Madhya Pradesh High Court
Smt. Ruchi vs Ankur Sirotiya on 18 March, 2020
Equivalent citations: AIR 2020 MADHYA PRADESH 74, AIRONLINE 2020 MP 480
Author: Shailendra Shukla
Bench: Shailendra Shukla
1 FA. No.1657/1658/2019
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
DIVISION BENCH: HON'BLE MR. JUSTICE S.C. SHARMA
HON'BLE MR. JUSTICE SHAILENDRA SHUKLA
FIRST APPEAL NO.1657 OF 2019
SMT. RUCHI
Vs.
ANKUR SIROTIYA
&
FIRST APPEAL NO.1658 OF 2019
SMT. RUCHI
Vs.
ANKUR SIROTIYA
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Mr. R.K. Samdani, learned counsel for the appellant.
Mr. Ankur Sirotiya, Respondent-in-person.
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ORDER
(Passed on 18th day of March 2020) Per Shailendra Shukla, J.
1. This order shall dispose of two appeals filed under Section 19(1) of Family Courts Act, 1984 by appellant- Smt. Ruchi which have been preferred respectively against judgment and decree pronounced on 20.08.2019 in Civil Suit No.66-A/2017 allowing the suit for divorce filed by the respondent-Ankar Sirotiya against her as also in Civil Suit No.67-A/2017 rejecting the civil suit filed by appellant seeking restitution of conjugal rights under Section 9 of Hindu Marriage Act, 1955.
2. The admitted facts are that rival parties had got married on 06.05.2013 as per Hindu rites and customs at Ujjain.
3. The case of the respondent-Shri Ankur Sirotiya in divorce suit was that his marriage with appellant-Smt. Ruchi 2 FA. No.1657/1658/2019 was performed without disclosing the fact that she was an illegitimate child of her father born out of second wife even though the first wife was alive and there was no divorce between the two. Had this fact been disclosed, respondent would not have married to appellant and the aforesaid fact first came to light on 12.05.2016. It was further stated that behaviour of Ruchi towards Ankur was extremely rude, that she is a independent minded woman and would always go to her parental house on the pretext of going to her place of work, that she did not contribute towards household chores, that she was disrespectful towards his ailing parents and would treat the guests with no respect, that she had deserted her matrimonial home four times during February to March 2014 and she was brought back on each occasion by respondent-Ankur and she finally left the house on 06.04.2014 and took all the documents of Ankur while leaving the home. It has been further stated that appellant has deprived the respondent from matrimonial pleasures and that there is a fear of life of Ankur if Ruchi were to stay with Ankur anymore.
4. In her reply, Ruchi has stated that ever since the inception of marriage with Ankur, he used to get angry on trivial issues and would taunt her and pass inappropriate comments against her and her family, that when respondent got injured in a motor vehicle accident, her ornaments were mortgaged by him in the ICICI Bank without her permission and she was compelled to go to her parental house. The suit for divorce was sought to be dismissed. In her application filed under Section 9 of Hindu Marriage Act, the appellant 3 FA. No.1657/1658/2019 has stated that behaviour of respondent-Ankur changed for worse sometimes after her marriage with him and he would become impatient and abuse her on trivial issues, that respondent and his family members were greedy and used to demand dowry from her and also used to taunt her for not bringing dowry. Due to such constant harassment, she started residing with her father on 06.04.2014 and also filed an application before SHO Mahila Thana on 03.07.2014 requesting that respondent be counselled so that he may keep her with due respect. However, in the counselling proceedings the respondents refused to oblige her regarding keeping her with him. It is submitted that respondent-Ankur Sirotiya is a Marketing Engineer in Forbes Marshall Private Limited and used to earn Rs.38,000/- per month in the year 2014 and presently earns not less than Rs.75,000/- per month, that appellant wants to resume living with respondent and therefore a decree of restitution of conjugal rights be passed in her favour.
5. The respondent in his reply has made same allegations against Ruchi which he has made in his divorce suit and states that she herself had told him that she does not want to stay with him and Ruchi had threatened that if her father does not fetch her, then she would commit suicide. It has further been stated by him that the kinds of taunts made by her and due to her inappropriate behaviour with him, it would not be possible for him to stay with her anymore and the aforesaid application was sought to be rejected.
6. The Family Court, Ujjain vide common judgment dated 20.08.2019 has came to the conclusion that appellant-
4 FA. No.1657/1658/2019Ruchi's behaviour towards respondent-Ankur Sirotiya was contemptuous and cruel, therefore, divorce decree in his favour has been pronounced and the application filed under Section 9 of Hindu Marriage Act, 1955 has been rejected.
