{"id":120045,"date":"2009-03-31T00:00:00","date_gmt":"2009-03-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/avtar-singh-vs-smt-rajinder-kaur-on-31-march-2009"},"modified":"2015-02-28T19:48:01","modified_gmt":"2015-02-28T14:18:01","slug":"avtar-singh-vs-smt-rajinder-kaur-on-31-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/avtar-singh-vs-smt-rajinder-kaur-on-31-march-2009","title":{"rendered":"Avtar Singh vs Smt. Rajinder Kaur on 31 March, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Avtar Singh vs Smt. Rajinder Kaur on 31 March, 2009<\/div>\n
F.A.O. No-60 of 2006                                 -1-\n\n                                    ****\n\n\n      IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n                      CHANDIGARH\n\n                        F.A.O. No-60 of 2006\n                        Date of decision: 31.3.2009\n\nAvtar Singh\n                                                     ...Appellant\n                                 Versus\n\nSmt. Rajinder Kaur                                   ...Respondent\n\n\nCORAM: HON'BLE MR. JUSTICE S.D.ANAND.\n\nPresent:     Ms. Jatinderjit Kaur, Advocate for the appellant.\n\n             Mr. Dhirinder Chopra, Advocate for respondent\n\n\nS.D.ANAND, J.\n<\/pre>\n
             The appellant-husband had filed a petition against the<\/p>\n
respondent-wife to obtain dissolution of their marriage on the plea of<\/p>\n
desertion and cruelty. The petition was rejected by the learned Trial<\/p>\n
Court vide order dated 3.2.2006.\n<\/p>\n
             The marriage between the parties was solemnised on<\/p>\n
17.7.1988.      The appellant-husband had          announced to the<\/p>\n
respondent-wife that he is a divorcee. The parties cohabited, as<\/p>\n
husband and wife, at village Tajpur till 21.9.1990. However, no issue<\/p>\n
was born out of their union. The respondent-wife was a headstrong<\/p>\n
lady. From the very inception of the marriage, she used to dictate<\/p>\n
terms to him just because the latter happened to be a divorcee. She<\/p>\n
was in the habit of abusing the appellant and his parents.           She<\/p>\n
would, at times, leave the matrimonial house unannounced.           After<\/p>\n
about 1-1\/2 months of the marriage, she confined herself in a room
\n F.A.O. No-60 of 2006                                 -2-<\/span><\/p>\n
                                   ****<\/p>\n
which could be got opened only after much persuasion.              The<\/p>\n
respondent-wife would announce that since she had been married to<\/p>\n
a divorcee against her wishes, she would not continue at the<\/p>\n
matrimonial house and would commit suicide. On one particular<\/p>\n
occasion, she held an insecticide tin in her hand and threatened to<\/p>\n
commit suicide.    The information with regard to her conduct was<\/p>\n
given to her parents who, instead of advising her, evaded<\/p>\n
responsibility and informed the appellant that it was his responsibility<\/p>\n
to look after her.     After sometime thereof, the appellant went<\/p>\n
overseas (United Kingdom) to earn livelihood. However, on account<\/p>\n
of the continued misbehaviour on the part of the respondent-wife, he<\/p>\n
had to get back home at the instance of his parents, and had to<\/p>\n
thereby miss the job opportunity.     However, even after his return<\/p>\n
home, things did not improve and the respondent-wife continued to<\/p>\n
misbehave with him and other members of his family. She would<\/p>\n
never cook food for them.       On    28.4.1989, she left the house<\/p>\n
unannounced and took away all her dowry articles and clothes. It is<\/p>\n
on account of the intervention of the Panchayat that she got back to<\/p>\n
the matrimonial home where she stayed over till 21.9.1990. Even<\/p>\n
during that period, she would, at times, leave the matrimonial home<\/p>\n
unannounced. On 23.5.1990, appellant-husband went over to the<\/p>\n
