IN THE HIGH COURT OF JUDICATURE OF RAJASTHAN
JAIPUR BENCH, AT JAIPUR
I.A. No. of 2024
IN
D.B. CIVIL MISC. APPEAL NO. 965 of 2022
IN THE MATTER OF:
Shri Amar Narendra Rathore ….. APPELLANT
Vs
Smt. Richa Chauhan ….. RESPONDENT
APPLICATION UNDER SECTION 151 CIVIL PROCEDURE CODE,
1908 ON BEHALF OF THE APPELLANT SEEKING EFFECTIVE
HEARING AND EARLY DISPOSAL OF APPEAL NO. D.B. CIVIL
MISC. APPEAL NO.965 OF 2022 PENDING BEFORE THIS HON’BLE
COURT
MOST RESPECTFULLY SHOWETH
1. That the above stated Appeal is pending disposal before this Hon’ble Court
wherein all pleadings are complete and the matter is at the stage of Final
Arguments. That in the past hearings, inadvertently, the matter has on one
pretext on the other being adjourned that is in the interregnum, causing grave
financial, emotional and psychological prejudice to the Appellant and his
parents who are old aged and senior citizens. Therefore, it is the Appellant’s
humble attempt to draw this Hon’ble courts attention to the plight of the
Appellant with a request to effectively hear and dispose of the matter on its
merits, which the Appellant will demonstrate are in his favour and that his
appeal is squarely covered under provisions of law owing to the facts and
circumstances of the case, that are on record and on directions of this Hon’ble
Court vide order dated 06.07.2023 the Affidavit and Counter Affidavit
thereto have also been filed and all documents relevant for the determination
of the final terms have been filed before this Hon’ble Court.
2. The Appellant has preferred the D.B. Civil Matrimonial Appeal No.956 of
2022(“Matrimonial Appeal”) under Section 19 of the Family Court Act,
1984 r/w Section 28(4) of the Hindu Marriage Act 1955 against the Judgment
and Decree dated 29.10.2021 passed by the Ld. Family Court No.1, Jaipur in
Case No. 720/2019 titled as Amar Narendra Rathore v/s Richa
Chauhan(“Impugned judgment”). The Impugned judgment passed by the
Ld. Family Court is squarely covered by the Hon’ble Supreme Court on
multiple occasions and the Impugned judgment has been passed in teeth of
the rulings of the Hon’ble Supreme Court, particularly the rulings given in
the case of “Shilpa Sailesh v. Varun Sreenivasan 2023 SCC Online SC 544”
& “Rajesh Kumar Singh v. Suman Yadav SLP No.5268/2020” wherein the
Hon’ble Supreme Court has clearly laid down the factors to be considered in
determining irretrievable breakdown of marriage which are as follows:
a) The period of time the parties had cohabited after
marriage;
b) When parties had last cohabited;
c) The nature of allegations made by the parties against each other and their
family members;
d) The orders passed in legal proceedings from time to time;
e) The cumulative impact on the personal relationship;
f) Whether, and how many attempts were made to settle the disputes by
intervention of the court or through mediation, and when the last attempt
was made, etc;
g) The period of separation should be sufficiently long, and anything above
six years or more will be a relevant factor.
The Hon’ble Supreme Court has unequivocally laid down the aforesaid
factors and clarified that these have to be evaluated keeping in view the
economic and social status of the parties, including their educational
qualifications, and whether the other spouse and children are dependent.
The Impugned judgment clearly is in teeth of these judgments and has been
passed without giving due consideration to the contentions raised by the
Appellant considering the facts and circumstances of this case. The case
made out by the Appellant is a fit case to apply all of the above-mentioned
seven parameters, the factum of which was completely overlooked by the Ld.
Trial Court.
It is abundantly evident from the records filed that the Respondent is overly
more qualified than the Appellant and in no way dependent on the Appellant
financially. Furthermore, the conduct of the Respondent throughout all
proceedings has made it clear that there is no chance for any reconciliation as
the parties neither consummated the marriage nor have been living together
for the past more than 6 years and the Respondent is only taking advantage of
the interim maintenance orders passed against the Appellant. The parties have
been embroiled in litigation for the past 10 years and not been able to move
on with their lives, the fact of which was completely lost in the Impugned
judgment, which is thus clearly in teeth of the settled legal position.
