RUCHITA SRIVASTAVA Vs. VIVEK SWAROOP

JUDGEMENT

(1.) This appeal has been filed by Smt. Ruchita Srivastava, the appellant, against the judgment and order of Principal Judge, Family Court, Allahabad dated 30th March, 2010 by which the Principal Judge, Family Court has dismissed the petition filed by the appellant under Section 9 of the Hindu Marriages Act, 1955 and decreed the petition of the husband, the respondent, under Section 13 of the Hindu Marriages Act, 1955.

(2.) Brief facts giving rise to this appeal are; the appellant was married with respondent on 12th February, 2007 at Allahabad. At the time of marriage, the respondent was posted as Senior Treasury Officer, Haridwar, State of Uttrakhand. Both, husband and wife are resident of district Allahabad. After the marriage, the appellant lived at Mumford Ganj house of the parents of the respondent. the respondent used to come from Haridwar and stay with wife at Mumford Ganj, Allahabad. On 5th May, 2007, the respondent took the appellant to Haridwar who stayed there at the official residence of the respondent. On 9th May, 2007, the respondent got the appellant examined by Dr. Deepa who advised to consult a psychologist. On 31st May, 2007, the respondent took the wife to Allahabad. On 6th July, 2007 the appellant came to Haridwar along with her parents and continued at Haridwar to live with her husband. On 6th July, 2007 there was a scuffle between the parents of the appellant and the respondent. The husband alleging that he suffered teeth bite by the mother of the appellant, got him medically examined on 7th July, 2007 and is said to have sent a complaint to Kotwali, Haridwar. On 13th July, 2007, the wife filed Petition No.794 of 2007 before the Principal Judge, Family Court, Allahabad for restitution of conjugal rights under Section 9 of the Hindu Marriage Act (hereinafter referred to as the Act). On 23rd July, 2007, the husband received a call on his mobile from his father that father of the appellant has abused him and threatened to implicate in the dowry case. On 23rd July, 2007 itself the respondent claims to have submitted an application to Station House Officer, Haridwar about the threatening. On 26th July, 2007, the husband took the wife to Allahabad at his Mumford Ganj residence. On 26th July, 2007 itself the father, mother and brother of the appellant came at the Mumford Ganj residence and threatened the respondent and his family members. On 27th July, 2007 the husband sent an application to the Senior Superintendent of Police, Allahabad and Police Station Colonel Ganj, Allahabad by registered post narrating the incident dated 26th July, 2007. In the evening of 27th July, 2007, the parents of appellant came along with police of police station Colonel Ganj to the Mumford Ganj residence of the husband and the appellant was taken to her parents house at Allahpur. On 27th July, 2007 itself a first information report was lodged by the wife against the husband, his parents, his sister and brother-in-law under Sections 498A, 323, 506 of I.P.C. and Section 3/4 of the Dowry Prohibition Act on which Case Crime No.601 of 2007 was registered. The respondent was arrested by the police and remained in jail for 12 days till his bail application was allowed by the Sessions Judge, Allahabad on 8th of August, 2007. A news publication was published on 28th July, 2007 in the Hindi Daily Newspapers "Amar Ujala" and "Dainik Jagaran" mentioning about the arrest of the respondent on the allegation of demand of dowry. The appellant also gave an interview to the news channel "Sahara Samay" along with her parents making allegation on respondent and his entire family. The wife also wrote a letter to the Senior Superintendent of Police, Haridwar dated 12th August, 2007 informing lodging of first information report and making allegations of demand of dowry against the respondent and his family members. The complaint also alleged that on 7th July, 2007 she and her parents were misbehaved by the respondent. It was alleged that on 26th July, 2007 demand of dowry of Rs.8 lacs was made. The complaint was also sent by the appellant to the Finance Secretary, Government of Uttrakhand informing about the F.I.R. It was further mentioned in the complaint that on 27th July, 2007 appellant informed her father on mobile that the respondent and family members are making plan to kill the appellant after which father of the appellant came with the police and took away the appellant from her in-laws house to their house at Allahpur. The complaint sent to the Finance Secretary was also sent to all administrative officers of Uttrakhand and Uttar Pradesh. On 4th October, 2007 the respondent filed a petition under Section 13 of the Act for divorce at Family Court, Haridwar against the appellant. On 21st January, 2008, the Family Court, Haridwar passed an ex-parte decree in favour of the respondent which on the application of the appellant was set-aside. By an order passed by the Apex Court in Transfer Petition No.598 of 2008, the Petition No.302 of 2007 was transferred from Family Court, Haridwar to Family Court, Allahabad. The said petition was tagged with petition under Section 9 of the Act filed by the appellang being case No.794 of 2007. After one year of lodging of the first information report, the appellant again filed a complaint against the respondent and his family members under the Domestic Violence Act before the Court of Magistrate at Allahabad in which the respondent and family members were summoned. Before the Principal Judge, Family Court, the wife examined herself in support of her case whereas the husband appeared in support of his case. No other witness was examined by either of the parties before the Principal Judge, Family Court. Both the parties filed documentary evidence including the first information report, bail orders, several letters and news items. The respondent also filed pass book of the saving bank account opened in the name of his wife at Union Bank of India, Mumfordganj, cash certificate of 48,000/- in the name of Ruchita Srivastava and Kusum Srivastava, deposit of Rs.48,000/- in the ICICI Bank in the name of Ruchita Srivastava and Kusum Srivastava, Public Provident Fund pass book in the name of Ruchita Srivastava dated 4th June, 2007 showing deposit of Rs.70,000/-. The Principal Judge, Family Court vide its judgment and order held that the marriage between the parties has been broken and there is no possibility of both living together. The Principal Judge, Family Court also recorded finding that lodging of first information report by the appellant against the respondent under Section 498A of I.P.C. and arrest of the respondent therein and also publishing allegations against her husband and his family members in the newspapers and media are act of mental cruelty. The Principal Judge, Family Court dismissed the petition filed by the appellant under Section 9 of the Act and decreed the petition filed by the husband for divorce against which judgment this appeal has been filed.

(3.) We have heard Sri Shashi Nandan, Senior Advocate, assisted by Sri Pankaj Lal and Sri S.K. Srivastava for the appellant and Sri Anoop Trivedi and Sri A.K. Gupta for the respondent.