Gujarat High Court
Ann Saurabh Dutt vs Lieutenant Colonel Saurabh Iqbal ... on 12 August, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4298 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/FIRST APPEAL NO. 4298 of 2022
With
R/FIRST APPEAL NO. 423 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ANN SAURABH DUTT
Versus
LIEUTENANT COLONEL SAURABH IQBAL BAHADUR DUTT
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Appearance:
MR MAKBUL I MANSURI(2694) for the Appellant(s) No. 1
MR SHAILESH M AHIR(9999) for the Appellant(s) No. 1
FOUZAN N SONIWALA(8442) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 12/08/2024
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NEUTRAL CITATION
C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024
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CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1. First Appeal 4298 of 2022 has been filed by the Appellant-wife. She has filed this appeal challenging the judgement and decree dated 30.09.2022 passed in Family Suit No.2361 of 2017 passed by the Family Court No.2, Ahmedabad. By the judgement and decree so passed, the Family Court has allowed the suit filed under Section 27(1)(b) of the Special Marriage Act, 1954.
2. Facts in brief are as under:
2.1 The respondent-husband is in the Indian army while the appellant is a qualified Dentist.
2.2 The parties got married on 03.09.2009 as per Hindu rituals and subsequently the appellant being a Christian marriage rituals were also Page 2 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined performed at the Church on 04.09.2009.
2.3 It was the case of the husband that after their marriage when they went to Pune, he discovered that the Appellant-wife had an abnormal behavior and personality. She was hostile, selfish and livid in her behavior.
Whenever the parties came to Ahmedabad from Pune, the wife would always stay with her parents rather than staying at her marital home.
She would threaten the husband to stay with her lest she would obtain divorce.
2.4 The case of the husband before the Family Court in his divorce petition was that the wife without informing him was keen on starting her Dental Clinic and cards for opening of the clinic were printed without his knowledge and therefore she was fiercely independent. During Page 3 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined the husband's posting at Kargil, the wife conceived and a daughter was born on 12.4.2012. While they returned from their Kargil posting, on 11.01.2013 the wife directly left from the Railway Station for her parental home and thereafter wrote directly to the Military authorities for maintenance, return of her belongings from the official accommodation and therefore according to husband it was a case of desertion and cruelty.
2.5 The Family Court after assessment of evidence on record and hearing the arguments came to the conclusion that the respondent-
husband had made out a case of desertion and cruelty by the wife and therefore by the judgement and decree ordered dissolution of the marriage. Hence the wife is in appeal.
3. Mr.Makbul Mansuri, learned Counsel for the Page 4 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined appellant would submit that the appellant is and was always willing to see that the marriage subsists and in fact from the stand taken before the Family Court, it was clear that the appellant was always in favour of reunion and therefore the Family Court committed a grievous error in passing a decree of divorce on the ground of cruelty and desertion.
3.1 Mr.Mansuri would take us through the orders of the Armed Forces Tribunal and various letters exhibited by the Family Court to submit that the Appellant's wife's approach was always conciliatory and for reunion and the Family Court committed an error in holding that the appellant was a lady who wanted to be independent and therefore the fact of her deserting the husband was proved.
3.2 Mr.Mansuri would submit that in fact the Page 5 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined behavior of the husband would suggest that the husband was not at all interested in a family life and would never take care of the wife. He would submit that when the child named Dhairya was born, he would not foster her or be a loving father.
3.3 In fact it was the appellant's sister who was also a qualified Dentist and wanted to open a clinic and in the invitation card, the name was suggested and printed of the wife and that did not go down well with the parents of her husband and the whole unfortunate incident of harassment from the in-laws compelled her to go to her parental home.
3.4 By taking us through the judgement and the records wherein the documents in the form of letters written to each other are produced, the Page 6 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined only submission of the learned Counsel for the appellant was that the wife-appellant herein had no reason to desert her husband and in fact the entire record would indicate that she was always willing and in fact even today willing to reunite with the husband and save the marriage.
4. Mr Fouzan Soniwala, learned Counsel appearing for the husband would submit that the parties are bickering and as many as 43 cases are filed where they are fighting against each other. The parents of the husband also were constrained to file proceedings for visitation rights for their grand-daughter which was not being complied with hence they were constrained to move contempt petition before this Court. The wife has been fiercely independent and there is no way that the marriage could survive as a result of the wife having deserted the husband and being Page 7 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined independent and assertive had led to a situation where the marriage had irretrievably broken down and therefore the Family Court committed no error in directing that the marriage be dissolved. The wife was not in the manner or mood to be conciliatory and therefore the judgement and decree of the Family Court be upheld.
