FAO No.114-M of 2003 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.114-M of 2003
Date of decision: 20.11.2009
Surjit Kaur ..Appellant
Versus
Avtar Singh & Anr. ...Respondents
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present:- Mr.Gurcharan Dass, Advocate,
for the appellant.
None for the respondents.
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1. Whether Reporters of Local Newspapers may
be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in
Digest?
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VINOD K. SHARMA,J.
This is wife’s appeal against the judgment and decree dated
FAO No.114-M of 2003 2
14.2.2003 passed by the learned Additional District Judge, Ludhiana vide
which petition filed by respondent/husband under section 13 of the Hindu
Marriage Act, 1955 (for short the Act) was accepted and the marriage
between the parties was ordered to be dissolved by a decree of divorce.
The parties to the litigation were married according to Sikh
rites on 21.6.1990 at Mohalla Nanakpura, Raikot, District Ludhiana. After
the marriage, the parties resided together at village Jodhan, District
Ludhiana. No child was born out of this wedlock. The case of the
respondent/husband was that the appellant/wife developed relations with
Sukhchain Singh son of Naranjan Singh, resident of Sabaddi khurd and at
his instance created a scene in matrimonial home whenever the
respondent/husband objected to the illicit liaison. It was the case set up by
the respondent/husband that the appellant claimed that she would rather
leave the respondent/husband than severe her relation with Sukhchain
Singh. The case further set up was that all attempts of the respondent and
his relations to discontinue illicit relation failed. The appellant thereafter
left matrimonial home on 22.8.1992 without any reasonable cause. It was
the case of the respondent that he along with respectables went to the house
of the appellant to persuade her not to do illegal or illegitimate acts but she
refused to join the society of respondent No.1 by claiming that she would
live with Sukhchain Singh. Divorce was also sought on the ground of
desertion besides cruelty and adultery.
The appellant appeared in pursuance to the notice and filed
written statement contesting the petition. Relationship between the parties
FAO No.114-M of 2003 3
was admitted. It was pleaded case of the respondent that the marriage
between the parties had taken place 19-20 years back and after the marriage
the appellant was blessed with a male child but he died soon thereafter.
Illicit relations with Sukhchain Singh were denied. The appellant also
denied the averments with regard to the convening of panchayat as alleged
in the petition. It was claimed that Sukhchain Singh is the husband of real
sister of respondent No.1 and was supporting the respondent in getting
decree of divorce. The stand taken in the written statement was that about 3
years prior to the filing of the petition she was mercilessly beaten by the
respondent/husband and turned out of matrimonial home. It was claimed
that the appellant and her family members tried to resolve the matter but the
respondent refused to keep the appellant in the matrimonial home. It was
also the case of the appellant/wife that the respondent claimed that he
wanted to marry a beautiful girl as he was a smart person. It was also
claimed that she was willing to join the matrimonial home but the
respondent was not willing to keep her.
In the replication the averments made in the petition were
reasserted while denying those made in the written statement.
On the pleadings of the parties, the learned Additional District
Judge framed the following issues:-
1. Whether respondent No.1 has been maintaining illicit
relations with Sukhchain Singh, respondent No.2? If so
its effect? OPA
2. Whether respondent has treated the petitioner with
FAO No.114-M of 2003 4cruelty? OPA
3. Whether respondent has deserted the petitioner for a
period of more than two years before filing of the
petition? OPA
4. Relief.
In support of his case the respondent/husband examined Sadhu
Singh, Member Panchayat as PW 1 who supported the case of the
respondent with regard to the illicit relations of the appellant with
Sukhchain Singh. He also deposed regarding convening of panchayat by the
respondent/husband as he was one of the members of the panchayat.
Learned matrimonial court found that his evidence remained unshaken in
the cross examination. The respondent also examined Ujjagar Singh who
has also testified that the appellant was having illicit relations with one
Sukhchain Singh. Needless to mention that even respondent No.1 supported
his case while appearing as his own witness.