3. Considering the grave prejudice caused to the Appellant due to the Impugned
Judgment, the Appellant preferred the Matrimonial Appeal before this
Hon’ble Court in the month of May, 2022. That thereafter, since then the
matter has been pending before this Hon’ble Court and the parties on
directions of this Hon’ble Court have tried Mediation for the 8 th time as well
to settle the issues, but only to be at loggerheads time and again with the
same conclusion. A substantial time was lost owing to the parties into
mediation but no recourse could be reached as the Respondent simply refused
to settle for a reasonable amount within the means of the Appellant. This has
been a deliberate attempt to stall and thwart the final disposal of this
Matrimonial Appeal by the Respondent as she is very well aware that the law
falls squarely in favour of the Appellant. On one hand the Respondent
initially showed intent to settle while on the other hand during mediation
proceedings, the Respondent clearly demanded unreasonable amount of
money again and again, which is why the mediation proceedings could not be
successfully concluded, following the old pattern which has not been
resolved till now.
4. That it is a material concern of the Appellant that at this juncture, on one
pretext or the other, the Respondent will continue to stall these proceedings
so that a final effective hearing and disposal of this Matrimonial Appeal is
thwarted, specifically in light of the fact that the Respondent has already
gained a substantial amount of over INR 16 Lakhs (Sixteen Lakhs Only) from
the Appellant on account of the frivolous section 12 Domestic Violence Act
proceeding No.178/2015 at Jaipur (“DV proceedings”) initiated by the
Respondent against Appellant and in compliance of the interim orders passed
therein. It is pertinent to note that the Respondent in these vexatious and
frivolous DV proceedings has grossly misrepresented and manipulated
material facts about the financial situation of the Appellant to induce the
court into passing such interim orders. Owing to the grossly misrepresented
and manipulated conduct of the Respondent, the Appellant has already taken
appropriate steps to rectify the record and the Appellant’s Application for
Modification of Interim Order owing to Changed Circumstances has been
filed before the Trial Court in Jaipur on 26.05.2023 in the DV proceedings,
the fact of which the Respondent has conveniently supressed, however,
instead of filing the response thereto the Respondent’s counsel has not filed
anything till date with the sole intention to delay and avoid the orders
thereon.
5. Thus, it is amptly clear that the Respondent is only to unreasonably gain and
unjustly enrich herself on account of the interim orders in DV proceedings,
and it is Respondent’s only intent to stall this Matrimonial Appeal as any
orders passed herein will have material effect on the outcome of the vexatious
DV proceedings. The matter was last listed on 5 th February, 2024 for hearing
however, despite both counsels being ready to argue the said Appeal was not
heard and a further date was given in the matter for 4 th July, 2024. The matter
has been pending disposal, however, inadvertently, the matter is being
adjourned for further dates, without final disposal. The Appellant has been
embroiled in a web of vexatious litigation by the Respondent, who is using
this as the basis to unjustly enrich herself and cause grave prejudice to the
Appellant. A brief narration of facts and issues will further elaborate the
plight of the Appellant and show how this Hon’ble courts interference is
warranted in the present case.
BRIEF FACTS
i. The Appellant and Respondent got married on 21.04.2014 at Jaipur, at
SMS Hotel, Jaipur, in the annex compound of the Hotel Rambagh Palace,
Jaipur, which is the cheaper alternative to the main Hotel Rambagh
Palace and was done in a modest manner with modest means, contrary to
the claims of the Respondent of a lavish wedding.
ii. That the Appellant and Respondent for their honeymoon, travelled to
Kumbhalgarh wherein despite staying in a private room, the Respondent
refused to have any physical relationship with the Appellant. Thereafter,
both returned back to the village in Gujarat subsequent to which the
Respondent went back to her hometown in Indore for the Pag Fera
ceremony. Surprisingly, the Respondent did not return back even after a
month after which the Appellant finally went to the hometown of
Respondent, Indore to bring her back, as per the customs.
iii. That even at the Repsondent’s hometown the Respondent refused to
consummate and have any physical relations with the Appellant after
which both returned back to the village in Gujarat. The Appellant again
tried to initiate a physical relationship, but was again denied by the
Respondent. Thereafter, as the Respondent wanted to work and secure a
high paying job and stay in the city, at her insistence, the Appellant
shifted with the Respondent to Ahmedabad in July, 2014 where she
eventually secured a job.
