# Deepak v. Smt. Radha Rani

- **Citation:** (2021) 6 ILRA 140
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-10
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepak-v-smt-radha-rani-47000
- **Pages:** 6

## Headnote

A. Civil Law - Hindu Marriage Act, 1955 -
Section 9 - Matrimonial dispute -
Conjugal right, claimed
- Cruelty
-
Acquittal in criminal litigation, it's effect -
Irretrievable break down - Mediation
between the parties failed - Held, If
criminal litigations are filed and if they
culminate into acquittal then it amounts
to cruelty - Wedlock come to irretrievable
breakdown as the parties are leaving
separately since 2015. (Para 18 and 19)

First Appeal allowed. (E-1)
6 All. Deepak Vs. Smt. Radha Rani
141
Cases relied on :-

## Text

140 INDIAN LAW REPORTS ALLAHABAD SERIES

8. As noticed above, sub-section (3)
of Section 10 of the Act enables a Family
Court to determine its own procedure with
a view to arrive at a settlement in respect of
the subject matter of the suit or proceedings
or at the truth of the facts alleged by the
one party and denied by the other. This
power is notwithstanding the provisions
contained in sub-sections (1) and (2) of
Section 10.

9. As per Section 25 of the Hindu
Marriage Act, 1955, the prayer for
permanent alimony is to be accorded
consideration by the Court at the time of
passing any decree or at any time
subsequent thereto, on application made to
it for the purpose by either the wife or the
husband, as the case may be. There is
nothing in Section 25 of the Hindu
Marriage Act, 1955 which may suggest that
an application for permanent alimony
cannot be filed during the suit proceeding.
Though, once filed, it is to be addressed at
the time of passing the decree or at any
time subsequent thereto. Therefore, if any
such application is filed, framing an issue
in that regard is not prohibited. Though,
such issue would have to be addressed at
the time of final decision of the petition.
Thus, if any such issue has been framed in
a divorce petition, it is expected that the
Family Court would decide the same at the
time of deciding the petition or any time
thereafter.

10. In the instant case, the defendantrespondent had filed an application under
Section 25 of the Hindu Marriage Act for
permanent
alimony.
Under
the
circumstances, on her application, that
additional issue was framed.

11. As mere framing of an issue does
not cause prejudice to any party, rather it
enables a party to appropriately address the
issue and to lead evidence so that the court
could arrive at the truth and appropriately
settle the matter, we are of the view that
framing such an issue by a Family Court is
within its power conferred upon it by subsection (3) of Section 10 of the Family
Courts Act.

12. For the reasons recorded above,
we do not find any merit in the submission
made by learned counsel for the appellant.
The appeal is dismissed.
----------
(2021)06ILR A140
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.03.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJIT SINGH, J.

First Appeal 815 of 2017

Deepak ...Appellant
Versus
Smt. Radha Rani ...Respondent

Counsel for the Appellant:
Sri Anurag Sharma

Counsel for the Respondents:
---

A. Civil Law - Hindu Marriage Act, 1955 -
Section 9 - Matrimonial dispute -
Conjugal right, claimed
- Cruelty
-
Acquittal in criminal litigation, it's effect -
Irretrievable break down - Mediation
between the parties failed - Held, If
criminal litigations are filed and if they
culminate into acquittal then it amounts
to cruelty - Wedlock come to irretrievable
breakdown as the parties are leaving
separately since 2015. (Para 18 and 19)

First Appeal allowed. (E-1)
6 All. Deepak Vs. Smt. Radha Rani
141
Cases relied on :-
1. Vidhyadhar Vs Manikrao; AIR 1999 SC page
1441
2. K. Srinivas Vs K. Sunita; 2014 0 Supreme
(SC) 819
3. Rani Narsimha Sastry Vs Rani Suneela Rani;
2019 0 Supreme (SC) 1301
4. Mangayakarasi Vs M. Yuvaraj; 2020 0
Supreme (SC) 221
5. Ravindra Pyarelal Vidlan & ors. Vs St. of
Mah.; 1993 CrLJ 3019
6. K. Srinivas Vs K. Sunita; (2014) 16 SCC 34
7. Civil Appeal No. 8871 of 2019; Rani Narsimha
Sastry Vs Rani Suneela Rani, decided by
Supreme Court on 19.11.2019

(Delivered by Hon'ble Ajit Singh, J.)

1. We had reserved the Judgment and
kept it for pronouncement on 8th March
2021 but as the advocates were on strike,
we did not pronounce the Judgment on that
day. We have kept the matter for
pronouncement today as it was made to
understand that the strike would be called
off today.

2. Heard Sri Anurag Sharma for the
appellant.

3. By way of this appeal, the appellant
has felt aggrieved by the judgment and
order dated 25.9.2017 passed by Additional
Principal Judge, Family Court, Meerut,
where he had instituted a Suit, being Case
No.544 of 2015, for dissolution of his
marriage with the respondent.