natal house of the respondent-wife to persuade her to get back to the<\/p>\n
matrimonial house. Piara Singh, maternal uncle of the respondent<\/p>\n
wife, abused and insulted him. On 21.9.1990, the respondent-wife<\/p>\n
came over to the matrimonial house in the company of her relations
\n F.A.O. No-60 of 2006                               -3-<\/span><\/p>\n
                                  ****<\/p>\n
including Manjit Singh and Piara Singh etc.      The party was also<\/p>\n
accompanied by a Police Constable.        The party threatened and<\/p>\n
insulted the entire family of the appellant who, thereupon, filed a<\/p>\n
divorce petition in the District Court, Jalandhar, which was withdrawn<\/p>\n
by him on 29.9.1992 as the parents of the respondent-wife<\/p>\n
demanded money for agreeing to the grant of mutual divorce. It was<\/p>\n
followed by a get together of common friends and relatives of the<\/p>\n
parties wherein the respondent-wife side caused injuries       to the<\/p>\n
father and a cousin of the appellant.      An FIR (No. 139 dated<\/p>\n
6.10.1990 under Sections 323\/324\/34 IPC) came to be lodged at<\/p>\n
Police Station Division No.4, Jalandhar.      It was on the above<\/p>\n
allegations that the appellant-husband filed a plea for divorce on an<\/p>\n
averment that the respondent-wife had through out treated him and<\/p>\n
members of his family with cruelty.\n<\/p>\n
           The respondent-wife pleaded estoppel, by act and<\/p>\n
conduct, on the part of the appellant-husband. She claimed that she<\/p>\n
stayed at the matrimonial house till 21.5.1990 and       that she was<\/p>\n
forced to abort a child on the premise that birth of a child would<\/p>\n
hinder her settlement in the UK. She was assured that she could<\/p>\n
beget a child after being at U.K. She denied having ever misbehaved<\/p>\n
with the appellant-husband in a cruel manner.       She also denied<\/p>\n
having ever attempted suicide or having held out a threat therefor.<\/p>\n
Qua the allegations pertaining to the circumstances under which the<\/p>\n
appellant-husband returned home from United Kingdom, it was<\/p>\n
averred that   he came back to India only because the period of
\n F.A.O. No-60 of 2006                                -4-<\/span><\/p>\n
                                   ****<\/p>\n
validity of the visa was over. That she was maltreated by the mother<\/p>\n
of the appellant-husband during the latter’s absence and that even<\/p>\n
medical aid was denied to her when she fell ill was the further<\/p>\n
averment. She proceeded to aver that she had been once to her<\/p>\n
natal house where she had stayed over for a period of about nine<\/p>\n
months and her restoration to the matrimonial house could be<\/p>\n
secured only with the intervention of the respectables.           Even<\/p>\n
thereafter when she came back to the matrimonial house, the<\/p>\n
behaviour of the appellant-husband and his mother did not change<\/p>\n
and they continued to taunt her       for having brought inadequate<\/p>\n
dowry. The appellant also told her that she was not of his liking.<\/p>\n
She denied that the divorce petition came to be withdrawn by the<\/p>\n
appellant-husband on 29.9.1992 on account of the demand raised by<\/p>\n
her parents for payment of money for the grant of a mutual divorce.<\/p>\n
She asserted that she is still ready and willing to live        in the<\/p>\n
matrimonial house with the appellant-husband and it is for that<\/p>\n
purpose that she had also filed a petition under Section 9 of the Act.<\/p>\n
           The trial proceeded on the following issues:-\n<\/p>\n
           1.    Whether the respondent has treated the petitioner<\/p>\n
           with cruelty?OPA<\/p>\n
           2.    Whether the respondent has deserted the petitioner<\/p>\n
           without any reasonable cause?OPA<\/p>\n
