Allahabad High Court
Amit Raj Pal vs Smt. Sonika @ Simran on 7 January, 2025
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:3065-DB
Court No. - 29
Case :- FIRST APPEAL No. - 413 of 2019
Appellant :- Amit Raj Pal
Respondent :- Smt. Sonika @ Simran
Counsel for Appellant :- Avinash Pandey,Sandeep Saxena
Counsel for Respondent :- Anil Kumar Shukla
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Donadi Ramesh,J.
1. This appeal under Section 19 of the Family Court Act, 1984 is by the appellant/husband challenging the judgment of trial court, dated 07.02.2019, rejecting the application filed by the appellant under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage solemnized with the respondent/wife.
2. Briefly stated facts of the case are that marriage of appellant was solemnized with the respondent on 27.10.2007 according to the Hindu customs and traditions. The proceedings for dissolution of marriage has been instituted by the appellant on the ground that the wife suppressed the fact that she had solemnized two marriages prior to her marriage with the appellant. The first marriage of the respondent was solemnized with one Ramesh Mehta and a female child was born out of such wedlock. The first husband of the respondent, namely Ramesh Mehta, took divorce from respondent. It was thereafter that respondent solemnized second marriage with one Bharat, who was resident of Bulandshahr and by falsely implicating him the respondent extracted Rs.5 lac from him. The second marriage of the respondent with Bharat was not legally dissolved and by suppressing such fact the third marriage was solemnized by the respondent with the appellant. The appellant has then stated that the respondent tortured and harassed his elderly parents and also generated pressure on them to part with their house bearing municipal no. C 64 Church Compound, Saharanpur. The respondent wife in collusion with certain land grabbers also threatened the appellant husband. The application under Section 13 of the Act of 1955 also contained allegation to the effect that the respondent never attended to her duties nor gave him food etc. and the appellant was often required to leave for work without having his meal in the morning. The respondent used to hurl abuses and also ill-treated in-laws as a result of which the appellant left his house alongwith parents and started living in a rented accommodation. It is further stated that the respondent in order to secure ouster of the appellant and his parents also lodged an FIR in Case Crime No.484 of 2011 under Sections 498A, 323, 504, 506 IPC and 3/4 of Dowry Prohibition Act. The appellant's father since needed money for his treatment as such the house no. C 64, Church Compound, Saharanpur has been sold to the sister of the respondent vide sale deed dated 10.05.2012 and the possession over such house is of the respondent's sister and her husband. Since there was a threat to life from the respondent to both the appellant and his parents, as such prayer is made to dissolve the marriage between the parties.
3. The respondent has entered appearance in proceedings before the trial court and except the fact that the marriage was solemnized with the appellant on 27.10.2007 she denied other allegations including the factum of second marriage. Respondent, however, has admitted that her first marriage was dissolved and asserts that the appellant is also a divorcee. Serious allegations against husband have been made and the respondent asserted that notwithstanding various acts of harassment she had offered to live with the appellant.
4. Proceedings under Section 9 of the Act of 1955 for restitution of conjugal rights were also instituted by the respondent. Both the proceedings have been heard together and the trial court by the composite judgment has rejected both the applications filed by the appellant under Section 13 and by the respondent under Section 9 of the Act of 1955. The respondent has not preferred any appeal against rejection of her application under Section 9 of the Act and it is only the appellant husband, who has preferred the present appeal before this Court, against rejection of his application under Section 13 of the Act of 1955.
5. Though the matter has been called out in the revised list but none appears for the respondent. Shri Vedmani Sharma, holding brief of Shri Sandeep Saxena, counsel for the appellant has been heard at length, on his behalf.
6. We have perused the paper book as also records of the trial court. The plea for dissolution of marriage is primarily based upon the allegation that the wife has suppressed the factum of second marriage with Bharat resident of Bulandshahr; she ill-treated the appellant and his parents as a result of which they were forced to leave the house; criminal proceedings with ulterior motive were instituted against the appellant and his parents by the respondent resulting in lodging of FIR in Case Crime No.484 of 2011 under Sections 498A, 323, 504, 506 IPC and 3/4 of Dowry Prohibition Act.
