# Kuldeep Singh v. Smt. Yashoda Devi

- **Citation:** (2024) 8 ILRA 677
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-29
- **Case number:** First Appeal No. 131 of 2012
- **Bench:** Rajan Roy, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kuldeep-singh-v-smt-yashoda-devi-52428
- **Pages:** 14

## Headnote

A. Family Law - Family Courts Act 1984 -
Section
7
-
Explanation
Cl.
(b)
-
Jurisdiction of Family Court - Matrimonial
status - Second Suit was filed to nullify
the divorce decree obtained on the basis
of
mutual
consent
-
Objection
to
jurisdiction of Family Court was raised -
Permissibility - Held, subsequent suit that
had been filed by the respondent is in
essence for determining her matrimonial
status as wife of the appellant for which
the Family Court would indeed have
jurisdiction in terms of Clause (b) of the
'Explanation' to Section 7 (1) of the 1984
Act. (Para 13)

B. Family Law - Hindu Marriage Act, 1955
- S. 13-B - Mutual divorce decree -
Absence of jurisdictional prerequisite -
Fiduciary relationship - Husband and wife
had not been living separately for one
year preceding the filing of Mutual divorce
suit as was a prerequisite for a suit u/s
13-B of the Act, 1955, and even thereafter
they lived together - Decree of divorce
dated 08.07.2005 was alleged to be the
result of misrepresentation, deceit and
fraud practiced by her husband taking
advantage of the trust reposed by her on
him, she not being much educated, being
a trusting Indian wife - Effect - Held, the
appellant/husband took advantage of his
dominant position vis-a-vis his wife as
also the trust reposed by her on account
of her fiduciary relationship and betrayed
the same - High Court held the decree
dated
08.07.2005
obtained
by
misrepresentation
and
deceit
and
resultantly null and void. (Para 26, 27, 35,
38 and 39)

Appeal dismissed. (E-1)

## Text

_Characters 0–39,674 of 45,055. This is a partial read: ask again with offset=39674 for what follows._

8 All. Kuldeep Singh Vs. Smt. Yashoda Devi
677
Ahrar Ahmad by acquitting him by giving
benefit of doubt. With the aforesaid
modification, the appeal is disposed of.

36. The trial court records be
transmitted forthwith.
----------
(2024) 8 ILRA 677
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.08.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

First Appeal No. 131 of 2012

Kuldeep Singh ...Appellant
Versus
Smt. Yashoda Devi ...Respondent

Counsel for the Appellant:
Asif Hasan, Rajendra Prasad Tiwari, Shweta
Singh

Counsel for the Respondent:
Ambika Prasad, Narvind Kumar Singh, R.K.
Yadav

A. Family Law - Family Courts Act 1984 -
Section
7
-
Explanation
Cl.
(b)
-
Jurisdiction of Family Court - Matrimonial
status - Second Suit was filed to nullify
the divorce decree obtained on the basis
of
mutual
consent
-
Objection
to
jurisdiction of Family Court was raised -
Permissibility - Held, subsequent suit that
had been filed by the respondent is in
essence for determining her matrimonial
status as wife of the appellant for which
the Family Court would indeed have
jurisdiction in terms of Clause (b) of the
'Explanation' to Section 7 (1) of the 1984
Act. (Para 13)

B. Family Law - Hindu Marriage Act, 1955
- S. 13-B - Mutual divorce decree -
Absence of jurisdictional prerequisite -
Fiduciary relationship - Husband and wife
had not been living separately for one
year preceding the filing of Mutual divorce
suit as was a prerequisite for a suit u/s
13-B of the Act, 1955, and even thereafter
they lived together - Decree of divorce
dated 08.07.2005 was alleged to be the
result of misrepresentation, deceit and
fraud practiced by her husband taking
advantage of the trust reposed by her on
him, she not being much educated, being
a trusting Indian wife - Effect - Held, the
appellant/husband took advantage of his
dominant position vis-a-vis his wife as
also the trust reposed by her on account
of her fiduciary relationship and betrayed
the same - High Court held the decree
dated
08.07.2005
obtained
by
misrepresentation
and
deceit
and
resultantly null and void. (Para 26, 27, 35,
38 and 39)

Appeal dismissed. (E-1)

(Delivered by Hon'ble Om Prakash Shukla, J.)

(1) Heard Shri Rajendra Prasad
Tiwari, learned Counsel representing the
appellant/husband.
Although,
the
respondent/ wife has filed her counteraffidavit, however, none appeared on behalf
of the respondent/wife at the time of final
hearing.

(2) The appellant/husband has
filed the present appeal under Section 19 of
the Family Courts Act, 1984 read with
Order XIII Rule 1-A of the Code of Civil
Procedure, 1908 against the judgment and
order dated 01.08.2012 passed by the
Additional Principal Judge, Family Court,
Lucknow, in Original Suit No. 1411 of
2005 : Smt. Yashoda Devi Vs. Kuldeep
Singh.

(3) Apparently, in the aforesaid
suit, the respondent/wife had sought
declaration of the judgment/decree dated
08.07.2005 passed in Original Suit No. 32
678 INDIAN LAW REPORTS ALLAHABAD SERIES
of 2005 filed under Section 13-B of the
Hindu Marriage Act, 1955 (hereinafter
referred to as 'Act, 1955') by which
divorce on the ground of Mutual Consent
was granted, to be a nullity. Vide judgment
and order 01.08.2012, the learned Family
Court, while allowing the suit, has set-aside
the judgment and decree dated 08.07.2005
and has held it to be a nullity, consequently,
appellant/husband has been prohibited from
marrying another woman unless he takes
divorce
from
respondent/wife
in
accordance with law.