5. Having heard the learned counsels for the respective parties and having perused the records, we find that the parties have led extensive evidences in the form of letters and e-
mails and the proceedings which the appellant wife had initiated before the army authorities where she claimed maintenance from the salary of the husband. After appreciating these letters and the evidence on record, the Family Court has observed that it transpires that from 11.01.2013 Page 8 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined the appellant-wife and the respondent husband are residing separately as the wife along with her minor daughter went to her house despite the fact that the husband's parents were also at the Railway Station to receive the couple and their grand-daughter. Therefore the Court held that the parties were living separately since 2013.
5.1 As far as the episode of opening of a Dental Clinic at Ahmedabad is concerned, the Family Court observed that the fact came to the knowledge of the husband when his mother through a teacher colleague was informed that cards were printed in the name of the wife as an invitee for inauguration of a dental clinic. Even when she took admission of the daughter in the school at Ahmedabad in the records, the mother showed her name as a single parent. The Family Court therefore came to the conclusion that Page 9 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined there was enough evidence to indicate that the wife had deserted the husband and a case of divorce was therefore made out.
5.2 Appreciating the letter at Exh. 84 written by the Commanding Officer to the wife showing that the husband was willing to stay with the wife and therefore the Regiment had decided to give them a suitable accommodation and also the effort to save their marriage to move to a peaceful location the response of the appellant wife was that her belongings be returned. Letter at Exh.92 was also an indication that the appellant wife was in no manner ready to reconcile and return to the matrimonial fold and therefore the Family Court observed that the wife was not willing to join the husband. Ultimately the letters indicated that though all efforts were made by the husband to retrieve the marriage, the Page 10 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined appellant wife never wanted to come back and therefore a decree of divorce was passed.
5.3 Considering the depositions of the parties, it has come on record that the husband had deposed that the wife was fiercely independent.
The husband was made to undertake household chores whereas the wife did not cooperate.
Whenever the parties came to Ahmedabad from their posting place at Pune, the wife would never stay at the matrimonial home but leave for her parents' home. The husband was always coerced to adopt Christianity. She would threaten him by saying that if he doesn't embrace Christianity, she, like her sister Sophia, would obtain divorce.
Even at a bachelor posting when the wife insisted to come to the place of posting and did so at the defiance of the army regulations the husband was compelled to send her back as it Page 11 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined jeopardized his army career.
5.4 The wife conceived and was therefore sent to her Ahmedabad home as Kargil was a tough station where she would stay with her parents and when the husband went to meet her she would pick up quarrels and insist that she would want to set up her independent dental clinic and later after the birth of the child when she did so by getting cards for the inauguration printed without informing him or his parents, the things got out of hand.
5.5 It has come on record that the husband had filed a family suit for restitution of conjugal rights which he withdrew as in the correspondence that ensued at the hands of the army authorities the husband did go and stay with the wife but had to return due to the Page 12 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined irreconcilable stand of the wife.
5.6 A letter Exh.83 on record indicates that the husband had to write to police authorities informing them that the wife had developed irreconcilable differences. That letter indicates that instances of insisting of opening a dental clinic, not taking treatment when pregnant at the army hospital but insisting on an admission at the Rajasthan hospital etc were straining the matrimonial relations. It will be apt to reproduce certain extracts of the letter at Exh. 83.
"4. Since I was posted at Pune at the time of marriage we left for Pune on 06th Sep 2009. We remained there till Jun 2011. During our stay there Ann tried to pick up a job. As she could not get a job she suggested that she must set up her own dental clinic. I asked her as to how much finance would be required. She told me that was not a problem since she had Rs 4 lac with her at Ahmedabad which she had saved during her practice before marriage. Later I learnt that it was a lie. When I asked her at the end of the financial year for filing IT return she told me that it was a gift from her father Page 13 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined and they need not bother for filing IT return. During this period whenever we used to come to Ahmedabad we used to keep shuffling between both the houses.
5. I must mention that I respected her feelings and brought her to Ahmedabad to attend xmas. She was with her parents and it was on 23 Dec 2009 my real Chacha died. It was natural that there was no question of my attending any festivities. At this her mother remarked that "if people keep dying in their family that doesn't mean we will not celebrate our festivals or words to that effect. Not only was she not a part of that morning incidence but went to celebrate Christmas and also invited me expecting me to attend, which I did keeping her feelings in mind.
6. In Jun 2011 I was posted to High Altitude field area (Kargil) and luckily we were allowed to get our families here. We went to my place of duty and during this period she conceived and she had to return back due to health problems. She was advised rest and accordingly she was extended all the necessary facilities at my home. She was given full liberty to do whatever she liked in terms of free to sloop, get up, eat, rest etc., and do whatsoever she wished at her will. She was being looked after by my mother who is a working lady and my sister.
7. Having provided her with the best at my home, she started insisting on shifting to her parents place. As per the tradition of Page 14 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined our family and belief I was against this and wanted her to continue staying at my home. She continuously kept pestering and stopped interacting with anyone and even stopped talking to my mother. thereby vitiating the atmosphere of like home. She would invariably talk to me on phone and insist on shifting without even bothering about my condition or health.
