F.A.O. No.259-M of 2008 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
F.A.O. No.259-M of 2008
Date of decision: 21.04.2009.
Gurmeet Kaur ...Appellant
Versus
Malak Singh ...Respondent
CORAM: HON'BLE MR. JUSTICE S.D.ANAND.
Present: Mrs. Jaspal Kaur Gurna, Advocate for the appellant.
Mr. Mahabir Sandhu, Advocate for the respondent.
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S.D.ANAND, J.
The appellant-wife is in appeal against the judgment and
decree dated 12.8.2008, vide which the learned Trial Court allowed a
petition under Section 9 of the Hindu Marriage Act filed by the
respondent-husband.
The marriage between the parties was solemnized, as
per the Anandkaraj ceremony, on 31.3.2002. A male child was born
out of their union in the month of December, 2003. The behaviour of
the appellant-wife, from the very inception of the marriage, was
otherwise improper as she was insistent upon the respondent-
husband shifting from the village and to become a resident son-in-
law which proposal was not acceptable to him as he had also his an
aged mother to support and he was the only bread earner of the
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family. The resistance offered by the respondent-husband to the
proposal aforementioned led to the souring of his relations with the
appellant-wife. In August, 2003, the appellant’s mother visited the
matrimonial house of the parties and advised the appellant-wife to
desist from pursuing the demand aforementioned. However, it did
not have any effect upon the appellant-wife.
In the first week of December, 2003, the respondent-
husband fetched the appellant-wife to latter’s natal village to enable
her to visit her mother. However, on the day following, she refused to
accompany the respondent to the matrimonial house and she
continued living there only. On the birth of a male child to her at her
natal house, the respondent-husband visited her,however, he found
that the behaviour of the appellant towards him and his mother was
not proper. The mother son duo had gone to perform some
ceremony in connection with the birth of a male child. It was after
great persuasion at the hands of the family of the respondent-
husband that the appellant returned to the matrimonial house in
March, 2004. However, there was no change in her adamant
attitude. In order to remove the creases in their relations, the
respondent-husband deposited a sum of Rs. 5 lacs in FDR in the
name of the appellant-wife in the fond hope that it would soothen her
nerves and restore her confidence in his bonafides to maintain the
matrimonial relations. The efforts proved abortive.
About six months prior to the filing of the petition, the
appellant-wife was to go over to her natal house to attend the
marriage of her sister. The respondent-husband provide her a sum
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of Rs.15,000/- in cash and also dropped at her natal house by car.
While leaving the matrimonial house in the company of respondent-
wife, the appellant-wife had taken along all her ornaments, the
original FDR and the bank pass book. On the day the wedding of
sister of the appellant-wife, there was an altercation between the
parties but the respondent displayed sense of toleration in view of the
fact that there was a marriage in the family. However, after the
marriage ceremony had been performed, the appellant-wife refused
to accompany the respondent-husband to the matrimonial house.
Even the intervention by the Panchayat did not yield any fruitful
result, thereby impelling the respondent-husband to ultimately file the
decreed plea.
In the counter, the appellant denied the allegations
levelled by the respondent-husband in toto. She challenged the
maintainability itself of the petition as the respondent-husband had
omitted to mention therein the fact that the appellant-wife had
already filed a suit for recovery of maintenance against him. The
plea, raised in the context, was that the filing of the petition under
Section 9 of the Hindu Marriage Act was, infact, a counter blast to
the maintenance plea filed by her.
The trial proceeded on the following issues:-
1. Whether the petitioner is entitled to a decree for
restitution of conjugal rights as alleged?OPP
2. Whether the respondent has withdrawn from the
society of her man with just excuse?OPR
3. Relief.
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The learned Trial Court took up both the issues jointly for
disposal and recorded a finding adverse to the appellant-wife in view
of the fact that she had not been able to adduce any evidence to
prove that she had any reasonable cause to stay away from the
matrimonial house. It was noticed by the learned Trial Court that, for
want of any evidence, the appellant-wife had not been able to rebut
the affirmative evidence adduced by the respondent-husband to the
contrary.
I have heard Mrs. Jaspal Kaur Gurna, learned counsel
appearing on behalf of the appellant and Mr. Mahabir Sandhu,
learned counsel appearing on behalf of the respondent and have
carefully gone through the file.
