Smt. Anita Devi vs Manoj Kumar Singh
2022 Latest Caselaw 13988 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                  Reserved on 02.08.2022
 
                                                                                  Delivered on 30.09.2022
 

 
Court No. - 39 
 

 
Case :- FIRST APPEAL No. - 445 of 2014 
 

 
Appellant :- Smt. Anita Devi 
 
Respondent :- Manoj Kumar Singh 
 
Counsel for Appellant :- Ramesh Chand Tiwari 
 
Counsel for Respondent :- V.P. Gupta,Vindeshwari Prasad 
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Mrs. Sadhna Rani (Thakur),J.

(By Justice Sadhna Rani (Thakur))

Heard Sri Ramesh Chand Tiwari, learned counsel for the appellant and Sri Vindeshwari Prasad Gupta, learned Advocate, appearing for the respondent.

This first appeal is filed by Smt. Anita Devi under Section 19 of Family Court Act, 1984 against the judgement and decree dated 21.07.2014 passed by Sri Sobhi Lal, Principal Judge, Family Court in Case No. 129 of 2012 under Section 13 of Hindu Marriage Act, 1955, making a prayer to set aside the impugned judgement and dismiss the suit with costs.

By the impugned judgement, the Principal Judge, Family Court decreed the suit for dissolution of marriage filed by the respondent Manoj Kumar Singh on 20.03.2012 against the appellant.

As per facts narrated in the divorce petition filed by the respondent, the marriage of the parties was solemnized on 05.02.2006 without any dowry at Nisha Palace, Amroha, J.P. Nagar as per Hindu customs and rituals. After marriage the appellant came to the house of the respondent. As per the respondent, he kept his wife with all love and affection and made her available every house hold stuff. The respondent was posted as Manager at Madhuram Heritage, Moradabad and the appellant was working at Tirthankar Mahavir University, Moradabad. As per the respondent the appellant used to falsely accuse the respondent of having illicit relations with his own mother and also with his real sister-in-law (brother's wife). It was also alleged that the appellant used to give threat of suicide and in continuation of her threats she poured kerosene oil on herself, eight months prior to the filing of the petition. On 16th March, 2012 also, she hurled abuses to the parents of the respondent and when she was confronted, she again gave threat of committing suicide and to implicate the respondent and his family members in the false cases. It is further asserted that the respondent Manoj Kumar Singh is a peace loving person. He tried to persuade his wife, but she was adamant not to change her behaviour. So the respondent found it impossible to lead a normal married life with the appellant. Thus, on the basis of allegations of physical and mental harassment, dissolution of marriage dated 05.02.2006 and decree of divorce was prayed for.

The appellant filed a reply in the Family Court, accepted the marriage and asserted that her parents and family members gifted jewellery, clothes, Alto Car, fridge, television and other house hold items, at the time of marriage, as per their financial status. All the allegations in the petition were denied by the appellant. She also denied about working in Tirthankar Mahavir University. She further added that as the respondent was highly educated and was fetching handsome salary, so he did not like Alto Car. The Alto Car was sold out and a luxury car valued Rs. 6,00,000/- was purchased for which Rs. 2,00,000/- in cash were provided by her family members. Even then the behaviour of her in-laws did not change. They continued harassing her for extra dowry. Her husband never wanted a child, while she was eager to have a child. She never gave threat of suicide and never hurled abuses. Her behavior towards her father-in-law and mother-in-law was also respectful. The respondent under the influence of his mother did not want to lead married life with the applicant. Her mother-in-law kept all the jewellery of the appellant with her on the pretext of keeping them safe. After marriage, she was working as a trainer in Lucknow, but as per wishes of the respondent she left the job and started living as a housewife. She is unable to lead a single life. Hence, the prayer for allowing the appeal and rejection of the petition was made.

No replication was filed by the respondent petition in the family court denying the version of the written statement of the appellant Anita Devi.

After recording the statements of the P.W. 1 - Manoj Kumar Singh, his father, P.W. 2 - Rajbir Singh, D.W. 1 - the appellant - Smt. Anita Devi and D.W. 2 - Mukhtyar Singh, father of Smt. Anita Devi and going through the record, the Principal Judge, Family Court passed the impugned judgement dated 21.07.2014 and dissolved the marriage dated 05.02.2006 of the parties.

