# Smt. Mohit Preet Kapoor v. Sumit Kapoor

- **Citation:** (2022) 3 ILRA 800
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-16
- **Case number:** First Appeal No. 351 of 2020
- **Bench:** Mrs. Sunita Agarwal, Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-mohit-preet-kapoor-v-sumit-kapoor-48243
- **Pages:** 13

## Headnote

(A) Civil Law - Hindu Marriage Act, 1955 -
Sections 13, 13(1) & 24 - Indian Penal
Code, 1860 - Sections 498 & 506 - Dowry
Prohibition Act, 1961 - Section - 3/4 -
Hindu Adoption & Maintenance Act, 1956
- Sections - 18 & 20 - Divorce Petition
filed by husband - on the ground of
Desertion & Cruelty - Appeal filed by wife -
husband did not pay interim mandamus
till date, he did not care his minor child
too and also not appear in present Appeal
in-spite of filing of caveat application
either in-person or through counsel -
which shows that husband himself not
willing to take care of his wife - visiting
her parents' house (situated near by 400
meters) frequently without taking consent
of her husband or his family members &
cannot
constituted
the
desertion
-
difference between husband & wife could
also not lead to constitute an inference
that wife is not willing to cohabitate with
her husband -the finding of family court,
treating all the allegation made in divorce
petition
as
a
gospel
truth
is
not
sustainable in the eyes of law - hence,
decree of divorce liable to be set aside.
(Para - 29, 31, 34, 35)

(B) Civil Law - Hindu Marriage Act, 1955-
Sections -13, 13(1) & 24 - Indian Penal
Code, 1860 - Sections 498 & 506 - Dowry
Prohibition Act, 1961 - Section - 3/4,
Hindu Adoption and Maintenance Act,
1956 - Sections - 18 & 20: - Divorce
Petition filed by husband - on the ground
of Desertion & Cruelty - Appeal filed by
wife
-
husband
neither
pay
interim
mandamus nor care his minor child till
date - since, wife & her daughter
abandoned by her husband - they could
not left to survive on their own - direction
issued - wife can availed the remedy u/s
18 of Act, 1956 - wife is entitle of arrears
towards Maintenance as fixed by court
below & w.e.f. Feb. 2022 Rs. 30,000/- per
month
towards
maintenance
of
her
daughter from her husband - default if
any on the part of respondent wife is can
avail the remedy of contempt of court.
(Para - 41, 42, 43, 44, 45)

Appeal Allowed. (E-11)

List of Cases cited: -

## Text

_Characters 0–39,898 of 44,132. This is a partial read: ask again with offset=39898 for what follows._

800 INDIAN LAW REPORTS ALLAHABAD SERIES
opinion or the drawing of a different
inference from the same facts as were earlier
available but acting on fresh information.
Since, the belief is that of the Income Tax
Officer, the sufficiency of reasons for forming
the belief, is not for the Court to judge but it
is open to an assessee to establish that there
in fact existed no belief or that the belief was
not at all a bona fide one or was based on
vague,
irrelevant
and
non-specific
information. To that limited extent, the Court
may look into the conclusion arrived at by the
Income Tax Officer and examine whether
there was any material available on the record
from which the requisite belief could be
formed by the Income Tax Officer and further
whether that material had any rational
connection or a live link for the formation of
the requisite belief. It would be immaterial
whether the Income Tax Officer at the time of
making the original assessment could or,
could not have found by further enquiry or
investigation, whether the transaction was
genuine or not, if on the basis of subsequent
information, the Income Tax Officer arrives
at a conclusion, after satisfying the twin
conditions prescribed in Section 147(a) of the
Act, that the assessee had not made a full and
true disclosure of the material facts at the
time of original assessment and therefore
income chargeable to tax had escaped
assessment. The High Courts which have
interpreted Burlop Dealer case3 as laying
down law to the contrary fell in error and did
not appreciate the import of that judgment
correctly." (Emphasis supplied)

26. When we examine the facts of the
present case keeping into view the scope of
power of judicial review while scrutinizing a
notice issued under Section 148 of the Act as
explained in Raymond woolen Mills Ltd.
(1) and (2) and Phool Chand Bajarang Lal
(Supra), we find that the notice under
Section 148 of the Act has been issued by the
assessing
officer
after
conducting
an
investigation and going through the income
tax return and other related documents of the
assessee and after giving reason to believe
that the income amounting to Rs. 6,94,540/-
has escaped assessment in respect of the
assessee. We are satisfied that there is prima
facie material available on record before the
assessing officer for issuing a notice for
reassessment and the notice under Section
148 of the Act. While this Court examines the
validity of the notice issued under Section
148 of the Income Tax Act, the Court does
not have to give a final decision as to whether
there is suppression of material facts by the
assessee or not and the sufficiency or
correctness of the material is not a thing to be
considered at this stage.

27. Thus, in our considered opinion the
order dated 02-09-2021 passed by the
Assessing Officer rejecting the petitioner's
objections against issuance of the notice, does
not suffer from any such illegality as to
warrant interference by this Court in exercise
of its Writ Jurisdiction,

28. The Writ Petition lacks merits and
is, accordingly, dismissed.

29. Parties to bear their own costs.
----------
(2022)03ILR A800
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.02.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE KRISHAN PAHAL, J.

