Delhi District Court
Smt. Usha vs Sh. Sanjay Kumar on 25 September, 2010
IN THE COURT OF SH. ANAND SWAROOP AGGARWAL,
SENIOR CIVIL JUDGE CUM RC (EAST) : KKD COURTS :
DELHI
Suit No. 233/08
Unique Case Identification No: 02402C0262342008
Smt. Usha
W/o Sh. Sanjay Kumar
D/o Sh. KiranPal
R/o H. No. 99, Gali No 5,
Krishna Nagar, Meerut Road
Distt. Ghaziabad (U.P.) .............Plaintiff
Versus
Sh. Sanjay Kumar
S/o Sh. Mani Ram
R/o D849, Gali No.11, Harsh Vihar,
Delhi 110093 ...........Defendant
Date of Institution : 08/04/2008
Reserved for order : 15/09/2010
Date of Decision : 25/9/2010
Final Order : Suit Dismissed
SUIT FOR CANCELLATION OF DECREE OF DIVORCE
Anand Swaroop Aggarwal
SCJCumRC:East, Delhi
Suit No. 233/08 Page 1/28
J U D G M E N T
1. Plaintiff has filed this suit with a prayer for decree to cancel the decree of divorce dated 24/3/2007 passed in HMA petition no. 1767/2006 and 1768/2006 passed by Sh. Deepak Jagotra, Ld. ADJ, Karkardooma Courts, Delhi.
2. In brief the case of the plaintiff against the defendant is that marriage of the plaintiff was solemnized with defendant on 2/5/2006 according to Hindu rites and customs at H.No. 99, Gali No. 5, Krishna Nagar, Meerut Road, Distt. Ghaziabad (U.P.) in presence of their friends, parents, relatives and other respectable members of the society. As alleged, the marriage was duly consummated but no issue was born out of their legal wedlock. As per plaintiff, defendant and his family members consisting of Sanjay Kumar (Husband), Mani Ram (Fatherinlaw), Kishan Devi (Motherinlaw), Rajiv (Dewar), Raju (Jeth), Babita (Jethani), Kusum (Nand), Deva (Nandoi), Kiran Pal (Maternal brotherinlaw) were not happy with the dowry articles given by the parents of the plaintiff and they demanded jewelery and piece of land in Delhi and tortured and harassed the plaintiff for fulfillment of their demand. As alleged, plaintiff told the defendant Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 2/28 and his family members that she belong to a poor family and whatever funds her parents had, they have spent in her marriage and now they are not in a position to give a single penny to them to fulfill their demands. Plaintiff has further alleged that getting such type of response from the plaintiff, defendant and his family members got annoyed and they started to beat, torture, abuse, harass, humiliate and threaten to her life in different manner on petty issues. Sometimes the plaintiff was kept hungry and sometimes she was confined in a room and was not allowed to go outside the room and to meet anyone. As alleged plaintiff was threatened on many times to her life by showing pistol by her husband and Mr. Kiran Pal just to get their demands fulfilled.
As per plaintiff, finding no positive response from the side of the plaintiff to fulfill aforesaid demands, the defendant and his family members hatched a conspiracy to obtain divorce from the plaintiff and to remarry the defendant for getting handsome dowry in the marriage. As per plaintiff, defendant and his family members created a great terror in the mind of the plaintiff and also threatened her that if she does not act upon their direction they would murder her brothers.
Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 3/28 As alleged, with a view of achieve their unlawful, unwarranted and illegal motives, the defendant got a petition for divorce under section 13B of Hindu Marriage Act prepared on false, wrong, incorrect and fabricated submission from his counsel and took the plaintiff with him at Karkardooma Courts, Delhi where he again threatened the plaintiff to act upon his dictations and further threatened to murder her brothers. As per plaintiff, the statutory period of one year had not passed, the defendant also moved an application under section 14 of Hindu Marriage Act before the court concerned for waiving of the statutory period of one year. As per plaintiff, owing the fatal threats given by the defendant, the plaintiff acted upon his dictates and gave her statement before the court of law as per directions of the defendant, while she did not know that what consequences she will have to face for her statement. In this manner, as alleged by the plaintiff defendant fraudulently and mischievously obtained the decree of divorce dated 24/3/2007 in H.M.A. Petition No. 1767/2006 and 1768/2006 passed by Sh. Deepak Jagotra, Ld. ADJ, Karkardooma courts, Delhi.
