Dismissed

Harsh Gupta v. Smt. Archana Gupta

Allahabad HC8 Feb 2018FAPL/508/2009

Case brief

AI extract

What is this about?

In a first appeal filed under Section 19 of the Family Courts Act against the dismissal of a suit for dissolution of marriage, the Court found that the appellant failed to adduce credible evidence to prove allegations of adultery or venereal disease. The Court also held that claiming divorce on grounds of irretrievable breakdown when the separation was self-induced by the appellant was impermissib

What did the court decide?

The appeal was dismissed, confirming the judgment of the Trial Court and the suit for dissolution of marriage was not decreed.

Harsh Gupta Vs Smt. Archana Gupta — Matrimonial and Divorce | Allahabad HC (2018)

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Court No. - 34

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Case :- FIRST APPEAL No. - 508 of 2009 Appellant :- Harsh Gupta Respondent :- Smt. Archana Gupta Counsel for Appellant :- Vivek Shandilya,Sudamaji Shandiliya,Sudhir Shandilya Counsel for Respondent :- Mahendra Singh

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Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra,J.

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1 . Appeal has been restored to its original number. Paper books are not filed but counsel for parties requested that issue raised in this appeal can be considered and decided after perusal of record of appeal as well as lower court record. Hence, we proceeded to hear and decide the appeal on the basis of lower court record as well as of this appeal.

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2 . We have heard Mr. Vivek Shandilya, learned counsel for plaintiff-appellant and Mr. Mahendra Singh, Advocate for defendant-respondent at length and perused record.

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3 . This is plaintiff's appeal under Section 19 of Family Courts Act, 1984 (hereinafter referred to as 'Act, 1984') directed against judgment dated 14.07.2009 and decree dated 20.07.2009 passed by Principal Judge, Family Court, Jhansi, whereby suit of plaintiff-appellant for dissolution of marriage filed under Section 13 of Hindu Marriage Act, 1955 (hereinafter referred to as 'Act, 1955) has been dismissed.

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4 . Plaintiff-appellant instituted Suit No. 356 of 2003, under section 13 of Act, 1955. Plaint case is that marriage was solemnized on 09.02.2009 at Karari Road, Bharwari, District

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Kaushambi. Thereafter, wife Archna Gupta came to her matrimonial home. However, behaviour of wife, i.e., defendant-respondent was not cordial with plaintiff-appellant, right from the first night, nor same was congenial towards peace and tranquility of family of plaintiff-appellant. It is further alleged that defendant-respondent Archna Gupta misbehaved with other family members of the plaintiffappellant and on account of her such conduct, peace and harmony in the family vanished. Defendant-respondent left marital home on 20.04.2003 to attend marriage of her brother. After marriage was over, defendant- respondent did not return. Plaintiff-appellant went to the house of his in-laws, i.e., parental home of defendant-respondent on 30.04.2003, 27.05.2003, 29.07.2003 and 16.10.2003 to bring back the wife but she refused. Defendant-respondent had indulged in developing new relations with friends and thereby she has committed adultery. She has illicit relation with a sage (sadhu), who lives on the banks of Ganges. She has given birth to an illegitimate girl child on 15.10.2003 when she was living in the house of her parents.

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5 . Suit was contested by defendant-respondent. In written statement dated 31.03.2004 (paper no.12A), defendantrespondent not only denied plaint allegations but also raised additional pleas in support of defence so taken. She admitted birth of girl child on 15.10.2003 but specifically denied other allegations made in the plaint. She has categorically stated that out of wedlock of defendant-respondent with plaintiffappellant, two baby girls were born. Both children are born out of wedlock of plaintiff-appellant and defendant-respondent as well as on account of cohabitation of the two. Plea raised

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by plaintiff-appellant that defendant-respondent has illicit relations with a sage (sadhu) alleged to be living on banks of Ganges was denied specifically. This allegation made in the plaint was said to be scandalous and morally uncalled for. Similarly, allegation of adultery alleged by plaintiff-appellant was also categorically denied.

