HIGH COURT OF JUDICATURE FOR RAJASTHAN
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.
Shri Deepak Khamesara S/o Shri Nav Ratan Khamesara, age 31
years, R/o 4-Gh-3, Bapu Nagar, Bhilwara.
For Appellant : Mr. Rakesh Matoria.
For Respondent : None.
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE VINIT KUMAR MATHUR
1. None appears for the respondent today in spite of service
2. Heard learned counsel for the appellant and perused the trial
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)
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
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)
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)
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.