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Judgment
This appeal is before us to examine correctness of the
judgment and decree dated 24.8.2015, passed by the Family
Court No.2, Jodhpur Metro in Misc. Application No.13/ 2012, Smt.
Sunita Dwivedi v. Vinod Kumar Sharma . Under the judgment
aforesaid learned Family Court rejected an application preferred
by the appellant as per provisions of Section 13 of the Hindu
Marriage Act, 1955 (hereinafter referred to as ''the Act of 1955'').
Suffice to mention that under the same judgment an application
preferred by respondent Shri Vinod Kumar Sharma as per
provisions of Section 9 of the Act of 1955 was accepted and a
decree for restitution of conjugal rights was granted.
In brief, factual matrix of the case is that the appellant
entered into a wedlock with the respondent on 10.11.1997 at
Jodhpur as per Hindu rites and customs. After marriage the
appellant went to Agra (U.P.), her matrimonial town. As per the
appellant, the respondent, a retired Subedar from Indian Army, is
an alcoholic with violent attitude. Under intoxication he gave
serious beatings to the appellant on several occasions. He was
also in habit of adopting unnatural tactics while undergoing
physical relations and further that he was compelling the appellant
to consume liquor and also to other inhuman activities. It was also
averred in the application that due to torture extended to the
appellant, her father remained under serious trauma and
ultimately died on 21.4.1999. In addition to whatever stated
above, as per the appellant, she was third wife of the respondent
and two earlier wives left him due to his cruel attitude. Looking to
all these circumstances it was not possible for the appellant to
stay at her matrimonial house, hence she came to her parental
house at Jodhpur. In the month of May, 2004 she again went to
her matrimonial house with a hope that there would be some
change in attitude of the respondent but of no consequence. The
appellant faced serious torture including forceful consumption of
liquor with allopathic medicines. She was ultimately compelled to
left her matrimonial house on 6.6.2004.
With this factual background a decree of divorce was
claimed on the ground of cruelty and desertion.
In written statement, the respondent denied the facts
with assertion that the appellant being in Government School was
intentionally not coming to her matrimonial house and as such the
allegation of desertion was not correct. It was also stated that
whatever stated about cruelty too is not correct and as a matter of
fact the appellant borrowed a sum of Rs.3,50,000/- on 3.6.2004
from the respondent and then left for Jodhpur on 6.6.2004. She
then on 16.6.2006 borrowed a sum of Rs.45,000/- and that was
also paid by the respondent from his pension account. All this
amount was given to have a residential house for the appellant at
Jodhpur. As per the respondent, he made his best efforts to keep
the appellant happy and to make the marriage successful.
An application under Section 9 of the Act of 1955 was
also preferred by the respondent for restitution of conjugal rights.
ON the request of the parties the application under Section as well
as the application under Section 9 were clubbed and the
application preferred under Section 13 was also treated as written
to the application preferred under Section 9 of the Act of 1955.
On basis of the pleadings available, the Family Court
framed following issues:-
"1. Whether Vinod Kumar extended post marriage cruel attitude as described under Section 13 of the Hindu Marriage Act against Sunita Dwivedi?
Whether Vinod Kumar Sharma deserted deserted Smt. Sunita Dwivedi for more than a period of two years without any just and reasonable cause?
Whether Smt. Sunita Dwivedi refused Vinod Kumar Sharma from consuming conjugal rights without any just and proper cause?
Relief?"
To support the application preferred under Section 13
of the Act of 1955, statements of appellant Smt. Sunita (AW-1)
and Smt. Mala Dwivedi (AW-2) were recorded and to oppose the
application aforesaid with support to application under Section 9,
testimony of Shri Vinod Kumar (NW-1), Ashok Dwivedi (NW-2),
Ganesh Kumar (NW-3) and Sushil Kumar Sharma (NW-4) was
examined. Certain documents too were adduced in evidence.
Learned trial court, after examining entire evidence
available on record, decided the issues No.1 and 2 against the
appellant and issue No.3 in favour of the respondent. Accordingly,
the application under Section 13 was rejected and the application
under Section 9 was accepted with a decree for restitution of
conjugal rights.
While adjudicating the appeal, the matter was referred
for mediation on 6.3.2017. As per the report of the Mediator, the
mediation failed and, therefore, the appeal came to be listed
before the Court for hearing on 9.8.2017. Looking to all facts of
the case the Court considered it appropriate to arrange
conciliation between the parties, accordingly, on 9.8.2017 the
appellant as well as the respondent were present before us.
Having considered all facts of the case and on being
apprised with the objective conditions, we deemed it appropriate
to examine merits of the appeal, hence, learned counsel appearing
on behalf of the appellant was heard on 1.9.2017. None was
present on behalf of the respondent, therefore, the appeal was
adjourned for 5.9.2017. On 5.9.2017 also none was present to
oppose the appeal, hence, the hearing was concluded.