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6 . From the pleadings in written statement, it is evident that defendant-respondent has not abandoned plaintiff-appellant or his family. The allegations leveled against defendantrespondent by plaintiff-appellant that she has abandoned plaintiff-appellant was categorically denied by submitting that it is plaintiff-appellant, who has abandoned his wife and minor daughters. The factum with regard to the going of defendant-respondent to her parental home, i.e., the house of her parents was admitted but with a rider that on account of marriage of brother of defendant-respondent, she had come to the house of her parents to attend the said marriage. It is further pleaded that defendant-respondent had duly returned to the house of plaintiff-appellant to attend marriage of sister of Mahavir, who is a close family friend of plaintiff-appellant, scheduled to be held on 14.05.2003.

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7 . Plaintiff-appellant, adduced oral evidence by deposing himself as P.W.-1 and Vivek Gupta as P.W.-2. Plaintiff-appellant also filed documentary evidence i.e., paper no.28C, i.e., photocopy of the letter sent by plaintiff-appellant to D. I.G. Jhansi Range Jhansi, paper no.26C, copy of telegram sent to Divisional Commissioner and other official, paper no.27C, receipt of the telegram so sent by plaintiff-appellant and paper no.25C, i.e., certified copy of the F.I.R.

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8 . Defendant-respondent, only adduced oral evidence deposing herself as D.W.-1 in support of defence raised by her in the written statement. No documentary evidence was adduced by defendant-respondent.

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9 . Trial Court proceeded to decide suit on the basis of the pleadings raised by the parties and the evidence adduced. However, no issues were specifically framed by court below. Trial Court proceeded to consider grounds raised in plaint of suit filed by the plaintiff-appellant for a decree of dissolution of marriage.

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10 . Trial Court upon consideration of record found that no evidence has been adduced by plaintiff-appellant regarding alleged illegal relationship of defendant-respondent with the sage (sadhu). Similarly in respect of allegation of adultery alleged by plaintiff-appellant no evidence was adduced to prove the said allegation. Trial Court further observed that plaintiff-appellant has simply alleged that wife, i.e. defendantrespondent has illicit relations with others but neither details of such relationship are given nor any evidence has been led. Upon consideration of statement of defendant-respondent and pleadings, Trial Court concluded that both daughters were born out of the wedlock of parties and also on account of their cohabitation. Allegations made by plaintiff-appellant that defendant-respondent has given birth to illegitimate children was not found to be proved. Trial Court has categorically observed that plaintiff-appellant raised a plea that D.N.A. test may be held to prove genetic basis of children but no attempt was made by plaintiff-appellant to get the same done. Lastly in respect of allegation made by plaintiff-appellant that she is

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suffering from venereal disease on account of which cohabitation is impossible, Trial court arrived at conclusion that such an allegation cannot be raised without knowledge of the same from medical evidence. As no medical evidence was adduced by plaintiff-appellant in proof of said allegation, same cannot be accepted. Trial court commented upon plaintiffappellant for making allegations against his own wife, which were morally uncalled for. On the said findings suit filed by plaintiff-appellant was dismissed.

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11 . Mr. Vivek Shandilya, learned counsel for plaintiffappellant took us to the grounds of appeal and placed reliance upon certain judgments in support of his contention that suit filed by plaintiff-appellant for dissolution of marriage ought to have been decreed by Court below. It was also urged that suit of plaintiff-appellant, even otherwise is liable to be decreed on the ground of irretrievable breakdown of marriage, as parties are living separately since long.

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12 . Two points for determination have arisen in this appeal.

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( 1 ). Whether findings recorded by court below in non suiting plaintiff-appellant are perverse or bad due to misreading of evidence or plaintiff-appellant himself failed to adduce his evidence to prove his case and therefore, the said findings warrant no interference.

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( 2 ). Whether decree of divorce at the appellate stage would be justified on the ground that marriage has irretrievably broken down.

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13 . Coming to first issue, we find that plaintiff-appellant has made only wild allegations against the conduct and character of wife but could give no credible evidence to prove the same. He made allegations of illicit relations but could give no evidence at all.