iv. That both were living together in the flat owned by the Appellants father
in Ahmedabad, however, despite several efforts by the Appellant the
Respondent constantly refused any physical relations with him. The
Respondent further remained distant and showed no intention to initiate
any efforts towards working for the marriage.
v. In addition to paying no interests towards the marriage, the Respondent
even paid no heed towards sharing household chores. Before getting his
job, the Appellant used to perform all household chores and after his job,
the Appellant’s mother had to come and assist in these household chores
as the Respondent simply refused any shared responsibility.
vi. Despite counselling by family, the Respondent simply refused to initiate
any physical relations with the Appellant which left a deep emotional
impact on the Appellant. Bereft any option, out of concern, the Appellant
even suggested psychological counselling to the Respondent, which was
violently refused by the Respondent. This aggravated the mental agony
caused to the Appellant by Respondent, and in September, 2014 the
Appellant decided to have a confrontation with the Respondent regarding
her attitude, however, the Respondent was completely averse and
repugnant to any physical relationship with the Appellant and it appeared
as if the Respondent was psychologically averse to the whole concept of
marriage with the Appellant, yet stayed due to her family’s pressure.
vii. That thereafter, despite repeated efforts of the Appellant when no solution
could be reached, on October 28, 2014 the parents of Respondents came
and stayed at the Appellants parent’s house, where the Appellant and
Respondent were also present. The Respondent in everyone’s presence
blatantly and unequivocally stated that the Appellant and Respondent had
not consummated the marriage and that the Respondent had no intention
of consummating the marriage even thereafter. This is a material fact was
presented as evidence and has also been produced and relied on by the
Appellant. This is a clear admission of the Respondent which clearly
demonstrates the veracity of the Appellant’s contentions.
viii. That thereafter, the parties along with parents held meetings with an
attempt to amicably resolve the issue, however, the Respondent and her
mother decided that the Respondent would no longer live together with
the Appellant and then the Respondent left the Appellant to never return
back. All duly recorded voice recordings and other evidence has been
taken on record by the Appellant in his proceedings since its inception
and duly authenticated transcripts thereof has been filed.
ix. That thereafter, by the conduct of the Respondent and her family it
became clear to the Appellant that the Respondent was not coming back
and has left for good, and thus, as the only reason for shifting to
Ahmedabad and getting a job was the Respondent, the Appellant quit his
job and moved back to Khedabramha to his parents house in the month of
November, 2014.
x. On 8th April 2015 as a last and final resort, the Appellants family
members went to Indore to meet with the Respondent and her family
where they were flatly conveyed that there is no chance of any
reconciliation. That thereafter, as the marriage was not consummated and
the case squarely covered under the law by virtue of a catena of
judgments, the Appellant on 23.04.2015 filed a petition u/s 12(1)(a) of the
Hindu Marriage Act, 1955 for Annulment of Marriage on the ground of
non-consummation due to impotence and or divorce due to cruelty as
meted out to the Appellant at the hands of the Respondent.
xi. As a counterblast, the Respondent on 25.05.2015 filed a petition for
Restitution of Conjugal rights u/s 9 of the Hindu Marriage Act, 1955 as a
counterblast strategy to put the blame of desertion on the Appellant.
Thereafter, on 09.06.2015 another false Complaint under DV proceedings
against the Appellant and his family members putting vague and
ambiguous allegations which are only an aggravated version of the same
allegation being levied on the Appellant. Thereafter, the Respondent filed
a Transfer Petition No. 1035/2015 in the Hon’ble Supreme Court with a
prayer to transfer the Appellants divorce proceedings from Ahmedabad to
Jaipur, which was subsequently granted vide order dated 01.02.2017 with
a specific direction to swiftly conclude.
xii. That in the DV proceedings, vide order dated 19.09.2016 the Appellant
was directed to provide interim relief to the Respondent in the nature of
INR 20,000 per month. Despite the Respondent earning substantially
more than the Appellant even from before the marriage this order was
passed in a mechanical order, the benefit of which the Respondent is till
date reaping since the Appellant was not from the state and could not
engage a counsel and were left in the lurch.
xiii. On 20.06.2019[TAKEN FROM APPEAL PDF PAGE 33] the
Respondent filed a frivolous and vague complaint against the Appellant
and his family members u/s 498A, 406 and 354 of the Indian Penal Code,
1860 in which in the chargesheet filed on 01.11.2019 and no offences
under these sections was made out against the Appellants family
members, which clearly shows the malicious intent of the Respondent in
filing of this complaint/FIR.
xiv. That on 29.10.2021 the Impugned judgment was passed by the Ld.