7. The appellant-Smt. Ruchi has filed separate appeals against the aforesaid judgment and has stated that Presiding Officer did not pay due heed to the evidence and the aforesaid documents placed on record, that Family Court has not discussed the cross-examination of respondent-Ankur and his witness, that Presiding Officer has found the cruelty proved against the appellant-Ruchi, whereas no such conclusion could have been arrived at from the available evidence and the documents, that there are no circumstances which are of such serious nature and that both cannot stay with each other anymore. It has been further stated that opinion of Family Court that appellant was cruel towards her husband-Ankur because she was away from him for a period of five years is also wrong because the Family Court should have seen the circumstances due to which appellant had to stay in her parental house. It has been further stated that independent witnesses namely; Gulabchandji and Anmol Kharpade who have been examined by respondent were considered to be reliable witnesses and such conclusion was drawn by only perusing their examination-in-chief without considering the cross-examination. That whereas the appellant constantly endeavored to resolve the dispute, the respondent has made no such effort on his part. It has been further stated that Family Court's 5 FA. No.1657/1658/2019 inference regarding cruelty on the part of appellant on the ground that she did not take care of his ailing father-in-law as the appellant-Smt. Ruchi was not informed by respondent-Ankur about the ailing health of his father and also of his subsequent death. On these grounds, application under Section 9 of Hindu Marriage Act, has been sought to be set-aside.
8. In her separate appeal filed against the judgment and decree of divorce, the appellant-Smt. Ruchi has taken the same grounds as contained in her appeal in respect of Section 9 of Hindu Marriage Act. It has been further stated by her that Family Court has not found proved the issue which was framed in para-22 which is as follows:
"Whether the appellant/wife had deserted the respondent/husband for a continuous period of not less than two years immediately preceding the presentation of petition ?"
9. Despite the fact that aforesaid issue has not been proved, the Family Court has passed the decree of divorce which is absolutely wrong in the given circumstances. It is also stated that there was no ground to form an opinion that there has been an irretrievable break down of marriage between the parties of the suit. On these grounds, judgment and decree of divorce has been sought to be set-aside.
10. The question before this Court was whether in view of the grounds contained in the consecutive appeals filed by appellant-Smt. Ruchi, the judgment pronounced by the Family Court, Ujjain granting divorce and refusing the prayer of restitution of conjugal rights deserves to be set-aside ?
6 FA. No.1657/1658/201911. During the pendency of these appeals, mediation proceedings had ensued and the mediator in his report has stated that while appellant is inclined to stay with the respondent, the respondent is not ready to keep her. The appellant has stated that if respondent is not able to keep her then he should pay Rs.35.00 lac as permanent alimony. Respondent-Ankur has stated that appellant-Ruchi has foisted a false case against him under-Section 406 IPC and it is not possible for him to keep her under such circumstances. The appellant has proposed that if the respondent is prepared to stay with her then she would take back the case which was filed by her against him under Section 406 IPC. However, the respondent has stated that behaviour of appellant-Ruchi has raised a doubt against safety and security of respondent-Ankur and it is not possible for him to keep her. He has further stated that appellant is employed in Government and is able to look after herself. Thus, reconciliation between the parties could not fructify because of refusal on the part of respondent-Ankur to resume conjugal relations with appellant-Ruchi.
12. The question before this Court is whether the finding of Presiding Officer that though Ruchi committed cruelty against respondent-Ankur and that there was an irretrievable breakdown of marriage between the two is an appropriate finding or not ?
13. The aforesaid findings shall be considered in the light of evidence.
14. As far as respondent-Ankur Sirotiya in his examination- in-chief, he has stated that parents of appellant-Ruchi had 7 FA. No.1657/1658/2019 not informed him that she was an illegitimate child and had this fact been disclosed earlier he would not have been entered into marriage with appellant-Ruchi.
15. Regarding the above submissions, it must be remembered that respondent-Ankur has filed a suit for divorce under-Section 13(1)(1A) of Hindu Marriage Act, 1955 and has not filed the suit for annulment of marriage on account of marriage being void or voidable.
16. In his suit for divorce filed under-Section 13(1)(1A) of Hindu Marriage Act, 1955, the fact regarding non-disclosure of certain material facts pertaining to wife is immaterial. Therefore the aforesaid ground could not have been raised by respondent for obtaining the divorce from appellant.
17. The respondent-Ankur in his affidavit has stated that being a husband has never been in such relations with appellant which exists between husband and wife ever since his marriage with her and Ruchi has been refusing to establish such relations with him. He has denied the suggestion in para-27 of his cross-examination that she has never refused to establish physical relations with him and it is instead Ankur who has refused to maintain relations with her. Ruchi in her own affidavit in para-3 has stated that it is the husband who is to take initiative to establish physical relations with wife which Ankur has not done and that she has never refused to establish such relations with him. Thus, there is acceptance on the part of Ruchi that there had been no normal relations between two as in the nature of relations between husband and wife and both are blaming each other for the same.
8 FA. No.1657/1658/201918. Admittedly, appellant-Smt. Ruchi left for her parental home in the month of February 2014 i.e. eleven months after her marriage with respondent-Ankur.