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14 . We repeatedly require learned counsel for plaintiffappellant to show any credible evidence led by him to prove allegations of illicit relations but he failed. He also could not show that there was evidence to prove that two daughters given birth by defendant-respondent wife, are not born out by wedlock of the parties but they are legitimate children. No medical evidence in this regard admittedly placed before Trial court or even before this Court. To counter it, plea of venereal disease suffered by wife was raised but here also appellant failed to adduce any evidence in support thereof. He could not place any evidence to show that no cohabitation has ever taken place or it was not possible due to venereal disease of wife. Bald allegations leveled against wife sought to be supported by oral testimony of husband cannot be accepted, unless husband brings some more evidence to fortify the ground which has not been done in the case in hand.

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15 . Allegations of indecent behaviour has been made against wife but without giving any particulars of those persons with whom, as claimed by plaintiff-appellant, wife was having illicit relations. In fact, we find that in the present case, husband has gone beyond morally permissible limits to cast wild allegations on the character of wife but has miserably failed to prove those allegations by adducing evidence etc. Even oral testimony of P.W.2, Harsh Gupta, is virtually hearsay and it

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did not prove any fact at all. In these circumstances, we have no hesitation to answer point of determination no.1 against plaintiff-appellant and confirm finding of fact recorded by Trial Court that appellant having failed to prove allegations leveled against wife, is not entitled for grant of decree of divorce.

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16 . Now, we come to second question that marriage is irretrievably broken down. It could not be disputed by learned counsel for plaintiff-appellant that it is not one of the ground whereas a decree of divorce can be passed under section 13 of Act, 1955, in a case where parties have genuinely for reasons of their own resides separately for a long time. In some matters Supreme Court has allowed divorce observing that marriage has broken down irretrievably but in the present case, we find that it is the conduct of appellant which has caused this situation and wife, as pleaded by her, has throughout been ready to remain in relationship with husband and to live in a normal family life. If a party himself has created a situation of long separation and thereupon claim that this factum should be recognized to grant his/her relief in a suit for divorce, it will amount to giving advantage to such party for a wrong committed by him or his own party, which is not permissible in law.

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17 . In the present case, wife has pleaded that husband himself is living adulterous life and for that purpose wants to keep away defendant-respondent and it is his conduct on account whereof she is not living with husband for a long time. Husband having failed to prove serious charges of unchastity of wife, now trying to succeed in the suit for divorce on the ground that it should be allowed since marriage

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was irretrievably broken down. As he is residing separately from wife for a wrong committed by him, this will amount to confer premium upon plaintiff-appellant for something wrong for which he himself is responsible. When marriage has broken down irretrievably, as an exception, it has to be allowed by Court when on all aspects Court is satisfied. it will not give benefit to either of parties for something wrong committed by themselves. Hence, in the facts of this case, we have no hesitation to answer point of determination no.2 also against plaintiff-appellant. No other point has been argued.

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18 . We find no merit in the appeal. It is dismissed with cost by confirming the judgment of the Trial Court.

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Order Date :- 8.2.2018 Prajapati

Court No. - 34

Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra,J.

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C.M. Delay Condonation Application No.116638 of 2016

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Heard.

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Delay in filing recall application is explained satisfactorily. It is hereby condoned. The application is accordingly allowed. Order Date :- 8.2.2018 Prajapati

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Court No. - 34

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Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra,J.

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C.M. Restoration Application No.116640 of 2016

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This is an application for recall of order dated 08.03.2016, whereby appeal was dismissed for want of prosecution.

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We have gone through the affidavit filed in support of this application. Cause shown for absence of learned counsel for appellant, when the case was called in the revise list, is sufficient. The order dated 08.03.2016 is recalled and the first appeal is restored to its original number. The application is accordingly allowed.

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Order Date :- 8.2.2018 Prajapati

Court No. - 34

Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra,J.

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Dismissed.

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For orders, see order of date passed on separate sheets. Order Date :- 8.2.2018 Prajapati

Harsh Gupta v. Smt. Archana Gupta

Case brief

What is this about?

What did the court decide?

Harsh Gupta v. Smt. Archana Gupta

Case brief

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What did the court decide?

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