Being aggrieved by this judgment, Smt. Anita Devi filed this appeal on the ground that in compliance of the Order 20 Rule 5 of C.P.C. the trial court did not frame the issues and without framing the issues and hearing the arguments, the case was decided. Thus, the impugned judgment and decree suffer from basic legal infirmity. The findings of the trial court that the appellant had been torturing the respondent petitioner both physically and mentally is without any evidence, hence deserves no credence. The basis of the petition of the respondent is that the appellant levelled the allegation against the respondent plaintiff that he was having illicit relations with his mother and wife of his younger brother, but there was no evidence to prove that the appellant ever made any such allegation against the respondent petitioner. There was no evidence on record to prove that the appellant ever sprinkled kerosene oil on her person and tried to commit suicide, gave threat to commit suicide or even hurled abuses. Hence, there was no sufficient reason for the grant of decree of divorce. The judgment and decree have been passed without mentioning any reason for coming to the conclusion. By passing the judgment and decree the trial court transgressed flagrantly and blatantly the power conferred on it. The trial court miserably failed to consider the written statement of the appellant/defendant and also failed to appreciate the other documents filed by the appellant. Thus, the impugned judgment and decree are bad in law and as such are not sustainable.

Admittedly, this appeal was dismissed on 03.07.2019 for want of paper book under Chapter XIII Rule 3 Proviso of Rules 1952. The appellant filed the restoration application on 17.07.2019. After exchange of counter and rejoinder affidavits, the restoration application of the appellant was allowed on 24.02.2020 and the order of dismissal of the appeal dated 03.07.2019 was recalled. The appeal was restored to its original number.

After dismissal of the appeal on 03.07.2019 and before the restoration application dated 17.07.2019 was moved, the respondent - Manoj Kumar Singh stated to have remarried on 10.07.2019 and this marriage was registered vide marriage registration certificate dated 16.07.2019.

On 03.12.2020, the appellant moved a misc. application No. 06 of 2020 under Order I Rule 10 read with Section 151 C.P.C. to implead Smt. Isha Chaudhary, the second wife of the respondent - Manoj Kumar Singh as a party in the appeal. On the same day, the appellant moved Misc. Petition No. 07 of 2020 also and prayed to declare the second marriage of the respondent and Isha Chaudhary dated 10.07.2019 to be null and void.

Both the applications have not been decided till now, hence, they are being taken up and decided at this stage.

By moving the impleadment application, the appellant submitted that after filing of the present appeal No. 455 of 2014 under Section 19 of Family Court Act, 1984 against the judgment dated 21.07.2014 (dissolution of marriage of the parties), on 20.08.2014, this Court stayed the operation of the impugned judgment and decree passed by the Principal Judge, Family Court in Petition No. 129 of 2012 till the next date of listing and on every fixed date, the stay order was extended. On 03.07.2019, the appeal was dismissed for want of paper book, under Chapter XIII Rule 3 Proviso of Rules 1952. On 12.07.2019, the recall application and the affidavit in support of the same were prepared. The counsel for the appellant supplied the copy of the restoration application to the counsel for the respondent no. 1 on 15.07.2019. Learned counsel for the respondent no. 1 - Sri V.P. Gupta kept the original application with him to make the endorsement of receiving on that application and returned it on 17.07.2019. On 10.07.2019, the respondent Manoj Kumar Singh solemnized second marriage with Isha Chaudhary and without waiting for the result of the restoration application/appeal on 16.07.2019 Manoj Kumar Singh and his second wife applied for registration of their marriage. This marriage is a void marriage because the decree of divorce had not attained finality. Manoj Kumar Singh and Isha Chaudhary have committed the offence under Section 494 I.P.C. The appellant reserves her right to initiate criminal proceedings against both of them. Smt. Isha Chaudhary is the necessary and proper party in the appeal so the prayer was made to implead Isha Chaudhary d/o Ompal Singh as respondent no. 2 in the appeal.

Respondent Manoj Kumar Singh filed the counter affidavit dated 27.03.2022 and replied that being the husband of the proposed respondent Isha Chaudhary he is doing pairavi on behalf of his wife and submitted that that the counsel for the appellant himself committed mistake and negligence. The contents of the affidavit filed in support of the impleadment application are totally false and misconceived, hence, denied. It was however, contended that when the appeal was dismissed by this court, only then the respondent solemnized second marriage on 10.07.2019 with Isha Chaudhary and, thereafter, they had applied for registration of the marriage. There is no need to implead Isha Chaudhary as respondent in the present appeal as she has no concern with the dispute between the parties. Prayer was accordingly made to dismiss the application with heavy costs.