4. The factual scenario as it goes to be
divulged before the learned Family Court
Judge is that the appellant/ applicant herein,
who shall be referred to as "the appellant"
and the respondent would be herein after
referred to as "the opponent" as they appear
before the subordinate court.

5. The appellant got married with the
respondent
on
10.12.2009
and
on
25.10.2010 they were blessed with the son,
who is now 11 year of age and is in the
custody
of
the
defendant.
Most
unfortunately on 7.5.2012, the opponent
herein complained against the appellant
that he had perpetrated cruelty and had
demanded dowry and that is how he and his
parents had committed an offence under
Section 498 of the I.P. Code.

6. After waiting for 3 years, the
appellant herein filed a petition for
desolation and harassment. The said matter
was filed on 20.4.2015. Despite service of
notice, the opponent did not appear. The
appellant adduced documentary evidence
and filed his own Affidavit which came to
be numbered as 27 ka. His evidence and
examination-in-chief was in the form of an
Affidavit.
Most
unfortunately
on
25.9.2017, the learned Judge dismissed the
matter.

7. In the petition, it was averred that
both the parties belong to a profess Hindu
religion and their marriage was solemnized
as per Hindu Rites and Ritual on
10.12.2009. It is averred that no dowry was
offered by the opponent or taken by the
appellant or his family members. This was
the first marriage of the appellant. As far as
the opponent is concerned, it was her first
marriage. The averment in the petition filed
before the Family Court went on to paint a
picture whereby it was brought on record
that it was the opponent, who was forcing
the appellant to stay separate from his
parents and she would use bad language.
She would colour in the house and try to
pressurize the appellant. It is alleged that
142 INDIAN LAW REPORTS ALLAHABAD SERIES
she has threatened the appellant that if he
did not separate from his parents, she
would file false cases against him.

8. The appellant further contended
that it was the father and the daughter, who
pressurized him for staying separate from
his parents which he was not willing to do.
He even succumbed to pressure and started
staying separately. The appellant was
serving as a salesman with Mukesh Jain
Jewellers Private Limited and his time of
service was 09.30 a.m. to 08.00 p.m.

9. The respondent did not state any
pleadings in written statement is an
admitted position of fact and avoided
coming to the witness box so that she may
be put to examination-in-chief or crossexamination. This itself is enough to come
to the conclusion that the averments made
in the Suit are unrebutted. A party must
state his or her own case on oath and if that
is done, a presumption would arise that the
case set out by the petitioner or the plaintiff
or the applicant as in our case is correct and
that she had filed an application under
Section 24 of the Hindu Marriage Act. A
copy of Affidavit on her behalf on
26.5.2015 was also filed to which reply was
filed by the present appellant herein.

10. The family court waited for 2
years and 2 months. The respondent
absented herself thereafter. In our case,
therefore, a situation is akined to the
decisions passed by the various High
Courts and Privy Council in the case of
Vidhyadhar Vs. Manikrao, AIR 1999 SC
page 1441 and also in Sardar Gurbaksh
Singh Vs. Gurdial Singh and another.
This was followed by the Lahore High
Court in Kripa Singh Vs. Ajaipal Singh
and others, AIR (1930) Lahore 1 and the
Bombay
High
Court
in
Martland
Pandharinath Chaudhari Vs. Radhabai
Krishnarao
Deshmukh
AIR
(1931)
Bombay 97. The Madhya Pradesh High
Court in Gulla Kharagjit Carpenter Vs.
Narsingh
Nandkishore
Rawat
also
followed the Privy Council decision in
Sardar Gurbakhsh Singh's case (supra).
The Allahabad High Court in Arjun Singh
Vs. Virender Nath and another, held that
if a party abstains from entering the witness
box, it would give rise to an inference
adverse against him. Similarly a Division
Bench of the Punjab & Haryana High Court
in Bhagwan Dass Vs. Bhishan Chand
and others, drew a presumption under
Section 114 of the Evidence Act against a
party who did not enter into the witness
box.

11. The genesis of the application
rather Suit which was filed for divorce was
on the basis of the perpetrated cruelty by
the wife.