8. During this period her father opened a dental clinic for his elder daughter. The elder daughter, Miss Sopl a Michael is also a dentist and separated from her husband just after staying with them for about 15 days or so. They distributed the cards for inauguration with the name of Ann written on the card, and neither I nor my family were in the know of it. In fact my mother learnt of it from the school and checked up with me if I knew of the event. When I asked Ann the same she was casual and did not consider that there was anything wrong in it. I was quite disturbed as it is by her constant nagging about shifting to her parents place and combined with this invitation issue I asked her to leave and be with her parents. She immediately packed her stuff called her father and left the house. She continued staying there throughout the pregnancy.
9. The expected date of delivery was in May 2012. Though I insisted that the delivery should take pace Military Hospital she just did not listen and was finally admit her in Rajasthan Hospital. My daughter was Page 15 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined born on 12th Apr 2012 and I had to leave for MHOW to join a course (16 Apr 2012-23 Jun 2012) on 13 Apr 2012. It is worthwhile to mention that when my parents and sister used to go to the hospital to meet my daughter she used to make sure that they don't get to be with her and would take her to other side on the pretext of feeding the child. If my family continued to wait she would say that it would take couple of hours to feed the baby, we all understand how long it takes to feed a child who is Just a couple of days old.
10. After finishing the course at MHOW I was to go to Pune for another course (27 Jun 2012-24 Jul 2012). I came to Ahmedabad for two days before the course and during this period also she did not come to my home.
During this period she even did not allow me to meet my daughter and insisted that I should come to her house if I want to see my daughter. I left for the course for Pune without meeting my daughter. On reaching Pune I got a message through my friend that Ann was going to come to Pune with Dhairya. I informed my parents about the same and they in turn contacted Fr Valerian. Fr Valerian advised her against going to Pune. His reason was that since had not allowed me to meet my daughter when I was at Ahmedabad so I would be annoyed on this account. One day prior to her coming Ann sent me an SMS that she would be reaching Railway station at a particular time. I immediately gave a ring to her and told her not to come to Pune and Page 16 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined create a scene. As expected she showed a total disregard to my request as well as the advice of Fr. Valerian and reached Pune by train along with my young daughter. She was picked up by my friend from the railway station. I did not meet her and she returned back the same day.
11. In view of the above developments and as I observed that the things were not going on smoothly or improving and I was not seeing any chance of any further improvement, we again approached Fr Valerian Dias for advice. He advised that a meeting should be held between the families and accordingly we held a meeting at Shahibaug cantonment. During this meeting I conveyed that I had lost faith in Ann for the following reasons.
a. Ann telling me initially that Rs. 4 lac required for Clinic was her own and later saying that it was gift from her father.
b. The next issue was that she was involved in printing of invitation of card for clinic by virtue of staying there but did not consider it appropriate to inform me as well as my family. This resulted in humiliation of my family.
c. Ann changed the name of my daughter from Dhairya to Friya without even bothering to inform me.
d. She got the child blessed by Fr. Valerian and lied to me that the child had not been blessed as I was not interested Page 17 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined in the child or else I would have arranged for the blessing of the child.
12. At the end of this long meeting there was no compromise and she told that she would not come to my house ever and also added that since there was no trust there was no point in continuing and I felt that her parents were backing her all the time.
13. In the Interest of my daughter and to provide my daughter what she deserved, I once again stooped down, gave in and agreed to take Ann and Dhairya with me to my place of duty. For about four months she stayed with me at my place of duty. I was detailed for a short course at Pune and she insisted that she would like to accompany After the course we stayed at Ahmedabad, she with her parents and I with mine. During this period I used to get Dhairya for about 2 to 3 hours to my home.
14. While returning back to my duty station my daughter fell seriously sick in Leh and she had to be immediately evacuated to MH Chandigarh. She remained in hospital and thereafter at my grandfather's house for some days before starting for Ahmedabad.
15. The train reaches Ahmadabad at 03:00 am on 10th Jan 2013 and my mother and sister were at the platform to receive us. Ann refused to give the child in my mother's lap saying that the doctor had advised to protect her against infection. She further mentioned that she would not let my Page 18 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined daughter come to my home. It was a final nail in the coffin, I left for my home with my mother and sister who had come to receive me and Ann went along with her parents who too were waiting there.
16. It was on 15 Jan 2013 that she sent an SMS asking for maintenance. I spoke to her on telephone and informed that the maintenance is given when the couple is divorced. Incidentally she had earlier also asked for maintenance through a registered letter (Letter dated 06th Aug 2012 copy attached). Next she sent an SMS asking me to be at a particular hospital where she was taking Dhairya my daughter tor checkup.