The appellant filed the rejoinder affidavit and reiterated the statements made in the impleadment application and submitted that no mistake and negligence had ever been made either by the appellant or by her counsel and prayer to implead Isha Chaudhary as respondent no. 2 was reiterated.

As per version of the respondent, he remarried with Isha Chaudhary on 10.07.2019 and this marriage was registered on 16.07.2019. The present appeal was filed by the appellant against the judgment and decree dated 21.07.2014 pased by the Principal Judge, Family Court, J.P. Nagar, in Case No. 129 of 2012 under Section 13 of Hindu Marriage Act wherein only the appellant Smt. Anita Devi and the respondent Manoj Kumar Singh were the parties. Hence, the petition in the trial court and the appeal in this court are regarding the dissolution of marriage of the appellant and respondent only, the proposed respondent Isha Chaudhary has nothing to do with the present proceedings, so in our opinion there is no need of impleading Isha Chaudhary, the alleged second wife of the respondent as respondent no. 2 in the present appeal as she is neither necessary nor proper party to the proceeding. The Civil Misc. Impleadment Application No. 6 of 2020 under Order I Rule 10 read with Section 151 of C.P.C. being devoid of merit, is hereby rejected.

Civil Misc. Petition No. 07 of 2020 under Section 11 of Hindu Marriage Act, 1955 is also filed by the present appellant Smt. Anita Devi against the respondent - Manoj Kumar Singh and his second wife Isha Chaudhary with the prayer to declare their marriage as null and void. A prayer of cancellation of their marriage certificate dated 16.07.2019 is also made. As per this application, after the divorce decree dated 21.07.2014, the appellant filed First Appeal No. 455 of 2014 under Section 19 of Family Court Act, 1984 and challenged the judgment and decree dated 21.07.2014 passed by the Principal Judge, Family Court, J.P. Nagar. In this appeal, the operation of the impugned judgment dated 21.07.2014 was stayed and the stay was being extended on every date. On 03.07.2019, the appeal was dismissed for want of paper book under Chapter XIII Rule 3 Proviso of Rules, 1952. On 12.07.2019, the recall application and the affidavit were drafted. The affidavit had been sworn by the appellant on 15.07.2019, the copy of the same was supplied by her counsel to the learned counsel for the respondent no. 1, who returned the original one with his endorsement on 17.07.2019. According to respondent no. 1 - Manoj Kumar Singh, he had solemnized his second marriage on 10.07.2019 and it was registered on 16.07.2019. The respondents had solemnized this marriage without waiting for the result of the appeal during subsistence of the first marriage, as such, in view of Section 5 (1) of Hindu Marriage Act, 1955 the marriage is null and void. The decree of divorce passed by the Principal Judge, Family court had not attained the finality till date, so the prayer for declaring the marriage dated 10.07.2019 to be null and void and the marriage certificate dated 16.07.2019 to be cancelled was made.

The counter affidavit was filed by the respondent Manoj Kumar Singh against this Civil Misc. Petition No. 7/2019 on 27.03.2022 stating therein that he is paying Rs. 5000/- per month as maintenance to the appellant - Smt. Anita Devi regularly. He admitted his second marriage after dismissal of the appeal vide order dated 03.07.2019 and also admitted that the marriage was registered on 16.07.2019 and submitted that as second marriage was performed when the appeal was dismissed by this court, hence, the present petition filed by the appellant under Section 11 of Hindu Marriage Act, 1955 being devoid of merit is liable to be dismissed.

The rejoinder affidavit was filed by the appellant on 15.05.2022 and the facts mentioned in her original Misc. Petition No. 07 of 2020 were reiterated. The appellant admitted of getting maintenance of Rs. 4000/- per month in the proceedings under Section 12 of Domestic Violence Act and Rs. 1000/- per month in the Case under Section 125 Cr.P.C. It was admitted by her that even today she was living in her in-laws' house. In support of her version, she filed the certificate of Sabhasad of Ward No. 19, Nagar Palika Parishad, Gajraula, J.P. Nagar and prayed that her petition under Section 11 of Hindu Marriage Act be allowed.

If we go through Section 11 of Hindu Marriage Act, the section runs as under:-

Section 11-

"Void marriages.-- Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i) , (iv) and (v) of section 5."

It would be opposite to reproduce clauses (i), (iv) and (v) of Section 5 of Hindu Marriage Act also:-

5. Conditions for a Hindu marriage. A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:

(i) neither party has a spouse living at the time of the marriage;

(ii).....