First Appeal No. 351 of 2020

Smt. Mohit Preet Kapoor ...Appellant
Versus
Sumit Kapoor ...Respondent
3 All. Smt. Mohit Preet Kapoor Vs. Sumit Kapoor
801
Counsel for the Appellant:
Shri
Ashok
Kumar
Goyal,
Sri
Ritesh
Upadhyay

Counsel for the Respondent:
Sri Vishal Mohan Gupta, Sri Dinesh Kumar
Maurya, Sri Sanjay Kumar Dwivedi

(A) Civil Law - Hindu Marriage Act, 1955 -
Sections 13, 13(1) & 24 - Indian Penal
Code, 1860 - Sections 498 & 506 - Dowry
Prohibition Act, 1961 - Section - 3/4 -
Hindu Adoption & Maintenance Act, 1956
- Sections - 18 & 20 - Divorce Petition
filed by husband - on the ground of
Desertion & Cruelty - Appeal filed by wife -
husband did not pay interim mandamus
till date, he did not care his minor child
too and also not appear in present Appeal
in-spite of filing of caveat application
either in-person or through counsel -
which shows that husband himself not
willing to take care of his wife - visiting
her parents' house (situated near by 400
meters) frequently without taking consent
of her husband or his family members &
cannot
constituted
the
desertion
-
difference between husband & wife could
also not lead to constitute an inference
that wife is not willing to cohabitate with
her husband -the finding of family court,
treating all the allegation made in divorce
petition
as
a
gospel
truth
is
not
sustainable in the eyes of law - hence,
decree of divorce liable to be set aside.
(Para - 29, 31, 34, 35)

(B) Civil Law - Hindu Marriage Act, 1955-
Sections -13, 13(1) & 24 - Indian Penal
Code, 1860 - Sections 498 & 506 - Dowry
Prohibition Act, 1961 - Section - 3/4,
Hindu Adoption and Maintenance Act,
1956 - Sections - 18 & 20: - Divorce
Petition filed by husband - on the ground
of Desertion & Cruelty - Appeal filed by
wife
-
husband
neither
pay
interim
mandamus nor care his minor child till
date - since, wife & her daughter
abandoned by her husband - they could
not left to survive on their own - direction
issued - wife can availed the remedy u/s
18 of Act, 1956 - wife is entitle of arrears
towards Maintenance as fixed by court
below & w.e.f. Feb. 2022 Rs. 30,000/- per
month
towards
maintenance
of
her
daughter from her husband - default if
any on the part of respondent wife is can
avail the remedy of contempt of court.
(Para - 41, 42, 43, 44, 45)

Appeal Allowed. (E-11)

List of Cases cited: -

1. Savitri Pandey Vs Prem Chandra Pandey
(2002 Vol. 2 SCC 73).

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.
&
Hon'ble Krishan Pahal, J.)

1. This is wife's appeal directed
against the judgment and order dated
19.03.2020 passed by the Additional
Principal Judge, Family Court, Bareilly
under Section 13 of the Hindu Marriage
Act. The marriage of the appellant with the
respondent was held on 15.12.2013.

2. The divorce petition had been filed
by the respondent husband on 6.3.2017 on
the ground that the appellant, his wife, had
left her matrimonial home on 10.1.2015
without any rhyme or reason, in his absence,
alongwith her family members. At that point
of time, the appellant wife was pregnant for
two months. It was alleged in the divorce
petition that while leaving her matrimonial
home, the appellant took all her jewellery as
also Rs.36,000/- in cash kept by the
respondent in his safe. On 25.1.2015, the
respondent went to bring the appellant back
to his home when she refused to maintain
any kind of relationship with him.

3. It was further contended that on
22.8.2015, the appellant had given birth to
802 INDIAN LAW REPORTS ALLAHABAD SERIES
a girl child. She was admitted in the
hospital by the respondent who had borne
all expenses of birth of his daughter. The
appellant wife went to her paternal home
after birth of the child. After about eight to
ten days, the respondent went to bring the
appellant back to his home when she
denied to meet him and did not allow him
to even see his child. On 15.1.2017 the
respondent again went alongwith his
relative to bring the appellant to his home
when she had denied to accompany him. It
is, thus, stated in the divorce petition that
the appellant was residing separately since
10.1.2015 and she has refused to keep
relationship with the respondent.

4. The plea in the divorce petition, thus, is
that the appellant wife had deserted her
husband/respondent without any rhyme or
reason and refused to cohabit with him. The
cause of action for filing the divorce petition
stated to have arisen on 10.1.2015 when
appellant wife had left her matrimonial home
along with her father and brother and lastly on
15.1.2017 when she refused to accompany the
respondent to her matrimonial home. Another
ground for seeking divorce is that the appellant
had refused to do the household work and
misbehaved with the family members of the
respondent. She used to go to her paternal home
or to her relatives without any information to
the respondent or his family members.

