The Lucknow Bench of the Allahabad High Court while allowing an appeal said that in matrimonial disputes, the events in question take place between the parties within the four walls of their house, and the family members are the most natural witnesses of those events. The testimony of family members cannot be discarded on the assumption that they will only support the plaintiff’s case.
The Division Bench of Justice Rajan Roy and Justice Subhash Vidyarthi passed this order while hearing an appeal filed by Jitendra Kumar Srivastava.
By means of the appeal filed under Section 19 of the Family Courts Act, the appellant has challenged the validity of a judgment and decree dated 19.01.2023, passed by the VI Additional Principal Judge, Family Court, Lucknow, in Suit under Section 13 of Hindu Marriage Act, 1955.
In the plaint filed on 07.05.2018 before the Family Court the plaintiff appellant pleaded that the parties got married on 23.11.2016 at Lucknow. It was the first marriage of the defendant-respondent and the second marriage of the appellant. The relations between the parties remained normal merely for a period of 4-5 months and thereafter the respondent started harassing the appellant by various means. She used to abuse the appellant and to threaten to leave him.
She used to start a quarrel whenever some friends or relatives visited the plaintiff and she used to insult the plaintiff and damage the household goods in their presence. She forced the plaintiff to live in a separate room and threatened that in case the plaintiff entered her room, she would commit suicide and entangle his entire family in a criminal case. The respondent works as a receptionist in a private hospital at Lucknow.
The Family Court issued summons of the suit to the defendant. The defendant appeared before the Family Court on 05.04.2019 and the matter was referred to the Mediation and Conciliation Centre. Thereafter the suit was transferred to the Court of Additional Principal Judge, Family Court, Lucknow and on 25.01.2021 the Family Court issued fresh summons to the defendant through registered post as well as courier. On 22.09.2021 the Family Court passed an order holding service of summoning of the suit on the defendant to be sufficient but as the defendant did not appear before the Family Court, on 15.11.2021 the suit was ordered to proceed ex-parte.
During mediation proceedings the defendant declined to enter into any settlement and she also declined to live with the plaintiff.
Written submissions were filed on behalf of the plaintiff before the Family Court inter alia stating that the defendant has deserted the plaintiff since April, 2017 i.e, merely five months after the parties got married and she is not performing her matrimonial obligations since then. A period of five years had elapsed since the defendant stopped performing her matrimonial obligations towards the plaintiff and that she continuously behaved in a cruel manner.
During the course of hearing of the suit, the Family Court had directed the plaintiff to file the documents relating to the litigation between him and his first wife.
A Copy of the settlement agreement dated 26.03.2010 entered into between the plaintiff and his first wife in the Mediation and Conciliation Centre of the Court was also brought on record wherein it was recorded that the parties had filed a suit for divorce by mutual consent under Section 13-B of Hindu Marriage Act and the proceedings of criminal case instituted by the plaintiff’s first wife have been quashed on the basis of agreement between the parties.
A copy of the order dated 20.09.2010, passed by the Principal Judge, Family Court, Lucknow in Regular Suit was also filed by the plaintiff whereby the plaintiff’s first marriage was dissolved by mutual consent between him and his first wife.
The Court observed that,
It was submitted in the written submissions filed on behalf of the plaintiff before the Family Court that the defendant has deserted the plaintiff since April, 2017 i.e, merely five months after the parties got married and she is not performing her matrimonial obligations since then. A period of five years had elapsed since the defendant stopped performing her matrimonial obligations towards the plaintiff and that she continuously behaved in a cruel manner.
The Family Court has wrongly been influenced by the fact that a dispute had occurred between the plaintiff and his first wife also, which had culminated in their divorce. When the earlier marriage was dissolved by a decree of divorce by mutual consent and the defendant also did not level any allegations against the plaintiff, the Family Court was not justified in making assumptions against the plaintiff on the ground that his earlier marriage had failed.
One of the reasons mentioned by the Family Court for dismissing the suit is that the plaintiff has not stated as to whether the defendant has gone away from her home. When the plaintiff has categorically stated that the defendant did not allow him to enter her room and she declined cohabitation with the plaintiff and did not perform her matrimonial obligations, it was apparent that the defendant had abandoned the matrimonial relationship between herself and the plaintiff and the fact of the defendant residing in the plaintiff’s house or away from it is not of any significance.
Cohabitation is an essential part of a matrimonial relationship and if the wife declines to cohabit with the husband by forcing him to live in a separate room, she deprives him of his conjugal rights, which will have an adverse impact on his mental and physical well being and which will amount to both physical and mental cruelty. The plaintiff’s allegation of being wrongfully deprived of his conjugal rights has not been controverted by the defendant-respondent and the same has been admitted by implication.
“In view of the aforesaid facts, we are of the considered view that there was sufficient evidence to prove the grounds of cruelty pleaded by the plaintiff-appellant for grant of a decree of divorce the plaintiff has successfully proved by his ex-parte evidence that the defendant was treating him with cruelty.
Although the ground of the plaintiff’s desertion by the defendant is also established from the material available on record, since the Family Court did not frame any issue on this point, and the ground of cruelty alone is sufficient for allowing the appeal, there is no need go into this question in the appeal,” the Court further observed while allowing the appeal.
In view of the aforesaid discussion, the court answered the points involved in this appeal as follows:-
a) There was sufficient evidence to prove the ground of cruelty pleaded by the plaintiff-appellant for grant of a decree of divorce.
b) The judgment and decree of dismissal of suit passed by the Family Court is unsustainable in law.
“The ex parte judgment and decree dated 19.01.2023, passed by the VI Additional Principal Judge, Family Court, Lucknow, dismissing Suit: Jitendra Kumar Srivastava versus Smt Sweta Srivastava, under Section 13 of Hindu Marriage Act, 1955 is set aside and the suit is decreed. A decree of divorce is granted in favour of the plaintiff dissolving his marriage with the defendant-respondent, which was solemnized on 23.11.2016,” the Court ordered.