Family Court without proper application of judicial mind and ignoring all
laid down and set principles as applicable to such similar cases as laid
down by the Hon’ble SC. All material evidences produced by the
Appellant were simply ignored by the Ld. Judge and a completely
perverse and highly untenable order was passed by the Ld. Trial Court in
a mechanical manner ignoring the trite law.
6. The aforesaid facts and circumstances clearly demonstrate that the marriage
between the Appellant and Respondent was a failed marriage ever since it
began and there is some psychological issue with the Respondent that has
clearly thwarted any physical relationship between the Appellant and the
Respondent. The marriage has never been consummated and the Appellant
has clearly demonstrated how the Respondent never had any intention to
make the marriage work and has not even stayed with the Appellant for more
than 4 months of actual courtship.
7. It is humbly submitted that the material evidences produced by the Appellant
have clearly demonstrated beyond any doubt that the Respondent had no
intention to work on the marriage. The marriage was never consummated and
the Appellant and Respondent did not even live together. Numerous efforts
for conciliation also failed and only then thereafter, the Appellant filed the
Divorce Proceedings. Thereafter, as a counterblast the Respondent first filed
a Petition for restitution of conjugal rights and then filed a complaint/FIR
after 5 years, in the form of the DV proceedings. These strings of events are
in itself enough to make this case a fit case to apply the various principles of
granting divorce established in a catena of judgments, the fact of which was
completely ignored by the Ld. Trial Court.
8. That this is a fit case of mental cruelty is clear and unambiguous based on the
fact that the Hon’ble Supreme Court in a plethora of judgments has held that
“Unilateral decision of refusal to have intercourse for considerable period
without there being any physical incapacity or valid reason may amount to
mental cruelty”. Furthermore, while these litigations were going on the
Respondent attempted to file a malicious and frivolous FIR against the
Appellant in the year 20.06.2019 which demonstrates the malicious intent of
the Respondent. This came out as completely false in the chargesheet filed
which further demonstrates the candour of the Respondent, the fact of which
was completely overlooked by the Trial Court.
9. The Respondent has manipulated the facts and misrepresented the financial
condition of the Appellant grossly, the fact of which has been completely
ignored in the Ld. Trial Court. The Respondent has been taking advantage of
the interim compensation granted to her and thus, only has intention to
further take advantage of these by either initiating new proceedings or
extending the ongoing litigations on one pretext or the other.
10. The Respondent herself is a highly educated person who has held several
high paying jobs. The Appellant on the other hand is an unqualified person
who doesn’t have a regular source of income. This fact is clearly evidenced
by virtue of his bank statements submitted by the Appellant. Furthermore, the
Appellant does not own any parcel of land from which any kind of rent
income comes, the fact of which has also been evidenced by the Appellant.
Further, these facts have been grossly manipulated by the Respondent who on
the other hand, based on this is drawing a monthly interim compensation of
INR 20,000/- which on several occasions the Appellant has struggled to give
and the cheques have bounced and he has barely managed to pay by
borrowing from his friends and family.
11. The above mentioned facts are only reflecting the true nature of the
Respondent who’s sole agenda of getting married was money, and nothing
else, as is being highlighted by the contents of her Affidavit being solely
focused on the meagre fortunes of the Appellant who is already struggling,
rather suffering being saddled with multiple litigations being utterly false and
frivolous. it is important to state here the repercussions of the mindlessly
driven malicious and defamatory litigations have had a serious toll on the
health of both the parents of the Appellant herein, who have both been bed
ridden due to the insurmountable stress and mental pain and agony to see
their children suffer for no fault of theirs and to have been saddled with such
false and frivolous litigation.
12. That furthermore, considering the changed circumstances and considering the
conduct of the Respondent who is repeatedly perjuring herself with impunity
and utter disregard to the law of the land, driven with the sole agenda of
hurting and harming the peace and well-being of the Appellant herein, who
despite there being ample opportunities and legal remedies available to him
and his family for the deliberate legal wrongs being done by the Respondent
have still chosen the higher path of avoiding the mess and any further
confrontation, despite the defamatory acts and the malicious prosecutions
launched by the Respondent against him and his family.