(4) The factual matrix relevant to
decide the present appeal can be captured
from the records as herein below :-

(i) The appellant/husband
married the respondent/wife on
05.05.1996 in accordance with
Hindu rites and rituals. After
marriage,
respondent/wife
was
residing at her husband's/in-laws'
house situated at village Haluni,
Post Sangla Koti, district Pauri
Garhwal,
Uttranchal
(now
Uttarakhand). Out of their wedlock,
two male children were born on
21.07.1997
and
05.07.2000,
respectively.
(ii) Appellant/husband was
serving in the Indian Army. He was
transferred and posted at Lucknow
on
his
personal
request
on
25.04.2003. As per the appellant,
he
was
allotted
an
official
accommodation at Lucknow on
01.11.2004. He then brought the
respondent/wife and his younger
son to Lucknow in November,
2004
and
lived
together
at
Lucknow till January, 2005. As
there
were
irreconcilable
differences between the two, they
decided to part ways amicably,
therefore, on 06.01.2015, a suit
under Section 13-B of the Act,
1955 for dissolution of marriage on
ground of mutual consent was filed
before the Principal Judge, Family
Court,
Lucknow,
which
was
registered as Original Suit No. 32
of 2005 and was decreed on
08.07.2005.
(iii) After passing of the
decree, as per the respondent/wife,
the appellant/husband took her to
her in-laws' house where she
stayed for two days and then he left
her at her parents' home at
Dehradun on the premise that as
soon as he arranges a house at
Joshimath where he had been
posted, he will take her with him
but, he never came back. The
respondent/wife and her father
went to her in-laws' house to
inquire, who, ill-treated them, and
also
disclosed
that
their
son
(appellant herein) had divorced her
at
Lucknow.
It
is
then
that
respondent/wife came to know
about the divorce. She then came to
Lucknow with her father, met an
Advocate, and inquired about the
case in the Family Court, Lucknow
and then filed Suit No. 1411 of
2005, as referred above.
(iv)
The
case
of
the
respondent/wife
is
that
while
staying with the appellant/husband,
she was made to sign blank papers
and photographs which, as per the
appellant/husband, were necessary
for his service related matters and
for this very purpose, she was again
made
to
sign
papers
and
photographs after six months and
was also taken to a place which,
8 All. Kuldeep Singh Vs. Smt. Yashoda Devi
679
according to the appellant, was his
office. By practicing deceit and
fraud not only on the respondent
but also on the Court, he was able
to obtain a decree of divorce for
cancellation
of
which
the
subsequent suit was filed.
(v) Suit No. 1411 of 2005
was filed on 10.10.2005 by the
respondent/wife within about three
months of the decree in the earlier
suit dated 08.07.2005.
(vi) Notice was issued to
the husband/defendant in Suit No.
1411
of
2005.
In
response,
husband/defendant
put
in
appearance and filed his written
submission, denying the averments
made in the aforesaid suit filed by
the wife/plaintiff.
(vii)
On
the basis
of
pleadings
and
documents,
the
learned
Family
Court
framed
following issues in Suit No. 1411
of
2005
filed
by
the
wife/respondent:-

i. D;k ewy okn la[;k 32@05
dqynhi cuke ;'kksnk nsoh varxZr /kkjk&13
ch fgUnw fookg vf/kfu;e&1955 esa fnukad 87-05 dks vij iz/kku U;k;k/kh'k] ikfjokfjd
U;k;ky;] y[kuÅ ds }kjk ikfjr fd;k x;k
fu.kZ; ,oa vkKfIr] izLrqr okn esa fn;s x;s
dkj.kksa ds vk/kkj ij 'kwU; ?kksf"kr fd;s tkus
;ksX; gS \
ii. D;k ewy okn la[;k 32@05]
varxZr /kkjk 13 "ch" fgUnw fookg
vf/kfu;e 1955 esa ikfjr fd;k x;k fookg
foPNsu dh vkKfIr izfrokni= esa fn;s x;s
dkj.kks ls 'kwU; ?kksf"kr fd, tkus ;ksX; gS \
iii. D;k okfnuh fdlh vU;
vuqrks"k dks ikus dh vf/kdkfj.kh gSA ;fn gkW
rks D;k \

(viii) The wife/respondent,
in support of her case, examined
herself as P.W.1 and her father,
namely, Shri Bhagirath Singh as
P.W.2. No documentary evidence
was
adduced
by
the
wife/respondent.
(ix) The husband/appellant
examined himself as D.W.2 and
filed documentary evidence along
with list of documents (marked as
C36/1) viz. (i) original train ticket
for the journey dated 23.11.2004
from
Kotdwara
to
Lucknow
(marked as C36/2); (ii) original
train ticket for the journey dated
18.01.2005
from
Lucknow
to
Najibabad (marked as C36/3); and
(iii) photocopy of accommodation
allotment letter dated 11.11.2004
issued to the appellant/husband
(marked as C36/4). Besides these
documents, no other documentary
evidence
was
filed
by
the
appellant/husband.
(x) On an application, the
trial Court summoned the original
record of Suit No. 32 of 2005,
which is tagged with the records of
Suit No. 1411 of 2005.
(xi) On a consideration of
the facts pleaded and evidence led
in the light of the issues framed, the
learned Family Court has decided
issues no. 1 and 2 in favour of the
respondent/
plaintiff
and
has
decreed the suit.