5. The trial court had framed four
issues; Issue nos. 1 and 2 framed by the
trial court read as under:

"1. क्या णवपक्षी द्वारा याची के साथ
णववाह के पिात णवणभन्न अवसरोुं पर क्रूरता का
व्यवहार णकया?

2. क्या णवपक्षी ने याची को णदनााँकः
10.01.2015 से णबना णकसी युज्यक्तयुक्त कारि के
पररत्यक्त कर रखा है?"

6. In support of the averments in the
divorce petition, the respondent husband
had produced five witnesses including
himself as P.W-1. P.W-2 Amit Kapoor is
brother of the respondent; P.W-3 is fatherin-law of P.W.-2 Amit Kapoor and P.W-4 is
neighbour of the respondent; P.W-5 is an
acquaintance. In rebuttal, appellant-wife
entered in the witness box as O.P.W-1 and
her father Atar Singh as O.P.W-2.

7. An application under Section 24 of
the Hindu Marriage Act was filed by the
appellant on 6.9.2017 which was contested
by the respondent by filing his objection on
26.2.2018. By the order dated 10.7.2018,
while allowing the application under
Section 24 of the Hindu Marriage Act, an
amount of Rs.5,000/- per month was
awarded to the appellant and Rs.2000/- for
her daughter towards monthly maintenance.
In addition to the same, Rs.20,000/- in
lumpsum was awarded towards the cost of
the proceedings.

8. A written statement in rebuttal was
filed by the appellant wife on 06.10.2018
wherein she had categorically denied the
assertion that she had left her matrimonial
home on 10.1.2015 rather it was stated
therein that the appellant lived with the
respondent, her husband, in his house uptil
July, 2016. A child was born out of the
wedlock on 22.8.2015 in Rashmi Goyal
Hospital
situated
at
Rampur
Garden
Bareilly. The appellant was admitted in the
hospital by the respondent on 22.8.2015
who had signed the consent letter for the
surgery. It is emphatically denied that the
appellant had refused to have sexual
relationship with the respondent. It was
further stated that after the birth of the girl
child the respondent did not care to take the
appellant to his home from the hospital and
she had to go to her father's home. After
3 All. Smt. Mohit Preet Kapoor Vs. Sumit Kapoor
803
about a period of four months, the
respondent went to the house of the
appellant's parents and when the matter was
amicably settled and the appellant came to
live with the respondent in his house. On
13.6.2016, their daughter had to undergo an
operation for which she was admitted in
Medanta Medicity Hospital Gurgaon when
both the appellant and respondent were
with
their
child. After
surgery,
the
appellant-wife came back to the house of
the respondent and stayed there until 21
July, 2016 when she was turned out of her
matrimonial home along with her infant
daughter. It is alleged in the written
statement that the original documents such
as Aadhar Card, Pan Card, Driving licence,
Voter Id, Marriage certificate and other
documents pertaining to the educational
qualification of the appellant-wife were in
the possession of the respondent and he
was
misusing
them by
forging her
signature.

9. An F.I.R under Section 498, 506
I.P.C and 3⁄4 of D.P Act was lodged in P.S
Prem Nagar Bareilly on 27.01.2018 by the
appellant-wife against the respondent in
respect of which investigation was going
on whereas interim protection had been
granted by this Court in a writ petition filed
by the respondent. It is denied by the
appellant that she took her jewellery while
leaving the home of the respondent. It is
also denied that the respondent went to the
house of the parents of the appellant on
25.1.2015. 10. Some photographs have
been filed by the appellant along with the
written statement to prove that she along
with her daughter were living alongwith the
respondent. It was lastly stated that on
15.12.2015 marriage of the brother of the
respondent was solemnised wherein the
appellant had participated. Some of the
photographs in which the appellant and
respondent could be seen with the wife of
the elder brother of the respondent were of
the month, February, 2016. It is lastly stated
that the respondent had filed Income Tax
Returns of the appellant by forging her
signature for the assesment year, 2013-14
till 2016-17.

11. The contention of the appellant,
thus, is that she was turned out of her
matrimonial home by the respondent on
21.7.2016 without any reasonable cause
and the respondent did not care for his wife
and the infant child.

12. Noticing the pleadings of the
parties, the evidence on record, in his
statement as P.W-1, the respondent has
admitted factum of marriage though denied
the demand of dowry and stated that his
wife/appellant used to threatened him that
she would implicate him in a false case of
dowry. The averment of desertion on the
part of the wife as on 10.1.2015, as stated
in the divorce petition, has been reiterated
in the examination-in-chief. It was also
stated that the appellant was admitted in the
hospital by the respondent during birth of
their child and the respondent borne all the
expenditures therein. It was also admitted
that during surgery of their daughter on
13.6.2016 in Medanta Medicity Hospital,
the appellant was present. However, it is
denied that at that point of time the
appellant, his wife, was living with him.
The
photographs
marked
as
paper
nos.30Ga/4,
30Ga/5,
30Ga/6,
30Ga/7,
30Ga/8, and 30Ga/9 were admitted by the
respondent. It was also admitted that the
marriage of his brother on 15.12.2015 was
attended by the appellant and the said date
is also the wedding anniversary of the
appellant
and
the
respondent.
Paper
no.20/14 is the photograph of 15.12.2015
which was the date of marriage of the
804 INDIAN LAW REPORTS ALLAHABAD SERIES
brother of the respondent, his own wedding
anniversary. It is admitted that in the said
photograph, wife and daughter of the
respondent could be seen with him. Paper
no.30Ga/10 is the photograph wherein the
appellant, respondent and brother and
sister-in-law of the respondent could be
seen together. This document is also
admitted. Other photographs marked as
paper no.30Ga/11, 30Ga/13, 30Ga/15,
30Ga/16, 30 Ga/17 and 30Ga/18 are also
admitted to the appellant which are
photographs of his daughter with his
parents.
Paper
no.30Ga/18
is
the
photograph which is admittedly of the
respondent and his wife, but he has refused
to recognize the place where it was taken.

