Dismissed

Bishan Dass v. Seema Azad And another

Himachal Pradesh HC22 May 2024CMP.M/442/2024

Case brief

AI extract

What is this about?

The High Court condoned a 60-day delay in filing an appeal against a Family Court order dismissing a divorce petition based on cruelty. The High Court dismissed the appeal, upholding the Family Court's finding that the allegations of cruelty, adultery, and desertion were not proven.

What did the court decide?

Appeal dismissed; delay in filing appeal condoned; no costs.

Bishan Dass Vs Seema Azad And another — Matrimonial and Divorce | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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CMP(M) No.442 of 2024 & FAO (FC) No. 17 of 2024 Reserved on:14.05.2024 Pronounced on: 22.05.2024

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Bishan Dass ……Applicants Versus Seema Azad and another ..…Respondent

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Coram:

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Hon’ble Mr. Justice M.S. Ramachandra Rao, Chief Justice. Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge.

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Whether approved for reporting?

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For the applicants	: Mr. Ganesh	Barowalia and Mr.
	Virender S. Rat	hore, Advocates.
For the respondents	: None.

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M.S. Ramachandra Rao, Chief Justice .

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CMP(M) No.442 of 2024.

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This application is filed by the applicants-State under Section 5 of the Indian Limitation Act, 1963 to condone delay of 60 days in filing the appeal challenging the judgment dt. 31.10.2023 passed by the Principal Judge (Family Court) Shimla in HMA No. 162-S/3 of 2020/18. Since the delay is not substantial and sufficient grounds have been indicated for the same, we accept the reasons for condonation of

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delay in filing the appeal and allow the said application.

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FAO (FC) No. 17 of 2024.

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Arguments on admission of the appeal were also heard at the same time while considering the application for condonation of delay and we are satisfied that there are no merits in the appeal warranting its admission for the following reasons.

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The applicant had filed the petition before the Family Court, Shimla under Section 13 (ia) and (ib) of the Hindu Marriage Act, 1955 for dissolution of marriage between him and the first respondent on the ground of cruelty and adultery, but the Family Court had dismissed the said petition on 31.10.2023.

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The marriage between the petitioner and the respondent no. 1 had been solemnized on 27.10.2003 as per Hindu rites and ceremonies and they are blessed with two children.

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The case of the applicant/husband

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In the petition filed before the Family Court, the applicant contended that respondent no. 1 was under the influence of her brotherin-law who was working in the police department and had threatened that she would implicate him in false cases; that after the marriage the behavior of respondent no. 1 became in different towards him; respondent no. 1 never resided with the parents of the applicant and never performed any matrimonial duties towards the applicant.

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It is contended that after 14 years of marriage, on 26.10.2016,

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the applicant came to know from his elder son that respondent no.1 used to remain busy on her mobile phone and she did not bother to care and look after their children. He contended that on inquiry he came to know that when his grand father was admitted in the hospital, respondent no. 1 came in contact with one person (who is impleaded as respondent no. 2) and she used to talk to him for whole day.

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He further alleged that on 05.11.2016, respondent no.2 telephonically threatened him to do away with his life in case he tries to stop respondent no. 1 from talking with him. He claimed that when he confronted respondent no. 1 with it, she stated that she was free to talk with any one. He stated that on coming to know about the character of respondent no. 1, he came under depression.

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He alleged that on 06.01.2016, respondent no. 1 had left the matrimonial home without intimation to him and filed false complaint against him with the police at Shimla to conceal her wrongs and thereafter in connivance with the police officials had got prepared a wrong compromise and obtained his signatures on it.

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He claimed that on 10.11.2016, respondent no.1 went to her parental house and returned after three days, and therefore she used to remain busy on phone during night for long time; and when the

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applicant questioned the respondent no. 1 about the same, she used to answer very rudely that it is none of his business.

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It is alleged that the Respondent no. 1 used to stay for long duration out of the matrimonial house and in January, 2017, respondent no. 1 left the company of the applicant leaving the minor child with the applicant and started living at her parental house and did not return thereafter. He claimed that respondent no. 1 in connivance with her sister had taken her elder son forcibly and thereafter the applicant received a telephonic call from an unknown person who threatened the applicant with dire consequences.

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He also stated that respondent no. 1 visited the matrimonial home and took all her belongings, clothes, jewellery and educational certificates and minor children.

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Thereafter on 25.01.2017 respondent no. 1 filed a false complaint before the Women Police Station BCS and the proceedings under Domestic Violence Act against the applicant. He alleged that respondent no. 1 refused to live with him and demanded divorce from him.

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The case of the respondent/Wife

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Respondent no 1 contested the petition denying allegations against her by the applicant.

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While admitting her marriage with the applicant as well as birth of two children, she contended that she had lived with respondent no. 1 at Shimla Niwas near Majitha House, Chhota Shimla before 20.01.2017 and thereafter they are both residing separately. She denied the allegation of the applicant that he was providing all facilities and amenities to her. She also denied that she was under the influence of her brother-in-law, who was in police department, and that she had threatened the applicant to implicate him in false cases.