17. I reached there and found that once again she had deliberately hurt my sentiments by putting a scapular round Dhairya's neck and not a locket of Hindu deity. Not only that, she was initially trying to hide it from me that simply implies that she had done it deliberately. I had already informed that I had no objection in her placing something like that but if she is placing something of her religion she should also place some thing from my religion which she totally disregarded. This further infuriated me and I returned home.
18. Seeing no improvement in the situation me and my parents thought of approaching Fr Valerian once again. We met him on 25th Jan 2013. He expressed his helplessness and advised us to see Bishop Thomas. Accordingly an appointment was sought and we met Bishop Thomas on 25th Jan 2013 Page 19 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined and explained the whole case to him. He informed that he would like to talk to Michael family too. After meeting Michael family he sent a massage that he would like a meeting between me and Ann in his presence which was accordingly fixed for 28th Jan 2013.
19. It was a very long meeting which lasted almost 2 hours. The gist of the meeting was that Ann was of the opinion that whatsoever she was saying or doing or had done there was nothing wrong in that. The Bishop intervened and pointed out that in marriage one has to make adjustment as well as accommodate. He further mentioned that when the couple is from different religious and cultural backgrounds there is an additional responsibility to accommodate and make marriage a success. The Bishop in no certain terms agreed that I had bent a lot to save the marriage in the end nothing worked, I conveyed to father that with this approach I was too scared to live with her under one roof, for she may do anything untoward and put the allegation on me. She may even put any false allegation against my parents. It was for these reasons that I would like to proceed with divorce proceedings. She just did not accept any point and told me that she would not give me divorce.
20. I request you to kindly provide me and my family protection from any allegation that she or her family may Ivy on us or any complaint they may file against us for Page 20 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined domestic violence or any such allegations to harass/defame us. It is further requested that in the event of Ann or her family lodging any complaint against, me or my family, these facts may kindly be considered into consideration prior to any decision being taken."
5.7 Exh.89 letter also indicates that the wife had moved out and therefore the husband wrote that he was moving to a peaceful location and shall be soon together. In response to this the appellant wife wrote as under:
"saurabh this is regards that i want my belongings from the sf quarters whose keys are with you and your parents so i am requesting you to kindly send me the keys duplicate of the waters so that i can take my stuffs if you fail to do so than i shall be left with no choice but to take legal action against your and your family from mrs ann dutt"
(sic) 5.8 Letters exchanged which are on record indicate that while the husband insisted on a reconciliation, the wife-appellant herein insisted for return of her belongings from the army Page 21 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined authorities. The stand of the appellant wife is apparent from the letter at Exh 94 which reads as under:
"Dear Ann,
1. I am writing in response to your number of it's and e-mails sent over last ten odd days.
2. I am amazed that whereas I am worried about the future of our married life and the future of our dear Dhairya you are just harping on materialistic household items. As you know I have been posted to Roorkee and have joined here. I have been allotted a married accommodation. The cantonment is very vast and beautiful with open roads and a lot of greenery. This cantonment has all the facilities that any parent would look forward to, I therefore once again request you to think rationally and only then take a final decision. In case you still want your things i can assure you i have no intention whatsoever to hold any of your things back. In that case, that is if you decide to opt for things, then when i sort out the things kept in SF i would let you know. I would further like to mention that the toys etc. Which were lying at my previous station have not fetched up, as and when received i would let you know. Please let me know that you still want your things so that i can arrange handing over of the things.Page 22 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024
NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined Awaiting for your response. Thanks."
5.9 A letter at Exh.108 dated 23.2.2109 would indicate that the wife had written to the army authorities for maintenance whereas the husband's stand was for reconciliation.
5.10 Exh.108 reads as under:
"GRANT OF MAINTENANCE ALLOWANCE Please refer to the following petition/letters :-
(a) Your petition dated 24 February 2013
(b) Letter Number 65993/SD/01/05 dated 17 May 2013 addressed to you written by your husband.
(c) Letter Number 65993/SD/01/06 dated 10 June 2013 addressed to you written by your husband.
2. It is intimated that a Show Cause Notice was issued to your husband Maj Saurabh Dutt vide headquarters Northern Command letter Number 22018/5402/DV-4 dated 05 June 2013.
3. It is also intimated that your husband is willing to stay with you and your daughter and your husband has written letters to you for joining him at his duty station vide letters quoted at Para 1(b) and (c) above, however, you have failed to reply Page 23 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined any of those communication.
4. Your husband has also stated that you have opened a dental clinic at Pune which functioned for six / seven months and you earned Rs three to four lakhs during the short period. He has also brought out that you and your sister Ms Sophia have opened a "Mars Dental Aesthetic Clinic" at 213, The Grand Monarch, Near Seema Hall, Anandnagar Road, Ahmedabad, on 06 Mar 11, for its inauguration invitation cards were also given out to a large number of people. As a result you are earning very well from the said clinic. In addition, your husband has been contributing Rs.5,000/- per month in account of your daughter in which you are the nominee.