13. As noted above, it is pertinent to
state here that in one of the photographs
paper no.30Ga/6, the respondent could be
seen along with his wife (appellant) and
daughter. The respondent has admitted that
the said photograph was taken after birth of
his daughter when she was about four to
five months. There are photographs of
mother and daughter of the respondent with
him which are admitted though it is not
specified by him as to when and where
those photographs were taken and what
was the age of his child at that point of
time. One of the photographs marked as
30Ga/9 is of the drawing room of the house
of the respondent where his daughter, who
was about 7-8 months old, could be seen on
a walker. In the cross examination, the
respondent had categorically stated that his
brother Amit got married on 15.12.2015. In
the marriage anniversary of his brother
which was on 15.12.2016, the appellant
was not present. We are surprised to note at
this moment that the family court had
recorded a finding that the appellant had
attended the wedding anniversary of his
brother-in-law on 15.12.2016 and the
photograph paper no.30Ga/9 was of the
said function which was held in the house
of the respondent. It is difficult to
understand as to what was the basis of the
said finding.

14. Contrary to this, the appellant in
her statement before the family court has
categorically asserted that her parent's
house and her matrimonial house are
located barely at a distance of 400 metres.
Her husband took her to the hospital when
their child was born on 22.8.2015. Paper
no.30Ga/9 has been proved to be the
photograph of her child which was taken in
the drawing room of the house of the
respondent. Paper no.30Ga/10 is the
photograph of the appellant along with the
respondent and her sister-in-law and
brother-in-
law
Amit
Kapoor.
This
photograph was stated to have been taken
in the month of February, 2016 when they
went to attend a marriage in the family.
Paper no.30Ga/11 is also the photograph of
the appellant and her sister-in-law (wife of
Amit Kapoor-brother of respondent). Paper
no.30/12
is
the
photograph
of
the
respondent, his daughter alongwith his
mother and was stated to have been clicked
in the drawing room of the house of the
respondent. Paper no.30Ga/14 is the
photograph of their marriage anniversary
on 15.12.2015 (which incidently was the
date of marriage of brother of the
respondent). Paper no.30Ga/15 is the
photograph of Amit Kapoor (brother of the
respondent), daughter of the appellant and
mother
of
the
respondent.
Paper
no.30Ga/17 is the photograph which as per
the statement of the appellant is of their
marriage
anniversary
which
is
also
admitted to the respondent as he stated that
the said photograph was taken in the
marriage of his brother Amit wherein his
wife could also be seen. Paper no.30Ga/18
3 All. Smt. Mohit Preet Kapoor Vs. Sumit Kapoor
805
is the photograph wherein the appellant and
respondent could be seen together and it
was stated by the appellant that the said
photograph was clicked in a Mall in Delhi
on 14.2.2016 whereas the respondent had
refused to recognise the place where it was
taken.

15. The appellant in her statement has
categorically stated that she was kicked out
of her matrimonial home on 21.7.2016 and
the first information report was lodged
against the respondent thereafter. She was
confronted on the allegations of demand of
dowry in the cross examination. The
appellant has asserted in cross that the
marriage of her brother-in-law was held
after two years of their marriage on
15.12.2015, and their marriage anniversary
also fell on the said date. She had reiterated
that she remained in the house of the
respondent till July, 2016 and at that point
of time she was not pregnant. She had
categorically
denied
of
leaving
her
matrimonial home in January, 2015.

16. In support of the plea of desertion,
the
respondent
has
produced
other
witnesses also. P.W-2 is the brother of the
respondent namely Amit Kapoor. He has
stated that the appellant had left their home
on 10.1.2015 alongwith her father saying
that she would come back after few days.
He states that the father of the appellant
remained in their house for around 30-45
minutes. In cross, he states that whatever
has been stated in paragraph-5 in his
examination-in-chief with regard to the
appellant taking her jewellery and money
while leaving on 10.1.2015, was based on
the information given to him by his brother,
the respondent herein.