(iii).....

(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;

The appeal is the continuation of the original proceeding and the operation of the judgment dated 21.07.2014 regarding dissolution of the marriage was stayed by this Court and the stay order was continuing till date of dismissal of the appeal under Chapter XIII Rule 3 Proviso of Rules, 1952. After dismissal of the appeal on 03.07.2019, the restoration application was filed on 17.07.2019 and its copy was supplied to the counsel for the respondent on 15.07.2019. This restoration application was allowed and the dismissal order dated 03.07.2019 was recalled vide order dated 24.02.2020 of this Court. As the restoration application was filed within time, within 30 days of the passing of order of dismissal in accordance with Chapter XXII Rule 1 of High Court Rules and the respondent had remarried within seven days of the dismissal of the appeal for default. The decree of divorce was not finalised by the said date and its appeal was, though, dismissed for want of prosecution, but the period of limitation of 30 days for filing restoration had not been passed hence, the remarriage of the respondent on 10.07.2019 soon after dismissal of the appeal on 03.07.2019 being in contradiction of clause (I) of Section 5 of Hindu Marriage Act cannot be said to be valid. Thus, the second marriage, being solemnized before expiry of the limitation for the filing of the restoration application, will be considered to be void. Hence, the Civil Misc. Petition No. 07 of 2019 is allowed and the marriage of respondent - Manoj Kumar Singh with Isha Chaudhary dated 10.07.2019 is declared to be null and void and its registration certificate dated 16.07.2019 is hereby cancelled.

So far as the grounds of appeal against the judgment and decree dated 21.07.2014 are concerned, it is submitted by the appellant that the only ground taken in the divorce petition for dissolution of marriage was that the appellant was torturing the respondent petitioner both physically and mentally by leveling false allegations that the respondent petitioner was having illicit relations with his mother and the wife of his younger brother. There is no evidence on record to show that the appellant ever made any such allegation against the plaintiff respondent. There is no evidence that the appellant ever sprinkled kerosene oil on her person and tried to commit suicide and even hurled abuses.

If we go through the judgment of the trial court, the trial court found that the respondent and his father both in their statements as P.W. 1 and P.W. 2 have stated that without any incident, the false allegations of having illicit relations with his mother and brother's wife were levelled against the respondent Manoj Kumar Singh by his wife. The father of the respondent stated that this allegation against the character of his son was levelled by the appellant infront of him. The appellant used abusive language and showed disrespect towards her month-in-law infront of both P.W. 1 and P.W. 2. The trial court found that in the cross examination of PW. 1 and P.W. 2, nothing could come out to prove that the allegations regarding character of Manoj kumar Singh levelled by the present appellant were true. The trial court also found that the appellant was living in her father-in-law's house at Gajraula and her father-in-law and her husband were living in a house in the village. The appellant had also filed a case of domestic violence, hence, the trial court found the allegation made against the character of the respondent and the disrespectful behavior of the appellant towards her in-laws to be true. The trial court also found that as the appellant was living in the house of her in-laws forcing her in-laws to live in a house in the village, this fact also proved cruelty on her part towards her in-laws.

If we go through the findings of the trial court that the appellant is living in her in-laws house at Gajraula and her in-laws including her husband are residing in a house at the village, it is an admitted fact that the appellant is living in the house of her father-in-law situated at Gajraula. But it is neither the allegation in the petition of the respondent/petitioner nor in the statement of P.W. 1 and P.W. 2 that the appellant expelled her in-laws or the husband from the house where she was living, nor there was any version in the petition or the statement of P.W. 1 and P.W. 2 that because of the ill-behavior of the appellant, the respondent petitioner or his family were living in the village. Thus, in absence of any allegation in the petition itself and the statement of P.W. 1 and P.W. 2 that the appellant expelled out her husband and in-laws from their house wherein she is living or the respondent or his parents had to leave that house due to ill-behavior of the appellant, the findings of the trial court that the stay of the appellant in the house of her father-in-law and the family of father-in-law including the husband of the appellant living separately at the village, proved mental cruelty on the part of the appellant against her husband and in-laws, is against the evidence on record.

