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Smt. Nikita vs Deepak Khamesara on 11 April, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR.

D.B. Civil Misc. Appeal No. 532 / 2016
Smt. Nikita W/o Shri Deepak Khamesara, aged 28 years, R/o 06-
J, Patel Nagar, Bhilwara.

—-Appellant
Versus
Shri Deepak Khamesara S/o Shri Nav Ratan Khamesara, age 31
years, R/o 4-Gh-3, Bapu Nagar, Bhilwara.

—-Respondent
__
For Appellant : Mr. Rakesh Matoria.

For Respondent : None.

__
HON’BLE THE CHIEF JUSTICE

HON’BLE MR. JUSTICE VINIT KUMAR MATHUR
Judgment
11/04/2018

1. None appears for the respondent today in spite of service

being effected.

2. Heard learned counsel for the appellant and perused the trial

court record.

3. The appellant sought divorce alleging cruelty. The petition

which was filed in the year 2014 pleading that marriage between

the parties was solemnized as per Hindu Customs on 12.12.2011.

At the time of marriage dowry commensurate with the social

status of the parties was given by her parents. She resided with

her husband and her in-laws after the marriage and initially the

conduct of the family members towards her was fine. But after

some time dowry in a sum of ₹ 2,00,000/- and a Centro Car was
(2 of 4)
[CMA-532/2016]

demanded. On account of demand not being fulfilled, she was

confined in a room and beaten on 28.12.2013. Her Stridhan was

taken in possession by her in-laws. After being beaten she was

thrown out of the house. She reached house of her parents.

Repeated efforts made by her parents for amicable resolution

were frustrated by her in-laws. Because her stridhan was

misappropriated by her in-laws, she was forced to lodge a

complaint in Mahila Thana, Bhilwara for offences punishable under

Section 498A/406 IPC. In the said proceedings settlement took

place between the parties as per which it was agreed that her

dowry articles would be returned and the couple would file an

application for divorce by mutual consent. An application under

Section 13B of the Hindu Marriage Act was thereafter filed but was

dismissed on account of respondent’s not appearing. In the

interregnum she withdrew the complaint made at the Mahila

Thana. She pleaded that since she was turned out from the

matrimonial house on 28.12.2013, she was residing with her

parents.

4. In the written statement filed, the respondent denied raising

any dowry demand or beating the appellant on 28.12.2013 or

throwing her out of the house. He admits settlement between the

couple for getting divorce by mutual consent but pleaded that the

same was under duress.

5. We need not pen a lengthy order noting the evidence led at

the trial for the reason we find that after settlement took place

between the couple to dissolve marriage by mutual consent,

agreements Ex.6 and Ex.7 were executed on 30.01.2014. The
(3 of 4)
[CMA-532/2016]

appellant filed an application (Ex.3) followed by another

application (Ex.4) dated 30.01.2014 and 31.01.2014 respectively

praying to the In charge of the Mahila Thana that her complaint

for the offences punishable under Section 498A/406 IPC be

treated as withdrawn and proceedings be closed.

6. We are surprised that in spite thereof learned Judge, Family

Court by the impugned order dated 26.11.2015 has dismissed the

petition seeking divorce filed by the appellant.

7. Learned Judge, Family Court has overlooked the fact that

pursuant to the settlement between the parties the appellant

withdrew her complaint under section 498A/406 IPC because the

parties had agreed for divorce by mutual consent. Both the parties

executed agreements to the said effect and the respondent

backed out. He did not appear before the Family Court. It means

that respondent wanted to continue the matrimonial bond to inflict

torture upon the appellant.

8. We simply highlight that in her testimony as AW1 the

appellant stated the facts on oath as pleaded by her in the petition

seeking divorce. We find no suggestion given to her that

settlement between the parties was result of any kind of undue

pressure or influence upon the respondent. Appearing as NAW1

the respondent admits having entered into settlement with the

appellant for the marriage to be annulled by mutual consent but

pleaded that it was result of undue influence upon him. So called

undue influence was the complaint made by the appellant at

Mahila Thana. Now if the complaint was false, the respondent

would have contested the proceedings concerning the complaint.

(4 of 4)
[CMA-532/2016]

Lodging of complaint by itself can never be treated as an act of

undue influence. That apart, if there was an undue influence upon

the respondent to have entered into the settlement which took

place on 30.01.2014, we see no reason why he did not make any

complaint to any authority that he was under pressure to enter

into the compromise.

9. The appeal is allowed. The impugned order dated

26.11.2015 is set aside. The petition seeking divorce filed by the

appellant is allowed. Marriage between the parties dated

12.12.2011 is annulled by passing a decree of divorce in favour of

the appellant and against the respondent.

(VINIT KUMAR MATHUR)J. (PRADEEP NANDRAJOG)CJ.

Anil Singh/20

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