           3.    Whether the petitioner has not come to the Court<\/p>\n
           with clean hands?\n<\/p>\n
           4.    Relief.\n<\/p>\n
 F.A.O. No-60 of 2006                                 -5-<\/span><\/p>\n
                                    ****<\/p>\n
            The learned Trial Court recorded findings adverse to the<\/p>\n
appellant-husband under all the issues.       As a result thereof, the<\/p>\n
petition filed by the husband was ordered to be dismissed.<\/p>\n
            It was argued on behalf of the appellant-husband that the<\/p>\n
impugned findings deserve invalidation in view of the fact that there<\/p>\n
is plenty of evidence on the file to prove that the appellant-husband<\/p>\n
was always inclined to resume cohabitation and that it was always<\/p>\n
the respondent-wife who was a reluctant partner in the relevant<\/p>\n
behalf. Reliance, in support of the advocated view, was placed upon<\/p>\n
the fact that the appellant-husband had twice withdrawn the divorce<\/p>\n
petition filed by him<\/p>\n
            The plea advocated is completely denuded of merit. The<\/p>\n
reasons therefor are as under:-\n<\/p>\n
            It requires to be noticed, at the very outset, that it is<\/p>\n
apparent from the record that there is a decree under Section 9 of<\/p>\n
the Act in favour of the respondent-wife and against the appellant-<\/p>\n
husband and has not been complied with till date. In that context, it<\/p>\n
would be relevant to notice the statement made by the appellant-<\/p>\n
husband at the trial ( of the present case) that he is not ready and<\/p>\n
willing for resumption of cohabitation under any circumstances. That<\/p>\n
statement of his falsifies the plea advocated on his behalf (in the<\/p>\n
presentation before this Court) that he was always inclined to resume<\/p>\n
cohabitation and that it was always the respondent-wife who was the<\/p>\n
reluctant partner in that behalf.    Even otherwise, the fact that he<\/p>\n
twice filed divorce plea would also take the wind out of his sails in the
\n F.A.O. No-60 of 2006                                 -6-<\/span><\/p>\n
                                    ****<\/p>\n
relevant context. He did aver, in the context, that he had to withdraw<\/p>\n
those petitions as the respondent side insisted upon payment of<\/p>\n
certain amount before they could agree upon the grant of a mutual<\/p>\n
divorce. How exactly the question of payment came up defies logic.<\/p>\n
It was a pure and simple case in which he had filed divorce plea on<\/p>\n
various averments. It was not a case where the petition had been<\/p>\n
filed under Section 13-B of the Act. It is the only in that eventuality<\/p>\n
that a spouse could perhaps put up the indicated plea which (plea)<\/p>\n
would appear to be totally irrelevant to the filing of a divorce petition<\/p>\n
under the Act but not in terms of the provisions of Section 13-B of the<\/p>\n
Act.\n<\/p>\n
           Qua the suicide attempt by the respondent-wife,           the<\/p>\n
appellant-husband testified    that that her parents had been duly<\/p>\n
informed in the relevant behalf and that they, instead of advising<\/p>\n
her, evaded responsibility and informed the appellant that it was his<\/p>\n
responsibility to look after her.    The averment aforementioned is<\/p>\n
supported by the solitary and self-serving statement made by the<\/p>\n
appellant-husband himself. There is no evidence to corroborate the<\/p>\n
plea on behalf of the appellant-husband that the alleged attempted<\/p>\n
suicide (by the respondent-wife) had ever been intimated to her<\/p>\n
parents. If the respondent-wife was of a rude temperament from the<\/p>\n
very beginning and she had actually been holding out a threat that<\/p>\n
she would commit suicide, it would have been very natural on the<\/p>\n
part of the appellant-husband to intimate attempted suicide to the<\/p>\n
parents of the respondent-wife. If the respondent-wife had actually