5. With a view to analyses the case holistically and to arrive at a sound decision, it is requested that your clarification on above points be forwarded at the earliest."
5.11 It will be also in the fitness of things to quote an extract of a recommendation during maintenance proceedings before the army authorities which recorded the uncompromising stand of the appellant-wife.
5.12 The OA order reproduces the same which reads as under:
Page 24 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined "As this stage, we would like to quote the order where by the recommendation of the Commanding Officer was rejected by Brigade Station Commander.
RECOMMENDATIONS OF THE STATION COMMANDER ROORKEE ON GRANT OF MAINTENANCE OF MRS ANN S DUTT, WIFE OF 1C-65993X MAJOR SAURABH DUTT OF 118 ENGR, REGT. PRESENTLY UNDERGOING COURSE AT IIT, ROORKEE, (ATT WITH NO.2 TRG BN BEG & CENTE
1. I am not in agreement with the recommendations GIVEN BY Col N Saha, CO 118 Eng Reg.
2. The lady and officer were personally spoken to by me to work out any reconciliation. However, the lady is absolutely unwilling for any dialogue on the subject and wants the maintenance allowance to be given to her.
Station: Roorkee (Dig Vijay Setia) Dated: Jan 2014 Brig Station Commander RECOMMENDATION OF THE GENERAL OFFICER COMMANDING, UTTAR BHARAT AREA ON THE REPLY TO SHOW CAUSE NOTICE FOR GRANT OF MAINTENANCE ALLOWANCE TO MRS ANN S DUTT WIFE OF IC-65993X MAJOR SAURABH DUTT OF 118 ENGR, REGT. PRESENTLY UNDERGOING COURSE AT IIT, ROORKEE,
1. I have perused the reply to Show Cause Page 25 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined Notice submitted by IC-65993X Major Saurabh dutt and the recommendation of Station Commander, Roorkee.
2. Mrs Ann S Dutt is legally weeded wife of IC-65993X Major Saurabh Dutt it is evident from available records that the couple has a strained relationship and efforts for reconciliation have not been successful.
3. Apropos, I concur with the recommendations of the Station Commander, Roorkee and recommend that maintenance allowance be granted to Mrs Ann S Dutt under the provisions of army Order 2/2001.
Station: Bareilly (R N Nair)
Date: 15 Feb 2014 Lt Gen
GOC"
5.13 It is in this background that the Family Court gave its findings as under:
"19. Further looking Exh.-84, it has transpires chat Col. and Commanding Officer Mr. Niloy Saha has written a letter to respondent -Mrs. Ann Dutt in reference to complaint filed by her. It has written in the letter that "the matter has been discussed with her husband Major Saurabh Dutt and he is willing to stay with you and look after you and your child in an exemplary manner, and remove all ill feelings from your heart".
It further transpires that in connection to Page 26 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined the said the Regiment has decided to give a quarter to Mr. Saurabh Dutt and the respondent immediately on reaching peace location shortly and also asked consent of the present respondent to stay together at new location. Further looking to the Exh.- 87, a letter written by the present petitioner addressing to the respondent, in the said letter, the petitioner has informed the respondent that his Unit is about to move at peace location and this movement of his Unit will infuse fresh oxygen in to their married life. It also transpires from that letter that the Commanding Officer has talked to the present petitioner and also asked him to stay together with wife and daughter and he had given his positive reply. It also transpires that the respondent has not given any response to the letter Exh.-84 written by the Commanding Officer on dated 06/03/2013. Further, looking to the Exh.-89 letter written by the petitioner, addressing to the respondent on dated 10/06/2013, again the petitioner has informed the respondent that he is going to settle at peace station where he got an accommodation and they shall start their marriage life together. Further, looking to Exh.-90 letter, written by the respondent addressing to the petitioner, in the said letter dated 10/07/2013, the respondent has demanded her belongings which are remained n staff quarter at Ahmedabad. She has informed the petitioner that if he fails to do so, and not given back her belongings, she will take legal action against the petitioner and his family members. So, Page 27 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined looking to the letter of petitioner and respondent it appears that petitioner is trying to start a new life and respondent sticked to her belongings. Further, looking to Exh-91, it transpires that the present petitioner has informed his Commanding Officer by letter dated 11/07/2013 wherein he has informed his Commanding Officer regarding the mail received from the respondent asking her belongings from the staff quarter. It further transpires that the petitioner has made re- quest to his Commanding Officer to convey the respondent that he is ready to resolve any dispute occurred between the parties. Further looking to the Exh.-92) it transpires that prior to join peace location, i.e. Roorkee, the petitioner came to Ahmedabad and in- formed the respondent and also asked for her suitable time for meeting. Further, looking to the Exh.-93, it transpires that the respondent has written a letter and sent through mail dated 16/07/2013 addressing to the petitioner. Through the said letter, it has not transpired that the respondent has given her willingness to join the petitioner at peace location as she has written that the mail and letter written by the petitioner are only show off, those are not written from heart or with any feelings of the petitioner. Further looking to Exh.-94, it again transpires that the respondent has again asked to return her belongings which remained in staff quarter. In the said letter, she has stated that if the petitioner does not return back those articles, she will come to the house of the parents of the petitioner Page 28 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined and if the parents or any other family members intervene, she will tell the neighbors and entire Dhanjay Tower about the family of the petitioner. So, considering the said letter Exh-94, it transpires that the respondent is continuously demanding her belongings and it also transpires that if not given the articles back to the respondent, she will inform that thing to the neighbors and other members of the Dhanjay Tower where the petitioner and his family members are residing. So. considering the said correspondence, it transpires that the petitioner was trying to settle at peace location with the family and the 2013 respondent is continuously demanding her belongings which are remained in staff quarter at Ahmedabad Cantonment, So, the con- duct of the respondent is appear not to join the petitioner at peace location.