(5) Shri Rajendra Prasad Tiwari,
learned
Counsel
representing
the
appellant/husband
would
urge
that
respondent-wife,
after
having
validly
agreed to file a suit for divorce by mutual
consent under Section 13-B of the Act,
1955, had signed the memorandum of
Original Suit No. 32 of 2005 as well as
affixed her photograph on it on the basis of
680 INDIAN LAW REPORTS ALLAHABAD SERIES
which the judgment and decree dated
08.07.2005 was passed by the learned
Family Court at Lucknow in Original Suit
No.32
of
2005
and
as
such,
respondent/wife could not resile from the
same and seek its cancellation. Moreso,
according to the learned Counsel, the
Family Court has failed to appreciate the
fact that there is nothing on record to belie
the statement recorded by the learned
Family Court prior to the passing of
consent decree in earlier suit filed under
Section 13-B of the Act, 1955 and also
there is nothing on record to substantiate
the
allegation
of
collusion,
misrepresentation and fraud on the part of
the appellant, hence the findings recorded
by the learned Family Court in the
impugned judgment and decree dated
01.08.2012 are not based on any evidence
rather they are based on surmises and
conjecture.

(6) Learned Counsel representing
the
appellant
also
urged
that
the
respondent/wife is 10th Class pass and is
also
quite
educated,
therefore,
her
allegation of being lured in signing the
earlier plaint in the suit filed under Section
13-B of the Act, 1955 on the alleged pretext
of service record, is absolutely concocted
and bald allegation. According to the
learned
Counsel,
in
any
case,
the
subsequent Original Suit No.1411 of 2005
seeking to declare the earlier judgment and
decree dated 08.07.2005 as nullity by the
respondent/wife, was not maintainable
before the Family Court as it was not open
for
the
Family
Court
to
exercise
jurisdiction declaring the decree passed
earlier by it under Section 13-B of the Act,
1955 a nullity. Elaborating his submission,
learned Counsel urged that though the issue
relating to jurisdiction of the Family Court
for passing of a decree for nullifying a
decree passed earlier by it in earlier
proceedings on the basis of mutual consent
between the parties, is a very important
issue, however, the learned Family Court
has lost sight of the fact in not framing this
issue while adjudicating the matter. Thus,
he prays that the impugned judgment and
decree dated 01.08.2012 is liable to be setaside.

(7) Although, no oral submission
was led by the respondent/wife, however,
in the counter affidavit filed on behalf of
the respondent/wife, she has reiterated the
allegations made in the plaint and also
stated that her husband had played fraud on
her in seeking divorce under Section 13-B
of the Act, 1955 and as such, learned
Family Court had rightly declared the
judgment and decree dated 08.07.2005 a
nullity and had rightly allowed the suit filed
by her, hence appeal is liable to be
dismissed. Respondent/wife had also stated
that learned Family Court had framed the
issues based on the pleadings of the parties,
which were never objected by the appellant
before the learned Family Court nor any
application in this regard was filed by him
before the Family Court, hence at this stage
such an objection as raised by the appellant
is not sustainable.

(8)

Having
regard
to
the
contentions of the appellant/husband and
having gone through the record available
before us in this appeal as well as record of
the trial Court, the points which fall for
determination in this appeal are as under :-

I. Whether a Family Court
constituted under the Family Courts
Act, 1984, has the jurisdiction to
set aside or nullify a decree of
Divorce passed by it under Section
13 (B) of the Act, 1955 ?;
8 All. Kuldeep Singh Vs. Smt. Yashoda Devi
681
II. Whether, findings of the
trial Court on issues no. 1 and 2 are
perverse and unsustainable in law,
thereby rendering the impugned
judgment erroneous ?;
III. Whether the judgment
and decree dated 08.07.2005 in Suit
No. 32 of 2005 was obtained by
deceit,
misrepresentation
and
fraud?;
IV. Whether the judgment
and decree dated 08.07.2005 in Suit
No. 32 of 2005 is liable to be
declared null and void ?

Point No. I

(9)

No
such
objection
to
jurisdiction of the Family Court to hear the
suit in question was raised by the appellant
before the trial Court nor any application
was filed for framing additional issue on
this point. Nevertheless, as a jurisdictional
issue has been raised before us, we proceed
to consider the same.

(10) Section 7 of the Family
Courts Act 1984 (hereinafter referred to as
'Act, 1984) deals with the jurisdiction of
the Family Court. Section 7 of 1984 reads
as follows :-

"7.
Jurisdiction.--
(1)
Subject to the other provisions of
this Act, a Family Court shall-
(a) have and exercise all
the jurisdiction exercisable by
any
district
court
or
any
subordinate civil court under any
law for the time being in force in
respect of suits and proceedings
of the nature referred to in the
Explanation; and
(b) be deemed, for the
purposes
of
exercising
such
jurisdiction under such law, to be a
district court, as the case may be,
such subordinate civil court for the
area to which the jurisdiction of the
Family Court extends.
Explanation.--The
suits
and proceedings referred to in
this sub-section are suits and
proceedings
of
the
following
nature, namely:--
(a) a suit or proceeding
between the parties to a marriage
for
a
decree
of
nullity
of
marriage (declaring the marriage
to be null and void or, as the case
may be, annulling the marriage)
or restitution of conjugal rights
or
judicial
separation
or
dissolution of marriage;
(b) a suit or proceeding
for a declaration as to the validity
of a marriage or as to the
matrimonial
status
of
any
person;
(c) a suit or proceeding
between the parties to a marriage
with respect to the property of the
parties or of either of them;
(d) a suit or proceeding
for an order or injunction in
circumstances arising out of a
marital relationship;
(e) a suit of proceeding for
a declaration as to the legitimacy of
any person;
(f) a suit or proceeding for
maintenance;
(g) a suit of proceeding in
relation to the guardianship of the
person or the custody of, or access
to, any minor.
(2) Subject to the other
provisions of this Act, a Family
Court
shall
also
have
and
exercise-
682 INDIAN LAW REPORTS ALLAHABAD SERIES
(a)
the
Jurisdiction
exercisable by a Magistrate of the
first
class
under
Chapter
IX
(relating to order for maintenance
of wife, children and parents) of the
Code of Criminal Procedure, 1973
(2 of 1974); and
(b) such other jurisdiction
as may be conferred on it by any
other enactment."
(emphasis added)