As alleged by the plaintiff even after obtaining the decree of Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 4/28 divorce, the defendant took the plaintiff with him at her matrimonial house and they resided there as husband and wife till July, 2007. Thereafter, the defendant left the plaintiff at her parental home for a period of three months because she was not feeling well. As alleged, when defendant did not return to take the plaintiff back, some respectable persons of the society approached the defendant to know the intention of the defendant but it was matter of great shock, when the defendant revealed that he had divorced the plaintiff and had remarried with another lady. As per plaintiff, parents and relatives of the plaintiff asked the plaintiff the whole story, but due to great terror created by the respondent and his family members, she did not reveal anything to them but when her parents and relatives took her in faith and assured for protection, she revealed the entire story, as how defendant obtained the decree of divorce. Thus plaintiff has filed the present suit.
3. Defendant has contested the suit of the plaintiff by filing contesting Written Statement. In the Written Statement defendant has taken certain Preliminary Objections such as that suit of the plaintiff is false, frivolous, unnecessary, defamatory, vexatious and without Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 5/28 cause of action; that plaintiff has not come to this Hon'ble Court with clean hands and she has suppressed the true facts and misrepresented the court; that plaintiff is guilty of framing false facts in this court and it is the plaintiff who has broken the trust and who has caused mental torture and agony; that the present case is abuse to the process of law and it is the attempt of the plaintiff to extract money by hook and by crook from the defendant; that the attempt of the plaintiff by filing the present suit against the defendant comes in purview of the contempt of court proceedings liable to be prosecuted in accordance with the law who made judicial system as mockery deliberately intentionally and knowingly as well as in calculated manner such type of the practice cannot be encouraged and hence the suit is liable to be thrown out; that suit of the plaintiff is barred by several laws and even otherwise is liable to be dismissed for want of jurisdiction and that the suit of the plaintiff is not properly valued for the purpose of court fee and jurisdiction.
On merits, defendant has not disputed the factum of marriage between plaintiff and the defendant but as per defendant marriage was solemnized on 01/05/2006. The allegation by the plaintiff regarding Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 6/28 defendant fraudulently obtaining the decree of divorce has been denied in the Written Statement and as per the defendant a mutual decree of divorce obtained by dissolution of marriage of the plaintiff and defendant is legal and valid vide order dated 24/3/2007 and the same has been obtained without any influence, force, fraud from any quarter at any point of time and also there was no collusion in passing the said valid legal decree of divorce by settling all disputes, claims, maintenance as well as differences/cruelty etc. between each other. Also, as alleged, defendant has solemnized his marriage with his wife namely Smt. Sonu and also she, being pregnant at an advanced stage, is likely to give birth to a child. Lastly defendant has prayed that suit be dismissed with cost.
4. Plaintiff has filed replication to the Written Statement of defendant wherein the averments made by defendant constituting his defence has been denied by plaintiff and also plaintiff has reaffirmed the averments made in the plaint.
5. Vide detailed order dated 13.12.08, Ld. predecessor of this court dismissed an application moved by defendant U/o 7 Rule 11 R/w Section 151 CPC.
Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 7/28
6. On 19.02.09, Ld. predecessor of this court framed the following issues:
1. Whether the consent of the plaintiff for divorce which resulted into passing of the decree of divorce in HMA petition vide order dated 24.03.07 was obtained by fraud ? OPP
2. Whether the plaintiff is entitled to the relief of declaration as prayed for? OPP
3. Relief?
7. To substantiate her case on Judicial file, plaintiff has herself appeared in the witness box as PW1 Ms. Usha. She filed her examinationinchief by way of affidavit Ex.PW1/A. Also plaintiff has examined her brother Mr. Rajender Kumar as PW2 Rajinder Kumar who testified his examinationinchief vide affidavit Ex.PW2/A. Plaintiff's evidence was closed on 24.02.2010 by Sh. D. P. S. Tomar, Advocate for plaintiff by making a separate statement to that effect. On the other hand, defendant has appeared in the witness box as DW1 Sanjay Kumar who filed his affidavit Ex.DW1/A as his examinationinchief. Defendant's evidence was closed on 05.08.10 by Sh. R. S. Yadav, Advocate by making a separate statement to that effect.
Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 8/28
8. I have heard Sh. Wahaz Ahmed, Advocate for plaintiff. Written Submissions have also been filed on behalf of the plaintiff. Also I have heard Sh. R. S. Yadav and Sh. Ved Pal Singh, Advocates for defendant. Reliance has been placed by Ld. counsel for plaintiff on the following case laws: (i) A.V. Papayya Sastry & Ors. Vs. Government of A.P. & Ors. AIR 2007 SC 1546 and (ii) Smt. Dularia Devi Vs. Janardhan Singh & Others. AIR 1990 SC 1173.
Ld. counsel for the plaintiff has submitted that there is no specific denial of averments made in the plaint and this amounts to admission. As per Ld. counsel for plaintiff, no counsel was engaged by plaintiff in matrimonial proceedings and her consent to these proceedings was not free consent. Ld. counsel for plaintiff has submitted that Ex.PW1/3 does not bear the signature of Ld. counsel for plaintiff at point X and on affidavit Ex.PW1/5 there is overwriting in certificate given by Oath Commissioner and Mr. D.K. Malhotra has been overwritten on R. K. Yadav. Further Ld. counsel has submitted that on Ex.PW1/9, plaintiff has not been identified by her counsel. Further Ld. counsel for plaintiff has submitted that in Ex.PW1/3, Ex.PW1/4 or Written Statement/affidavit of defendant there is no Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 9/28 reference to payment of alimony by defendant to plaintiff, but in his cross examination, defendant has admitted that lumpsum alimony of Rs.80,000/ was settled and paid to plaintiff in cash at Ghaziabad in the presence of both the sides. As submitted, defendant has engaged a second marriage after getting handsome dowry.
On the other hand, Ld. counsel for the defendant has submitted that plaintiff attended the court on 57 dates in the course of divorce proceedings. As per Ld. counsel for the defendant after divorce of plaintiff from the defendant, plaintiff has filed a petition U/s 125 Cr. P.C. Further plaintiff got registered after her divorce from defendant an FIR no. 798/07 dated 21.09.07 U/s 498A/323/504/506 IPC and 3/4 D Act wherein police filed a final report which stands accepted by the Court at Ghaziabad. As per counsel for defendant, in the said FIR no. 798/07 it was not stated by plaintiff that divorce has been obtained by defendant fraudulently. Also Ld. counsel submits that one more criminal case filed by plaintiff against defendant, exact details of which are not within the knowledge of defendant, stands dismissed by court. Further, Ld. counsel has submitted that if plaintiff has the grievances against decree dated 24.3.07 she should challenge the Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 10/28 decree before Higher Court and present suit is not maintainable.
9. Vide order dated 22.09.10 this court on its own, summoned the original files of HMA no. 1767/06 & 1768/06 from the record room for better appreciation of circumstances in which decree dated 24.03.07 was passed.
10. I have gone through the material available on judicial file very carefully. Also I have given a considered thought to the rival submissions made by Ld. counsel for parties keeping in view the facts and circumstances of this case as they arise on the basis of material available on judicial file. Also I have gone through the case laws relied upon by Ld. counsel for plaintiff with utmost regards.
11. My issue wise findings are as under: Issue No.1:
Whether the consent of the plaintiff for divorce which resulted into passing of the decree of divorce in HMA petition vide order dated 24.3.07 was obtained by fraud? OPP.