17. P.W-3 is the father-in-law of P.W2-Amit Kapoor. He states that he was an
acquaintance
of
the
family
of
the
respondent since, 2012 and in the year
2015, the talk of marriage of his daughter
with
Amit
Kapoor,
brother
of
the
respondent, was going on. On 10.1.2015,
he went to the house of the respondent to
invite them for his wedding anniversary.
While he was in the house of the
respondent, father of the appellant came at
around 6.00 p.m and took the appellant
alongwith him. He then stated that on
25.1.2015 he along with the respondent
went to the house of the appellant to bring
her back when she refused to come back
with the respondent. In cross, P.W-3 states
that on 25.1.2015 he went to the house of
the respondent by chance and he was not
called by the respondent. He then stated
that when P.W-1 respondent got his wife
admitted for delivery, he was informed by
P.W-1 on telephone and he (P.W-3) also
reached the hospital when he came to know
about the birth of their child.

18. P.W-4 is a neighbour named as
Ram Chandra Lal Srivastava whose house
is located in front of the house of the
respondent. He states that he saw the
appellant leaving her matrimonial home
alongwith her father about five years back
while he was standing outside his house.
After that he had never seen the appellant
in her matrimonial house.

19. P.W-5 namely Ashok Kumar
Khanna
is
an
acquaintance
of
the
respondent who stated that he knew the
family since 2002. He states that the
appellant had left her matrimonial home in
January, 2015 at around 6.30 p.m and he
had seen her leaving. He further states that
he knew father of the appellant and had
seen him going along with the appellant.
The statement in paragraph-'6' in the
examination-in-chief of this witness is
806 INDIAN LAW REPORTS ALLAHABAD SERIES
verbatim the same as that of P.W-4 namely
Ram Chandra Lal Srivastava. P.W-5 also
admitted in the cross that the statement in
para-6 of the examination in chief made by
him was based on the information given to
him by P.W-4 namely Ram Chandra Lal
Srivastava and this fact has not been
disclosed by him while making the said
statement.

20. On appreciation of the oral evidence
led by the respondent husband, at least, this
can be elicited that P.W-3, P.W-4 and P.W-5
are the persons who had no knowledge as to
whether the appellant had actually left her
matrimonial home on 10.1.2015 with the
intention to end her matrimonial relationship.
The statement of P.W-3 in this regard is not
credible, in as much as, he admitted that he
was not related to the family on two crucial
dates, i.e. on 10.1.2015 and 25.1.2015. His
statement that the appellant had left her
matrimonial home along with her father on
10.1.2015 and refused to come back on
25.1.2015 when he also went along with the
respondent to bring her back, is sketchy. He
seems to be either a chance witness or
brought up by the respondent. At least the
statements of P.W-3, P.W-4 and P.W-5 cannot
be proof of desertion on the part of the
appellant.

21. We are left with two witnesses, i.e
the respondent himself and his brother Amit
Kapoor. P.W.-2-Amit Kapoor was the
resident of the same house. He states that the
appellant had left along with her father on
10.01.2015 saying that she would come back
within few days. In the examination in chief
this witness states that his brother went to the
house of the appellant on 25.1.2015 but she
refused to come back.

In cross, P.W-2 states that he
brought the appellant back to his house
many a times but did not remember the
exact number, though lastly he brought her
back in December, 2016. He further
clarified that the statement made by him in
para-5 in examination-in-chief that the
appellant took his jewellery and cash
alongwith her clothes while leaving her
matrimonial home on 10.1.2015 was based
on
the
information
given
by
his
brother/respondent.

22. P.W.1, the respondent husband
reiterated his averments in the divorce
petition by making statement in cross that
the appellant had left her matrimonial home
on 10.1.2015 and after fifteen days, i.e
25.01.2015 he himself went to bring her
back. She, however, refused to accompany
him. Their child was born in the hospital on
22.8.2015 and he got admitted his wife in
the hospital. For the treatment of his
daughter, he took her to Medanta Hospital
Gurgaon and got her admitted therein on
13.06.2016. P.W-1 has, however, denied
that his wife was residing with him on
22.08.2015 and 13.06.2016. He also admits
that the appellant along with her daughter
attended the marriage of his brother Amit
solemnized on 15.12.2015. In the cross
examination, P.W-1 has denied that the
appellant
had
attended
the
marriage
anniversary of his younger brother Amit on
15.12.2016. The photographs shown to
P.W-1 had been admitted being of himself,
his family and his daughter alongwith the
appellant.

23. A perusal of this part of statement
of P.W.-1 indicates that the photographs of
his daughter uptil the age of 7-8 months
were taken at different point of time and
location and some in his house also. In one
of these photographs, the child could be
seen in the walker in a room of the house of
the
respondent.
P.W.-1
admitted
the
3 All. Smt. Mohit Preet Kapoor Vs. Sumit Kapoor
807
photograph marked as paper no.30Ga/9
which is of his daughter when she was aged
about 7-8 months at that point of time. On
appreciation of the statement of P.W1/husband, it is evident that the appellant
and her daughter were well photographed
in the house of the respondent, i.e the
matrimonial home of the appellant. In
various photographs, P.W.-1 himself could
be seen alongwith his daughter in his own
house. There is a categorical statement of
the appellant O.P.W-1 that she was residing
in her matrimonial house both at the time
of birth of her daughter and her treatment
in Medanta Medicity Hospital Gurgaon and
thereafter till July, 2016. The distance
between two houses, i.e paternal home of
the appellant and her matrimonial house
(the respondent's home) is barely 400
metres.
In
these
circumstance,
the
statement of P.W.-1 that the appellant had
deserted him by leaving her matrimonial
home on 10.01.2015, in his absence,
permanently is unbelievable. There is
admission of the respondent/P.W-1 that his
wife though attended the wedding of his
younger brother Amit on 15.12.2015 but
was not present in his marriage anniversary
on 15.12.2016. The statement of P.W-2 in
the cross examination that he went to bring
the appellant back many a times and lastly
brought her back in December, 2016, also
shows that the appellant came to her
matrimonial home at least after 10.01.2015.