(11) A bare reading of the
aforesaid provision shows that a Family
Court subject to the provision of the 1984
Act has and exercises all jurisdiction
exercisable by any District Court or any
subordinate Civil Court under any law for
the time being in force in respect of suits
and proceedings of the nature that are
referred to in the 'Explanation'; besides, it is
deemed for the purposes of exercising such
jurisdiction under such law, to be a District
Court, or, as the case may be, such
subordinate Civil Court for the area to
which the jurisdiction of the Family Court
extends. Section 10 of the Act 1984 is also
relevant in this context.

(12) From the facts of the present
case, it is seen that Original Suit No. 1411
of 2005 (hereinafter referred to as 'second
suit') was filed by the respondent-wife for
declaring the judgment and decree dated
08.07.2005 passed by the learned Family
Court at Lucknow dissolving the marriage
to be a nullity and for cancellation of the
same, as allegedly, the same was obtained
by misrepresentation and fraud. The
outcome of the second suit filed by the
respondent-wife
thus
related
to
the
determination of her matrimonial status,
that is to say, as to whether she is or she is
not the wife of the appellant.
(13) The decree of the Family
Court dated 08.07.2005 by which the
matrimonial
relationship
between
the
parties stands severed declares the legal
character of the parties as far as their
relationship of husband and wife is
concerned. Thus, the subsequent suit that
had been filed by the respondent is in
essence for determining her matrimonial
status as wife of the appellant for which the
Family
Court
would
indeed
have
jurisdiction in terms of Clause (b) of the
'Explanation' to Section 7 (1) of the 1984
Act. The plea of the appellant is,
accordingly,
rejected.
Point
No.1
is
answered accordingly.

Point Nos. II, III and IV

(14) Point nos. II, III and IV are
being dealt with conjointly. Learned Family
Court, while considering issues no. (i) and
(ii) framed by it, has recorded a finding that
circumstances and evidence of the present
case do not support divorce by mutual
consent viz. firstly because in para-3 of
Original Suit No.32 of 2005 filed under
Section 13-B of the Act, 1955, on one hand,
it was stated that both of them were living
together and on the other, it was also stated
that they were living separately since 2002;
secondly because there is no explicit
mention nor any statement regarding any
alimony given by the appellant/husband to
the respondent/wife at the time of divorce
by mutual consent, whereas generally in
such a case the situation regarding alimony
would be determined; thirdly if the wife
had actually accepted such an important
incident of her life willingly, then, she
would have told it gladly and immediately
to her parents but not doing so, shows that
she was unaware of the proceedings and
nature of the documents signed by her and
that her signature and photograph were
8 All. Kuldeep Singh Vs. Smt. Yashoda Devi
683
taken by deceit as the wife had stated in her
plaint that her husband brought her by
telling her about the necessity of affixing
her signature and photograph in the
formalities related to his service; fourthly
P.W.1 (the wife herself) and P.W.2, who is
the father of the respondent/wife, had stated
that on 26.09.2005, when he along with his
daughter (respondent herein) went to inlaws of her daughter, then, they came to
know the factum of divorce. The learned
Family Court has recorded a finding that
P.W.1 herself had stated that on 15.06.2005,
her husband/appellant brought her to
permanent residence at Pauri Garhwal,
from where her husband brought her to her
parents'
residence
at
Dehradun
on
18.08.2005 by saying that he would take
some time for arranging accommodation at
Joshimath.

(15) Besides the aforesaid, the
learned Family Court has also opined that
on one hand, in the Original Suit no. 32 of
2005 filed under Section 13-B of the Act,
1955, both have accepted to live together
and as such, in that situation, as per the
provisions of Section 13-B of the Act,
1955, it cannot be said that at the time of
filing of the suit, both the parties were
living separately for a year or more. In this
background, learned Family Court has
decided issues No.1 and 2 in the affirmative
in favour of the wife and has decreed the
suit of the respondent/plaintiff.

(16) As far as these points are
concerned,
this
Court
finds
that
appellant/husband was serving in Indian
Army and was posted at Joshimath
(Uttaranchal). He got married with the
respondent/wife
on
05.05.1995
in
accordance with Hindu rites and rituals in
Village Gadauli, district Pauri Garhwal
(Uttaranchal).
After
marriage,
appellant/husband brought respondent/wife
to his residence at village Haluni, district
Pauri Garhwal. Out of their wedlock, two
male children were born on 21.07.1997 and
05.07.2000,
respectively.
The
appellant/husband
was
transferred
to
Lucknow
on
25.04.2003.
The
wife
continued to live with the in-laws as stated
by P.W.2 with no contrary evidence led by
appellant on this issue.