19. Admittedly, there being no relations between appellant and respondent during eleven months of their togetherness. After the marriage, following pieces of evidence are also noticeable, which are as under:-
(a) That appellant-Ruchi had filed a case under Section 125 of Criminal Procedure Code against respondent-Ankur but it is admitted by Ruchi (NA/2) and her father Rajendra Prasad (NA/1). That the aforesaid maintenance case was dismissed. Ruchi (NA/2) states that she had filed a revision against the aforesaid order but not withdrawn the revision application.
(b) That appellant-Ruchi (NA/2) has admitted that she did not file any case against respondent-Ankur under Section 498-A IPC but she specifically states that she has not filed any case against Ankur for inflicting mental and physical cruelty against her.
(c) That it is not a case of appellant-Ruchi (NA/2) that respondent-Ankur had demanded dowry from her.
(d) Respondent-Ankur has stated that appellant-Ruchi had instituted a case under Domestic Violence Act against him but the same was dismissed. These statements have not been contradicted in cross-examination.
(e) That Rajendra Prasad (NA/1), the father of appellant- Ruchi (NA/2) has admitted that he was compelled to take Ruchi with him from her matrimonial house when Ruchi called upon him on phone to take her back or else she would 9 FA. No.1657/1658/2019 commit suicide.
(f) That appellant-Ruchi (NA/2) in her cross-examination admitted that Ankur had arranged for her education, that when she suffered from typhoid, it was her husband-Ankur (NA/1) who got her treated in Pushpa Mission Hospital. She also admits that her husband-Ankur had taken her to exotic locations such as Shimla (photographs of exotic locations are placed on record).
(g) That appellant-Ruchi (NA/2) in her application filed under Section 125 of Criminal Procedure Code, in para 12 had stated that she wants to live independently.
(h) That appellant-Ruchi (NA/2) has lodged a complaint under Section 406 IPC against respondent-Ankur (NA/1).
(i) That Ankur was threatened and abused by father and brother of Ruchi regarding which a case under Sections 294, 506 IPC which was filed by Ankur.
(j) That Ankur had taken up a rental apartment so that he can stay with Ruchi in the same but Ruchi had shown no inclination to live with Ankur.
(k) That transcript of conversation between appellant-Ruchi and respondent-Ankur and father of Ruchi namely; Rajendra shows that Ruchi did not want to stay in her matrimonial house and left for her parental house despite the fact that puja was to be organized on the next day.
20. The aforesaid circumstances show that there was an acrimony between appellant-Ruchi and respondent-Ankur from the very beginning of their marriage, that there was no relations between the two, that Ruchi knowing that father of Ankur suffers from dreaded disease of Blood Cancer, 10 FA. No.1657/1658/2019 repeatedly kept going to her parental house and without there being any major reason or rift, ultimately left for her parental house, that Ruchi after leaving the house lost maintenance case, lost domestic violence case and no case could be filed by her alleging cruelty or demand of dowry.
21. On the other hand, the respondent-Ankur Sirotiya has been able to show that appellant-Ruchi was fickle minded, disrespectful and uncaring and had no affinity towards him and his parents. Even the guests were treated with disrespect, as is apparent from the statements of Gulabrai (A/2). There is also an evidence to the effect that respondent-Ankur had rented an apartment so that he could stay with appellant-Ruchi but they never occupied the rental house. Amol Kharpade (A/1) is the land-lord who has testified regarding this situation. Respondent-Ankur has stated that Ruchi was never interested in staying with him and that is why she refused to move to rental apartment.
22. Respondent-Ankur Sirotiya (NA/1) has also exhibited the documents showing that he had lodged a report against brother and father of Ruchi seeking prohibitory orders against them. (Ex. A/27 and Ex.A/28).
23. That all the above circumstances clearly show that there was no act of cruelty on the part of respondent-Ankur against appellant-Ruchi and that it is proved that Ruchi's attitude was indifferent and unconciliatory, that she was rude exhibiting no intention to honour her relations with Ankur as his wife and daughter-in-law of his parents. Such acts not only showed cruelty on the part of Ruchi but clearly proves that she had deserted Ankur without reasonable cause.
11 FA. No.1657/1658/2019Under these circumstances, the decree of divorce was rightly given in favour of respondent-Ankur. The findings and judgment of Family Court, Ujjain is, thus, affirmed. This appeal against divorce and decree preferred by appellant- Ruchi is rejected. The connected appeal challenging the judgment in respect of rejecting the suit for restitution of conjugal rights also stands rejected. Appellant-Ruchi is already in government service and posted as 'Patwari'. Hence no case for maintenance or alimony is made out in her favour. The aforesaid appeals stand disposed of, as dismissed, in above terms.
(S.C. SHARMA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Arun/-
Digitally signed by
ARUN NAIR
Date: 2020.03.19
13:27:52 +05'30'