It is also alleged in the petition filed by the respondent petitioner that his wife used to give threat of suicide and in continuation of her threat once she also poured kerosene oil on her and reiterated her threat of suicide. Admittedly, no complaint was made by the respondent or his parents in any police station or to any police officer in that regard nor kerosene stained clothes of the appellant were produced by them, nor any independent witness in that regard had been produced by the respondent petitioner in the trial court. Even no date of pouring of kerosene oil had been disclosed by the respondent and his witness. The only version that the respondent and his family members called the parents of the appellant and disclosed the threat and attempt of suicide made by the appellant to them cannot be said to be proof of the allegation that the appellant used to harass the respondent petitioner by giving threat of suicide or she even poured kerosene oil on herself to prove her threat.

So far as the false allegation made by the appellant on the respondent having illicit relations with his mother or the brother's wife is concerned, this was the main allegation levelled by the respondent petitioner against the appellant in his divorce petition that his wife used to level the above noted false allegation against him. It was also stated that on 16.03.2012 also, the appellant abused the respondent petitioner and his parents. She gave threat of suicide and to implicate her in-laws including her husband in the false cases. These allegations are denied by the wife appellant and she has replied in her written statement that her behavior towards her in-laws was always respectful. P.W. 2 father of the respondent deposed that they lived together (with the appellant) for three years after the marriage of his son, i.e., upto 2009 and in the cross examination of P.W. 2 stated that at Gajraula (where they lived together) the appellant never misbehaved with her mother-in-law. So after 2009, when the appellant did not live with her in-laws, there was no occasion for her to abuse or misbehave with them, i.e. the parents of the respondent. No definite place has been made out by the respondent as to where, when and how the appellant misbehaved with him or his parents. There is no version or evidence on record that the appellant lived with the parents of the respondent after the year, 2009. P.W. 2, in his cross examination, stated that he could not tell the period or the date since when the appellant and respondent were living separately before filing of the divorce suit. This fact has not been stated by the respondent petitioner in the divorce petition also. P.W. 1, in his cross examination, had denied the fact that his wife, the appellant herein committed domestic violence. Thus, the allegation of abusing to the respondent and his parents by the appellant cannot be said to have been proved. It is admitted fact that a case of domestic violence had been lodged by the appellant. Though, the respondent stated that a suit under the domestic violence Act was pending against him, but the father of the appellant in his statement as D.W. 2 stated that the case under the domestic violence Act had been filed both against the respondent and his father as well. Thus, the only witness produced by the respondent in support of his allegation was the interested witness, being father of the respondent and being an co-accused in the domestic violence case filed by the appellant.

The allegation that the appellant used to accuse her husband of having illicit relations with his mother and brother's wife, both the respondent and his father have admitted in their statements that there was no quarrel between the appellant and the wife of the brother of the husband. Further, the allegation of the wife alleging illicit relation of the respondent with his mother and sister-in-law was said to have levelled by the appellant before the filing of the divorce suit, admittedly, the petition was filed in March, 2012. As per the statement of P.W. 2 the said allegation was made infront of him. Further as per own statement of P.W. 2, he along with the appellant and his son stayed together for three years after their marriage, in his house at Gajraula. The marriage was solemnized in the year 2006, thus, it can be seen that they all stayed together at the house of the father of respondent - petitioner till 2009. There is no whisper that after that the parties lived with the parents of the respondent. The father of the respondent - P.W. 2 has admitted in his cross examination, that the allegation against the character of his son was levelled by the appellant about 2 or 2-1/2 years prior to the filing of the divorce suit, when they were living jointly at their house at Gajraula. The date when this allegation was made by the appellant is not mentioned in the divorce petition. However, according to P.W. 2 father of the respondent the said allegation was made when they were living jointly at Gajraula and admittedly they lived as such only upto 2009 only. In his cross examination, the respondent petitioner stated that these allegations were levelled by his wife 1 or 1-1/4 years prior to the filing of the divorce petition. The petition having being filed in 2012, the period of making allegation as per P.W. 1 comes to somewhere in the year 2010 or 2011 while as per P.W. 2 the said allegation was made when they were living together and admittedly they were living separately from 2009 so the period when the said allegation was made in the deposition of P.W. 1 and P.W. 2 becomes contradictory and, thus, the factum of the wife making false and reckless allegations made against the respondent (husband) and his mother and sister-in-law was not proved.