(17) The appellant/husband, as per
his own testimony, was allotted official
accommodation at Lucknow on 01.11.2004.
He brought the respondent/wife and his
younger son to Lucknow in November,
2004, though the wife says that she was
brought in January, 2005. Be that as it may,
as per the wife, she was brought to
Lucknow. The husband has brought on
record the photographs of the train tickets
in support his claim, which we will deal
later. The husband brought her to Lucknow
as per the wife on the pretext of completion
of necessary service related formalities
while leaving both the children in the
custody of his parents. In paragraph-6 of
her plaint, respondent/wife has stated that
on
05.01.2005,
her
husband/appellant
brought her to a place and got her signature
on some papers as this was necessary in
connection
with
his
service.
Her
husband/appellant also convinced her not to
disclose anything about the photograph and
signature
to
anyone.
Thereafter,
her
husband kept her there till afternoon and
then brought her to his temporary residence
near his work place, where the appellant
intimidated
and
confused
the
respondent/wife not to tell anyone about
the signatures as well as pasting of the
photographs etc. In paragraph-7, she has
stated that while going on duty, she was
instructed not to meet anyone nor to leave
the house. Her husband kept her with him
684 INDIAN LAW REPORTS ALLAHABAD SERIES
for about 6 months only. During the said
period, again her husband brought her to
the said designated place by telling her that
some interrogation in connection with her
signatures and photographs already made
on the service related documents were
required, wherein her husband, in his
presence, again got signed some papers.
Thereafter, on 15.08.2005, her husband
brought her to his village Halauni, district
Pauri Garhwal and told her that he had
been
transferred
from
Lucknow
to
Joshimath and he would require some time
for arranging accommodation etc. at
Joshimath and till then she should stay with
his
parents
and
after
arranging
accommodation etc. at Joshimath, he would
take her to Joshimath. In paragraph-9,
wife/respondent has stated that after staying
for two days at her in-laws house, on
18.08.2005, her husband took her to the
residence of her father posted at Dehradun
and left her there. When her husband did
not come to take her to her matrimonial
home, then on 26.09.2005, she along with
her father went to the house of her in-laws,
wherein her in-laws for the first time
disclosed to the respondent/wife and her
father that the appellant had already taken
divorce from Lucknow Court and now she
had no relation with her in-laws and her
husband and sent her away. In paragraph10, respondent/wife has stated that on
04.10.2005, she came to Lucknow with her
father and sought legal guidance from an
Advocate and on 07.10.2005 filed an
application for information regarding the
case alleged to have been filed in the
Family Court and then she came to know
that Original Suit No. 32 of 2005 was
registered on 06.01.2005.

(18) In the plaint, respondent/wife
has also asserted that the said suit was not
even verified and most significantly there
was no mention of giving lump sum
amount to her towards permanent alimony.
Further, it has been contended that her
signature on the said suit were due to
misrepresentation
and
deceit
by
her
husband/appellant. It has been also stated
that the respondent/ wife was a rural
woman, not much educated, who gullibly
signed the papers on the instructions of her
husband as any other Indian wife in her
position would do.

(19) The appellant denied the case
of the respondent/plaintiff in his written
statement but there are certain pleadings
therein, which are relevant. In para-4, he
has stated as under :-

"4.---------okLrfodrk ;g gS fd
izfroknh ds ewy fuokl ds lkFk okfnuh
le;≤ ij] LFkkukUrfj.k gksus ij vkSj fuokl
dh lqfo?kk izkIr gksus ij] LFkkukUrj LFkku
ij fuokl djrh jgh vkSj y[kuÅ esa uoEcj
2004 ls tuojh 2005 rd lsuk ds ljdkjh
vkokl esa fuokl fd;k FkkA okn&i=
la[;k&32@2005 va0 /kkjk&13 1⁄4ch1⁄2 nkf[kyk
ds 12 fnu ckn izfroknh ds ewy fuokl
mRrjkapy esa 22 vizSy rd RkFkk 23 vizSy ls
10 tqykbZ rd fQj y[kuÅ esa jgus ds ckn
okfnuh dks mlds ek;ds Hkst fn;k x;k FkkA
okfnuh dk ;g dguk Hkh xyr gS fd nksuks
cPps ewy fuokl NksM fn;s x;s FksA
okLrfodrk ;g gS fd cMk iq= Ldwy gsrq
ewy fuokl ij jg jgk Fkk rFkk NksVk iq=
vkdk'k flag izfroknh o okfnuh ds lkFk
y[kuÅ esa fuokl dj jgk FkkA"

(20) In para-5 of written statement,
it has been averred as under :-

"5.------okLrfodrk ;g gS fd
izfroknh dk y[kuÅ LFkkukUrj.k gksus ij]
ljdkjh vkokl lqfo/kk izkIr gksus ij uoEcj
2004 esa gh NksVs iq= rFkk okfnuh ds lkFk
fuokl gsrq vk x;k Fkk ftldk fjdkMZ lsuk
ds ljdkjh vkokl ls izkIr fd;k tk ldrk
gS vkokl ,YkkVesUV dh izfr layXud&1 gSaA
8 All. Kuldeep Singh Vs. Smt. Yashoda Devi
685
okfnuh dk ;g vfHkdFku fd tuojh 2005
esa dyqf"kr mn~ns';ksa dh iwfrZ gsrq okfnuh
dks y[kuÅ yk;k x;k vlR; gSA NksVs iq=
vkdk'k flag dk bykt y[kuÅ esa py jgk
Fkk] tks laYkXud&2 gSA Lo;a fl) djrk gS
fd okfnuh vlR; vfHkHkk"k.k dj jgh gSA
okfnuh dks NksVs iq= lfgr y[kuÅ yk;k
x;k Fkk fjtosZ'ku fLYi dks QksVks izfr
layXud&3 gSA"

(21) These averments clearly show
that even as per appellant, respondent/wife
before coming to Lucknow had been
residing
at
the
appellant/husband
permanent residence i.e. village Halauni
Pauri Garhwal, meaning thereby they had
not been living separately for one year
preceding the filing of Suit No. 32 of 2005
on 06.01.2005 as was a prerequisite for a
suit under Section 13-B of the Act, 1955,
and even thereafter they lived together.