13. The fact that the Respondent never had any intention to work on the marriage
is further amplified by the fact that despite getting orders in the petition filed
for restitution of conjugal rights, the Respondent paid absolutely no heed
towards mending relations with the Appellant and instead continue to reside
at New Delhi and not even resides in her hometown in Indore. Furthermore,
the Respondent went ahead and filed frivolous cases against the Appellant
and his family in a desperate attempt to further prejudice the Appellant. It is
humbly submitted that it is a fit case where the Appellant is the rightful and
deserving party who is in need and help of the financial support and it is the
Respondent who is blatanly disregarding and breaking all the law by filing
false and fabricated evidence without any care or concern of the law.
14. It is clear as light that the truth of the matter is that the parties have absolutely
no chance of any reconciliation and the parties have spent a considerable time
and money on litigations. The Appellant has not just lost support, comfort
and warmth that is provided by matrimony but also has lost his reputation in
public, the trust and respect of his own family members, his career and
financial stability, and even a part of his inheritance. In a catena of judgments
this Hon’ble court has time and again held that it is of no benefit to anyone
that a de-facto dead marriage be kept alive de-jure. It is in the interest of
justice that this marriage is dissolved so that the Appellant can lead a normal
life.
15. The proceedings and the time that has gone by gave ample opportunities to
the parties in the form of mediation to cogitate, analyse and take a deliberate
decision on the subject matter. The objective of such litigations cannot be to
stretch the already disintegrated marriage, or to prolong the agony of one
party for the other, when there is no chance of the marriage working out.
Therefore, once every effort has been made to salvage the marriage from the
Appellant but the same have been rejected time and again by the Respondent
and there remains no possibility of reunion or cohabitation, this Hon’ble court
is not powerless in enabling the parties to avail a better option, which is to
grant divorce. The Appellant has made an attempt to satisfy this Hon’ble
court on all counts of the laid guidelines and set principles of granting
divorce that the marriage has shattered beyond repair.
16. It is the Appellants concern that the Respondent only wants the case to linger
on without attaining finality and thus, the Appellant has come before this
Hon’ble court by way of this application to effectively hear the matter on
merits and dispose of the matter. The Respondent is well aware that an
effective order here will have a significant impact on other proceedings
between the parties, civil and criminal as they will be appropriately dealt with
in terms of any orders passed. The appellant has clearly demonstrated the
mala fide intents and conduct of the Respondent and has an apprehension that
on one pretext or the other the Respondent will only try to delay and stall
these proceedings as was done on the last date of hearing i.e., February 5 th,
2024 which puts the burden on the courts in the form of listing, paper work
etc. Parallelly, the Appellant also has to bear the litigation costs, interim
maintenance costs, travel and appear before the Hon’ble Courts and then
owing to the conduct of the Respondent final orders gets delayed causing
severe anxiety and apprehension to the Appellant.
17. It is the Appellants humble prayer that this Hon’ble court may not encourage
this lingering matrimonial litigation and prolongation of such litigation is
detrimental to the Appellant who is losing his young age in chasing multiple
frivolous litigations. Thus, it is the humble prayer of the Appellant that this
Hon’ble court may adopt a view that can be productive and swift as the
matter has lingered on for almost a decade and pendency of such litigations
both civil and criminal causes pain, suffering and harassment and,
consequently, it is a request to this Hon’ble court that the matter may be
finally heard thereby bringing the agony, affliction and torment to an end. In
this regard the court only has to be satisfied that the essential ingredients as
laid down by the Hon’ble Supreme Court are complete, which the appellant
herein as clearly demonstrated are squarely applicable in this case.
18. That the Hon’ble Court has proper jurisdiction to entertain and adjudicate this
Application duly filed by the Appellant.
19. That the present application is as per law and bonafide.
PRAYER
That in view of the facts and circumstances of the case stated hereinabove, it is
most humbly submitted and prayed before this Hon’ble Court to kindly:
1. Hear the matter on its merits and list the matter for an early hearing and final
disposal;
2. Pass any other orders as this Hon’ble Court deems fit.
