MANOJ KUMAR PATEL Vs. LALITA PATEL

JUDGEMENT

(1.) THIS appeal has been preferred by the husband aggrieved by judgment and decree dated 2 -12 -2003 passed by Family Court, Rewa in Civil Suit No. 88 -A/2002 thereby dismissing the application seeking divorce and allowing the application for restitution of conjugal rights filed by the respondent awarding maintenance of Rs. 700/ - per month till the wife resides separately. The husband filed an application under section 13 of Hindu Marriage Act seeking divorce on the ground that his marriage with Lalita Patel was performed on 24 -5 -2001, they lived as husband and wife after their marriage. The husband was obtaining training in an Electronic Institution, Varanasi, U.P. for a diploma course. After completion of training on 15 -1 -2002 he started working, in Patel Electronic, Sirmour Chouraha, Rewa, for the last one year before filing of the application, wife had been residing with her parents. On 16 -12 -2001 brother of the wife took her away to the parental house, thereafter a letter regarding her illness was received. Applicant brought the respondent to Rewa on 25 -2 -2002 and took her to Dr. S.C. Saxena, Gynecologist on 26 -2 -2002. Dr. Saxena informed that Lalita was pregnant, ultra -sonography was done. As per Dr. S.C. Saxena she conceived on 19 -11 -2001. The probable date of 26 -8 -2002 for delivery was given. The wife had resided with her for 4 -5 days after their marriage in the month of May, 2001, thereafter they had no physical contact as husband and wife, they did not meet before 25 -2 -2002. In between 25 -2 -2002 to 27 -2 -2002 again there was no cohabitation, thus wife got pregnant through some illicit relationship. In February, 2002 she wrote a letter that she was entirely depending upon the God. Their relationship had come to an end after coming to know of the pregnancy. On 28 -2 -2002 wife went back along with her brother to the parental house. Thereafter in the month of April, 2002, a letter was written by the respondent accepting her mistake. Brother of the wife also threatened applicant of false implication in the case of dowry demand. Wife undergone abortion, she lived in adultery.

(2.) THE respondent denied the averments. It was submitted that for several months she lived at village Badwar with her husband as husband and wife. There used to be cohabitation. She had gone only for 4 -5 days at the time of Raksha Bandhan to her parental house, thereafter again lived at Rewa. The husband used to visit the Village Badwar number of times and also used to take her to Rewa. She never wrote any letter with respect to her illness. She never visited Dr. S.C. Saxena, no ultra -sonography was performed, she never conceived. In fact a demand of dowry was made, she used to be harassed. She never had any illicit relationship with anyone else. She had never undergone abortion. There were false charge levelled upon her. The report of demand of dowry was made at Women Police Station, Rewa. The husband, his parents and sister used to demand dowry, they threatened to turn her out from the house. The husband was earning livelihood from an Electrical Shop at Rewa. She claimed maintenance of Rs. 3000/ - per month. The Family Court has found that it has not been proved that wife got pregnant nor it was proved that she lived an adulterous life. She has been held entitled for restitution of conjugal rights. The husband and his family members used to demand dowry and treated her with cruelty. Maintenance of Rs. 700/ - per month has been awarded till parties reside separately. Dissatisfied with the judgment and decree this appeal has been preferred by the husband. Shri L.S. Singh, learned Sr. Counsel for appellant has submitted that respondent Lalita Patel conceived a child when there was no co -habitation between husband and wife. She conceived on 28 -11 -2001, there is nothing to disbelieve the certificates (P -4) and (P -5) and statement of Dr. Sarvesh Saxena (PW -4). He has clearly stated that there was pregnancy. The aforesaid evidence has been illegally discarded by the Family Court. He has also submitted that there is nothing to discard the evidence of the witness examined on behalf of the applicant. Wife has taken the plea that she did not conceive at all, this stand is incorrect as such it should be taken that the statement of applicant is correct that she lived immoral life and conceived through illicit relationship. An application was filed before the Family Court to examine an expert so as to prove the letters. Said application was not decided by the Family Court. Application ought to have been decided and allowed. Thus, the husband has been deprived of adducing the evidence. Shri L.S. Singh, has further submitted that permanent alimony has been awarded @ Rs. 700/ - per month, as decree of divorce has not been passed, permanent alimony could not have been ordered by the Family Court.

