High Court
Case Details
Neutral Citation No. - 2023:AHC:171819-DB Court No. - 39 Case :- FIRST APPEAL DEFECTIVE No. - 162 of 2023 Appellant :- Shweta Chaubey Respondent :- Pankaj Kumar Chaubey Counsel for Appellant :- Vijai Kumar Tripathi Hon'ble Saumitra Dayal Singh,J. Hon'ble Rajendra Kumar-IV,J.
Legal Reasoning
1. Heard Sri Vijai Kumar Tripathi, learned counsel for the appellant and perused the records. 2. Present appeal has been filed under Section 19(1) of the Family Courts Act, 1984 against the consented order dated 23.01.2023, passed by the learned Principal Judge Family Court, Deorai in Divorce Petition No.472 of 2022, arising between(Sweta Chaubey versus Pankaj), under Section 13(B) of the Hindu Marriage Act, 1955 (hereinafter referred as "Act"). 3. By that order learned court below has dissolved the marriage between the parties upon their mutual consent. 4. The above order clearly records the fact of Rs.1,00,000/- having been paid to the present appellant towards permanent alimony. 5. In such circumstances, upon the appeal being first heard, we had passed the below quoted order dated 31.05.2023 :- "1. Though the Court was initially inclined to dismiss the appeal as meritless, however, learned counsel for the appellant Sri Vijai Kumar Tripathi states that amount of Rs.1,00,000/-, required to be paid to the appellant (as recorded in the impugned order), was never paid to the appellant Shweta Chaubey. 2. On specific query, Sri Tripathi states that above submission has been made by him on the strength of oral instructions received by him at the time of filing of the appeal. In such circumstances, he prays and is granted time to file supplementary affidavit bringing on record such facts. 3. Put up as fresh in the next rotation in July 2023." 6. On the next date fixed, learned counsel for the appellant, Sri Vijai Kumar Tripathi, learned counsel for the appellant prayed for further time to comply with the earlier order. 7. Then supplementary affidavit dated 25.07.2023 was filed containing the following pleadings:- 1. That the deponent is sole appellant and doing pairvi as such she is well conversant with the facts and circumstances of the case deposed to below. The deponent is filing Aadhar Card she is identity proof and annexing her photograph. 2. That the defendant / opposite party has filed divorce suit under section 13-B Hindu Marriage Act without compliance of 13-B(1) which is quoted as under :- 13-B Divorce by Mutual Consent-(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. 3. That the court below has not mentioned in order sheet that the appellant has not received any amount from the defendant / opposite party. A true / photo copy of the order sheet is being filed herewith and marked as Annexure no.S.A. 1 to this affidavit. 4. That in view of the facts and circumstances as mentioned in preceding paragraphs this Hon'ble Court may graciously be pleased to treat this supplementary affidavit as a part of the first appeal." 8. Plainly the above affidavit was evasive, therefore, not proper. On such facts, we passed the below quoted order dated 28.07.2023 :- "1. Despite earlier opportunity given, no clear statement has been made if the amount awarded by the learned court below has been paid to her or has been deposited with the learned court below. 2. Learned counsel for the appellant prays for and is granted one last opportunity to file appropriate supplementary affidavit. 3. Put up as fresh on 18.8.2023 by way of last opportunity. " 9. On the next date, Sri Vijay Kumar Tripathi, learned counsel for the appellant prayed for further time to comply with the earlier order. 10. Second supplementary affidavit dated 16.08.2023 has been filed containing with the following pleadings:- "1. That the deponent is sole appellant and doing pairvi as such she is well conversant with the facts and circumstances of the case deposed to below. The deponent is filing Aadhar card she is identity proof and annexing her photograph. 2. That the defendant / opposite party has filed divorce suit under section 13-B Hindu Marriage Act without compliance of 13-B(1) which is quoted as under :- 13-B Divorce by Mutual Consent-(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. 3. That the court below has not mentioned in order sheet that the appellant has received any amount in which date from the defendant / opposite party. A true / photo copy of the order sheet is being filed herewith and marked as Annexure no.S.A. 1 to this affidavit. 4. That the respondent has opened account of appellant in faith for government housing scheme and deposit 80,000/- rupees in account of the appellant and said amount withdrawn on several dates. A true / photo copy of the statement of the account of the appellant is being filed herewith and marked as Annexure no.S.A.2 to this affidavit. 5. That the appellant has no knowledge of divorce petition and she has signed on blank paper to obtain money from government beneficiary scheme in faith of her husband / respondent. 6. That the opposite party has obtained consent by fraud and undue influence from the applicant. 7. That in view of the facts and circumstances as mentioned in preceding paragraphs this Hon'ble Court may graciously be pleased to treat this supplementary affidavit as a part of the first appeal." 11. the photo copy of the bank account as stated is annexed does indicate deposit of Rs.80,000 in the account of the petitioner. However, no evidence has been adduced to establish either the government scheme or the approval granted therein or any pay order prepared thereunder as may have allowed to credit the amount of Rs.80,000/- in the personal account of the present appellant. 12. Clearly the appellant upon legal advise given to her by her counsel has prepared and presented a meritless appeal and sought to pursue it on the strength of evasive and misleading affidavits. The conduct of learned counsel for the appellant is deprecated. 13. At this stage, Sri Vijai Kumar Tripathi, learned counsel for the appellant states that the amount of Rs.80,000/- was transferred to the bank account of the appellant from the bank account of respondent. He admits and he states that he will never make such mistake in future.
Decision
14. Accordingly, the appeal is dismissed. Order Date :- 25.8.2023 I.A.Siddiqui (Rajendra Kumar-IV,J.) (Saumitra Dayal Singh,J.) Digitally signed by :- IMRAN AHMAD SIDDIQUI High Court of Judicature at Allahabad