24. From the evidence on record, thus,
it cannot be accepted that the appellant had
left her matrimonial home on 10.01.2015
with the intention to end her matrimonial
relationship. The statement of appellant
O.P.W-1 that she came back to her
matrimonial home after four months of birth
of her daughter when the respondent himself
brought her back and remained there till July,
2016 is found to be more convincing. The
plea of desertion on the part of the appellant
without any reasonable cause and denial of
matrimonial obligation on her part, therefore,
is not found proved.

25. While recording finding on the issue
no.2 of desertion, the Family Court has
recorded that the appellant could not explain
as to how and why she attended the wedding
anniversary
of
her
brother-in-law
on
15.12.2016 when she was thrown out of her
matrimonial home by her husband on
21.07.2016. The findings returned by the trial
court on the issue of desertion is as follows:

"प्रश्न यह है णक जब णदनाुंक
21.07.2016 को यणद मारपीट कर जान से मारने
की िमकी देते हए घर से णनकाल णदया तो
णदनााँकः 15.12.2016 को णवपक्षी याची के बडे
भाई की वषटगााँठ में शाणमल कैसे हई। इससे पुनः
णवपक्षी के अणभवचनोुं तथा साक्ष्य में सुंदेह पैदा
होता है णक याची द्वारा णवपक्षी के साथ क्रूरता की
गयी। मारपीट की गयी और घर से णनकाला
गया। इससे इस तथ्य की भी पुणि हो रही है णक
याची के घर में शादी तथा वषटगााँठ के समय
णवपक्षी आयी, उसने शादी व कायटक्रम में
णशरकत की और णफर मायके चली गयी। शादी
व वषटगााँठ में णवपक्षी के आने व शाणमल होने के
तथ्य को याची नकार नहीुं रहा हैं फोटोिाफ को
भी नकार नहीुं रहा है लेणकन इसका तात्पयट यह
नहीुं है णक णवपक्षी याची के साथ रह ही थी।
णववाद इतना है णक णदनााँकः 15.01.2015 को
णवपक्षी याची के घर से अपने णपता के साथ
बहाना
करके
मायके
गयी
णक
णदनाुंक
21.07.2016 को णवपक्षी को याची ने मारपीटकर
घर से णनकाला। तथ्योुं एवुं साक्ष्योुं के णवश्लेषि से
यह स्पि है णक यणद णदनााँकः 21.07.2016 को
मारपीटकर णवपक्षी को घर से णनकाला गया होता
तो णदनााँकः 15.12.2015 को शादी के वषटगााँठ
जो सुणमत के बडे भाई अणमत कपूर की थी, में
णवपक्षी शाणमल नही होती।
808 INDIAN LAW REPORTS ALLAHABAD SERIES

साक्ष्य से यह भी स्पि है णक याची के
साथ णवपक्षी ने सुंसगट करने के मना कर णदया
और णदनााँकः 10.01.2015 के बाद णवपक्षी याची
के साथ पणत-पत्नी के रूप में नहीुं रही। दहेज के
सम्बन्ध में प्रताडना व क्रूरता इस न्यायालय में
णवपक्षी ने साक्ष्य से साणबत करने का प्रयत्न नहीुं
णकया। वजह वह बेहतर समझती होगी। इससे
याची के इन तथ्योुं की पुणि हो रही है णक णदनााँकः
15.01.2015 से णवपक्षी ने उसका णबना णकसी
युज्यक्तयुक्त कारि के पररत्यक्त कर रखा है।
तद्नुसार यह वाद णबन्दु णनस्ताररत णकया जाता
है।"

26. This finding of the Family Court is
against
the
evidence
on
record,
the
categorical statement of the respondent P.W.1
that her wife did not attend the wedding
anniversary of his younger brother Amit on
15.12.2016. It seems that the Family court
has misread the statement of P.W-1.

27. As regards the legal position, on
the issue of desertion, the Apex Court in
Savitri Pandey vs Prem Chandra Pandey
reported in (2002) 2 SCC 73 considering
its earlier decisions has held that the
desertion
in
its
essence
means
the
intentional
permanent
forsaking
and
abandonment of one spouse by other
without that other's consent, and without
reasonable cause. To constitute the offence
of desertion so far as the deserting spouse
is concerned, two essential conditions must
be there:

(i)the factum of separation.

(ii)the
intention
to
bring
cohabitation permanently to end (animus
deserendi).

28. Similarly two elements are
essential so far as the deserted spouse is
concerned:

(1) the absence of consent, and

(2) absence of conduct giving
reasonable cause to the spouse leaving the
matrimonial home to form necessary
intention aforesaid.