20. Further, looking to the Exh.- 85 the Head Quarter, Northern Command, has written a letter in response to the request letter from the respondent dated 24/02/2013, addressed to the Chairperson, of FWO, Ahmedabad, have instructed the respondent to submit an application along with the affidavit. Further looking to the Exh.- 903, letter written by the petitioner addressing to the Mahila Police BAD Station, Ahmedabad, made request to do needful to meet his daughter who is residing with her mother. In connection to the said letter, and in connection to the application of the petitioner submitted before the Anandnagar Police Station, statement of the respondent has been recorded by the police Page 29 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined and the police has submitted report dated 22/12/2013. The said report is produced at Exh-104) and Exh-202 Looking to the said report of Assistant Police Commissioner, Mahila Cell, Crime Branch, Ahmedabad, it transpires that the Police has call the petitioner and the respondent and made counseling through a team Headed by Mrs. Swatiben. During the said meeting, the petitioner has shown readiness and willingness to start new life with the respondent but the respondent has submitted before the Police that after birth of the daughter, the husband and his family members have never given any type of help, so she has no trust on the petitioner and his family members. So, she does not want to go back and joint the company of the petitioner, However, she is not ready to go to the place where her husband is working. The respondent has shown her readiness if her husband gives her separate house and gives a house which is in the name of her father-in-law and it should be transferred to the name of her daughter, but the petitioner has stated that he is not in a position to fulfill the demand of the respondent as the said flat is in the name of his father and he can- not do anything. So, considering the said report of the Police Commissioner, it transpires that the respondent has not shown her readiness or willingness to joint the petitioner at his working place. Further, looking to the Exh.-405, Exh-406, Exh.-107, these are the correspondence of army Authority in connection to the maintenance application filed by the respondent. Further, Page 30 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined looking to the Exh-97 to Exh.-146, it transpires that the correspondence taken place between the parties and Commanding Officer, army Department, parents of the parties, in connection to the maintenance, custody of the child, visitation right, etc. it appears that the litigations between the present petitioner and the respondent is continued since 2013 either before the army Authorities or before the Family Court or at Police Station. Further, looking to the Exh.- 147, it transpires that the petitioner has given authority letter to the army Authority to give back Dental Clinic Items placed in MT Area of Cantonment, Ahmedabad, to the present respondent. So. considering the said letter, it transpires that the said authority letter has been given by the petitioner in connection to order passed by the Court in connection to the application preferred by the respondent under the provisions of the D.V. Act. Further, looking to the Exh.-150, Exh.-152, Exh.-153, Exh.-154, Exh.-155, Exh.-156, the order of maintenance passed by the Array Authority, has been challenged before the army Tribunal, Lucknow. Further, considering those documents, it also transpires that the army Tribunal has given visitation rights of minor daughter. Considering the record, it appears that the Family Court, Ahmedabad and the army Authority has given visitation right to the present petitioner to meet the minor daughter. Further, looking to the Exh.-208 to Exh-259 produced by the respondent, it transpires from those documents that first thing, that the marriage of the parties is the Page 31 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined out come of love before the marriage and so it is a love marriage and it also transpires that the correspondence taken place between the petitioner and the respondent and the army Department. Further, looking to Exh.-216, E-216, a copy of text messages exchanged between the petitioner and the respondent, it appears that the respondent has produced copy of the messages sent by the petitioner but from nowhere it transpires that the reply given by the petitioner is in connection to the which messages sent by the present respondent, as looking to those documents, it appears that the respondent has hide or deleted the messages sent by her to the present petitioner. Moreover, looking to the S.M.S. of the present petitioner, it appears that the reply given by the petitioner in connection to the messages of the present respondent. In these circumstances, it is required to read the entire documents and entire messages exchanged between the parties. Here in the present case on hand, the respondent has not produced the messages sent by her end.
