Smt. Vandana Maheshwari vs Dinesh Kumar Somani

Challenge in the instant appeal has been by the applicant / appellant ("the appellant -wife" for short) to the Judgment dated 07.11.2017 passed by the learned Judge, Family Court, Bundi (Rajasthan) whereby the learned Family Court dismissed the application for divorce filed by the appellant-wife under section 13(1)(1)(1b) of the Hindu Marriage Act, 1955 ('the Act of 1955' for short) on the ground of cruelty.

Facts of the case in nutshell are that the appellant-wife filed an application under section 13(1)(1)(1b) of the Act of 1955 against the respondent-husband for divorce on the ground of 'cruelty' in the Family Court, Bundi mainly mentioning therein that her marriage was solemnized with the respondent-husband on 21.11.2011 as per Hindu Rites. After consummation of marriage, the appellant-wife gave birth to a female child on 09.04.2014. When the appellant-wife used to make call to her family members, her female friends, relatives etc., the respondent-husband used to hear talks on hiding himself and he also used to make calls on those numbers. The appellant-wife did her Post Graduation from Dev Sanskrit College. Prior to solemnization of marriage, the appellant-wife served in Deharadun. The respondent-husband did his entire study in Bhilwara. The respondent- husband used to doubt on appellant-wife. When the appellant-wife was physically and mentally tortured by the respondent-husband, on 14.04.2014 she (appellant-wife) came with her father at Bundi. On the request made by the respondent-husband and his parents in the Month of June 2014 the appellant-wife again went Bhilwara in the Month of July 2014. Thus, a decree of divorce be passed against the respondent-husband. The respondent-husband filed written statement of denial. On the basis of pleadings of both the parties, the learned Family Court framed two issues.

The learned Family Court vide judgment dated 07.11.2017 dismissed the application filed by the appellant-wife. Hence, this appeal.

Learned counsel for the appellant-wife argued that the impugned Judgment has been passed by the learned Family Court contrary to the facts and the evidence available on record. Learned Family Court while passing the impugned Judgment has erred in not considering the photographs Ex.A1, A2, A3 and A4 produced by the respondent- husband. The aforesaid photographs are group photos. The appellant-wife in these exhibits has admitted her photo, the photo of daughter and Mr. Anurag Moondra. Anurag Moondra is their family friend. Thus, the impugned Judgment passed by the learned Family Judge may be quashed and set aside.

Despite service, no one has appeared for the respondent to oppose the appeal.

Having heard learned counsel for the appellant-wife and perused the impugned Judgment, we find that the learned Family Court in para No.13 of the impugned Judgment had relied upon certain photographs i.e. Ex.A1 to Ex.4 produced by the respondent- husband along-with application under section 9 of the Hindu Marriage Act, 1955 and the learned Family Court recorded the finding against the appellant-wife in respect of her conduct but the appellant-wife was not given opportunity to controvert the allegation based on photographs Ex.A1 to Ex.A4. It is not in dispute that the appellant-wife is Post Graduate. The appellantwife filed petition under section 13(1)(1)(1b) of the Act of 1955 for divorce mainly on the ground of cruelty. Thus, the learned Family Court committed error in not deciding the divorce petition filed by the wife and the application under section 9 of the Hindu Marriage Act, 1955 by the husband together.

In view of above discussion, the impugned Judgment dated 07.11.2017 is set aside and the matter is remanded to the Family Court, Bundi, who shall provide opportunity to the parties to lead further evidence. The Family Court shall make endeavour to conclude both the proceedings within six months after fresh service on the respondent- husband. The observations made by the Family Court in the judgment impugned shall not come in its way for deciding the matter afresh.

The appeal is disposed of accordingly.