(a) Admittedly plaintiff had herself participated in the divorce proceedings conducted in HMA petition No.1767/06 and 1768/06 . Admittedly plaintiff has signed Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 11/28 at all relevant places on the divorce petition, affidavits and other applications moved jointly by the plaintiff and defendant in the course of abovesaid divorce proceedings.
Admittedly signatures of the plaintiff also exist on the joint statement of the plaintiff and defendant recorded on oath on 24.3.07, twice, once in the HMA petition No.1767/07 and again in HMA petition No.1768/06. Now the issue that requires determination is whether the plaintiff signed the divorce proceedings under threat/fraud played upon her by the defendant and his family members.
(b) Now, it is pertinent to note that, as per plaintiff, she was treated badly by defendant and his family members. As alleged, even plaintiff was subjected to torture etc. on account of plaintiff not fulfilling the dowry demands of the defendant and his family members. The averments made by plaintiff in this regard are vague averments and does not call for any credence. Plaintiff has not enumerated even a single incident of torture to her by giving all the details like date, time, place, persons Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 12/28 involved, specific nature of injuries suffered by her by reason of she having been subjected to torture/beating and also specific role played by defendant or his family members involved in a particular incident. As per plaintiff, defendant and his family members created a great terror in the mind of plaintiff and also threatened her that if she does not act upon their direction they would murder her brothers. Even this version of the plaintiff is not at all convincing. There is nothing on record to suggest that defendant and his family members are renowned culprits/ "badmash" so that mere utterance of threatening words by defendant or his family members was sufficient to create great terror in the mind of the plaintiff compelling the plaintiff to act as per the wishes of the defendant. Also there is nothing on record to suggest that plaintiff or her brothers were so weak that they could not protect themselves from the defendant and his family members had the defendant and his family members would have attempted to murder brothers of the plaintiff.
Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 13/28
(c) The submission of the ld. counsel for plaintiff that in the course of divorce proceedings, plaintiff was not represented through counsel is without any substance. It is alright that Ex.PW1/3 does not bear the signature of counsel for plaintiff at point X and on affidavit Ex.PW1/05 , there is overwriting in the certificate given by Oath Commissioner. But, to my mind, all this is to no consequence. Judicial files of HMA 1767/06 and 1768/06 reveals that in those proceedings, plaintiff was represented through Sh. D. K. Malhotra, Advocate, seat no. D11 KKD Courts, Delhi enrollment No. D 1912/06 as vakalatnamas of Sh. D. K. Malhotra are there in both the judicial files. Further perusal of order sheets reveal that parties to the abovesaid HMA petitions appeared before Ld. court of ADJ along with their counsels on 5.12.06,10.1.07, 6.3.07, 16.3.07 and 24.3.07. Sh. D. K. Malhotra, Advocate had identified plaintiff before Oath Commissioner at the time of attestation of affidavit entered at Sr.No.19/07 in the register maintained by Oath Commissioner. The said Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 14/28 affidavit is available in the judicial file of HMA No.1967/06. Similarly, plaintiff has been identified by Sh. D. K. Malhotra , Advocate on Ex.PW1/13. The said Sh. D. K. Malhotra, Advocate also identified the plaintiff in the court of Sh. Deepak Jagotra, ld. ADJ, KKD Courts, Delhi after joint statement, on oath, of plaintiff and defendant was recorded in HMA No.1768/06. Also, plaintiff has been identified by Sh. D. K. Malhotra, Advocate on affidavit entered at Sr.No.6/07 in the register of Oath Commissioner which is available on judicial file of HMA No.1767/06. Plaintiff has also been identified by Sh. D. K. Malhotra, Advocate on a number of affidavits available in the judicial files of HMA No.1768/07. On applications moved u/s 14 HMA Act in both the cases (i.e. HMA No.1767/06 & 1768/06) signatures of both the petitioners therein & their respective counsels are appearing. Thus, it is concluded that plaintiff was duly represented through counsel Sh. D. K. Malhotra, Advocate in the divorce proceedings in HMA No.1767/06 & 1768/06 in the court Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 15/28 of Sh. Deepak Jagotra, ld. ADJ, KKD Courts, Delhi.