21 Further, looking to the Exh.-216, message dated 21/07/2012, sent by the petitioner stating that think what you would have done, if I would have said that I will not talk to your parents and you have to choose between both of you. Please talk to your parents". So, considering said message, there is reason to believe that it is sent by the petitioner in response to the say of the respondent that the petitioner has to choose between wife and his parents. In Page 32 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined these circumstances, looking to the said conversation, rather one sice conversation, produced by the respondent, it appears that the petitioner has send message dated 15/08/2012 that "I wanted to give a second chance so any ways I will be coming to take the key today at about 9 a.m., will give you your cloths and if you want, what you want, we can exchange our stuff and start the legal procedure all I want to know now is, do you want to proceed or mutual consent?". So, considering the entire record and proceedings of the present petition, it clearly transpires that the couple is not residing together since the year 2013 and litigations are going on between the parties at different forums like Family Court army Authority, Hon'ble High Court for the vicinity, for the protection under D.V. Act, maintenance under Section 125 of Cr.P.C. In these circumstances, considering the correspondence taken place between the husband and wife, and considering the litigations taken place between the husband and wife, it clearly transpires that the marriage of the parties is totally broken down and looking to the M-63/3, letter of the respondent dated 16/07/2017, as this document has not been exhibited, but as per the provisions of the Family Courts Act, non- exhibited document can also consider, while deciding the matter of husband and wife. Herein the present case, Mark-63/3 is a letter written by the present respondent addressing to the petitioner, wherein she has stated that, if the petitioner is really willing to sort out the differences and Start Page 33 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined a fresh, as the petitioner had preferred a petition for restitution of conjugal rights. The respondent has also stated in the said letter and made request to the present petitioner that to provide for a flat in good vicinity in Satellite area, Ahmedabad as per the status and designation of the husband, along with the complete furnished home, along with all the household goods needed and also monthly maintenance for the sustenance of the respondent and the daughter. It is further stated by the respondent that she is residing with parents after conceiving and also after birth of a baby girl as disputes had started. As per her allegations, she has been thrown out from the matrimonial home. She has further stated in the said letter that in order to lead a normal life and for the respect and dignity of her parents as well for her, the petitioner can come down on leave and the respondent and minor daughter shall join the petitioner during the vacation and that would be good start for all three of them. She has further stated in the said letter that as she is a qualified Dentist and she is very ambitious from the beginning and as agreed between parties that after marriage, the respondent shall develop her career as a Dentist and after birth of a daughter, as she diagnosed and suffering from Epilepsy and require medical attention and medical care with treatment and due to non-co-operation from the petitioner and litigations pending before the Court, the respondent could not start her profession as a Dentist, which amount to ample loss to her career and ruin her Page 34 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined personal liberty. It is further mentioned by the respondent in the said letter that the petitioner being in army and posted at different places all over the country and looking to the health, education and care of the minor daughter, Ahmedabad is the only suitable place. She has further mentioned that she also requires to take a Clinic on rental basis and also requires to set up practice by purchasing Dental Unit and Dental Chair, instruments, etc., and therefore, she has demanded monetary assistance of Rs. 7 lakh to Rs. 8 lakh from the petitioner. She has further mentioned in the said letter that past 5 to 6 years have been wasted in disputes and litigation and great lose caused to her career as a Dentist and professional loss too. She has further mentioned in the said letter that since the petitioner is happened to be posted in the Armed Forces, it is not possible for the respondent to change place every two years as sometimes, posting come in a field area and contingency place. Since her clinic practice demand her to be in one particular place in order to have a successful Dentist, practice also more advancement of her professional career being a Doctor. This is also necessitated her presence to be constant in one particular place in order to gain trust, confidence and acknowledgment from the patients. It is also mentioned that many years have been wasted and living with insecurity and uncertainty and hence this will provide her and minor daughter with the aided stability and financial security and minor daughter would get her Page 35 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined father back and she deserves that. So, considering the said letter, it is very much transpires that the respondent is interested to built up her career and as an army Officer, the petitioner is required to be transferred from one place to another, and therefore, the career of the respondent cannot built up. Now, considering the said fact, it transpires that the respondent is not interested to reside with the petitioner.
