FA/26/2021
2023 Latest Caselaw 1354 UK

       IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

                     SRI JUSTICE VIPIN SANGHI, C.J.
                                 AND
                   SRI JUSTICE RAKESH THAPLIYAL, J.

17TH MAY, 2023 FIRST APPEAL No. 26 OF 2021 Between:

Smt. Neetu Rawat                                            .........Appellant

and

Shri Umesh Rawat                                           ....Respondent


Counsel for the appellant        :    Mr. Pooran Singh Rawat.
Counsel for the respondent       :    Mr. Priyanshu Gairola, learned counsel
                                      for the respondent.

Upon hearing the learned Counsel, the Court made the following

JUDGMENT : (per Sri Vipin Sanghi, C.J.)

The present Appeal is directed against the

impugned judgment dated 11.01.2021 passed by the

Principal Judge, Family Court, Dehradun in Original Suit No.

1023 of 2017, whereby the petition preferred by the

respondent-husband under Section 9 of the Hindu Marriage

Act against the appellant-wife was allowed.

2. The parties got married on 10.03.2008 according

to the Hindu rites and ceremonies. They have one son, who

was born on 21.10.2009.

3. The case of the respondent-husband is that the

appellant left her matrimonial home on 11.11.2017 finally,

along with the minor child, and since the appellant did not return to her matrimonial home, the respondent filed the

aforesaid petition under Section 9 of the Hindu Marriage Act

to seek restitution of conjugal rights. The said petition was

contested by the appellant by filing a written statement,

where she made allegation of cruel treatment meted out to

her by the respondent-husband. The respondent filed his

replication denying those allegations and re-affirming his

averments in his petition under Section 9 of the Hindu

Marriage Act. The respondent led his evidence before the

Family Court, which was closed on 25.09.2019. Thereafter,

the case was fixed for the appellant-wife to lead her

evidence. On 02.11.2019, it appears that the appellant was

present with her counsel before the Family Court. She

endorsed on the order-sheet dated 02.11.2019 that in the

present case, she does not wish to lead any evidence. This

endorsement has been made by the appellant in her own

hand and dated as 02.11.19. Consequently, the learned

Presiding Judge passed order, which reads "Case called out.

Counsels are present. The respondent has closed her

evidence." The matter was adjourned to 05.01.2020.

Thereafter, it appears from the order-sheet placed on record

that the matter was adjourned time and again till the

passing of the impugned judgment proceeding on the basis

that the respondent-husband had proved his case by leading

his evidence. Pertinently, he had also been cross-examined

by the appellant's counsel.

4. On the other hand, the appellant has failed to lead

any evidence to substantiate her allegations of cruel

treatment allegedly meted out by the respondent-husband.

5. In her memo of Appeal, the appellant claims that

she had made the statement to the effect that she does not

wish to lead evidence on the wrong advice of her Advocate.

It is so stated in the Dates & Events as well as in the Ground

No. 7, where she states that "she engaged a lawyer but this

endorsement was made under the wrong advice of the

lawyer of appellant, for which she should not be made to

suffer".

6. We have inquired from the appellant's counsel

whether any notice has been issued to the erstwhile lawyer

and whether any action was taken against him by filing any

proceedings either in a Court or before the Bar Council.

Counsel for the appellant candidly states that none of these

steps have been taken.

7. Learned counsel for the respondent submits that

even after making the said endorsement on 02.11.2019, the

matter remained pending before the Family Court, Dehradun

till the passing of the impugned judgment on 11.01.2021,

i.e. for a period over one year. Even during this period, the

appellant never approached the Court to claim that she had

made the said endorsement on the wrong advice or that her

right to lead her evidence should be revived. He has

pointed out that the appellant is an educated person, who is

employed and she has led her evidence in other inter se

proceedings between the parties. Thus, it cannot be said

that she was not given the opportunity to lead evidence.

8. We have heard learned counsels, and have also

considered the evidence and the impugned judgment

available on the record.

9. In our view, there is no explanation whatsoever

provided by the appellant to justify her reneging from her

statement made before the Principal Judge, Family Court

that she does not wish to lead her evidence in support of her

defense.

10. As noticed above, the matter remained pending

for over a year even after that statement was made by the

appellant before the Court, and she made an endorsement

in this regard in the order-sheet in her own hand. Though

she makes an allegation against the said counsel engaged

by her, no document is placed on record to show that she

has taken any action against him, and has put him to any

notice in this regard. Behind the back of the counsel, it is

very convenient for the appellant to claim that she had

made the endorsement on the wrong advice of her counsel.

11. The appellant is an educated lady and she knew

the consequences of what she had stated before the Court

in writing.

12. In these circumstances, we are not inclined to

interfere with the impugned judgment, which, even

otherwise, appears to be well-reasoned and based on the

evidence led by the respondent.

13. The Appeal is, accordingly, dismissed.

14. We may observe that the counsel for the

respondent, on instructions, states that since this Court has

granted visitation right to the respondent in respect of the

minor child, and the child is well rooted at his home with the

appellant, the respondent does not wish to press for custody

of the minor child, and for this reason, has not even

preferred the execution petition till date. He submits that

the respondent would be satisfied with the continuation of

the visitation right as granted by this Court.

15. We, accordingly, direct the appellant to continue

to enable the respondent to meet the child in terms of the

visitation right granted by this Court. However, in case

there is breach of the said direction, it shall be open to the

respondent to proceed to execute the decree granting

custody of the minor child to him.

________________ VIPIN SANGHI, C.J.

____________________ RAKESH THAPLIYAL, J.

Dt: 17th May, 2023 Rathour