Division Bench of High Court of Allahabad was hearing an Appeal prefered by Husband after his Petition seeking Divorce under Section 12 of Hindu Marriage Act, 1955 was dismissed by the Family Court.

Brief Facts

Marriage between appellant-Aayush Rastogi and respondent no.2-Smt. Malvika Rastogi was solemnized as per the Hindu Rites and Rituals in 2011 at Lucknow. After the marriage it was revealed to the appellant that the marriage of respondent no.2- Smt. Malvika Rastogi was solemnized without her free consent and she was not happy with the appellant and she wanted to go back to Kolkata. 

Thereafter in Feb. 2012 the respondent no.2- Smt. Malvika Rastogi made an attempt to commit suicide but due to timely intervention of the family of the appellant, the respondent no.2 could not be succeeded and thereafter the parents of the appellant immediately rushed to Kolkata and this time the respondent no.2- Smt. Malvika Rastogi expressed that if her marriage with the appellant is dissolved by any competent court of law, she shall have no objection to it. It is also stated that the respondent no.2 Smt. Malvika Rastogi during her stay with appellant did not perform her matrimonial duties.

It is Husband's case that the mental condition of the respondent was not sound. It is submitted that the respondent no.2- Smt. Malvika Rastogi was constantly living under the threats and pressure created upon her by her mother namely Smt. Mamta Saraf. It was because of this constant duress exercised upon the respondent no.2- Smt. Malvika Rastogi by her mother, that the respondent's mental condition was unstable. Strained relations between the respondent's parents had gravely affected respondent's mental condition and therefore she appeared to be extremely unhappy and depressed at the time when the marriage was being fixed.

Malvika Rastogi had herself admitted in pleadings that in order to save her mother from agony, she had consented to this marital arrangement. 

Divorce Petition before Family Court

Appellant Husband filed a petition in May 2012 under Section-12 of Hindu Marriage Act, 1955 registered as Regular Suit titled Aayush Rastogi Vs. Smt. Malvika Rastogi and respondent no.2-Smt. Malvika Rastogi filed her written statement in July 2013 wherein she admitted the averments made in the plaint. Later on, the respondent no.2- Smt. Malvika Rastogi withdrew her written statement and filed another written statement in Nov. .2013.

Writ before High Court

Thereafter, the matter in issue came up before this Court by means of the Writ Petition in 2013 which was dismissed in Oct. 2013 with an observation that in case the parties have consented then the Court below may consider the request for consent decree.

Transfer Petition before Supreme Court

Subsequently, respondent no.2- Smt. Malvika Rastogi approached Hon'ble Supreme court by filing Transfer Petition in 2014 (Smt. Malvika Rastogi Vs. Aayush Rastogi) which was also dismissed vide order dated 15.01.2015.

Family Court Judgement

The Principal Judge, Family Court, Lucknow issued notices to the respondent no.2-Smt. Malvika Rastogi but she did not appear and consequently the Principal Judge, Family Court, Lucknow vide order of March 2014 proceeded ex-parte against the respondent no.2-Smt. Malvika Rastogi and dismissed the suit in Nov. 2015.

Division Bench Observations

'It would be appropriate to mention here that on 04.12.2019 this Court directed for summoning of lower court record. However, record was not available when the case was heard and reserved for judgment.
The case was finally heard in absence of lower court record as the learned counsel for the appellant submitted that he would argue only on the basis of the facts narrated in the judgment dated 07.11.2015 and legal issue involved therein as also the averments made in the plaint, letter(s) of respondent dated 10.02.2012 and 29.02.2012 written by the respondent and other documents, which are already on record of this appeal, and also argue on the plea of irretrievable break down of marriage.'

She was served by the High Court by ordinary process as well as by way of publication in newspaper, but she choose not to participate in the Appeal. DB relied on Vinita Saxena Vs. Pankaj Pandit, 2006 Latest Caselaw 134 SC, (2006) 2 SCC 778, Naveen Kohli v. Neelu Kohli, 2006 Latest Caselaw 135 SC, (2006) 4 SCC 558,  Samar Ghosh v. Jaya Ghosh, 2007 Latest Caselaw 273 SC, (2007) 4 SCC 511,  Rishikesh Sharma v. Saroj Sharma, (2007) 2 SCC 263, Satish Sitole v. Ganga, 2008 Latest Caselaw 590 SC, (2008) 7 SCC 734,  Harpit Singh Anand v. State of West Bengal [(2004) 10 SCC 505 and Geeta Jagdish Mangtani v. Jagdish Mangtani, 2005 Latest Caselaw 500 SC, (2005) 8 SCC 177.

Bench observed

'Before the trial court, the respondent no.2-Smt. Malvika Rastogi filed the written statement, wherein she stated that "the marriage between this defendant and the plaintiff was not consummated as since her teens this defendant has aspiration to stand on her own foot and join some service and never had any intention to marry but ultimately on being forced by her mother this defendant married the plaintiff but she never accepted the plaintiff as her husband and this defendant did not hesitate to tell the same to the plaintiff or give writing to the said effect and this defendant repeats and reiterates that this suit is outcome of the said stubborn attitude of this defendant's mother to give this defendant marriage with plaintiff which according to this defendant is a disaster in her life as a result whereof this defendant to give relief to her mother attempted to commit suicide on 29.02.2012 but unfortunately for this defendant she could not end her life and get rid of this torrid and miserable life."

DB decided

'....we are of the opinion that there is no likelihood of the appellant and the respondent living together and for all practical purposes there is an irretrievable breakdown of marriage and matrimonial bond is beyond repair and there is no chance of its being retrieved and the relations between the parties are sufficiently spoiled and therefore, no fruitful purpose would be served in maintaining the matrimonial relations between the parties, accordingly we are of the view that on the ground of irretrievable breakdown of marriage, the appellant is entitled for relief of dissolution of marriage.'

Accordingly the Appeal was allowed and Decree of Divorce was granted on the ground of irretrievable breakdown of marriage.

Allahabad High Court Judgement on Ayush Rastogi vs Family Court (PDF File)  Pic by Times

Share this Document :

Picture Source :