(22) Further, in para-11 of the
written statement, while responding to the
plea in para-12 of plaint regarding the suit
not being maintainable on account of nonexistence of jurisdictional prerequisites
mentioned in Section 13-B pertaining to
one year of separate living, it has been
averred by the husband, as under :-

"11. यह्‌ कक्‌ िाद--पि्‌ की्‌ धारा-12्‌ का्‌
कर्थन्‌ असत्य,्‌ भ्रमपूर्ग्‌ है्‌ मनर्ढंत्‌ है,्‌ र्ुमराह्‌
करने्‌ का्‌ प्रयास्‌ है्‌ इनकार्‌ है्‌ सत्यता्‌ यह्‌ है्‌ कक्‌
मूल्‌ िाद्‌ सं0-32/2005्‌ की्‌ धारा-3्‌ िाददनी्‌ के्‌
भलखखत्‌ साक्ष्य्‌ में्‌ जनिरी 2002्‌ से्‌ पनत-पत्नी्‌ के्‌
शारीररक्‌ सम्बन्ध्‌ न्‌
रहना्‌ कहा्‌ र्या्‌ है्‌ जो्‌
स्पष्ट्‌ करता्‌ है्‌ कक्‌ पक्षकारों्‌ के्‌ मध्य्‌ पनत्‌ एिं्‌
पत्नी्‌ के्‌ सम्बन्ध्‌ समापत्‌ हो्‌ र्ए्‌ र्थे्‌ और्‌ पनतपत्नी्‌ इस्‌ आशा्‌ से्‌ एक्‌ सार्थ्‌ रह्‌ रहे्‌ र्थे्‌ की्‌
समय्‌ बीतने्‌ पर्‌ हो्‌ सकता्‌ है्‌ की्‌ पनत-पत्नी्‌ के्‌
सम्बन्ध्‌ कफर्‌ से्‌ मधुर्‌ हो्‌ जाये्‌ जो्‌ लखनऊ्‌ में्‌
आकार्‌ एक्‌ सार्थ्‌ ननिास्‌ करने्‌ पर्‌ भी्‌ सम्भि्‌
नहीं्‌ हो्‌ सका्‌ और्‌ अं0्‌ धारा्‌ 13(बी)्‌ दह0्‌ वि0्‌
अचध0्‌
की्‌
आिकयकता्‌
पक्षकारों्‌
के्‌
मध्य्‌
संण्स्र्थत्‌ ककया्‌ र्याA"

(23) These averments again
amount to an admission that they were not
living separately during the immediately
preceding one year from the date of filing
of Suit No. 32 of 2005. Language used in
Section 13 (B) of the Act, 1955 is "on the
ground they have been living separately for
a period of one year or more."

(24) In para-10 of his written
statement, appellant has averred that
respondent has studied upto Class-10th, a
fact which has been denied by her in her
plaint, examination-in-chief and crossexamination.
Interestingly,
no
suggestion/question was put to her by the
appellant in her cross-examination.

(25) Before considering the oral
testimony and other evidence on record, in
continuation of the above, we may refer to
the pleadings in the earlier suit to examine
as
to
whether
the
jurisdictional
prerequisites for attracting Section 13 (B)
of the Act, 1955 were satisfied or not. In
para-3, 10, 11 and 12 of the plaint under
Section 13 (B) of the Act, 1955, it was
averred as under :-

"3. ;g fd mijksDr irs ij ge
;kph x.k lkFk&lkFk jg jgs gS fdUrq vkil
esa vR;f/kd erHksn ds dkj.k tuojh 2002
ls vyx&vyx jg jgs gS vkSj nksuks ds e?;
bl chp ifr&iRuh ds lEcU/k ugha jg x;s
gSA
-------------------------------------------
-----------------
10- ;g fd bl le; mHk;
i{kdkj mijksDr irs ij ,d lkFk fuokl
686 INDIAN LAW REPORTS ALLAHABAD SERIES
dj jg gS fdUrq vkt fnukad 6&1&2005 ls
vyx&vyx jgsaxs vkSj mijksDr okn esa
izLrqr gksdj eqdnes dh iSjoh djrs jgsaxsA
11- ;g fd okn&dk dkj.k vkil
esa ifr&iRuh dk lEcU/k lekIr gks tkus ds
ckn tuojh 2002 dks mRiUu gqvk tc
ifr&iRuh ds chp esa mijksDr okn dks fookg
foPNsnu gsrq nkf[ky djus dk le; fy;k
x;kA
12- ;g fd mHk; i{kdkj y[kuÅ
tuin esa mijksDr irs ij fookg ds ckn ls
fuokl dj jgs Fks vkSj bl le; Hkh fuokl
dj jgs gS tks ekuuh; U;k;ky; ds
{ks=kf/kdkj esa gSA"

(26) Apart from the fact that the
written statement of the appellant in Suit
No.
1411
of
2005
itself
contains
averments/admissions that they had not
been residing separately for one year or
more prior to 06.01.2005, the averments in
the plaint of the earlier suit quoted above,
apart from being self contradictory and
contrary to subsequent pleadings in written
statement of subsequent suit, especially
para-10 and 12 clearly establish that they
had not been living separately and the
jurisdictional prerequisite for moving a suit
under Section 13 (B) (1) was absent.

