Madhya Pradesh High Court
Smt. Rakhi Gupta vs Dr. Nitin Kumar Gupta on 18 December, 2017
1 FA.47/2016
HIGH COURT OF MADHYA PRADESHBENCH AT GWALIOR
(DB : Sheel Nagu & Ashok Kumar Joshi, JJ.)
First Appeal No.47/2016
Smt. Rakhi Gupta Appellant
Versus
Dr. Nitin Kumar Gupta Respondent
................................................................................................
For appellant:- Shri Pawan Vijayvargiya,
learned counsel.
For respondent:- Shri Yash Sharma, learned
counsel.
.................................................................................
JUDGMENT
(18/12/2017) Per Ashok Kumar Joshi, J. -
Appellant has filed this first appeal under Section 28 of the Hindu Marriage Act, 1955 against the judgment and decree dated 01.02.2016 passed by the Additional District Judge, Lahar District Bhind in case No.33/2013, whereby application filed by the respondent/husband under Section 13 of the Hindu Marriage Act, is allowed and a decree of divorce has been passed.
2. Undisputedly, appellant and respondent were married on 27.11.2010 at Seonda District Datia as per Hindu rituals and, thereafter, they resided for some time at Alampur and, thereafter, at Delhi as presently respondent is serving at Delhi. Present 2 FA.47/2016 respondent/husband on 23.07.2013 filed an application under Section 13 of the Hindu Marriage Act for divorce on the grounds of cruelty and desertion on pleadings that after marriage his wife was pressurizing him to live at Seonda with her parents and on husband's refusal, wife got registered a false case bearing crime No.130/2012 under Section 498-A, 34 of the IPC and Section 3/4 of Dowry Prohibition Act in which mother of the husband, brother and sister-in-law were also made accused and, thereby, wife treated him with cruelty and refused for intercourse with husband and thereby also harassed the husband and his wife is mentally ill and treatment was provided in relation to this ailment. Wife was also threatening that if the husband would not reside at Seonda then she will commit suicide. On 01.07.2011, when both were living at Delhi, without intimating the husband, she with her father left her matrimonial home and started residing at her parental home at gone to Seonda and, thereafter, declined the request of husband to resume co-habitation and, thereafter, on 21.12.2012, she lodged the above- mentioned false report at police station Seonda and also filed another case under Section 125 of the Cr.P.C. against the husband. Since 02.07.2011 with these allegations husband respondent alleged that wife has deserted him without any reasonable cause, therefore, on above-mentioned two grounds decree for divorce was prayed.
3. Wife/present appellant filed her written statement denying all adverse pleadings of the husband and pleaded that she had never treated husband with 3 FA.47/2016 cruelty. It was pleaded that after marriage, on getting a better job at Delhi, the behavior of the husband changed and the family members of the husband started demanding a sum of Rs.20,00,000/-(Rupees Twenty Lacs) from the parents of the wife for the purpose of purchasing a plot at Delhi and when parents of the wife shown their inability to pay such amount, then they started torturing and harassing the appellant and husband and his family members were actually desirous to get rid of the appellant for solemnizing second marriage of the respondent with a doctor girl for getting huge dowry. Thereafter, husband and his family members started alleging that she is under influence of evil spirits and get her treated by occultist and she was kept locked in a room without food. When this treatment crossed all limits of tolerance, she lodged a report at police station and filed application for getting maintenance. She urged that she is still desirous to live with her husband and to perform her matrimonial duties and for this purpose, she has separately filed a suit under Section 9 of the Hindu Marriage Act for getting a decree of restitution of conjugal rights which is also pending in the Court of Additional District Judge, Seonda. In the year 2011, just after 8 or 9 months from the marriage, husband had secretly filed divorce petition on 09.07.2011 at Lahar Court, but after receiving knowledge of this proceeding by the wife, husband got his previous application for divorce, dismissed as not pressed. She is a well educated M.A. passed lady and is ready to live with her husband at Alampur or at his service place. Actually when she was 4 FA.47/2016 being treated with cruelty, then she informed her father who reached Delhi, thereafter, husband sent her on 02.09.2012 with her father and threatened that if she is desirous to live with him, then she should return to matrimonial house with Rs.20,00,000/-(Rupees Twenty Lacs). Husband or any of his relatives did not make any effort to bring her back to her matrimonial house which impelled her to file suit for a decree for restitution of conjugal rights at Seonda. It was prayed that application for divorce filed by husband be dismissed.
