{"id":218499,"date":"2009-01-12T00:00:00","date_gmt":"2009-01-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nachhatro-alias-asha-kumari-vs-naib-singh-on-12-january-2009"},"modified":"2016-04-04T06:49:35","modified_gmt":"2016-04-04T01:19:35","slug":"nachhatro-alias-asha-kumari-vs-naib-singh-on-12-january-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nachhatro-alias-asha-kumari-vs-naib-singh-on-12-january-2009","title":{"rendered":"Nachhatro Alias Asha Kumari vs Naib Singh on 12 January, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Nachhatro Alias Asha Kumari vs Naib Singh on 12 January, 2009<\/div>\n
F.A.O. No.101-M of 1997                               -1-\n\n                                     ***\n\nIN THE HIGH COURT OF PUNJAB AND HARYANA\nAT CHANDIGARH\n\n                        F.A.O. No.101-M of 1997\n                        Date of decision : 12.01.2009\n\nNachhatro alias Asha Kumari                           .....Appellant\n\n                        Versus\nNaib Singh                                            ...Respondent\n\n                              ****\n\nCORAM : HON'BLE MR. JUSTICE S. D. ANAND\n\nPresent: Mr. S.K.Dalal, Advocate for the appellant.\n\n           Mr. S.K.Garg Narwana, Advocate for the respondent.\n\n\nS. D. ANAND, J.\n<\/pre>\n
             The marriage between the parties was solemnised, as per<\/p>\n
Hindu rites and ceremonies, on 28.5.1981. The respondent-husband filed<\/p>\n
a petition for dissolution of the marriage, by a decree of divorce, on<\/p>\n
allegations which may be indicated as under:-\n<\/p>\n
             After having cohabited at the matrimonial house for sometime,<\/p>\n
the appellant-wife went over to her natal house. After a stay of a week<\/p>\n
over there, she returned to the matrimonial house and stayed over for<\/p>\n
about two months. However, no issue was born out of the union of the<\/p>\n
parties.\n<\/p>\n
             The appellant would     always pick up a quarrel with the<\/p>\n
respondent and other members of his family, on one pretext or the other,<\/p>\n
and would always announce her intention to separate from the family.<\/p>\n
That sentiment of her was not agreed upon by the petitioner as he has<\/p>\n
aged parents and is duty bound to serve them.    Appellant would also tell
\n F.A.O. No.101-M of 1997                                     -2-<\/span><\/p>\n
                                      ***
\nthe respondent and members of his family that she comes from a very rich<\/p>\n
family where very high standard of living was maintained and that mediator<\/p>\n
in the marriage had cheated her by getting her married into a poor family to<\/p>\n
which the respondent belongs. The appellant also told the respondent<\/p>\n
that the latter was impotent and that she would not stay with him any<\/p>\n
longer on account of his inability to procreate.    After a stay of about 2-3<\/p>\n
months at the matrimonial house, she again went over to her natal house<\/p>\n
where she stayed over for a period of about 1-1\/2 years. She returned to<\/p>\n
the matrimonial house with the repeated intervention of the Biradari, in<\/p>\n
the month of June, 1983, when the marriage of two sisters of the<\/p>\n
respondent was solemnised. On that visit, the appellant stayed over at the<\/p>\n
matrimonial house for a period of about 5-6 months whereafter she again<\/p>\n
went over to her natal house in the month of January, 1984. She has not<\/p>\n
returned to the matrimonial house thereafter, inspite of repeated requests<\/p>\n
in the relevant behalf.     Even during the stay of 5-6 months at the<\/p>\n
matrimonial house, she would always quarrel with the respondent and<\/p>\n
other members of his family, she would maltreat her aged mother-in-law<\/p>\n
and would not provide two square meals to her and she was in the habit of<\/p>\n
announcing that she would abandon the matrimonial house on account of<\/p>\n
the inability on the part of the respondent to procreate.<\/p>\n
             On the above foundational premise, the respondent-husband<\/p>\n
applied for the grant of a decree of divorce on plea of cruelty and<\/p>\n
desertion.\n<\/p>\n
             The appellant denied the allegations of the respondent. She<\/p>\n
alleged that the present petition deserves to be dismissed as it had been<\/p>\n
filed after an unexplained delay of 11 years.        On facts, the appellant<\/p>\n
alleged that she never picked up quarrel with the respondent or the other<\/p>\n
members of his family but that she was belaboured by the respondent and
\n F.A.O. No.101-M of 1997                                  -3-<\/span><\/p>\n
                                      ***
\nother members of his family who were not satisfied with the adequacy of<\/p>\n
the dowry brought by her.      It was averred in the context that, on one<\/p>\n