29. It was held that for holding
desertion as proved the inference may be
drawn from certain facts viewing them as
to the purpose which is revealed by those
acts or by conduct and expression of
intention, both anterior and subsequent to
the actual acts of desertion. Desertion may
also be constructive which can be inferred
from attending circumstances. It has also
always to be kept in mind that the question
of desertion is a matter of inference to be
drawn from the facts and circumstances of
each case.

30. In the instant case, from the act
and conduct of the parties, it cannot be
inferred that the appellant had deserted her
husband (respondent) with the intention to
bring cohabitation permanently to an end
by leaving her matrimonial home on
10.01.2015 in the absence of her husband.
The appellant was pregnant at that time and
she may have gone to her parents house
which
was
barely
400
metres,
for
sometime. Further, the act of the appellant
in visiting her parents house frequently
without taking consent of her husband and
other family members cannot constitute the
offence of desertion on her part. P.W-2,
brother-in-law of the appellant had stated
that he brought her back many a times from
her parents house and lastly she came in
December, 2016. The plea of desertion
taken by the respondent can not be
accepted from the facts and circumstances
of the case, in as much as, such an
inference cannot be drawn from the
attending
circumstances
which
speak
otherwise. It may be inferred that there
3 All. Smt. Mohit Preet Kapoor Vs. Sumit Kapoor
809
were differences between husband and wife
but the act of desertion, without reasonable
cause,
with
the
intention
to
bring
cohabitation permanently to end is not
proved, at least not on 10.01.2015. The
cause of action as alleged to have been
accured firstly on 10.01.2015 and lastly on
15.01.2017, the period of two years of
desertion, is not proved from the material
on record.

31. Further, the appellant has come out
with the categorical statement that she
alongwith her daughter was thrown out of her
matrimonial home by the respondent in July,
2016. The respondent admittedly did not bring
any legal action with a view to assert his right to
restitute his conjugal rights. When application
under Section 24 of the Hindu Marriage Act
was filed, the respondent contested the same on
various pleas and did not come forward to pay
interim maintenance even for his daughter. In
this appeal, the respondent did not appear in
spite of filing of the caveat application and
service of the notice upon him, on account of
which the status quo order was passed on
05.10.2020. The respondent or his counsel
never participated in this proceeding which
shows that the respondent husband himself is
not willing to take care of his wife and even his
minor daughter. It seems that he has deserted
her wife on his own and is running away from
his responsibility of a father towards his minor
daughter.

32. For the above discussion, the
findings returned by the Family Court on
issue no.2 that the appellant had deserted
her husband without any reasonable cause
from 10.01.2015 and further on 15.01.2017
deserve to be set aside.

33. On the issue no.1 of cruelty, the
Family Court has returned the following
finding:

"उपरोक्त वाद णबन्दु के पररप्रेक्ष्य में
उभय पक्षोुं द्वारा प्रस्तुत अणभलेखीय तथा
मौज्यखक साक्ष्योुं का तथ्य परख णवश्लेषि णकया
णजससे यह स्पि है णक याची ने साक्ष्य से यह
साणबत णकया है णक णवपक्षी उसके साथ पत्नी के
रूप में सुंसगट नहीुं करना चहाती थी। करने से
मना करती थी। मात्र 400मीटर दूर मायका होने
के कारि णबना बताये वह मायके चली जाती थी।
ररश्तेदारी में भी चली जाती थी। याची द्वारा णदये
गये साक्ष्य को णवपक्षी ने न तो णजरह में नकारा है
और न ही कोई सुझाव णदया। याची ने साक्ष्य से
यह भी साणबत णकया है णक णवपक्षी बह की
हैणसयत से न तो घर में खाना बनाती थी और न
ही घर का काम करती थी। याची के माता णपता
व घरवालोुं के साथ दुव्यवटहार करती थी। इस
तथ्य का भी णजरह में खण्डन नहीुं हआ और न
ही सुझाव णदया गया जबणक याची ने साक्ष्य से
साणबत णकया णक वह णवपक्षी को प्रेम से रखता
था। णवपक्षी को सुंतान उत्पणत्त के समय
अस्पताल में पणत की हैणसयत से न केवल भती
कराया बज्यल्क उसके इलाज का पूरा खचाट
उठाया। यही नहीुं अपनी बेटी के सजटरी के णलए
न केवल मेदाुंता में पत्नी व बेटी को ले गया,
उसका पूरा खचट उठाया। अपने भाई की शादी
की वषटगाुंठ मे मोणहत प्रीत को बुलाकर उसे पूरा
प्रेम व सम्मान णदया। उसके बावजूद मोणहत प्रीत
ने दहेज प्रताडना की एफ०आई०आर० करायी,
वह भी तलाक के मुकदमे के बाद। तलाक के
मुकदमें में दहेज प्रताडना का कोई हवाला नहीुं
है। यणद दहेज को लेकर मोणहत प्रीत को
प्रताणडत णकया गया तो न केवल उसके
जवाबदावे में यह तथ्य आते बज्यल्क साक्ष्य में भी
इन तथ्योुं को णवस्तार से कहा जाता। यणद
मारापीटा गया और उसके बाद णवपक्षी मायके
चली गयी तो मेणडकल हो सकता था, ररपोटट कर
सकती थी, ऐसा कुछ भी नहीुं हआ। इससे यह
स्पि हो रहा है णक णवपक्षी अपने व्यवहार व
आचरि से याची के णवरूद्ध क्रूरता की गयी व
उसके पररवार के साथ दुव्यटवहार णकया गया।
810 INDIAN LAW REPORTS ALLAHABAD SERIES
तद्नुसार यह वाद णबन्दु सुं० 1 याची के पक्ष में
सकारात्मक रूप से णनस्ताररत णकया जाता है।"