\n F.A.O. No-60 of 2006                                 -7-<\/span><\/p>\n
                                   ****<\/p>\n
attempted suicide, it was enough to give a signal to the appellant-<\/p>\n
husband that she meant trouble and it would bring him into conflict<\/p>\n
with the law. There is no proof that the attempted suicide by the<\/p>\n
respondent-wife was ever brought to the notice of the parents of the<\/p>\n
respondent-wife.\n<\/p>\n
             Insofar as the the other allegations of cruelty         are<\/p>\n
concerned, those are supported by the solitary statement of the<\/p>\n
appellant himself. If there was even an iota of truth in the allegations<\/p>\n
in the relevant behalf, there is no reason why he could not have<\/p>\n
atleast examined his mother. By the very nature of things, she was<\/p>\n
the best circumstanced to own up the averment. He had also not<\/p>\n
offered an explanation about why his mother was not examined at<\/p>\n
the trial.   Apart therefrom, the relevant allegations are general in<\/p>\n
character and cannot form the basis of grant of a decree of divorce.<\/p>\n
             It stands already noticed that     the appellant-husband<\/p>\n
made a precise averment that he had been to UK for earning<\/p>\n
livelihood but that he had to get back home because of the<\/p>\n
misbehaviour of the respondent-wife during his absence. Countering<\/p>\n
that allegation, the respondent-wife raised a precise plea that the<\/p>\n
appellant-husband came home only because the period of validity of<\/p>\n
the visa was over.      The onus, thus, was upon           the appellant-<\/p>\n
husband to prove the falsity of the allegation levelled by the<\/p>\n
respondent-wife.      The appellant-husband      could best do it by<\/p>\n
producing some letter etc. which his mother may have addressed to<\/p>\n
him in the relevant behalf. He could very well prove that fact by
\n F.A.O. No-60 of 2006                                 -8-<\/span><\/p>\n
                                   ****<\/p>\n
examining his mother whose testimony could have thereby been<\/p>\n
tested on the touchstone of cross-examination. He could produce his<\/p>\n
visa to disprove the allegation by the respondent-wife that he came<\/p>\n
home only because the period of validity of the visa was over. No<\/p>\n
steps were taken by the appellant-husband in the relevant behalf.<\/p>\n
           It also requires pointed        notice that     the appellant-<\/p>\n
husband raised a plea at the trial that he used to receive threatening<\/p>\n
letters from the militants in the context of strained relations with the<\/p>\n
respondent-wife. As correctly noticed by the learned Trial Court, the<\/p>\n
appellant-husband did not produce any such letter on record.<\/p>\n
Further, as correctly noticed by the learned Trial Court, the parties<\/p>\n
are residing separately since long and       the appellant-husband had<\/p>\n
filed two divorce petitions during that period of separation,     both of<\/p>\n
which were withdrawn by him (one on 29.9.1992 and another on<\/p>\n
21.11.1994). The averment made by him that he had withdrawn the<\/p>\n
divorce petitions because the parents of the respondent-wife had<\/p>\n
demanded the money to agree for mutual divorce is neither here not<\/p>\n
there. An estranged spouse is not required to make any prayer the<\/p>\n
parents of the other spouse with a view to pursue the divorce plea.,<\/p>\n
particularly when it was not a plea filed under Section 13-B of the<\/p>\n
Hindu Marriage Act. Apart therefrom, interestingly enough, the<\/p>\n
appellant-husband had raised a plea at the trial that there had been<\/p>\n
a documented compromise vide which it had been agreed that the<\/p>\n
parties would agree to a mutual divorce on payment of alimony of<\/p>\n
Rs.75,000\/-.   No such document           had been proved on record.