It may be noticed, at the very outset, that the appellant-
wife also filed (in appeal only) a plea for being allowed to adduce
additional evidence. She applied for the leave of the Court to thereby
prove on record compromise Annexure P-1 and also Annexure P-2,
a copy of petition for maintenance which she filed against the
respondent. She also applied to the Court to thereby place on record
Annexure P-3, a copy of the counter filed by her in the petition under
Section 9 of the Hindu Marriage Act. The plea, raised in the context,
is that the factum of compromise would indicate that the mother and
uncle of respondent-husband had fetched the appellant-wife from her
natal house by assuming that there would be no quarrel at all in
future and that she would also not be beaten up. They had thereby
agreed, it is argued, that if any harm comes to the life and liberty of
the appellant-wife, they would be accountable for it. Annexure P-2,
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it is argued, would enable the appellant-wife to prove that she had
filed a plea for maintenance prior in point of time and that the
petition under Section 9 of the Hindu Marriage Act was filed later on.
as a counter blast thereof.
It is apparent from the record that the respondent-
husband had adduced on file evidence of affirmative character to
prove the above quoted allegations at the trial. It is further apparent
from the pleadings of the parties that he had raised a precise plea
that, in order to inspire the confidence of the appellant, the
respondent-husband had deposited a sum of Rs.5 lacs in FDR in the
name of the appellant-wife.
In that context, the learned counsel appearing on behalf
of the appellant argues that funds for the raising of that FDR had,
infact, been provided by her father and it was with a mischievous
design that the respondent-husband had obtained that FDR in the
name of self and the appellant.
That argument was almost a reiteration of the averment
made by her in the counter Annexure P-3. (It is otherwise pleaded in
para 4 of Annexure P-3 that the respondent-husband desired her
either to leave the matrimonial house or get the land left by her father
mutated in his name and that it was her mother who entered into an
agreement to sell off the agricultural land and provided a sum of
Rs.5 lacs to the respondent-husband who obtained an FDR in his
name and that of the appellant.
As already noticed there is not even an iota of evidence
on record to prove that funds for the raising of the FDR
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aforementioned had been provided by the mother of the appellant-
wife. If there was even an iota of truth in the allegation in the
relevant averment, the appellant ought to have adduced documented
evidence to prove that her mother did actually enter into an
agreement to sell a part of the agricultural land left by her deceased
husband. Further, documentary evidence could also be adduced by
summoning a bank official to prove that the FDR was in the name of
the respondent and also the appellant. It was incumbent upon the
appellant-wife to adduce evidence to that effect in view of the precise
averment by the respondent-husband that it was he only who
obtained that FDR in the name of the appellant-wife out of his own
funds.
Faced with the predicament aforementioned, the learned
counsel appearing on behalf of the appellant-wife argues that the
learned counsel representing the appellant at the trial did not, at all,
inform her that any witness was to be examined/summoned and it
was on that account only that she had not been able to adduce
evidence in support of the averments made by her in the course of
the counter at the trial.
It is neither here nor there for the appellant-wife to raise the
plea aforementioned. In the natural course of things, a party litigating
in the context of a personal relationship of such paramount
importance, would be expected to stay in touch with the counsel
representing that party. It is unnatural to expect that the appellant
wife did not interact with her learned counsel about the progress of
the case. In any case, the adjudication at the hands of the learned
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District Judge, had come about on the basis of the material obtaining
on the file and the appellant-wife cannot be presently heard to argue
in favour of the grant of leave to adduce additional evidence which is
apparently aimed at getting over the lacunae found by the learned
Trial Court. A plea of indicated category is not acceptable. Even
otherwise, the proposed additional evidence would not be supportive
of the plea of the appellant-wife that the funds for the raising of the
FDR aforementioned had been paid by her mother. It may be
noticed, in the context, that there is no request on the part of the
appellant-wife for being allowed to adduce evidence to prove any
agreement vide which her mother had agreed to sell a part of the
agricultural land inherited by her from her deceased husband.
The present is, thus, a case in which the affirmative evidence
adduced by the respondent-husband, in support of the plea forming
the foundational premise of the plea for the conjugal rights was not
rebutted by any evidence whatsoever on the part of the appellant-
wife who did not even enter the witness box, as her own witness.
In the light of the foregoing discussion, the appeal is held
to be denuded of merit and is ordered to be dismissed.
April 21, 2009 (S.D.Anand) Pka Judge