It is admitted by P.W. 1 and P.W. 2 in their deposition that the mother and brother's wife of the respondent/petitioner even after the allegations against their character were made, did not misbehave, abuse or quarrel with the appellant. In our opinion, this version of the respondent petitioner does not appear to be convincing, because it is against the human nature that if a person is falsely accused of such an allegation of having illicit relations with the close family member, he would keep calm and would not oppose the allegation or would not have a quarrel with the person levelling false accusation against him. Apart from this, it has come in the cross examination of P.W. 2 that when the parents of the appellant were called upon and told the fact of false accusation made by their daughter, the appellant accepted those allegations. Considering this, we may note that if the appellant had admitted that she wrongly levelled charges against her husband of having illicit relations with his own mother or sister-in-law, then no cause of action survives because once the person admits his/her guilt then the cause of action would be considered to be subsided. Otherwise also, not a single date of the accusation having been made, has been mentioned in the petition and the period as mentioned regarding accusation in the statements of P.W. 1 and P.W. 2 is contradictory and also to the version in the divorce petition and the examination-in-chief of the P.W. 1 and P.W. 2. The allegations regarding accusation made by the appellant of illicit relations of the respondent with his mother or sister-in-law in the petition are sought to be proved with the statement of P.W. 1 - respondent petitioner and P.W. 2 his father, and both of them are interested persons. P.W. 2 being an accused in the case of domestic violence also, his statement cannot be considered to be trustworthy, without any corroboration specifically when the allegation is categorically denied by the appellant and her father (both) in their statements as D.W. 1 and D.W. 2. No independent witness has been produced in this regard.

It is alleged by the appellant that the trial court did not follow the procedure laid down in Order XX Rule 5 of C.P.C. The trial court was under obligation to take cognizance of the case by framing issues and after framing of the issues, was required to decide each issue in accordance with law and then proceed to pass the order.

If we go through the Order XX Rule 5 of C.P.C. it runs as under:-

"5. Court to state its decision on each issue.-- In suits in which issues have been framed, the Court shall state its finding or decision, with the reason therefor, upon each separate issue, unless the finding upon any one or more of the issue is sufficient for the decision of the suit."

This provision states that the court has to give finding on all the issues framed. However, the court is under no legal obligation to take cognizance by framing the issues. Thus, this objection of the appellant is baseless.

Thus, to sum up, the allegations of cruelty on the part of the appellant on account of mere filing of the suit under the domestic violence Act cannot be said to be proved. Without any allegation of respondent petitioner and his father having been expelled by the appellant from their house at Gajraula or without any allegation that they had to leave the house because of the ill-behavior of the appellant, the conclusion of the trial court that since the appellant was staying in her in-law's house and the in-laws were forced to live in the village proved the cruelty on the part of the appellant, is against the evidence on record.

So far as the allegation of pouring kerosene oil and making attempt to commit suicide is concerned, neither any date of the incident has been mentioned nor any complaint/F.I.R. has been made by the respondent in that regard, nor any independent witness has been produced nor the kerosene oil stained clothes of the appellant have been produced by the respondent.

Regarding the allegations of abusing on 16.03.2012, admittedly the in-laws of the appellant lived together only up to 2009, so there was no question of abuses by the appellant on 16.03.2012, as alleged in the divorce petition.

So far as the main allegation of accusation by the appellant against the respondent of having illicit relations with his mother and sister-in-law is concerned, as per P.W. 2 (father of the appellant) himself, when the parents of the appellant were called to discuss about that accusation and the appellant admitted her wrong before them. So once a person admits his or her wrong then the cause of action cannot be said to have been survived any more. It is not the allegation of the respondent petitioner that after discussing this alleged false accusation about the character of the respondent before the parents of the appellant, the appellant ever repeated the said allegation before filing of the divorce suit. Otherwise also, in view of the above discussion, the time when the allegations were made does not tally with the time period mentioned in the statements of witnesses, hence, in our opinion the respondent-petitioner had failed to prove the allegations made in the petition and the approach of the trial court in dealing with the issue is found to be erroneous and against the evidence on record. The specific conclusion of commission of cruelty by the wife namely the appellant against her husband, the respondent are not proved. Hence, the appeal deserves to be allowed.

The judgment and decree dated 21.07.2014 passed by the Principal Judge, Family Court, J.P. Nagar in Case No. 129 of 2012 under Section 13 of Hindu Marriage Act, 1955 is set aside. The Divorce Suit namely Case No. 129 of 2012 under Section 13 of Hindu Marriage Act filed by the respondent - Manoj Kumar Singh is hereby dismissed.

The appeal is allowed.

The remarriage of the respondent dated 03.07.2019 with Isha Chaudhary is declared null and void, their marriage certificate dated 16.07.2019 is, accordingly, cancelled.

Order Date :- 30.09.2022

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