\n F.A.O. No-60 of 2006                                -9-<\/span><\/p>\n
                                   ****<\/p>\n
Insofar as       the incident dated 23.5.1990 is concerned, the only<\/p>\n
witness examined in the relevant behalf is PW-2 Karamjit Singh.<\/p>\n
That witness had to concede, in the course of cross-examination at<\/p>\n
the trial, that he was actually not present at the spot and that he<\/p>\n
reached the spot later on. It cannot, thus, be said that the appellant-<\/p>\n
husband had been able to prove that any incident had taken place<\/p>\n
(on 23.5.1990 ).\n<\/p>\n
             Even otherwise, it requires pointed      notice that the<\/p>\n
respondent-wife is proved on record to have filed a petition under<\/p>\n
Section 9 of the Act which came to be decreed on 3.2.2006. The<\/p>\n
appellant-husband was very forthright in the course of cross-<\/p>\n
examination when he testified that he is not ready and willing for<\/p>\n
resumption of cohabitation under any circumstances.         The facts,<\/p>\n
thus, evidence that the respondent-wife        is inclined to resume<\/p>\n
cohabitation and she filed a petition under Section 9 of the Act for<\/p>\n
that purpose only; whereas the appellant-husband had categorically<\/p>\n
testified that      he is not ready and willing for resumption of<\/p>\n
cohabitation under any circumstances and it is not even the<\/p>\n
averment on behalf of the appellant-husband that he had complied<\/p>\n
with the decree under Section 9 of the Act.\n<\/p>\n
             The appellant-husband had, thus, not been able to prove<\/p>\n
that the respondent-wife had deserted him or was guilty of any act of<\/p>\n
cruelty vis-a-vis him.    The material obtaining on the file is proof<\/p>\n
adequate enough of the fact that the appellant-husband had<\/p>\n
maltreated the respondent-wife and it is that mal-treatment on
\n F.A.O. No-60 of 2006                                         -10-<\/span><\/p>\n
                                       ****<\/p>\n
account of which          the respondent-wife is compulsively, nay<\/p>\n
unwillingly, putting up at her natal house.\n<\/p>\n
            There was an averment by the appellant-husband that he<\/p>\n
had been belaboured by certain relations of the respondent-wife and<\/p>\n
he had lodged an FIR in the relevant behalf. However, the appellant<\/p>\n
conceded in the course of cross-examination that the accused in that<\/p>\n
case were acquitted by the Court. The factum of the alleged episode<\/p>\n
does not, thus, advance the appellant-husband’s case in any<\/p>\n
manner.\n<\/p>\n
            The following facts can safely be culled out from the<\/p>\n
above discussion:-\n<\/p>\n
           a)    There is a valid decree under Section 9 of the Act in<\/p>\n
                 favour of the respondent-wife and against the<\/p>\n
                 petitioner-husband who has not complied with it till<\/p>\n
                 date.     On the other hand, the appellant-husband<\/p>\n
                 has made a categorical averment in the present trial<\/p>\n
                 to the effect that he is not ready and willing for<\/p>\n
                 resumption        of         cohabitation          under   any<\/p>\n
                 circumstances.\n<\/p><\/blockquote>\n
           b)    The appellant-husband has not been able to prove<\/p>\n
                 the     allegations    that    the   respondent-wife       had<\/p>\n
                 deserted him or was guilty of having committed any<\/p>\n
                 act of cruelty vis-a-vis him. On the other hand, the<\/p>\n
                 material available on the file is proof adequate<\/p>\n
                 enough of the fact that it was the appellant-husband
\n F.A.O. No-60 of 2006                               -11-<\/span><\/p>\n
                                 ****<\/p>\n
                 who had maltreated her, thereby compelling her to<\/p>\n
                 be away from the matrimonial house.<\/p><\/blockquote>\n
           For the reasons noticed above, the appeal is held to be<\/p>\n
denuded of merit and is ordered to be dismissed.<\/p>\n
March 31, 2009                                     (S.D.Anand)\nPka                                                  Judge\n F.A.O. No-60 of 2006          -12-<\/span>\n\n                       ****\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Avtar Singh vs Smt. Rajinder Kaur on 31 March, 2009 F.A.O. No-60 of 2006 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No-60 of 2006 Date of decision: 31.3.2009 Avtar Singh …Appellant Versus Smt. Rajinder Kaur …Respondent CORAM: HON’BLE MR. JUSTICE S.D.ANAND. Present: Ms. Jatinderjit Kaur, Advocate […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-120045","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nAvtar Singh vs Smt. 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