7. The evidence on record is categorical, inasmuch as the parties clearly admit that at the time of contracting the marriage on 27.10.2007 both the appellant and respondent were divorcee. The divorce decree was passed by the competent family court dissolving first marriage of respondent with Ramesh Mehta. To this extent the facts are admitted by both the parties. The parties, however, are at issue on the aspect of contracting of second marriage by the respondent with one Bharat. On this aspect of alleged second marriage of respondent with Bharat resident of Bulandshahr the trial court has returned a categorical finding that onus to prove the second marriage is on the husband. This was so as the factum of second marriage was asserted by the appellant as being the ground for dissolution of marriage. The finding of the trial court that no evidence has been led by the appellant to prove the second marriage of respondent with Bharat, resident of Bulandshahr, although is assailed but no perversity or illegality in such finding has been pointed out to this Court at the time of hearing of appeal.
8. We have carefully examined the materials and records placed before us. We find that except for bald allegations made by the appellant that the respondent had contracted second marriage with Bharat resident of Bulandshahr there is no material or evidence on record led by the appellant during the course of proceedings before the trial court. Since such fact was specifically asserted by the appellant the onus clearly was on him to prove such fact. In the absence of any evidence led by the appellant to prove the second marriage of respondent wife with Bharat, we find no illegality or perversity in the finding returned by the trial court that the appellant had failed to prove the second marriage of respondent with Bharat.
9. Trial court has further taken note of the fact that after the marriage was solemnized between the parties the appellant had instituted proceedings under Section 13 of the Act of 1955 for dissolution of marriage being Case No. 313 of 2010. Thereafter, a compromise was arrived at between the parties and on its strength the appellant had withdrawn the proceedings under Section 13 vide order dated 29.08.2010 and the respondent had also withdrawn the proceedings instituted under the Domestic Violence Act vide order dated 17.01.2011. It is in this context that the trial court has observed that the parties since had resolved their differences and proceedings were withdrawn by them indicating that the dispute between the parties was amicably resolved, it would not be appropriate to consider the application of husband on the ground of desertion.
10. It is within less than three years of withdrawal of such proceedings that fresh proceedings under Section 13 of the Act of 1955 have been instituted by the appellant husband on the ground of cruelty practiced by the respondent wife, inasmuch as he alongwith his parents are living separately from his wife for the last three years. Except for the testimony of appellant in that regard no other evidence has been placed on record. Trial court has not found substance in the contention that the respondent had neglected to perform her matrimonial obligation or that she extended any threat to appellant and her in-laws.
11. The thrust of appellant's contention in respect of alleged cruelty was the fact that appellant with his parents were compelled to live separately in a rented accommodation. This plea is sought to be proved by the testimony of PW-2, who happens to be the son of landlord where the appellant with his parents is allegedly living on rent. The testimony of PW-2 has been carefully examined by the trial court. PW-2 has admitted that he is co-worker with the appellant and is his close friend. PW-2 in his testimony has also admitted that neither any rent receipt was given, nor any evidence regarding occupancy of tenanted premises has been placed on record. The trial court has also taken note of the fact that the parents of appellant were also implicated in the matrimonial dispute instituted by the respondent wife and in the bail applications filed by them and on the sureties etc. their address was mentioned as C 64, Church Compound, Saharanpur. The court below has observed that the allegation of appellant that he alongwith his parents were compelled to leave the house on account of torture by wife, is thus not substantiated. Trial court has also noticed that there is a civil dispute pending in respect of matrimonial house and, therefore, the plea that appellant and his parents were forced to leave the house is not substantiated.
12. We have also perused the judgment of family court in which detailed discussions are made on the specific contentions urged by the appellant and cogent reasons have been given for rejecting his application under Section 13 of the Act of 1955. The trial court has also noticed the fact that the respondent wife was still willing to live with the appellant husband and merely on the asking of appellant for a divorce such a decree could not be passed.
13. Having given our thoughtful consideration to the respective arguments advanced on the basis of materials available on record, we find that none of the grounds set up by the appellant husband to seek divorce have been substantiated during the course of trial. The plea of desertion of the appellant from the respondent for over three years is also not substantiated on the basis of evidence placed on record. In such circumstances, the rejection of application of the appellant husband under Section 13 of the Act of 1955 by the trial court cannot be said to be suffering from any infirmity or illegality in law, which may persuade this Court to interfere in the matter. Consequently, the present appeal fails and is dismissed.
Order Date :- 7.1.2025
Ashok Kr.
