1 FA.47/2016

HIGH COURT OF MADHYA PRADESHBENCH AT GWALIOR

(DB : Sheel Nagu Ashok Kumar Joshi, JJ.)

First Appeal No.47/2016

Smt. Rakhi Gupta Appellant

Versus

Dr. Nitin Kumar Gupta Respondent

……………………………………………………………………………………
For appellant:- Shri Pawan Vijayvargiya,
learned counsel.
For respondent:- Shri Yash Sharma, learned
counsel.
………………………………………………………………………

JUDGMENT

(18/12/2017)

Per Ashok Kumar Joshi, J. –

Appellant has filed this first appeal under
Section 28 of the Hindu Marriage Act, 1955 against the
judgment and decree dated 01.02.2016 passed by the
Additional District Judge, Lahar District Bhind in case
No.33/2013, whereby application filed by the
respondent/husband under Section 13 of the Hindu
Marriage Act, is allowed and a decree of divorce has
been passed.

2. Undisputedly, appellant and respondent were
married on 27.11.2010 at Seonda District Datia as per
Hindu rituals and, thereafter, they resided for some
time at Alampur and, thereafter, at Delhi as presently
respondent is serving at Delhi. Present
2 FA.47/2016

respondent/husband on 23.07.2013 filed an application
under Section 13 of the Hindu Marriage Act for divorce
on the grounds of cruelty and desertion on pleadings
that after marriage his wife was pressurizing him to live
at Seonda with her parents and on husband’s refusal,
wife got registered a false case bearing crime
No.130/2012 under Section 498-A, 34 of the IPC and
Section 3/4 of Dowry Prohibition Act in which mother of
the husband, brother and sister-in-law were also made
accused and, thereby, wife treated him with cruelty and
refused for intercourse with husband and thereby also
harassed the husband and his wife is mentally ill and
treatment was provided in relation to this ailment. Wife
was also threatening that if the husband would not
reside at Seonda then she will commit suicide. On
01.07.2011, when both were living at Delhi, without
intimating the husband, she with her father left her
matrimonial home and started residing at her parental
home at gone to Seonda and, thereafter, declined the
request of husband to resume co-habitation and,
thereafter, on 21.12.2012, she lodged the above-
mentioned false report at police station Seonda and
also filed another case under Section 125 of the Cr.P.C.
against the husband. Since 02.07.2011 with these
allegations husband respondent alleged that wife has
deserted him without any reasonable cause, therefore,
on above-mentioned two grounds decree for divorce
was prayed.

3. Wife/present appellant filed her written
statement denying all adverse pleadings of the husband
and pleaded that she had never treated husband with
3 FA.47/2016

cruelty. It was pleaded that after marriage, on getting a
better job at Delhi, the behavior of the husband
changed and the family members of the husband
started demanding a sum of Rs.20,00,000/-(Rupees
Twenty Lacs) from the parents of the wife for the
purpose of purchasing a plot at Delhi and when parents
of the wife shown their inability to pay such amount,
then they started torturing and harassing the appellant
and husband and his family members were actually
desirous to get rid of the appellant for solemnizing
second marriage of the respondent with a doctor girl for
getting huge dowry. Thereafter, husband and his family
members started alleging that she is under influence of
evil spirits and get her treated by occultist and she was
kept locked in a room without food. When this
treatment crossed all limits of tolerance, she lodged a
report at police station and filed application for getting
maintenance. She urged that she is still desirous to live
with her husband and to perform her matrimonial
duties and for this purpose, she has separately filed a
suit under Section 9 of the Hindu Marriage Act for
getting a decree of restitution of conjugal rights which
is also pending in the Court of Additional District Judge,
Seonda. In the year 2011, just after 8 or 9 months
from the marriage, husband had secretly filed divorce
petition on 09.07.2011 at Lahar Court, but after
receiving knowledge of this proceeding by the wife,
husband got his previous application for divorce,
dismissed as not pressed. She is a well educated M.A.
passed lady and is ready to live with her husband at
Alampur or at his service place. Actually when she was
4 FA.47/2016

being treated with cruelty, then she informed her father
who reached Delhi, thereafter, husband sent her on
02.09.2012 with her father and threatened that if she is
desirous to live with him, then she should return to
matrimonial house with Rs.20,00,000/-(Rupees Twenty
Lacs). Husband or any of his relatives did not make any
effort to bring her back to her matrimonial house which
impelled her to file suit for a decree for restitution of
conjugal rights at Seonda. It was prayed that
application for divorce filed by husband be dismissed.

4. On pleadings of the parties, trial Court
framed issues and before trial Court for husband Dr.
N.K.Gupta (PW-1), Abhishek (PW-2) and mother of the
husband Sushila Devi (PW-3) were examined and
cross-examined and for present appellant, affidavit
under Order 18 Rule 4 of CPC of appellant-Smt. Rakhi
Gupta, her father Santosh Kumar and her mother
Smt.Anita Gupta were filed, but on 05.01.2016, for
which opportunity was given to present appellant for
producing her witnesses and similarly on the date i.e.
06.01.2016 also present appellant and her witnesses
did not appear till 02:45pm before the trial Court,
though before that present appellant’s counsel was
assuring the trial Court that her witnesses are coming.
Thereafter, suit was fixed for final hearing on
19.01.2016 but on behalf of the appellant, none
appeared on the given date i.e. 19.01.2016, hence,
after hearing the arguments, judgment was delivered
and decree for divorce was granted.