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After denying the other allegations as well specifically, she stated that the applicant had beaten her on 06.11.2016 after seeing the photographs of respondent no. 1 with her sister on computer. She stated that she is still in contact with her sister, for which the applicant had refused, as such due to beating given to her by applicant and consequent pain and anger, respondent no. 1 went to police station and reported the matter to the police. She stated that matter was compromised before the police and the applicant on his own admitted his guilt in writing.

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She stated that she went to her parental house and returned after three days. She alleged that in December, 2016, the applicant started to torment the respondent no. 1 by writing suicide note and threatened her to implicate her including her parents and sister.

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She claimed that the applicant evicted her out from the matrimonial home on 20.01.2017 after inflicting physical and mental cruelty towards her; and she took the shelter in her parental house and on 25.01.2027 she lodged a police report about this incident.

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She stated that both the children left the company of the applicant and are residing with respondent no. 1. She admitted that applicant is providing maintenance to the children as well as respondent no. 1. She stated that she has refused to join the company of the applicant and denied deserting him. She stated that she was forced to live away from the applicant because of his cruelty towards her.

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2^nd respondent though served, did not put in appearance and was set as ex parte.

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The judgment of the Family Court

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The Family Court considered the contention of the parties and the legal position on the aspect of cruelty and held that weightage is to be given only to grave incidents and natural wear and tear of married life would not amount to cruelty.

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It noted the admission of the applicant that his sister-in-law i.e. sister of respondent no. 1 and her husband along with children were residing in his neighbourhood at Majitha House Shimla and he was not having good relations with them. It also took note of the fact that the applicant had not made any complaint to the police when allegedly his

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life was threatened by her brother-in-law or from respondent no. 2. It also noted the statement of respondent no. 1 that on 16.11.2016 she left the matrimonial home without intimation to the applicant and had gone to Mahila Police Station as the applicant had beaten her up, but FIR was not registered and matter was compromised and that she denied that she was talking to respondent no. 2 on mobile phone.

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The Family Court then held that the applicant neither in his pleadings nor his statement on oath specifically mentioned about the date time and place and when respondent had committed cruelty against him. It held that he did not lead any evidence that the complaint made by respondent no. 1 to the police were without any basis or reasonable cause. It also held that the applicant in crossexamination had admitted that respondent no. 1 used to visit IGMC Shimla to look after his grand father when he was admitted in hospital. It therefore, held that there is no proof of cruelty by respondent no.1 against the applicant.

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As regards the plea of adultery raised by the applicant is concerned, the Family Court held that the applicant had not examined his son who allegedly informed the applicant about respondent no. 1 talking to respondent no. 2 on mobile phone. It also noted that the applicant had not made any police complaint when respondent no. 2 had allegedly threatened him to kill him.

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It also held that neither applicant nor any witness examined by

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the applicant stated in their respective statements that they had ever seen respondent no. 1 in the company of respondent no. 2. It therefore concluded that the applicant had cooked up a false story and presented it as cruelty and adultery on the part of respondent no. 1.

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It therefore concluded that the allegations levelled by the applicant against the respondent no. 1 are not so grave and weighty, and that it is not a case where relationship had deteriorated to such an extent that it was not possible for the applicant to live with respondent no.1. It therefore, dismissed the petition for divorce.

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The instant FAO

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Counsel for the applicant challenged the findings of the Family Court which are adverse to the applicant, and contended that on the basis of the pleadings and evidence adduced, the Court should have granted divorce.

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We have considered the evidence on record and submission of the counsel for the applicant.

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Admittedly, parties had married in 2003 and had lived together up to January, 2017 and are blessed with two children.

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On the aspect of cruelty there are no specific allegations levelled by the applicant against the respondent no. 1 mentioning the time or date of the alleged cruelty. The applicant himself admits that the

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respondent no. 1 had made police complaint against him on 06.11.2016 and alleged that he had been beaten up by respondent no. 1 on seeing her photographs with her sister and her husband on computer and that the matter was compromised. Though the applicant alleged that the police forced him to agree to the compromise he had never questioned the same by complaining to the higher police officials.

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When there were threat to his life allegedly made by the respondent no. 2 and also respondent no. 1 on 05.11.2016 and by some unknown persons, he never lodged a police complaint.

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This indicates that these allegations are created by him to seek divorce from respondent no. 1.

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Neither applicant nor any witness examined by him stated in their respective statements that they have ever seen respondent no. 1 in the company of respondent no. 2. Therefore, even charge of adultery is not established.

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For proving desertion, the applicant has to show that without any reasonable cause respondent no. 1 was staying away from him, but the evidence of the respondent no. 1 indicates that he used to beat her and had thrown her out of the matrimonial home on 20.11.2017 and since then she is residing with her parents after lodging the police report on 25.01.2017 against him.

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Therefore, we are in agreement with the findings of the Family Court which have been rendered on appreciation of evidence and hold

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that there is no merit in the Appeal.

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Accordingly the appeal fails and is dismissed along with pending

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applications, if any. No costs.

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(M.S. Ramachandra Rao) Chief Justice

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(Jyotsna Rewal Dua) May 22, 2024. Judge

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(cmThakur)

Bishan Dass v. Seema Azad And another

Case brief

What is this about?

What did the court decide?

Bishan Dass v. Seema Azad And another

Case brief

What is this about?

What did the court decide?

What the court decided

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