(d) The stand of the plaintiff is that owing to fatal threats given by the defendant, the plaintiff acted upon his dictates and gave her statement before the court of law as per directions of the defendant, while she did not know that what consequences she will have to face for her statement. This version of the plaintiff that she did not know that what consequences she/ plaintiff will have to face for her statement, is not at all credit worthy in the facts and circumstances of this case. It is the case of the plaintiff that finding no positive response from the side of plaintiff to fulfill dowry demands, the defendant and his family members hatched a conspiracy to obtain divorce from the plaintiff to remarry the defendant for getting handsome dowry. Thus, plaintiff knew that defendant wants to take divorce from her. The averments made by plaintiff herself also clearly and unambiguously suggest that plaintiff knew that petition got prepared by the defendant was a divorce petition. Also, joint statements Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 16/28 Ex.PW1/9 and Ex.PW1/16 made by both plaintiff and defendant before Sh. Deepak Jagotra, Ld. ADJ, KKD Courts, Delhi without any doubt whatsoever suggest that plaintiff knew very well the nature of proceedings before the said Ld. court and what consequences will be ensuing out of those proceedings. Also, as per Ex.PW1/10 efforts for reconciliation were made but failed. This also without any doubt suggest that plaintiff must have been made to understand about the subject matter of the proceedings and as to what consequences will be resulting out the said proceedings of divorce by mutual. On joint statement Ex.PW1/16 plaintiff has been identified by her counsel Mr. D. K. Malhotra, Advocate. Obviously, plaintiff must have signed the said statement after understanding very well the contents of her joint statement Ex.PW1/16. Even the Oath Commissioner who administered oath to plaintiff on her numerous affidavits must have explained the plaintiff the contents of the said affidavits. Further, there is nothing on record to suggest that plaintiff has taken any Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 17/28 action against either against the Oath Commissioner concerned or her counsel Sh. D. K. Malhotra, Advocate if she was not told by them about the contents of the affidavits in the language understandable by plaintiff or about the consequences which will ensue reason of the proceedings of divorce by mutual consent before the court of Sh. Deepak Jagotra, Ld. ADJ, KKD Courts , Delhi. Thus, I find no substance in the stand of the plaintiff that she did not know about the consequences of her statement made by the court of Sh. Deepak Jagotra, Ld. ADJ, KKD Courts, Delhi.
(e) As per plaintiff, defendant and his family members created great terror in the mind of plaintiff & also threatened the plaintiff that if she does not act upon their directions/dictations , they would murder her brothers. Thus, plaintiff had acted upon the dictates of the defendant & gave her statement before the court of law.
