SMT. PREM W/O SHRI HARDAYAL D/O SHRI PUSA RAM JI, vs HARDAYAL S/O SHRI MAHADEV

Pankaj Bhandari, J

This appeal is filed against the judgment and decree passed by Family Court on 04.09.2019 dissolving the marriage.

The brief facts are that the marriage of the parties was solemnized in the year 1993 and a male child was born on 02.08.2004. As per the appellant she was maltreated during her pregnancy and thrown out of the matrimonial home. The appellant lodged an FIR No.250/2004 at Police Station Nasirabad under Section 498-A and 406 of IPC and Section 4 of Dowry Prohibition Act, 1961 against husband and his family members. The respondent and family members were acquitted in the criminal case. In the application filed by appellant under Section 125 Cr.P.C, the respondent took a stand that though the marriage was solemnized in the year 1993 but “Gauna” had taken place on 18.01.2004 and on that date the appellant was three months pregnant. A full matured child was delivered on 02.08.2004 i.e. after almost six and half months of the Gauna. The Family Court while dealing with the application under Section 125 Cr.P.C considering the dispute, ordered DNA testing of the child. As per the DNA report, the respondent was not biological father of the child. The petition under Section 13 was filed on the grounds of adultery, cruelty and desertion. To prove the case, the respondent himself deposed and two witnesses were examined. The DNA report was exhibited as Ex.1. The appellant took a stand that during the subsistence of the marriage, the respondent had remarried. She had filed a civil suit in which an interim order was passed directing the respondent not to remarry, yet the respondent solemnized second marriage. Further objections were raised that the sampling of the DNA was not done in the prescribed manner and the seal of the sample was tampered. After considering the facts and appreciating the evidence, the issues of cruelty, adultery and desertion were decided against the appellant and impugned decree of divorce was passed. Hence, the present appeal.

None has put in appearance on behalf of the respondent despite service.

Learned counsel for the appellant submits that the respondent had remarried before the grant of decree of divorce. The contention is that the DNA sampling was not proper.

Heard learned counsel for the appellant and perused the record.

The Family Court framed issues with regard to cruelty, adultery and desertion. The respondent was able to prove that false FIR was registered by appellant against him and his family members and ultimately there was acquittal in the criminal case. The Family Court after considering the evidence of the respondent, AW-2, AW-3 and the judgment of the acquittal (Ex.7) decided the issue of cruelty in favour of the respondent.

The Supreme Court in Rani Narasimha Sastry Vs. Rani Suneela reported in (2020) 18 SCC 247 held as under:-

In the present case, the prosecution is launched by the Respondent against the Appellant Under Section 498-A of Indian Penal Code making serious allegations in which the Appellant had to undergo trial which ultimately resulted in his acquittal. In the prosecution Under Section 498-A of Indian Penal Code, not only acquittal has been recorded, but observations have been made that allegations of serious nature are levelled against each other. The case set up by the Appellant seeking Decree of Divorce on the ground of Cruelty has been established. With regard to proceeding initiated by Respondent Under Section 498-A of Indian Penal Code, the High Court made following observation in Paragraph 14:

...Merely because the Respondent has sought for Maintenance or has filed a Complaint against the Petitioner for the offence punishable Under Section 498-A of Indian Penal Code, they cannot be said to be valid grounds for holding that such

a recourse adopted by the Respondent amounts to cruelty.

The above observation of the High Court cannot be approved. It is true that it is open for anyone to file Complaint or lodge prosecution for redressal for his or her grievances and lodge a First information Report for an offence also and mere lodging of Complaint or FIR cannot ipso facto be treated as Cruelty. But when a person undergoes a trial in which he is acquitted of the allegation of offence Under Section 498-A of Indian Penal Code, levelled by the Wife against the Husband, it cannot be accepted that no cruelty has meted on the Husband. As per pleadings before us, after parties having been married on 14.8.2005, they lived together only 18 months and thereafter they are separately living for more than a decade now.

In view of forgoing discussion, we conclude that Appellant has made a ground for grant of Decree of Dissolution of Marriage on the ground as mentioned in Section 13(1)(i-a) of the Hindu Marriage Act, 1955.

The fact that the gauna had taken place on 18.01.2004 and a male child was delivered on 02.08.2004 i.e. after six and a half months of gauna coupled with DNA report proved adultry. The DNA testing was done with the consent of the appellant and due procedure was adopted. The consent letter of the appellant was annexed as Ex.3. The sample was taken in the presence of the Presiding Officer of Family Court and two witnesses. The DNA test report specifically mentioned that the sample was received with the seal intact. The order of DNA sampling and the DNA report was not challenged by the appellant.

From the evidence adduced, Family Court concluded that the parties were living separately without reasonable cause for a period exceeding two years. Hence, the desertion was proved.

The Supreme Court in the case of BipinChandra JaiSinghBai Shah Vs. Prabhavati reported in AIR 1957 SC 176 has held the following prerequisites for dissolution of marriage on ground of desertion:-

“(1) the factum of separation;

(2) animus deserendi;

(3) absence of his or her consent; and

(4) absence of his or her conduct giving reasonable cause to the deserting spouse to leave the matrimonial home.”

The  Supreme  Court  in  the  case  of Debananda Tamuli Vs. Kakumoni Kataky reported in (2022) 5 SCC 459 has held as under:-

“7. We have given careful consideration to her submissions. Firstly, we deal with the issue of desertion. The learned Counsel appearing for the Appellant relied upon the decision of this Court in the case of Lachman Utamchand Kirpalani (supra) which has been consistently followed in several decisions of this Court. The law consistently laid down by this Court is that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home……….”

The ground of cruelty and adultery has remained unchallenged even in the appeal. The contention of the DNA report being doubtful, lacks merit considering that the order of DNA sampling and the DNA report remained unchallenged. Moreover, the appellant consented for DNA testing, the sample was taken in presence of the Presiding Officer and two independent witnesses by the staff of the Government Hospital.

No case is made out for interference in the well reasoned judgment passed by the Family Court.

This appeal is dismissed.