34. The conclusion drawn by the trial
court is that the appellant used to go her
parent's house without any information to
the respondent or his family members and
she did not do daily chores of the house
being a daughter-in-law. We may record
that not a single instance of such an act of
the appellant has been brought on record
either by the respondent or his brother who
entered in the witness box as P.W-2. The
general allegations and casual statement of
the respondent in the divorce petition has
been treated as a gospel truth by the Family
Court without any cogent evidence on
record. The act of the appellant in visiting
her parent's house, in any case, even
without the permission of the respondent
does not amount to cruelty. The facts that
the appellant was admitted in the hospital
by the respondent at the time of her
delivery or he had borne expenses for
treatment of their daughter do not go
against the appellant rather these facts
support the case of the appellant that she
did not leave her husband that too
permanently with the intention of bringing
the cohabitation to an end and has never
done any act to deprive the respondent
from the pleasure of fatherhood. The
ground of cruelty on the said assertion is
not made out.

35. Last ground to hold cruelty on the
part of the appellant is that she had lodged
a criminal case against her husband and inlaws on the false plea of demand of dowry
and her statement that she was thrown out
of her matrimonial house by the respondent
by beating her is false. The Family Court
while recording the said finding has
completely ignored the fact that the first
information report was lodged by the
appellant on 27.01.2018 much after the
divorce petition was instituted on 6.3.2017.
The act of the appellant in lodging the first
information report on the plea of demand of
dowry may not be approved by the Family
Court but the said issue was not subject
matter
of
scrutiny
in
the
divorce
proceeding. Surprisingly, the family court
has lost sight of the fact that the plea of
cruelty was taken as a ground of divorce in
the plaint filed on 06.03.2017. The plaintiff,
i.e the respondent herein was required to
prove the existence of such acts or conduct
of the appellant which amounted to cruelty
prior to the date of institution of the divorce
suit. Any subsequent conduct of the
appellant in lodging the first information
report after she was thrown away from her
matrimonial home by the respondent
cannot be treated as an act of cruelty on the
part of the appellant.

36. The respondent husband could not
prove cruelty from any act or conduct or
behaviour of the appellant by leading any
evidence much less cogent evidence. The
findings on issue no.1 on the plea of cruelty
returned by the family court are, thus, liable
to be set aside.

37. For the foregoing discussion and
reasons, the divorce decree granted by the
trial court cannot be sustained in the eye of
law. The judgment and order dated
19.03.2020 passed by the Additional
Principal Judge, Family Court Bareilly is
hereby set aside.

38. The divorce petition no.284 of
2017 (Sumit Kapoor vs Smti Mohit Preet
Kapoor) under Section 13(1) of the Hindu
Marriage Act is dismissed as such.

39. However, before parting with this
judgment, we would like to address one
3 All. Smt. Mohit Preet Kapoor Vs. Sumit Kapoor
811
more issue which is of maintenance to wife
and daughter deserted by the respondent.

40. It is evident from the record that
the appellant got interim maintenance
under Section 24, pursuant to the order
dated 10.07.2018 whereby Rs.5,000/- was
fixed for the appellant and Rs.2,000/- for
her daughter on monthly basis by the
Family Court. After dismissal of the
divorce suit on 19.03.2020, the interim
maintenance has been stopped.

41. While admitting this appeal and
passing the interim order of status quo, this
Court
did
not
clarify
that
interim
maintenance would payable to the appellant
and her daughter. The result is that during
the pendency of the appeal, the appellant
and her daughter have been left to survive
on their own. They have no financial
support as the appellant has no income. The
question is as to whether after dismissal of
the divorce suit, the appellant is entitled for
maintenance while living separately in case
her husband refuses to maintain her. This
issue can be answered with the help of the
provisions contained in Section 18 of the
Hindu Adoption and Maintenance Act,
1956 which provides that a Hindu wife
shall be entitled to live separately from her
husband without forfeiting her claim for
maintenance, in case her husband is guilty
of desertion or abandoning her without
reasonable cause or is guilty of willfully
neglecting her. The right to claim interim
maintenance by instituting a suit under
Section 18 of the Hindu Adoption And
Maintenance Act, 1956 is a substantive
right and can be availed by the appellant by
bringing her own action.

42. However, as to the dependant
daughter, who is aged about six years, the
obligation is upon the respondent by virtue
of Section 20 of the Hindu Adoption and
Maintenance Act, 1956. The appellant
needs
money
to
provide
education,
clothing, food and participation in extra
curricular activities for the upbringing of
her daughter.