Consequently, decree of divorce was passed on 24.3.07. As alleged , even after 24.3.07 plaintiff and defendant Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 18/28 resided at matrimonial house as husband and wife till July,2007. Thereafter, as alleged, defendant left the plaintiff at her parental home for a period of three months. As per version of plaintiff, even up till July,2007 she had not disclosed about the divorce proceedings to her family members. Going by the version of the plaintiff , she disclosed to her parents and relatives about the story of defendant taking divorce from plaintiff after plaintiff having been assured about her protection when otherwise the respectable persons of the society had come to know about divorce of plaintiff from the defendant at the time when they had approached the defendant to know the intention of the defendant who had not returned to take the plaintiff back to her matrimonial home. Thus, as per plaintiff, plaintiff was in a mental state of great terror from November,2006 till October,2007(i.e. July,2007 + 3 months). This stand of the plaintiff also does not appeal convincing at all to the judicial mind. As already observed, plaintiff very well knew the nature of Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 19/28 proceedings conducted in the court of Sh. Deepak Jagotra, Ld. ADJ, KKD Courts, Delhi & she participated in these proceedings knowing very well the consequences of those proceedings. It is pertinent to note that in the month of July,2007 defendant left the plaintiff at plaintiff's parental home for three months because plaintiff was not feeling well. It is not the case that plaintiff was left at her parental house against the wishes of plaintiff. This suggest that there must have been cordial relations between the plaintiff and defendant until July,2007 & thus, defendant was caring for the plaintiff by leaving the plaintiff at her parental house as plaintiff was not feeling well. To my mind, in this factual background, there was no reason for the plaintiff for not disclosing the fact of divorce having taking place in a court of law to her parents & other relatives. It does not appeal convincing to the judicial mind that even while residing at parental home for about three months after July,2007, plaintiff was in such a mental state of terror that she disclosed about the divorce Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 20/28 proceedings to her parents and relatives only after having been assured about her protection. Plaintiff has not brought on record any material to show the extent of GUNDAGARDI to which the defendant or his family members had ever gone or could have gone. No criminal record of defendant or his family members has been brought on record by the plaintiff. Also , plaintiff has not examined any of the respectable persons of the society who had approached the defendant when he did take the plaintiff back to her matrimonial house. Further, no evidence, except the bald assertions, has been lead by plaintiff to prove that plaintiff in fact resided at her matrimonial home till July,2007 even after her divorce on 24.3.07. In this regard, plaintiff could have examined any of her neighbours residing nearby her matrimonial home. In my considered opinion, in the facts and circumstances of this case, it is quite improbable , keeping in view the natural human behaviour in the ordinary way of life , that throughout from November,2006 (when the divorce Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 21/28 petition was prepared) till October,2007(i.e.July,2007 + three months of stay at parental home) plaintiff was in a state of great mental terror and that during the divorce proceedings , she acted as per the dictates of the defendant only.
In my considered opinion, in view of the detailed discussion, it can be concluded that even if the averments made by the plaintiff in the plaint are taken to be true as per their face value, they does not appeal worth credit to the judicial conscience/mind.
(f) As I have already observed the averments made by the plaintiff in her plaint regarding harassment caused to her by defendant/ his parents for her not complying with the directions of defendant and his family members to bring more dowry are vague. Similarly, even in the evidence lead by the plaintiff , no specific details of the harassment/ torture caused to the plaintiff by the defendant and his family members have been given by the plaintiff. The affidavit of plaintiff filed as Ex.PW1/A is nothing but Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 22/28 repetition of the averments made in the prayer. Further, regarding the torture/harassment of plaintiff on account of plaintiff not complying the dowry demands of the defendant and his family members, plaintiff in her cross examination has deposed that she got registered a FIR No.506/07 u/s 498 / 323/504/506 IPC r/w 3&4 of Dowry Act in PS Sihani Gate Gaziabad, UP against the defendant and his family members. The plaintiff in cross examination admitted that court of Ghaziabad had rejected the said FIR being false. Meaning thereby even the court at Gaziabad did not believed the story of torture/harassment caused to the plaintiff by the defendant for plaintiff not complying with the dowry demands of defendant and his family members.