4. On pleadings of the parties, trial Court framed issues and before trial Court for husband Dr. N.K.Gupta (PW-1), Abhishek (PW-2) and mother of the husband Sushila Devi (PW-3) were examined and cross-examined and for present appellant, affidavit under Order 18 Rule 4 of CPC of appellant-Smt. Rakhi Gupta, her father Santosh Kumar and her mother Smt.Anita Gupta were filed, but on 05.01.2016, for which opportunity was given to present appellant for producing her witnesses and similarly on the date i.e. 06.01.2016 also present appellant and her witnesses did not appear till 02:45pm before the trial Court, though before that present appellant's counsel was assuring the trial Court that her witnesses are coming. Thereafter, suit was fixed for final hearing on 19.01.2016 but on behalf of the appellant, none appeared on the given date i.e. 19.01.2016, hence, after hearing the arguments, judgment was delivered and decree for divorce was granted.
5. Learned counsel for the appellant vehemently contended that the alleged grounds of 5 FA.47/2016 cruelty and desertion pleaded by the husband were not proved by the evidence available on record, but the trial Court erred in giving the findings and decreeing the respondent's suit. It was further argued that from documentary evidence, it was proved that the wife's application filed under Section 9 of the Hindu Marriage Act, before the Additional District Judge, Seonda was pending for a decree of Restitution of Conjugal Rights against the husband and husband also admitted that previously he had filed divorce petition before the same trial Court in the year 2011 which was bearing case No.51A/2011 and it was dismissed on 23.02.2012 due to absence of husband or his counsel. The appellant has prayed for permanent alimony in her pleadings but the trial Court in impugned decree did not awarded any permanent alimony to the appellant and thereby, committed legal mistake, hence, it is prayed that appeal filed by the appellant be allowed and the impugned judgment and decree be set-aside.
6. Per-contra the appearing counsel for the respondent has supported the impugned judgment and decree and contends that as wife and her witnesses did not appear before the trial Court for cross-examination, in absence of rebuttal evidence by the wife, the trial Court had not committed any error in placing reliance on the evidence of husband and his witnesses. It has been strongly argued that the wife filed a writ petition before this Court for getting stay of the divorce proceeding filed by the husband before ADJ, Lahar till decision of the wife's petition filed under Section 9 of the Hindu Marriage Act for restitution of conjugal rights 6 FA.47/2016 pending in the Court of ADJ, Seonda and, thereafter, remained unsuccessful in getting any stay order from this Court, but voluntarily did not appear before the trial Court, though the trial Court fixed the relating case for cross-examination of appellant and his witnesses on 14.07.2015, 28.07.2015, 08.10.2015, 09.11.2015, 28.11.2015 and 05.01.2016 and it was also directed that if wife and her witnesses will not appear on 05.01.2016, then final argument shall be heard, but on 05.01.2016 trial Court again allowed adjournment application filed on behalf of wife on cost of Rs.500/- and the case was fixed for wife and her witnesses cross-examination on 06.01.2016, but on 06.01.2016 also wife and her witness did not appear before the trial Court, though on that day it is clear from the order- sheet recorded at 1:30 pm that it was mentioned by the counsel for the wife that his party and witnesses are coming and in such facts and circumstances, it is clear that the trial Court afforded proper opportunities to the wife and trial Court has properly and legally analyzed the evidence available on record. Hence, learned counsel for the respondents prayed for dismissal of the appeal.
7. The point for determination is that whether trial Court had erred in granting a decree of divorce in favour of husband?
8. Dr. Nitin Gupta, (PW-1) deposed that after his marriage with the appellant on 27.11.2010, the behavior of his wife was not good and his wife was pressurizing him to live at residence of father of the wife at Seonda and on his refusal, wife lodged false 7 FA.47/2016 report against him at Police Station Seonda, bearing crime no.130/2012 and his wife also filed a petition under Section 125 of Cr.P.C. and he with his other family members were falsely implicated in case and charges have been framed against them under Section 498-A of the IPC.
9. Present respondent also deposed that his wife was deliberately harassing him and was refusing for sexual intercourse with the husband and his wife is also mentally ill and on this count, she was provided treatment after marriage Abhishek (PW-2) who is nephew (Bhanja) of the husband and Sushila Devi (PW-
3) mother of the husband have supported the evidence given by the respondent on these points.
10. Respondent Dr. Nitin Gupta (PW-1) categorically deposed that from 01.07.2011, when her wife was residing with him at New Delhi, his wife left husband's house without intimating him and had gone to her parental house at Seonda and despite attempts made by the husband, she did not return to her matrimonial home and before filing of the subsequent divorce petition by the husband, his wife deserted him for a period more than two years. Husband's mother
-Sushila Devi(PW-2) deposed in her cross-examination that after marriage Rakhi only at one occasion came to Alampur and, thereafter, she was living with her son at New Delhi and pressurizing her son to live at Seonda. Dr. Nitin Gupta and his mother have denied the suggestion given by the opponent counsel in their cross-examination that they were demanding dowry of Rs.20,00,000/- to purchase a plot or flat at New Delhi 8 FA.47/2016 though Sushila deposed that Rakhi fell ill even in marriage, thereafter, she was treated by occultist. Sushila Devi (PW-2) deposed in her cross-examination that panch of the village and caste were gathered at Alampur but in that panchayat present appellant was asked to return back the ornaments received, which are having value of rupees seven lacs but Rakhi and her family has not returned that ornaments. Dr. Nitin Gupta admitted that previously he had filed a divorce petition, which was dismissed due to absence and the relating certified copy of order-sheet is Ex.D-1 which indicates that husband's prior application was actually dismissed due to his absence. Previous petition filed by the husband was not dismissed on merits, hence, objection raised by the appellant that second divorce petition was not maintainable, is devoid of any substance.