As against this the appellant examined her brother to deny the
allegations made in the petition besides herself appearing in the witness
box. Learned matrimonial court found that though specific stand was taken
by the appellant in the written statement that she was given merciless
beating and turned out of house but she failed to disclose any reason for
such beating. The learned matrimonial court also found that the stand of the
appellant that Sukhchain Singh was the husband of sister of respondent
No.1 stood belied from the fact that the name of the husband of the sister of
respondent No.1 was Rachhpinder Singh and not Sukhchain Singh.
FAO No.114-M of 2003 5
On appreciation of evidence, the learned matrimonial court
decided issue No.1 in favour of the respondent/husband. In view of the
findings recorded on issue No.1, the learned matrimonial court found that
maintaining of illicit relations by the wife with a third person is a worst type
of cruelty and therefore, decided issue No.2 also in favour of the
respondent/husband and against the appellant/wife.
The learned matrimonial court also found that it was admitted
case that the appellant was staying at her parental house for the last 4 years
and further that in spite of the best efforts made by the respondent/husband
she had refused to join his company. The learned matrimonial court found
that merely because she had offered to join the matrimonial home in court,
could not nullify the fact that the appellant/wife had deserted the
respondent/husband for a period of more than 2 years immediately
preceding filing of the present petition for dissolution of marriage.
Therefore, the leaned matrimonial court also found that ground of desertion
also stood proved.
Mr.Gurcharan Dass, learned counsel appearing on behalf of the
appellant challenged the judgment and decree on the plea that Sukhchain
Singh was real brother-in-law of the respondent/husband and therefore, the
learned Additional District Judge committed an error in recording the
finding on issue No.1 against the appellant. Learned counsel for the
appellant also referred to the cross-examination of PW 1 to contend that the
allegations regarding illicit relations by PW 1 were based on information
said to have been given by the husband and therefore, was merely hearsay
FAO No.114-M of 2003 6
evidence on which no reliance could be placed. It was also the contention
of the learned counsel for the appellant that in the cross-examination Sadhu
Singh could not give the date and month when panchayats were said to
have gone and therefore, the evidence of PW 1 did not inspire any
confidence. He also referred to the statement of PW 4, to point out the
contradiction.
Learned counsel for the appellant thereafter referred to other
statements to contend that the evidence led by the respondent/husband did
not inspire confidence, whereas the evidence led by the appellant showed
that allegations of adultery were totally false and baseless. It was also
contended by the learned counsel for the appellant that plea of desertion has
been accepted merely on the basis of presumption. It was lastly contended
by the learned counsel for the appellant that the petition having been filed
with inordinate delay was liable to be rejected under section 23 of the Act.
On consideration of matter, I find no force in the contentions
raised by the learned counsel for the appellant.
It is not in dispute that the allegations levelled by the
respondent were supported by an independent evidence as well as relations.
The stand taken by the appellant in the written statement regarding her
being turned out of matrimonial house after giving beatings was rightly not
believed by the learned matrimonial court for the reason that neither the
appellant nor his brother was able to give any reason for giving beatings as
there was no allegations of the demand of dowry etc. The plea that the
reason of discord was that the respondent wanted to marry a beautiful girl was also
FAO No.114-M of 2003 7
not proved by leading any evidence. Rather the appellant in her statement
also did not mention this fact. If the evidence led by the parties is read vis-
a-vis the pleadings no other conclusion than the one arrived at by the
learned matrimonial court can be arrived at. It is well settled law that the
appellate court cannot reverse the judgment merely on the plea that other
view also is possible. In the present case the findings have been recorded on
appreciation of evidence of three witnesses who were respectable persons,
whereas, the stand of the appellant that Sukhchain Singh was brother-in-law
of respondent No.1 and was supporting his case stood belied as name of
brother-in-law of respondent is Rachhpinder Singh. The contentions of the
learned counsel for the appellant, therefore, cannot be accepted
Consequently, findings of the learned matrimonial court are
affirmed on all the issues and appeal is ordered to be dismissed but with no
order as to costs.
(Vinod K.Sharma)
20.11.2009 Judge
rp