12. Having considered the argument
advanced and on perusal of the record, it is
evident that the family court failed to
consider the cruelty pleaded by the
plaintiff-appellant in which the plaintiff's
wife illegally lodged the criminal case
under Sections 498A/323/504/506 of I.P.C.
and 3⁄4 Dowry Prohibition Act, Police
Station - Lisadi Gate, Meerut, and in the
aforesaid case the appellant as well as his
father and mother were acquitted on merits
vide judgment and order dated 1.2.2016
passed by the A.C.J.M. Ist, Meerut. The
behaviour and action of the appellant's wife
with
her
husband/appellant
was
not
according to sacrament as per the Hindu
Marriage Act. The public interest as well as
social interest in the society demands not
only that the married status should, as far as
possible,
and
whenever
possible,
be
maintained. The appellant tried his level
6 All. Deepak Vs. Smt. Radha Rani
143
best to improve the relationship but the
wife and her relative at every stage did not
make
any
endeavour
to
settle
marriage/relationship and did not do any
act in welfare of the child.

13. It appears that the learned
Family Court Judge has given much
stress to deed of settlement dated
3.11.2014. The appellant herein had
preferred a petition for divorce which was
numbered as 39 of 2013 and respondent
had filed an application for maintenance
under Section 24 and on 3.11.2014 the
said litigations were to be withdrawn as
the party has decided to cohabit and the
application under Section 498A came to
be decided in favour of the appellant
herein and the learned Judge dismissed
the complaint vide order dated 1.2.2016.

14. The petitioner - appellant herein
instituted a Suit for divorce in the year
2015. Pursuant to the earlier litigations,
the
parties
started
cohabiting
on
6.11.2014. We may reconsider the factual
data as it emerges after the settlement.
The plaint divulges the fact that there was
a marriage in the house of the younger
sister of the respondent and the applicant
had
to
withdraw
the
litigation
on
14.3.2015 but the complaints were not
withdrawn and it is alleged that the
respondent committed breach of trust and
did
not
withdraw
the
criminal
proceedings. It was pleaded that the
brother-in-law
Sonu
demanded
Rs.
20,000/- on the marriage of his sister-inlaw dated 22.3.2015. After about 8 - 10
days, the respondent and her sister
demanded Rs. 15,000/- from the appellant
and he refused to oblige them thereafter
she re-started to harass them. The
appellant was staying with his wife in a
rented house. It is alleged that after the
appellant left for his job, the respondent
would go to her parental home and to
meet with her boy friends and spends
whole day with them. She forced the
appellant to leave Meerut and was forcing
him to move and take a job in Delhi,
which would be arranged by her uncle.
The appellant being the only child of his
parents did not wish to leave Meerut and
go to Delhi. It is stated that she had
severed all relations the day the appellant
withdrew the Suit for divorce. She had
stopped
cooking,
she
had
stopped
cohabiting. The appellant would cook
himself before leaving and after coming
back from the shop at night. The
respondent would harass him mentally to
such a level that he even tried to commit
suicide but could not succeed. There are
allegations in the plaint about the
character of the lady.

15. The police refused to lodge the
complaint which the appellant wanted to
lodge against the respondent and on
14.4.2015 she summoned her parents and
took all her belongings in a mini truck. It is
stated in the plaint that the relations has
become so strainedthat there is no chance
of reconciliation between the parties, which
has been recorded by the learned Judge that
the conciliator also failed in his efforts to
reconcile both the parties. The respondent
stopped coming to the Court and, therefore,
on 30.1.2017 the learned trial Judge
decided her matter ex-parte. The appellant
herein produced the following documents:-

(I) Application under Section 156 (3)
of Cr.P.C. dated 7.5.2012.

(II) Petition under Section 13 of the
Hindu Marriage Act dated 10.12.2009.

(III) Affidavit 27-Ka dated 2.3.2017.

(IV) Compromise Agreement dated
3.11.2014
144 INDIAN LAW REPORTS ALLAHABAD SERIES

16. The learned Judge framed the
following 4 issues:-

(I) Whether the opposite party is
leading an adulterous life with Varun
Sharma?

(II) Whether Varun Sharma is a
necessary party in the petition?

(III) Whether the opposite party has
committed cruelty with the applicant?

(IV) Which relief, if any can be
granted, the applicant is entitled to get?

which we are also supposed to answer.

17. The learned Counsel has relied on
the following judgements:-

(I) K. Srinivas Vs. K. Sunita, 2014 0
Supreme (SC) 819;

(II) Rani Narsimha Sastry Vs. Rani
Suneela Rani, 2019 0 Supreme (SC) 1301;

(III) Mangayakarasi Vs. M. Yuvaraj,
2020 0 Supreme (SC) 221.

18. We are convinced that the
appellant has been treated with cruelty. The
reasons are as follows. The appellant had
preferred a petition for claiming conjugal
rights under Section 9 of the Hindu
Marriage Act. Unfortunately, the same
came to be dismissed for non-prosecution
but the fact that the respondent did not
appear nor did she show any willingness to
cohabit with the petitioner is also one of the
grounds which can be said to be against the
respondent. The Apex Court and the High
Courts judgment relied upon by the learned
Advocate
for
the
appellant
have
categorically held that if criminal litigations
are filed and if they culminate into acquittal
then it amounts to cruelty.