(27) In her examination-in-chief
filed on affidavit, respondent/wife (P.W.1)
has categorically stated that the alleged
decree of divorce was the result of
misrepresentation,
deceit
and
fraud
practiced by her husband taking advantage
of the trust reposed by her on him, she not
being much educated, being a trusting
Indian wife. She has stated that by keeping
her in dark, her husband got her signature
on the pretext of some service related
formalities of the husband. She has
categorically stated that if she had even
slightest information that these documents
were related to divorce, then, she would
never have signed them nor would have
gone anywhere.

(28) In her cross-examination, she
(P.W.1) has categorically stated that her
husband told her the necessity of her
signature and her photograph on the service
related documents. P.W.1, in her crossexamination, has also stated that she did
not enquire anything from her husband
relating to her visit to Court. This
statement, in our view, is quite natural
because P.W.1 herself has stated in as many
words that her husband had asked her to
not say anything regarding her signature
and photograph to anyone and had also
threatened her with dire consequences if
she told anyone in this regard. She has
clearly stated in her cross-examination that
she did not know the subject of the first
suit. The subsequent suit has been filed
because her husband had cheated her. She
has accepted that her husband was allotted
official accommodation in November, 2004
and after a few days, he had taken her and
she had stayed with him for 6 or 7 months.
She has further stated as under :-

" यह कहना सही है बक नौकरी सम्िन्िी
कागजातों पर वाबदनी के हस्ताक्षर व फोर्ो िगाया जाना
आवश्यक है कहकर, बनिाशररत स्थान पर िे गये। यह
िात
बद०
05.01.2005
की
है।
बद०
05.01.2005 की सुिह 10:00 िजे मुझे िे गये।
र्ाम को 2:00-3:00 िजे वापस िाए। इन्होंने कहा
था बक वो मेरा ऑबफस है ऑबफस िे गये। मुझे कोई
नौकरी नहीं बमिी। इन्होंने मुझसे यह िी कहा था बक
बकसी से यह िात िताना नहीं बक कागजात पर हस्ताक्षर
बकया है व फोर्ो िगाया है। मुझे नहीं मािूम बक मुझे
बकसी से िताने को मना क्यों बकया था। मैने पूछा था तो
इन्होंने कहा था बक अन्दर की िात िाहर नहीं जाना
चाबहए। पहिे मुझे नहीं मािूम था अि मुझे मािूम है
बक वह स्थान कचहरी था, जहाूँ मुझे िे गये थे। मुझे
दोिारा पुनः उसी स्थान पे िे गये जहाूँ पहिे िे गये थे।
वह स्थान यही कचहरी थी, जहाूँ दोिारा मुझे िाए थे।
8 All. Kuldeep Singh Vs. Smt. Yashoda Devi
687
05-01-05 के िाद दोिारा मुझे 5-6 माह उसी
स्थान पर कचहरी िाए थे। मुझे नहीं मािूम बक
दोिारा जि िाए थे तो उस समय वहाूँ ऐसा ही
माहौि था, जैसा आज यहाूँ है। दोिारा जि मुझे
िाए थे ति वहाूँ मेरा हस्ताक्षर व अूँगूठा िगवाए
थे। दोिारा जि मैं 2005 में आयी थी ति मुझसे
कोई पूछताछ नहीं हुई थी। मैं अगस्त 2005 में
िखनऊ से वापस गयी। मैं अपने पबत के साथ
वापस गयी थी। िखनऊ से चिकर मैं कार द्वारा
स्र्ेर्न में उतरी थी। वहाूँ से हम दोनों गाूँव हिोनी
गये थे। मुझे 2005 के मुकदमे की जानकारी सिसे
पहिे मेरी सास व मुझे दी थी। मुझे बसतम्िर
2005 में जानकारी प्राप्त हुई थी। बतबथ याद नहीं
है। मैं अक्र्ूिर 2005 में िखनऊ कचहरी में
2005 के मुकदमे की जानकारी करने आयी थी। मैं
उसी कचहरी में आई, जहाूँ पहिे दो िार आ चुकी
थी। यहाूँ आकर मैं अबिवक्ता श्री आर० के० यादव
से सम्पकश बकया। उन्होंने मुझे मुकदमे के िारे में
िताया। मैं वकीि साहि के तख्त पर िैठी थी।
वकीि साहि ने जानकारी करके मुझे िताया था। मैं
बकसी न्यायािय या कायाशिय में नहीं गयी।
जानकारी होने पर मेरे साथ जो िोखािडी हो रही
थी, उसके बखिाफ मैंने मुकदमा दायर बकया।
जानकारी होने व मुकदमा दायर करने के मध्य मैंने
बकसी कागज पर हस्ताक्षर नहीं बकया था।

(29) She (P.W.1) has reiterated in
her cross-examination that she was not
literate. No question or suggestion was
made to her in her cross-examination as to
whether she had been living separately for
one or more year prior to filing of Suit No.
32 of 2005.