(3.) SHRI A.K. Tiwari, learned counsel appearing for respondent has submitted that conceiving has not been established. There are manipulations and overwriting in the certificate Ex.P.4. Deposition of Dr. Sarvesh Saxena (PW -4) is not at all reliable. He has used two pens on the same prescription. There is overwriting on the date. Name has been mentioned as 'Lollila'. Overall statement of Doctor is not at all reliable. Husband was not able to name any person with whom wife lived in adultery. He has stated that he was not aware of the said fact, thus serious charge of living in adultery, has not been established. He has further submitted that in fact the wife was treated with cruelty. Demand of dowry was made. She used to be harassed, thus in order to save themselves application seeking divorce was filed on frivolous grounds. It has been rightly dismissed by the Family Court. First question for consideration is whether respondent Lalita conceived a child. In this regard best piece of evidence is relied upon by the counsel are prescription and are part Ex. P -4 and P -5 and in support of the same Dr. Sarvesh Saxena (PW -4) has been examined. When we carefully scrutinize prescription Ex.P -4 it appears to be in two handwritings and admittedly two pens have been used. Dr. Sarvesh Saxena has stated that he himself had used two pens for writing prescription (P -4). We have no iota of doubt that the prescription (Ex.P -4) is a suspicious document. There is intrinsic evidence furnished by the document itself in that regard. Firstly there is overwriting in the portion D to D as to the date on which it was written, the date is written with a different pen and appears to be in different handwriting as compared to the name of medicines prescribed. Even the name has been mentioned in English as Lollila (Manoj Kumar) not Lalita. There is again overwriting in the portion E to E. The test which were prescribed to be performed were written with a different pen and most interestingly in front of names of three tablets and thereafter how many tablets have to be taken was also written with a different pen as apparent from the aforesaid prescription (P -4), it has not been signed by any Doctor, it is on the letter -pad of Dr. S.C. Saxena and Dr. Sarvesh Saxena, name of both have been mentioned in the letter -pad. In the portion C to C name Lalita was mentioned totally in different handwriting in Hindi that too at a place not meant for mentioning the name of the patient. Name of husband was also put in bracket as against word Lolilla mentioned in English. It was also not mentioned that she was wife of Manoj Sharma. This document requires close scrutiny as character of a woman is sought to be doubted on this basis. Consequently, there should not have been material interpolations in prescription Ex. P -4. It is not in the normal course that prescription is prepared in such a manner with two different pens with interpolation in the dates, wrong mention of the name of patient in English and again mentioning the name in Hindi in totally a different handwriting at a place not meant for that purpose. It appears to have been prepared at two different times by two different pens, handwritings are obviously quite different, handwriting of ink pen appears to be different as compared to that of ball pen used on prescription, thus no reliance can be placed on this document. Dr. Sarvesh Saxena (PW -4) has stated that he had been informed by the patient that last time menstrual cycle was on 10 -12 -2001. In case last menstrual cycle was on 10 -12 -2001, pregnancy could not have been related to 19 -11 -2001. However, he has admitted that in the portion D to D initially date 25 was mentioned thereafter it was corrected to 26. He has further stated that he has not written word Lalita in (Ex.P -4) in Hindi. In portion E to E he has admitted that initially 000 was mentioned, later on it was corrected to 10 -12 -2001. On the basis of calender he mentioned the date to be 10 -12 -2001. It is apparent from aforesaid statement of Dr. Sarvesh Saxena that correction in E to E portion was carried out subsequently after looking into the calender, initially a totally different figure was mentioned as to the period of so called pregnancy, that has been corrected subsequently. This is also a material interpolation in the document Ex.P -4. He has also admitted that in portion E to E word "Agahan" is in different handwriting. Since he used to keep several pens on his table he used to write with whatever pen came to his hand, but by that handwriting could not have materially deferred. He has also stated that after sonography he has corrected the date in E to E portion and after sonography, he again looked into the calender and thereafter had put the date 10 -12 -2001. Doctor Saxena has not produced the register neither receipt book nor any receipt of payment of ultrasonography has been filed. In view of the aforesaid discussion, we have no hesitation in rejecting document Ex. P -4 and consequently a report of ultrasonography (P -5)) as it appears to be a totally manipulated and manufactured document, corrections in E to E and D to D portions on Ex.P -4 cannot be said to be bona fide at all considering the other material interpolations and user of different ink's at different place in most unusual manner. It is clear that no credence can be laid on this document (Ex.P -4) so as to give a finding that respondent conceived a child. We are constrained to observe that statement and conduct of Dr. Sarvesh Saxena is wholly unworthy of reliance and highly suspicious.