22 So, looking to the record and deposition and cross-examination of parties, it appears that during pregnancy of respondent she came back to Ahmedabad but, she has started to reside with her parents. Further, considering the fact that during the period, invitation cards for opening of dental clinic has been got printed circulated without the knowledge and intimation to present petitioner and his family it amounts to cruelty because it is expected from the wife or daughter in law as a family member, that whatever she is going to start should be within in knowledge of husband or in-laws family. To start a new venture by any family member is a matter of pried for any family. But starting a new work or a clinic without informing the family is not a sign of good family relations. As here in present case respondent has distributed the invitation card, for the opening of dental clinic without even intimation to any family member or husband. The expectation of a family member or a husband to have an information or knowledge about the activity or work of daughter in law or a wife, can not consider as violation of liberty but it is Page 36 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined subject of taking care of emotions feelings towards the family, It is expected from any person that whatever he or she started new venture or new beginning of their profession it is humbly required to intimate and to in- form the family, regarding such new beginning. Hear in present case as respondent has not even taken care to inform husband for his family member regarding opening of dental clinic, this circumstances alone is quite eloquent to conclusively established that the type of conduct was such as would come within the legal definition of cruelty, further it is is also materialize from the Record that respondent spent most of her time with her parents while they come from the posting place of petitioner during holidays or during on leave the respondent used to stay at her parents house as respond has in her deposition stated that petitioner use to send her at her parents house. On the other hand petitioner has stated that on her demand he dropped her at her parents house, it also amounts to cruelty, because normally after marriage the lady is expected to reside with husband at her matrimonial house, but here in present case looking to the record it transpires that whenever couple came to Ahmedabad they were reside separately as petitioner went to his house and respondent dropped at her parents house."
6. We do not find any fault in the findings arrived at based on the evidence on record and therefore Page 37 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined we see no reason to entertain the appeal.
7. The appeal accordingly stands dismissed. In view of the disposal of the main First Appeal, connected Civil Application will not survive and the same stands disposed of.
FIRST APPEAL No.423 of 2024.
8. The husband is in appeal against the order dated 30.09.2022 passed by the Family Court below Exh.54 in Family Suit No.2361 of 2017. On an application submitted under Section 195 read with Section 340 of the Code of Criminal Procedure, the application has been rejected.
9. The appellant husband by application Exh.54 had requested the Family Court to act for perjury. It was the case of the applicant-appellant-husband that in the main matrimonial proceedings, in an application for interim maintenance under Page 38 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined Section 36 of the Special Marriage Act, the wife had made several misstatements and false claims to mislead the Court. The Family Court initially passed an order dated 26.04.2022 operative part of which reads as under:
"18. It is to be noted that at any stage of leading evidence by the parties or at the time of finally adjudicating the petition, if it is proved that either petitioner or the respondent has produced false oral or documentary evidence on record, this Court is already having powers to initiate the proceedings in that regard against the said concerned party. Therefore, the evidence led by the respondent is required to be considered and decided considering at the time the final evidence led by the parties for the main petition.
17. Therefore, considering the above all discussions, I pass following order: -
ORDER [1] It is hereby ordered that Preliminary Inquiry is ordered to be held in respect of application filed at Exh.-54 and to be kept with the main trial of this petition and shall be ordered to be decided at the time of final decision for initiation respondent. of prosecution against the respondent. [2] No order as to costs. Pronounced in the open court on this 26th day of April, 2022.Page 39 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024
NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined [Dhirajlal Mahilal Panchal] Judge-Family Court No.2 Ahmedabad Code No. GJ00549."
10. By the impugned order the application for perjury has been rejected by the Court observing as under:
"3 Further considering the deposition at Exh.-51 of the petitioner and Exh.-74 of the respondent, the parties have been cross- examined by the Ld. Advocates of both the parties. Further, considering the application of the interim maintenance, which has been submitted by the wife, as she has submitted regarding the income, property and vehicle of the husband and by stating the income, property and vehicle of the petitioner, by the wife, cannot be said that the wife has willfully submitted false statement. Because, in our culture, normally, the wife does not have any information regarding actual income, salary and property or moveable property of husband, therefore, on the assumption of the wife, when they resided together, she has submitted the income of the husband in her application.
4. In these circumstances, no action is required to be initiated against the respondent and hence passed following Page 40 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024 NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined order:-
-::ORDER::-
[1] The present application is hereby ordered to be rejected.
Pronounced in the open Court today on this 30th y of September, 2022.
[Hita Inuphai Bhatt] Judge-Family Court No. 2, Ahmedabad.
Code No. GJ00464"
11. The party-in-person husband has appeared before us and has argued that action ought to have been taken as a result of the fact that the respondent wife had clearly committed perjury by producing false evidence.
12. Having read the order, we find that if the Trial Court has found in its discretion not to initiate any action and closed the proceedings, no fault can be found with the order and the order need not be interfered with.
Page 41 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024NEUTRAL CITATION C/FA/4298/2022 CAV JUDGMENT DATED: 12/08/2024 undefined
13. First Appeal does not require admission and is accordingly dismissed.
(BIREN VAISHNAV, J) (NISHA M. THAKORE,J) ANKIT SHAH Page 42 of 42 Downloaded on : Mon Aug 12 21:33:16 IST 2024