11. Some interesting and significant facts reveal from the record of trial Court from the order-sheets recorded by trial Court on 28.11.2015, 05.05.2015 and 28.05.2015 that at the time of pendency of concerned case before the trial Court consensus arrived at between the parties that on payment of Rs.7.5 lacs by husband as permanent alimony, both parties will file a petition for divorce by mutual consent and only after depositing of Rs.7.5 lacs by the husband in the CCD of the Court, such application for divorce by mutual consent shall be filed. It is clear from the order-sheet that on 05.05.2015, when both the parties were personally present and the appellant had appeared with her father before the Court and on the next date case was fixed for depositing of Rs.7.5 lacs and for 9 FA.47/2016 presentation of divorce petition by mutual consent was fixed on 28.05.2015 and according to order-sheet recorded on 28.05.2015, on that day husband deposited Rs.7.5 lacs in CCD, but as per order-sheet of same day recorded after some time, it is clear that due to dispute regarding payment of arrears of maintenance by the husband, consensus was revoked and it was also ordered on 28.05.2015 that as the consensus was revoked, deposited amount be refunded to the husband.
12. The above-mentioned facts and circumstances appearing from the record reveal that before the trial Court both parties have agreed for divorce by mutual consent on certain conditions. It has been held by the Hon'ble Apex Court in the case of Smt. Rohani Kumari Vs. Narendra Singh [AIR 1972 SC 459] that desertion means not only separate residence and separate living, but their should be a determination to put an end to the marital relation and cohabitation. These facts clearly indicate that impliedly on certain conditions, present appellant was also ready for ending of matrimonial relations existing between the parties.
13. In absence of rebuttal evidence on behalf of the present appellant, the evidence produced by the husband cannot be disbelieved. Present appellant and her father and mother have filed their affidavits relating to their examination-in-chief under Order 18 Rule 4 of CPC before the trial Court, but later on despite taking several opportunities, they voluntarily did not appear before the trial Court for their cross-examination by 10 FA.47/2016 other party.
14. In the light of citation of Ameer Trading Corporation Ltd. Vs. Shapoorji Data Processing Ltd., [AIR 2004 SC 355] and provision under Section 137 of the Evidence Act, it is clear that when any witness does not appear for cross-examination before the Court, then the evidence of such witness containing in affidavit of Order 18 Rule 4 of CPC could not be read in evidence and it shall be deemed that on record, there is no evidence of such witness, who has not appeared for cross-examination. Hence, it is clear that in absence of evidence on behalf of the present appellant, there was no evidence that the wife was being treated with cruelty in relation to dowry demand or was ousted from the matrimonial house by the husband. In such situation, where there is no evidence on record by wife regarding her alleged harassment in relation to dowry demand by husband and his relatives, the evidence given by the other side could not be disbelieved and discarded. In this legal position, it is clear that the trial Court on the basis of referred citations has rightly recorded findings that it was proved that the present appellant actually committed cruelty with the husband by lodging false criminal case against the husband and his family members and the wife has deserted the husband for more than two years prior to the filing of the divorce petition by the husband without any reasonable cause. We are of the considered opinion that in totality of above-mentioned facts and circumstances, the recorded findings could not be interfered within the face of evidence available on 11 FA.47/2016 record.
15. According to the clear provision of Section 25 of the Hindu Marriage Act, 1955, it clear that even after passing of the divorce decree, relating wife can file an application before the trial Court for getting permanent alimony from her ex-husband. As on this point, there is no clear evidence on the record regarding income of the husband, his liabilities and financial status of the wife, in such conditions appellant is free to file an appropriate application before the trial Court under Section 25 of the Hindu Marriage Act, 1955 for getting permanent alimony, if so advised, since in appeal herein issue of permanent alimony cannot be decided in absence of relating evidence.
16. We are of the considered opinion that in the present status of the evidence available on record, the trial Court did not committed any error in allowing the divorce petition filed by the husband. Hence, appeal filed by the appellant appears to be devoid of substance and is liable to be and is hereby dismissed. No order as to cost.
Ashish* (Sheel Nagu) (Ashok Kumar Joshi)
Judge Judge
/12/2017 /12/2017