ voyafcrA ¼iSjk 33 ,oa 36½

JUDGMENT

Shrivastava, J. -- 1. This appeal has been preferred by Smt. Dipika Shukla, who was the non-applicant before the trial Court, under section 19 of the Family Court against the judgment dated 3.5.2016 passed by Second Additional Principal Judge of the Family Court, Jabalpur in Civil Suit No.259-A/2015. By the impugned order, the lower Court granted the divorce under sections 13(1)(i-a) (i-b) and section 13(1) (1A) of Hindu Marriage Act.

2. Husband Ashish Shukla/respondent herein filed the petition before the Family Court under sections 13(1)(i-a)(i-b) and section 13(1) (1A) of Hindu Marriage Act on 18.6.2013. Wife filed her written statement on 4.4.2004. It is an admitted fact that the appellant and the respondent are husband and wife. Their marriage was solemnized on 6.2.2006. Out of their wedlock, one son named Vinayak was born on 28.3.2007. It is also an admitted fact that the appellant/wife left the house of respondent/husband on 1.6.2008 with son named Vinayak and she is residing at Jabalpur while the respondent is residing at Bhopal.

3. It appears from the record that the husband/respondent filed an application under section 9 of the Hindu Marriage Act on 15.11.2010 before the Family Court, which was registered as Case No.128-A/2011. As per Para 6 of the judgment, the wife was not appeared on 27.3.2012 when the case was fixed for evidence of applicant/husband, therefore, the Court closed the case and passed the ex parte judgment and decree against the wife on 11.5.2012. The wife/appellant filed Appeal No.605/2012 against the aforesaid judgment dated 11.5.2012 directing restitution of conjugal right.

4. It is submitted by the learned counsel for the appellant that the order/judgment passed by the learned Family Court on 3.5.2016 is improper, erroneous and otherwise bad in law. The judgment is against the facts, circumstances and probability of the case. The trial Court did not appreciate the evidence in proper way. The trial Court erred in believing the oral and documentary evidence produced by the husband and disbelieving the evidence of wife. The wife was subject to cruelty. The husband tortured the wife, and was compelled to leave the house of husband, therefore, for sufficient reasons, the wife was living separately from her husband. The trial Court committed the mistake by granting the decree upon the ground that the wife did not comply with the order passed under section 9 of the Hindu Marriage Act, because the wife preferred the appeal against the aforesaid judgment and she was not in the position to live with the husband. Therefore, it is prayed that the judgment and decree be set aside and the suit for divorce be dismissed.

5. The respondent/husband opposed all contentions of the wife/appellant. It is submitted that the trial Court did not commit any mistake. The proper and authentic evidences were produced by the husband. The appellant herself did not comply the order of the Court, therefore, the trial Court was right to pass the decree of divorce upon the ground that the wife did not comply the order passed under section 9 of the Hindu Marriage Act. The wife was deliberately not appeared in the aforesaid case and the case was decided ex parte against her.

6. It is submitted by the counsel for the appellant that the matter was not referred for reconciliation/mediation. The appellant was agree to join the company of respondent. In this regard, it appears from the record that on 12.12.2003, the matter was referred to the councillor in the light of section 89 of CPC read with Order 10 rule 1 of CPC and section 9 of the Family Courts Act. On the same date, the councillor Smt. Manju Singh submitted her report that the matter has been compromised between the parties. The record of this Court shows that on 14.3.2018 this appeal was referred for mediation. Mediator Shri P.R.Bhave submitted a report on 9.4.2018 in which it is stated that :-

“After discussion with the non-applicant for certain period, the non-appl