Further, plaintiff in her cross examination has deposed that she never appeared in the court in the HMA proceedings the decree of which has been challenged by her in the present suit. Above depositions made by the plaintiff in her cross examination are absolutely contradictory to the stand otherwise taken by the plaintiff in her plaint. The stand taken by the plaintiff in her plaint is that she had actually participated in the HMA proceedings which had resulted Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 23/28 in passing of a decree of divorce but she had participated in those proceedings under threat tendered by the defendant. Also as per the averments made in the plaint, she admittedly had appeared in the court during proceedings under HMA, decree of which has been challenged by plaintiff in the present suit. Further, PW2 Sh. Rajender Kumar has deposed that plaintiff had made a statement before the court under threat given by the defendant. Even as per PW2, plaintiff had infact appeared before the court dealing with the HMA petition. PW2 Sh.Rajender Kumar in his cross examination has deposed that '' It is incorrect that the counsel of my sister identify her thumb impression after the statement was recorded to identify her. '' Above deposition made by PW2 in his cross examination is contrary to judicial record of HMA petition nos. 1767/06 & 1768/06 in as much as on Ex.PW1/16, Sh. D. K. Malhotra Advocate for plaintiff in the abovesaid HMA petition has identified the thumb impression of the plaintiff. Further, it is pertinent to note that Sh.Deepak Jagotra ld.ADJ, Delhi in his judgment dated 24.3.07 has specifically observed as under'' 5......... I am satisfied that the consent of the petitioners for divorce is voluntary and not induced by any force, fraud or undue Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 24/28 influence from any corner and that there is no collusion between them in presenting this petition.'' In my opinion on the basis of the material on judicial files of HMA No.1767/06 & 1768/06, Sh.Deepak Jagotra ld.ADJ, KKD Courts, Delhi was well justified in giving the above said observations. Further, perusal of the case files of HMA No.1767/06& 1768/06 reveals that parties to the said divorce proceedings had appeared before the court of Ld. ADJ,KKD Courts, Delhi along with their respective counsels on as many as five occasions. It appears improbable that on all the five occasions plaintiff appeared before the court under threat from the defendant. Had there been any threat to the plaintiff, in my opinion, plaintiff would have disclosed about the same either to the Oath Commissioner or to her counsel or to the court dealing with the above said divorce proceedings.
PW2 Sh. Rajender Kumar in his examination in chief has deposed that occasionally he visited the house of plaintiff but she was never allowed to come before him and talk to him by her in laws and her husband. Further, PW2 deposed that husband and in laws of plaintiff also did not allow him to meet or talk to the plaintiff. Ld. Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 25/28 counsel for the plaintiff also wish to rely upon the following depositions made by Dw1 in his cross examination''I went 2/4 times in the house of plaintiff with her after marriage. I used to visit after gap of 1520 days there .'' In my opinion, coexistence of both the above situations is not possible. Further, if the deposition made by PW2 are true, in all likelihood, the parents of plaintiff must have taken the issue very seriously and they must have attempted to know what is wrong either with plaintiff or defendant but nothing like this happened. This is also against normal nature and human conduct.
In my opinion case law relied upon by Ld. counsel for plaintiff are not of help to the plaintiff in the facts and circumstances of the case in as much as plaintiff in time of signing the relevant documents/statements concessing the divorce proceedings very well knew the contents of those documents/statement and consequences thereof as well. In view of the above detailed discussion, it can be said that plaintiff has failed to prove issue no.1 in her favour. Issue no. 1 is accordingly decided against the plaintiff.
12. Issue No.2:
Whether the plaintiff is entitled to the relief of declaration as Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 26/28 prayed for? OPP In view of my findings on issue no.1, plaintiff is not entitled to decree of declaration as prayed for. Further, relief of declaration is a discretionary relief. Although plaintiff has even otherwise failed to prove her case, the relief of declaration may not have been granted to the plaintiff in as much as defendant has married again after his divorce from the plaintiff. The effect of passing a decree of declaration as prayed by the plaintiff would have caused the effect of making the second marriage of defendant with his second wife void.
13. Issue No.3: Relief?
Issue no. 1 & 2 have been decided against the plaintiff. Vide issue no. 1, it has been decided that plaintiff has failed to prove that consent of the plaintiff for divorce which resulted into passing of the decree of divorce in HMA petition vide order dated 24.03.07 was obtained by fraud. For this reason issue no. 2 has also been decided against plaintiff holding that plaintiff is not entitled to decree for declaration as prayed for. On the basis of my findings on issue no. 1 & 2, suit of the plaintiff merits dismissal and the same is here by dismissed. Parties to bear their own cast. Decree sheet be Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 27/28 prepared.
File be consigned to record room.
Pronounced in the open court on 25.9.2010.
(Anand Swaroop Aggarwal) SCJCumRC, East Delhi KKD Courts, Delhi Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 233/08 Page 28/28