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Judgment
Validity of judgment and decree dated 18.2.2014
passed by learned Judge, Family Court, Bhilwara in Civil Misc.
Case No.335/2012 whereby the divorce petition preferred by
respondent-plaintiff has been accepted and application under
Section 9 of Hindu Marriage Act preferred by the appellant-
defendant has been disallowed, questioned by way of two
separate appeals, Appeal No.345/2014 has been preferred
challenging the validity of divorce and Appeal No.346/2014
against dismissal of application seeking restitution of conjugal
rights.
Heard both the sides, it has been contended by
learned counsel for the appellant that the trial court has
committed material illegality in rejecting the application of the
appellant moved under Section 9 of the Hindu Marriage Act and
accepting petition under Section 13 of Hindu Marriage Act by
decreeing divorce petition. Appellant-plaintiff failed to establish
allegations of cruelty and no positive evidence was adduced to
prove cruelty, the appellant has not committed any cruelty.
Appellant is very much prepared to live with the respondent, but
learned lower court committed error in not appreciating the
evidence in proper perception. Hence, the appeals be allowed and
the impugned judgment and decree be set aside and application of
the appellant preferred under Section 9 of Hindu Marriage Act be
allowed.
On the contrary, learned counsel appearing for
respondent has submitted that plaintiff has succeeded in
establishing evidence pertaining to cruelty, so mutually a
settlement was also reduced into writing for effectuating mutual
divorce at family level. Plaintiff-respondent was subjected to
cruelty, so there was no occasion for the respondent to reside and
live in the company of appellant-defendant. Hence, the decree
passed in favour of the plaintiff-respondent does not need
interference and application under Section 9 preferred by the
appellant-defendant has rightly been rejected and decree for
divorce has correctly been passed.
Plaint relating to divorce petition, filed by
respondent Smt. Abhilasha under Section 13 of the Hindu
Marriage Act discloses that the couple had married on 2.9.2009
and no issue begotten out of wedlock, defendant Sunil allured her
under pretext of putting Mehandi upon his family members and
then forcibly compelled her to marry and in order to protect
dignity of the family, plaintiff''s parents agreed to ceremonise
marriage, further contentions of physical and mental cruelty and
demand of dowry with threats have also been pleaded, which has
been countered by the pleadings as raised in the written
statements by the defendant.
The record contains Ex.4 (4A) an admitted
"mutual agreement" relating to determination of marital relations,
which has been executed between the ''couple'' reads as under:-
"VERNACULAR MATTER OMITTED" and appellant Sunil has accepted his signature on this document.
Perusal of evidence shows that respondent-
plaintiff Smt. Abhilasha Sharma has proved pleadings by her
evidence and she has asserted that divorce agreement reduced
into writing between both the parties is Ex.4 and in her cross-
examination, she has reiterated that her marriage was solemnized
under conspiracy, Sunil invited her for putting Mehandi to his
family members and under that pretension, she was taken away
to Bhilwara and was forcibly asked to sign on 28 th August, 2009,
she has also said that she was betrothed elsewhere, despite she
was forced to marry and has denied that under alleged duress,
she had taken recourse of legal action against Sunil.
PW-2 Liladhar Sharma, father of respondent-
plaintiff Smt. Abhilasha, has also supported evidence of her
daughter, in his cross-examination, Liladhar has also said that appellant had fled away with his daughter and has also said that
Sunil had threatened over telephone that if his daughter was not
permitted to marry in three days'' time, then she would be sold
somewhere outside, so he had agreed for the marriage.
DW-1 respondent Sunil, while cross-examined has
said that his marriage with Abhilasha was love marriage and has
accepted that Ex.4A contains his signature, which was written on
3.3.2010 at Gangapur, he has also said that it is correct that case
under Section 498A was lodged against him and Ex.3 is its charge
sheet. He has further said that he too had lodged a FIR regarding
beating and snatching of chain, which is Ex.7 and allegation of
chain snatching was found false after investigation in that case.
He has also said that on 23.10.2010, mother of Abhilasha Smt.
Chanda Devi has also lodged FIR Ex.8 against him and Ex.6 was
its challan. He has further admitted that during the pendency of
application under Section 9 agreement regarding separation was
executed. He has admitted his name in Ex.2, which pertains to
his detention under Section 151 of Cr.P.C. and proceedings under
Section 107 of Cr.P.C. in case No.8/2010, which too relates in
respect of abortive attempt to kidnap Abhilasha again.
Appreciation of evidence discussed above suffice
to indicate that Ex.4 (4A)was reduced into writing between both
the parties pertaining to their mutual separation at family level at
free will, and registering of a criminal case under Section 498A
coupled with other proceedings relating to his arrest and
preventive action. Factual aspect of these cases are well admitted
by the appellant. It has also been admitted that out of Rs.2 lacs,
one lac was already received back by groom-side.
In view of the aforesaid, respondent-plaintiff Smt.
Abhilasha has succeeded in establishing her case for seeking
divorce, so there appears no infirmity or illegality in the judgment
impugned, as such, we are of the view that learned trial court has
rightly passed decree for divorce, while rejecting application for
restitution of conjugal rights.
Therefore, both the appeal lacks merit and are
liable to be dismissed and are accordingly dismissed.
Cost easy.