Heard learned counsel and scanned the evidence
available on record.
In appeal, the argument advanced by learned counsel
is that the court below seriously erred while arriving at the
conclusion that there was no cruelty on part of the respondent
that may be sufficient for awarding a divorce decree. According to
learned counsel the court below instead of examining the issue
pertaining to cruelty gave much emphasis to the issue relating to
grant of some money said to be paid to the appellant for
purchasing a house at Jodhpur. It is asserted that adequate
evidence is available on record to establish the violent and hostile
attitude of the respondent towards the appellant. The trial court
also failed to appreciate that the respondent concealed material
fact about his two earlier marriages and having children
therefrom. This fact in itself is sufficient to establish the cruelty.
The appellant in her statement narrated all facts in
detail. As per this witness, after marriage she went to her
matrimonial house but on the very first day she was compelled to
have liquor. On the second night too the respondent consumed
liquor and made an effort to have forceful consumption of liquor
for appellant too. Under intoxication the respondent was quite
ruthless in physical activities and further that under intoxication
he also disclosed that he had two wives earlier and also had six
children. This witness further stated that while staying at her
matrimonial house she was under constant torture, thus,
ultimately moved for her parental house. Her father died on
21.4.1999 but the respondent did not choose to attend the mourn
hours also. This witness ultimately went to Agra on 22.5.2004, but
this time also she was subjected to cruelty. In cross examination,
this witness reiterated her stand and further provided details
about two earlier wives of the respondent. She accepted that no
criminal case was lodged by her against the cruel and criminal
activities of the respondent. She also denied the allegation about
borrowing money from the respondent.
The other witness Smt. Mala (AW-2) is wife of brother
of the appellant and she also detailed the facts to establish cruelty
on part of the respondent.
To oppose the application preferred under Section 13
and to support the application under Section 9, the respondent got
himself examined. As per this witness (NW-1), he neither tortured
the appellant nor made any effort to victimise her in any form. He
categorically denied the allegations made by the appellant
pertaining to causing physical injuries. This witness, much
emphasised about the fact that the appellant fraudulently
borrowed a sum of Rs.3,50,000/- and subsequently a sum of
Rs.45,000/- from him and just to grab that money she preferred
the applications to have a decree of divorce. As per this witness,
the appellant at her own did not join the matrimony since 1997
and then only in 2004 she came to have money from him. This
witness accepted about his earlier marriage and having two
children therefrom. It is also stated that earlier marriage was no
more in existence being annulled legally.
The other evidence adduced on behalf of the
respondent too is mainly of same nature.
Learned counsel appearing on behalf of the appellant
while pressing the allegations of cruelty, much emphasised that
the parties are living separately since 2004, therefore, no useful
purpose shall now be served by maintaining the order passed by
the trial court. It is asserted that as a matter of fact the
cohabitation in the year 2004 too was for a little period and the
parties in fact are not residing together from last about two
decades, the marriage as such has arrived at an irretrievable
point. The irretrievability of marriage is not a ground available to
be pursued before us in view of the provisions of Section 13 of the
Act of 1955, however, the same is also a factor i.e. to be taken
into consideration while examining the ground pertaining to
desertion and also the cruelty.
In the case in hand, beside all other allegations
pertaining to physical cruelty, an important aspect is concealment
of fact about earlier marriage. The appellant in quite specific terms
stated that she came to know about the third marriage of the
appellant only on second night subsequent to marriage. She also
stated about six children of the respondent. The respondent in his
evidence though has stated that as a matter of fact he had only
one marriage earlier but has not rebutted the statement about
non disclosure of earlier marriage before solemnising the wedding
with the appellant. We are of considered opinion that non
disclosure of such an important aspect is nothing but a mental
cruelty. We are not in agreement with the averment contained in
the statement that first marriage was of no consequence being
already annulled in view of the fact that even the first marriage, if
was not in existence then too it was obligatory to disclose this fact
before entering into second marriage. It is also not denied that the
respondent is having children from earlier marriage. All these
facts, in our considered opinion, should have been disclosed
before the marriage with the appellant and concealment of the
same is nothing but a cruelty. Learned court below has not taken
into consideration this aspect of the matter. It would also be
appropriate to mention that during the course of conciliation
proceedings we noticed that the main anxiety of the respondent is
only to have money i.e. said to be borrowed from him by the
appellant and not the continuation of marriage. Be that as it may,
the factual aspect noticed above is sufficient enough to arrive at a
conclusion that the respondent was cruel towards the appellant
and i.e. sufficient to annul the marriage.
Accordingly, this appeal is allowed. The judgment and
decree dated 24.8.2015 passed by learned Family Court are set
aside. The application preferred by the appellant as per Section 13
of the Act of 1955 is allowed. The marriage solemnised between
the parties on 10.11.1997 is hereby annulled. A decree of divorce
be accordingly prepared and granted.