19. May that as it may be after the
settlement also the wife did not co-habit
with the appellant is a matter of fact.
Further, in that view of the matter, we
allow this appeal. The wedlock is in our
view if come to irretrievable breakdown as
the parties are leaving separately since
2015.
Unfortunately,
the
mediation
between the parties failed. The respondent
herein refused to even withdraw the
criminal proceedings despite the fact that
post mediation in the matrimonial petition
no.39 of 2013. The parties cohabited for a
short period of 25 days. It appears that even
in the criminal complaint, the respondent
who was examined as PW-1. She has
conveyed to the Court that she wants what
can be said to be divorce. She has stated
"PARIVADINI DWARA 244 Cr.P.C. KE
ESTER PAR KI GAI JIRAH ME KAHA
GAYA HAI KI MERE PATI NE TALAK
KA MUKADMA KIYA HUVA HAI. MAI
USME UPASTHIT HUN. MAI BHI
TALAK
CHAHTI
HUN.
JIRAH
ANTARGAT DHARA 246 Cr.P.C. ME
BHI IS SACHHI DWARA KAHA GAYA
KI YADI DEEPAK AAJ MUJHE LE
JANA CHAHE TO MAI UNKE SATH
JANE KE LIYE TAIYAR NAHI HUN.
MAI USSE TALAK CHAHTI HUN."

20. The matter can also be looked into
from one another aspect. The learned Judge
has committed an error, which can be said
to be an error apparent on the face of the
record. We do not go into the premise of
break down of marriage as it is still now
recognized ground for granting divorce.
The principles of Civil Procedure Code are
applicable. The learned Judge did not place
reliance on the Judgment of Ravindra
Pyarelal Vidlan and others Vs. State of
Maharashtra, 1993 CrLJ 3019 wherein it
has been held that if a party fails to bring
home the charges under Section 498A, it
would amount to cruelty. The learned
Judge again did not place reliance on the
statement of the wife, who in a deposition
6 All. Geeta Devi Vs. Sushil Kumar Yadav
145
in judicial proceedings, which is part of the
record before the Family Court, has
categorically mentioned that she also
showed her desire to live separately from
the appellant and bring an end to the
marriage. Learned Judge has come to the
conclusion that there was no cruelty
perpetrated by the respondent rather he has
come to the negative finding that cruelty
was perpetrated by the husband. The
evidence on record of the wife in other
matters has been made the main basis for
refusing grant of decree of divorce.

21. The matter had gone before the
mediator where both the parties rather the
appellant showed his desire to take the
respondent back to the matrimonial home
where also she has not showed any desire
in continuing the marriage which showed
that the learned Judge ought to have
pressed into service the provisions of Order
XII Rule 6 of the Code of Civil Procedure
which
are
made
applicable
to
the
proceedings before the Family Courts. As,
in our case, there is clear admission though
not in the Form No. 10 of the Appendix,
the admission of facts should have been
taken into consideration while passing the
judgment. The provisions of Order 12 Rule
6 reads as follows:-

[6.
Judgment
on
admissions.-(1)
Where admissions of fact have been made
either in the pleading or otherwise, whether
orally or in writing, the Court may at any
stage of the suit, either on the application
of any party or of its own motion and
without waiting for the determination of
any other question between the parties,
make such order or give such judgment as
it may think fit, having regard to such
admissions.

(2)
Whenever
a
judgment
is
pronounced under sub-rule (1), a decree
shall be drawn up in accordance with the
judgment and the decree shall bear the date
on which the judgment was pronounced.]

22. Much emphasis has been placed
on record by the Counsel for the appellant.
The Hon'ble Supreme Court in the case of
K. Srinivas Vs. K. Sunita reported in
(2014) 16 SCC 34, has held that the
respondent wife filed a false criminal
complaint resultant acquittal of husband
and his family members, such complaint is
sufficient to constitute matrimonial cruelty.

23. In an another matter, the Hon'ble
Supreme Court in the case of Rani
Narsimha Sastry Vs. Rani Suneela Rani,
civil Appeal No.8871 of 2019, decided on
19.11.2019 held that when a person
undergoes a trial in which he is acquitted of
the allegation of offence under Section
498A of IPC, levelled by the wife against
the husband, it cannot be accepted that no
cruelty has meted out to the husband.

24. In that view of the matter, the
appeal is allowed. Unfortunately, as the
wife is not before us we do not pass any
orders for maintenance which she may
raise under the law as/if permitted to her.
----------
(2021)06ILR A145
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.01.2020

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE SHAMIM AHMED, J.

First Appeal No. 917 of 2019

Geeta Devi ...Appellant
Versus
Sushil Kumar Yadav ...Opp. Party