F.A.O. No.101-M of 1997 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
F.A.O. No.101-M of 1997
Date of decision : 12.01.2009
Nachhatro alias Asha Kumari .....Appellant
Versus
Naib Singh ...Respondent
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CORAM : HON'BLE MR. JUSTICE S. D. ANAND
Present: Mr. S.K.Dalal, Advocate for the appellant.
Mr. S.K.Garg Narwana, Advocate for the respondent.
S. D. ANAND, J.
The marriage between the parties was solemnised, as per
Hindu rites and ceremonies, on 28.5.1981. The respondent-husband filed
a petition for dissolution of the marriage, by a decree of divorce, on
allegations which may be indicated as under:-
After having cohabited at the matrimonial house for sometime,
the appellant-wife went over to her natal house. After a stay of a week
over there, she returned to the matrimonial house and stayed over for
about two months. However, no issue was born out of the union of the
parties.
The appellant would always pick up a quarrel with the
respondent and other members of his family, on one pretext or the other,
and would always announce her intention to separate from the family.
That sentiment of her was not agreed upon by the petitioner as he has
aged parents and is duty bound to serve them. Appellant would also tell
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the respondent and members of his family that she comes from a very rich
family where very high standard of living was maintained and that mediator
in the marriage had cheated her by getting her married into a poor family to
which the respondent belongs. The appellant also told the respondent
that the latter was impotent and that she would not stay with him any
longer on account of his inability to procreate. After a stay of about 2-3
months at the matrimonial house, she again went over to her natal house
where she stayed over for a period of about 1-1/2 years. She returned to
the matrimonial house with the repeated intervention of the Biradari, in
the month of June, 1983, when the marriage of two sisters of the
respondent was solemnised. On that visit, the appellant stayed over at the
matrimonial house for a period of about 5-6 months whereafter she again
went over to her natal house in the month of January, 1984. She has not
returned to the matrimonial house thereafter, inspite of repeated requests
in the relevant behalf. Even during the stay of 5-6 months at the
matrimonial house, she would always quarrel with the respondent and
other members of his family, she would maltreat her aged mother-in-law
and would not provide two square meals to her and she was in the habit of
announcing that she would abandon the matrimonial house on account of
the inability on the part of the respondent to procreate.
On the above foundational premise, the respondent-husband
applied for the grant of a decree of divorce on plea of cruelty and
desertion.
The appellant denied the allegations of the respondent. She
alleged that the present petition deserves to be dismissed as it had been
filed after an unexplained delay of 11 years. On facts, the appellant
alleged that she never picked up quarrel with the respondent or the other
members of his family but that she was belaboured by the respondent and
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other members of his family who were not satisfied with the adequacy of
the dowry brought by her. It was averred in the context that, on one
particular occasion, two sisters and a son of Shiv Ram belaboured the
appellant and tried to set her afire, with the help of certain others. The
appellant could save herself by going over to the roof of the house. The
occurrence was witnessed by the entire village. It was thereafter on the
following day that Shiv Ram (father of respondent) and his two sons Gian
Singh and Tejvir fetched the appellant to her natal house and left her there
only. It was further averred that it was Prem Lata, a sister-in-law of the
appellant, who used to provide money to the respondent for taking liquor
and it was at her asking and at the instance of his mother that the
respondent would belabour her after bolting the door from inside. She
averred that she had been brought to the matrimonial house just in order to
avoid social stigma. It was during that period (of her stay at the
matrimonial house) that father of the respondent obtained a sum of
Rs.3200/- from her father on the pretext of paying instalment for the
purchase of a tractor. That amount was never returned by the father of the
respondent to the father of the appellant.
The trial proceeded on the following issues:-
“1. Whether the petitioner is entitled to the decree of
divorce on the grounds of cruelty and desertion, as
alleged ? OPP
2. Relief”
The learned Trial Court recorded a finding of fact that the
respondent-husband had not been able to prove that the appellant-wife
had treated him with cruelty. However, the allegation of the respondent-
husband on point of desertion was upheld. The Trial Judge noticed a plea
on behalf of the appellant-wife for dismissal of petition as having been filed
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by unexplained delay. The averment was negatived by observing that the
respondent validly delayed the filing of petition to await the outcome of the
prosecution under Section 498-A IPC which the appellant-wife had
launched against him.