5. Learned counsel for the appellant
vehemently contended that the alleged grounds of
5 FA.47/2016

cruelty and desertion pleaded by the husband were not
proved by the evidence available on record, but the
trial Court erred in giving the findings and decreeing
the respondent’s suit. It was further argued that from
documentary evidence, it was proved that the wife’s
application filed under Section 9 of the Hindu Marriage
Act, before the Additional District Judge, Seonda was
pending for a decree of Restitution of Conjugal Rights
against the husband and husband also admitted that
previously he had filed divorce petition before the same
trial Court in the year 2011 which was bearing case
No.51A/2011 and it was dismissed on 23.02.2012 due
to absence of husband or his counsel. The appellant
has prayed for permanent alimony in her pleadings but
the trial Court in impugned decree did not awarded any
permanent alimony to the appellant and thereby,
committed legal mistake, hence, it is prayed that
appeal filed by the appellant be allowed and the
impugned judgment and decree be set-aside.

6. Per-contra the appearing counsel for the
respondent has supported the impugned judgment and
decree and contends that as wife and her witnesses did
not appear before the trial Court for cross-examination,
in absence of rebuttal evidence by the wife, the trial
Court had not committed any error in placing reliance
on the evidence of husband and his witnesses. It has
been strongly argued that the wife filed a writ petition
before this Court for getting stay of the divorce
proceeding filed by the husband before ADJ, Lahar till
decision of the wife’s petition filed under Section 9 of
the Hindu Marriage Act for restitution of conjugal rights
6 FA.47/2016

pending in the Court of ADJ, Seonda and, thereafter,
remained unsuccessful in getting any stay order from
this Court, but voluntarily did not appear before the
trial Court, though the trial Court fixed the relating case
for cross-examination of appellant and his witnesses on
14.07.2015, 28.07.2015, 08.10.2015, 09.11.2015,
28.11.2015 and 05.01.2016 and it was also directed
that if wife and her witnesses will not appear on
05.01.2016, then final argument shall be heard, but on
05.01.2016 trial Court again allowed adjournment
application filed on behalf of wife on cost of Rs.500/-
and the case was fixed for wife and her witnesses
cross-examination on 06.01.2016, but on 06.01.2016
also wife and her witness did not appear before the trial
Court, though on that day it is clear from the order-
sheet recorded at 1:30 pm that it was mentioned by
the counsel for the wife that his party and witnesses
are coming and in such facts and circumstances, it is
clear that the trial Court afforded proper opportunities
to the wife and trial Court has properly and legally
analyzed the evidence available on record. Hence,
learned counsel for the respondents prayed for
dismissal of the appeal.

7. The point for determination is that whether
trial Court had erred in granting a decree of divorce in
favour of husband?

8. Dr. Nitin Gupta, (PW-1) deposed that after
his marriage with the appellant on 27.11.2010, the
behavior of his wife was not good and his wife was
pressurizing him to live at residence of father of the
wife at Seonda and on his refusal, wife lodged false
7 FA.47/2016

report against him at Police Station Seonda, bearing
crime no.130/2012 and his wife also filed a petition
under Section 125 of Cr.P.C. and he with his other
family members were falsely implicated in case and
charges have been framed against them under Section
498-A of the IPC.

9. Present respondent also deposed that his
wife was deliberately harassing him and was refusing
for sexual intercourse with the husband and his wife is
also mentally ill and on this count, she was provided
treatment after marriage Abhishek (PW-2) who is
nephew (Bhanja) of the husband and Sushila Devi (PW-

3) mother of the husband have supported the evidence
given by the respondent on these points.

10. Respondent Dr. Nitin Gupta (PW-1)
categorically deposed that from 01.07.2011, when her
wife was residing with him at New Delhi, his wife left
husband’s house without intimating him and had gone
to her parental house at Seonda and despite attempts
made by the husband, she did not return to her
matrimonial home and before filing of the subsequent
divorce petition by the husband, his wife deserted him
for a period more than two years. Husband’s mother

-Sushila Devi(PW-2) deposed in her cross-examination
that after marriage Rakhi only at one occasion came to
Alampur and, thereafter, she was living with her son at
New Delhi and pressurizing her son to live at Seonda.
Dr. Nitin Gupta and his mother have denied the
suggestion given by the opponent counsel in their
cross-examination that they were demanding dowry of
Rs.20,00,000/- to purchase a plot or flat at New Delhi
8 FA.47/2016

though Sushila deposed that Rakhi fell ill even in
marriage, thereafter, she was treated by occultist.
Sushila Devi (PW-2) deposed in her cross-examination
that panch of the village and caste were gathered at
Alampur but in that panchayat present appellant was
asked to return back the ornaments received, which are
having value of rupees seven lacs but Rakhi and her
family has not returned that ornaments. Dr. Nitin Gupta
admitted that previously he had filed a divorce petition,
which was dismissed due to absence and the relating
certified copy of order-sheet is Ex.D-1 which indicates
that husband’s prior application was actually dismissed
due to his absence. Previous petition filed by the
husband was not dismissed on merits, hence, objection
raised by the appellant that second divorce petition was
not maintainable, is devoid of any substance.