(30) This Court cannot be
oblivious
of
the
fact
that
the
respondent/wife being a woman of humble
and rural background, not much educated,
who reposed trust in her 'Patiparmeshwar'
and
it
was
quite
natural
that
wife/respondent did not know relevance of
those papers upon which her husband got
her
signature
and
also
pasted
her
photograph albeit with ulterior motive and
ultimately used them for the said purpose
of divorce.

(31) P.W.2-Bhagirath Singh, who
is father of the respondent/wife, was also
examined and he has stated in his crossexamination that his son-in-law (appellant)
himself
had
brought
her
daughter
(respondent)
from
his
permanent
matrimonial house (Village Haluni, district
Pauri Garhwal) to Lucknow in the first
week of January, 2005, though he did not
remember the date. He has further stated
that her daughter lived along with her
husband
(appellant)
in
Lucknow
till
August, 2005. He met his daughter on
18.08.2005. Prior to it, he had not met her.
This was obvious because she was residing
at her in-laws and thereafter with her
husband. He has further stated that her
daughter could neither read Hindi nor
understand it nor speak it. His daughter had
passed Middle class. He has also stated that
his son-in-law brought her daughter to his
house in the month of August, 2005 and at
that time he had no information regarding
divorce, however, on 26.09.2005, when he
went along with his daughter to her in-laws
house, then, parents of his son-in-law told
them
about
the
divorce.
He
has
categorically stated that his daughter did
not say anything about divorce between
18.08.2005 (date on which appellant left
his wife to her parents at Dehradun) to
26.09.2005 (the date when P.W.2 and her
daughter/respondent went to in-laws' house
of the respondent).

(32) The testimony of P.W.2
clearly establishes that the appellant had
brought his wife to his house on 18.08.2005
when he met her and that prior to it, she
had been living with the appellant since
January, 2005. Most important, he (P.W.2)
688 INDIAN LAW REPORTS ALLAHABAD SERIES
has stated that she did not tell him about
any divorce nor did appellant tell him any
such fact which establishes the version of
the wife (his daughter) that she was
unaware
about
any
such
divorce
proceedings.

(33) Now, we examine the
testimony of appellant, who was examined
as D.W.1. In his cross-examination, he has
stated that on 06.01.2005, he along with his
wife, for the first time, came to Court and
both of them came to Court to seek divorce
by mutual consent due to lack of mutual
understanding. Thereafter, both of them
came to Court second time after six months
i.e. on 07.07.2005. The learned Judge
inquired from them separately. Their
statements were also recorded by the
Reader of the Court but he did not know
the date of recording of the statement,
however, he guessed that these statements
were recorded on 7th or 8th July, 2005. He
has also stated that both of them had borne
the cost of litigation jointly filed under
Section 13-B of the Act, 1955. Appellant
has
further
disclosed
that
the
respondent/wife was engaged in the work
of tailoring in his quarter out of which his
wife met the expenditure of litigation. He
has clearly admitted that respondent was
living with him at the time of filing of suit
under Section 13 (B) of the Act, 1955.

(34) Based on an examination of
pleadings and evidence on record what
comes out is firstly that the prerequisite for
initiating proceedings under Section 13 (B)
of the Act, 1955 i.e. separate living for one
or more year was admittedly absent,
therefore, the Suit No. 32 of 2005 was not
maintainable in the first place and any
proceedings held de hors Section 13-B of
the Act, 1955 were clearly without
jurisdiction. Secondly, the respondent/
wife, who was not much educated nor
aware about the ways of the world certainly
not about law and legal proceedings, was
deceived by misrepresentation to sign blank
papers and photographs, which were used
to obtain a decree of divorce by the
appellant fraudulently, we have no reason
to disbelieve the testimony of P.W.1 and
P.W.2, whereas the testimony of D.W.1
does not inspire confidence. Whether
respondent/wife came to Lucknow in
November, 2004 or January, 2005 is not
very relevant in view of absence of
prerequisite for attracting Section 13 (B) of
the Act, 1955. Photocopy of tickets filed by
the appellant in this regard are also not of
much significance in view of the discussion
already made.

(35) So far the statements of the
parties recorded in the earlier proceedings
of Suit No. 32 of 2005 and the order passed
on the said case, firstly the learned Judge,
who decided the case, did not even satisfy
himself about existence of prerequisites of
Section 13 (B) of the Act, 1955, absence of
which was apparent from the pleadings of
the plaint, moreover, the order-sheet reveals
cryptic observation regarding attempt for
mediation and inquiry. Most important, the
statement of respondent and appellant are
almost verbatim similar which is not
natural. The statements were recorded by
the Reader. Though they bear the signature
of
the
Presiding
Officer
and
an
endorsement that the Reader had recorded
it on his dictation the verbatim similarity in
the statements does not inspire confidence
especially when the Presiding Officer did
not even bother to see as to whether the suit
was maintainable on the basis of pleadings
before him. Proceedings did not appear to
have been held in accordance with law.
Even the address of the husband and wife
in their statements recorded by the Reader
8 All. Kuldeep Singh Vs. Smt. Yashoda Devi
689
and the plaint were same but even this was
not noticed nor mentioned by the Presiding
Officer. Suit No. 1411 of 2005 was filed
within almost three months of the decree
dated 08.07.2005 being passed in Suit No.
32 of 2005, as soon as the respondent came
to know about the fraud, which was not
only on her but also on the Court. P.W.1
and P.W.2 have stood there ground in crossexamination, whereas the defence of the
appellant/defendant
is
shaky
and
unbelievable/ unacceptable.

(36) Section 13-B of the Act, 1955
reads as under:-

"13-B.