I have heard Mr. S.K.Dalal, learned counsel for the appellant
and Mr. S.K.Garg Narwana, learned counsel for the respondent and have
been through the record.
Learned counsel, appearing on behalf of the appellant-wife,
argues that the finding on point of cruelty deserves to be invalidated in
view of the fact that there is clinching evidence available on record to prove
that the appellant had been subjected dowry-related torture and she had
been repeatedly thrown out of the matrimonial house after having been
belaboured.
The plea deserves to be merely noticed to be discarded.
In the context, learned Trial Court noticed that the allegation
levelled by the respondent-husband was only indicative of what could be
safely termed as normal wear and tear of married life. It is apparent from
the record that the respondent had not been able to indicate any precise
instance of required level of gravity which could invite a charge of cruelty
against the appellant-wife. It was appropriately noticed by the learned
Trial Judge that the attribution that the appellant accused the respondent
to be impotent was an after thought because no such plea had been taken
up in the course of written reply which the respondent-husband had been
filed in the proceedings under Section 125 Cr.P.C. A copy thereof is
available on record as Ex. R/1. If a wife accuses her husband of
impotence, the latter is not likely to forget it and there is no reason why he
would not raise that plea in the counter filed in the proceedings under
Section 125 Cr.P.C.
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Insofar as the allegation about the attempted setting of the
appellant afire is concerned, it was only supported by the self-serving
statement of the appellant herself. Insofar as RW-2 Labh Singh and RW-3
Ajmer Singh are concerned, they did not even utter a word which could be
said to be relat-able to the allegation in that behalf.
However, insofar as the plea of desertion is concerned, it is
proved by the conceded position that the appellant-wife is staying away
from the matrimonial house for the last more than 11 years. She is not
averred to have filed a plea under Section 9 of the Hindu Marriage Act
during that period. In the normal course of things, the parents of an
estranged bride would go whole-hog to explore all possible avenues of
reconciliation with the bridegroom side. The effort in that behalf could be
in the form of filing of a petition under Section 9 of the Hindu Marriage Act
or by securing the services of Biradri Panchayat or respectables. Though
the appellant-wife testified on oath that she is still willing to live with the
respondent, the circumstances available on record are not supportive of
the genuineness of that offer made by her, particularly when it is common
ground that the petition filed by her under Section 125 Cr.P.C. and also a
complaint filed by her Section 498-A IPC, is still pending consideration of
the Court. In the light of that conduct on the part of the appellant-wife, it
can be justly said that she had no reasonable ground to stay away from the
matrimonial house. The finding recorded by the learned Trial Judge on
point of desertion shall stand upheld.
The finding upholding the plea of respondent-husband on
point of desertion notwithstanding, the riddle is not solved for the
respondent who has not been able to explain why this petition was filed
after delay of 11 years.
It is apparent from a perusal of Section 23 of the Hindu
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Marriage Act that before a decree is passed in any proceedings for divorce
under this Act (whether defended or not), the Court has to be satisfied that
there has not been any unnecessary or improper delay in instituting the
proceedings. As a necessary corollary thereof, the Court would be entitled
to decline the relief to the petitioning party if it is found that the plea for
divorce had been filed after (unexplained and) unreasonable delay.
The only explanation offered by the respondent-husband in
the context is that he delayed the filing of the petitioner to await the
outcome of the prosecution under Section 498-A IPC which had been
launched against him by the appellant-wife. That explanation was
accepted by the learned Trial Judge for thoroughly unsustainable reasons.
It is not even the plea on behalf of the respondent-husband that the
proceedings under Section 498-A IPC have concluded till date. On the
other hand, the appellant-wife testified on oath that the petition filed by
her under Section 125 Cr.P.C. and also the complaint filed by her under
Section 498-A IPC against the husband are still pending. That part of the
statement was not challenged in the course of cross-examination. The
respondent also did not place on record any copy of the order which could
indicate the conclusion either of the above two proceedings. Apart
therefrom, it is plainly illogical on the part of the respondent-husband to
have justified the delay of 11 years in filing of the petition just on account of
pendency of above two litigation against him.