11. Some interesting and significant facts reveal
from the record of trial Court from the order-sheets
recorded by trial Court on 28.11.2015, 05.05.2015 and
28.05.2015 that at the time of pendency of concerned
case before the trial Court consensus arrived at
between the parties that on payment of Rs.7.5 lacs by
husband as permanent alimony, both parties will file a
petition for divorce by mutual consent and only after
depositing of Rs.7.5 lacs by the husband in the CCD of
the Court, such application for divorce by mutual
consent shall be filed. It is clear from the order-sheet
that on 05.05.2015, when both the parties were
personally present and the appellant had appeared with
her father before the Court and on the next date case
was fixed for depositing of Rs.7.5 lacs and for
9 FA.47/2016

presentation of divorce petition by mutual consent was
fixed on 28.05.2015 and according to order-sheet
recorded on 28.05.2015, on that day husband
deposited Rs.7.5 lacs in CCD, but as per order-sheet of
same day recorded after some time, it is clear that due
to dispute regarding payment of arrears of
maintenance by the husband, consensus was revoked
and it was also ordered on 28.05.2015 that as the
consensus was revoked, deposited amount be refunded
to the husband.

12. The above-mentioned facts and
circumstances appearing from the record reveal that
before the trial Court both parties have agreed for
divorce by mutual consent on certain conditions. It has
been held by the Hon’ble Apex Court in the case of
Smt. Rohani Kumari Vs. Narendra Singh [AIR
1972 SC 459] that desertion means not only separate
residence and separate living, but their should be a
determination to put an end to the marital relation and
cohabitation. These facts clearly indicate that impliedly
on certain conditions, present appellant was also ready
for ending of matrimonial relations existing between
the parties.

13. In absence of rebuttal evidence on behalf of
the present appellant, the evidence produced by the
husband cannot be disbelieved. Present appellant and
her father and mother have filed their affidavits relating
to their examination-in-chief under Order 18 Rule 4 of
CPC before the trial Court, but later on despite taking
several opportunities, they voluntarily did not appear
before the trial Court for their cross-examination by
10 FA.47/2016

other party.

14. In the light of citation of Ameer Trading
Corporation Ltd. Vs. Shapoorji Data Processing
Ltd., [AIR 2004 SC 355] and provision under Section
137 of the Evidence Act, it is clear that when any
witness does not appear for cross-examination before
the Court, then the evidence of such witness containing
in affidavit of Order 18 Rule 4 of CPC could not be read
in evidence and it shall be deemed that on record,
there is no evidence of such witness, who has not
appeared for cross-examination. Hence, it is clear that
in absence of evidence on behalf of the present
appellant, there was no evidence that the wife was
being treated with cruelty in relation to dowry demand
or was ousted from the matrimonial house by the
husband. In such situation, where there is no evidence
on record by wife regarding her alleged harassment in
relation to dowry demand by husband and his relatives,
the evidence given by the other side could not be
disbelieved and discarded. In this legal position, it is
clear that the trial Court on the basis of referred
citations has rightly recorded findings that it was
proved that the present appellant actually committed
cruelty with the husband by lodging false criminal case
against the husband and his family members and the
wife has deserted the husband for more than two years
prior to the filing of the divorce petition by the husband
without any reasonable cause. We are of the considered
opinion that in totality of above-mentioned facts and
circumstances, the recorded findings could not be
interfered within the face of evidence available on
11 FA.47/2016

record.

15. According to the clear provision of Section 25
of the Hindu Marriage Act, 1955, it clear that even after
passing of the divorce decree, relating wife can file an
application before the trial Court for getting permanent
alimony from her ex-husband. As on this point, there
is no clear evidence on the record regarding income of
the husband, his liabilities and financial status of the
wife, in such conditions appellant is free to file an
appropriate application before the trial Court under
Section 25 of the Hindu Marriage Act, 1955 for getting
permanent alimony, if so advised, since in appeal
herein issue of permanent alimony cannot be decided in
absence of relating evidence.

16. We are of the considered opinion that in the
present status of the evidence available on record, the
trial Court did not committed any error in allowing the
divorce petition filed by the husband. Hence, appeal
filed by the appellant appears to be devoid of substance
and is liable to be and is hereby dismissed. No order as
to cost.

Ashish* (Sheel Nagu) (Ashok Kumar Joshi)
Judge Judge
/12/2017 /12/2017