This part of the controversy has to be appreciated in the light
of the following facts:-
As per the statement of the respondent-husband, the
appellant-wife is residing at her natal house since the year 1984. She filed
the private complaint against the respondent and members of his family in
the year 1983. Initially, it was in the year 1988 that the appellant-wife is
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alleged to have accused the respondent to be impotent. It is in the
statement of the respondent-husband that she told Satpal in the month of
May and June, 1983 that the respondent is impotent. Apart therefrom, the
respondent conceded having refrained from mentioning that fact in the
course of the counter filed by him in the course of proceedings under
Section 125 Cr.P.C. The idea of reproducing these record-based facts is
to indicate that, on the own showing of the respondent, it had become clear
to him long ago that the appellant had been acting malafide and in an
unjust manner vis-a-vis him and she did not appear to have left any scope
for resumption of the matrimonial relationship by having labelled the
respondent as impotent and by his launching two proceedings (one under
Section 125 Cr.P.C. and other 498-A IPC). In this view of things, he
cannot be said to have acted bonafide in delaying the filing of the present
divorce petition for a period of 11 years. In that view of things, it is
apparent that plea taken up by the respondent to explain the delay in filing
of the petition is a plain lie and a ruse to get over the provisions of Section
23 of the Hindu Marriage Act.
Reliance placed by the Trial Judge upon 1991(1) S.L.J. 171
in support of that finding is thoroughly misconceived. The tenor of
language recorded by the learned Trial Judge in the context would
indicate that delay in filing of the petition was validated by the judicial
pronouncement reported as Om Parkash Dhawan Vs. Meena Dhawan
1991(1) S.L.J. 171. In fact, nothing of the sort was held by the Division
Bench of this Court in Om Parkash Dhawan’s case (supra). That was a
case in which the Trial Court held that the wife had not been able to
produce any cogent evidence to justify her living separately from the
husband. She was, accordingly, held guilty of a charge of desertion. That
finding was reversed by the learned Single Judge by holding that the
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record indicated that she had been compelled to live away from the
matrimonial home because of husband’s unwillingness to keep her. It was
further recorded that there was evidence to prove that there was no
intention on her part to end co-habitation. Apart therefrom, the learned
Single Judge also found that there was unexplained delay of more than
seven years in filing of the petition. The learned Single Judge reversed
the finding recorded by the learned Trial Judge on merits and also on
account of delay. The latter finding was contested on a plea that no issue
in the context had been framed and in the absence of an issue on that
point, the divorce petition could not have been dismissed. This Court held
that even if there was no issue to that effect, a plea to that effect had
instead been taken in the written statement and that averment had been
contested in the replication too. It was further held that the provisions of
Section 23 of the Hindu Marriage Act require the Court “to be satisfied that
there has not been any unnecessary or improper delay in instituting the
proceedings.” This Court further observed that a duty was thereby cast
upon the Court “to see that there was no proper delay even if, the
proceedings were not defended by the party.” Thus, this Court had only
reiterated the law apparent from provision itself. This Court nowhere
validated the delay of seven years in filing of the petition in that case. The
learned Trial Court inappropriately relied upon that ruling in support of the
finding.
The view obtained by the learned Trial Judge in the context is
perverse and thoroughly unsustainable. It (view) is also not reflective of
responsible and appropriate appreciation of facts at the hands of the
learned Trial Court. A litigation under the Hindu Marriage Act, obviously,
not only affects the personal relationship between the parties, it also has
momentous emotional affect on the offsprings of the union and other
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segments of the family. In that view of things, the handling of a litigation
under the Act calls for a more mature and transparent handling in the
matter of appreciation of evidence by a Court.
In the light of fore-going discussion, the appeal shall stand
allowed. The upholding of the finding on point of desertion
notwithstanding, the petition filed by the respondent-husband shall stand
dismissed as having been filed after unnecessary and improper delay.
January 12, 2009 (S. D. ANAND) Pka JUDGE Note: Whether to be referred to Reporter : Yes/No