particular occasion, two sisters and a son of Shiv Ram belaboured the<\/p>\n
appellant and tried to set her afire, with the help of certain others. The<\/p>\n
appellant could save herself by going over to the roof of the house. The<\/p>\n
occurrence was witnessed by the entire village. It was thereafter on the<\/p>\n
following day that Shiv Ram (father of respondent) and his two sons Gian<\/p>\n
Singh and Tejvir fetched the appellant to her natal house and left her there<\/p>\n
only. It was further averred that it was Prem Lata, a sister-in-law of the<\/p>\n
appellant, who used to provide money to the respondent for taking liquor<\/p>\n
and it was at her asking and at the instance of his mother that the<\/p>\n
respondent would belabour her after bolting the door from inside.        She<\/p>\n
averred that she had been brought to the matrimonial house just in order to<\/p>\n
avoid social stigma.     It was during that period (of her stay at the<\/p>\n
matrimonial house) that father of the respondent obtained a sum of<\/p>\n
Rs.3200\/- from her father on the pretext of paying instalment         for the<\/p>\n
purchase of a tractor. That amount was never returned by the father of the<\/p>\n
respondent to the father of the appellant.\n<\/p>\n
            The trial proceeded on the following issues:-\n<\/p>\n
            “1.    Whether the petitioner is entitled to the decree of<\/p>\n
                   divorce on the grounds of cruelty and desertion, as<\/p>\n
                   alleged ? OPP<\/p>\n
            2.     Relief”\n<\/p>\n
            The learned Trial Court recorded a finding of fact that the<\/p>\n
respondent-husband had not been able to prove that the appellant-wife<\/p>\n
had treated him with cruelty. However, the allegation of the respondent-<\/p>\n
husband on point of desertion was upheld. The Trial Judge noticed a plea<\/p>\n
on behalf of the appellant-wife for dismissal of petition as having been filed
\n F.A.O. No.101-M of 1997                                  -4-<\/span><\/p>\n
                                      ***
\nby unexplained delay. The averment was negatived by observing that the<\/p>\n
respondent validly delayed the filing of petition to await the outcome of the<\/p>\n
prosecution under Section 498-A IPC which the appellant-wife had<\/p>\n
launched against him.\n<\/p>\n
              I have heard Mr. S.K.Dalal, learned counsel for the appellant<\/p>\n
and Mr. S.K.Garg Narwana, learned counsel for the respondent and have<\/p>\n
been through the record.\n<\/p>\n
              Learned counsel, appearing on behalf of the appellant-wife,<\/p>\n
argues that the finding on point of cruelty deserves to be invalidated in<\/p>\n
view of the fact that there is clinching evidence available on record to prove<\/p>\n
that the appellant had been subjected dowry-related torture and she had<\/p>\n
been repeatedly thrown out of the matrimonial house after having been<\/p>\n
belaboured.\n<\/p>\n
              The plea deserves to be merely noticed to be discarded.<\/p>\n
              In the context, learned Trial Court noticed that the allegation<\/p>\n
levelled by the respondent-husband was only indicative of what could be<\/p>\n
safely termed as normal wear and tear of married life. It is apparent from<\/p>\n
the record that the respondent had not been able to indicate any precise<\/p>\n
instance of required level of gravity which could invite a charge of cruelty<\/p>\n
against the appellant-wife.    It was appropriately noticed by the learned<\/p>\n
Trial Judge that the attribution that the appellant accused the respondent<\/p>\n
to be impotent was an after thought because no such plea had been taken<\/p>\n
up in the course of written reply which the respondent-husband had been<\/p>\n
filed in the proceedings under Section 125 Cr.P.C. A copy       thereof     is<\/p>\n
available on record as Ex. R\/1.       If a wife   accuses her husband of<\/p>\n
impotence, the latter is not likely to forget it and there is no reason why he<\/p>\n
would not raise that plea in the counter filed in the proceedings under<\/p>\n
Section 125 Cr.P.C.\n<\/p>\n
 F.A.O. No.101-M of 1997                                      -5-<\/span><\/p>\n
                                         ***
\n             Insofar as the allegation about the attempted setting of the<\/p>\n
appellant afire is concerned, it was only supported by the self-serving<\/p>\n
statement of the appellant herself. Insofar as RW-2 Labh Singh and RW-3<\/p>\n
Ajmer Singh are concerned, they did not even utter a word which could be<\/p>\n
said to be relat-able to the allegation in that behalf.<\/p>\n
             However, insofar as the plea of desertion is concerned, it is<\/p>\n
proved by the conceded position that the appellant-wife is staying away<\/p>\n
from the matrimonial house for the last more than 11 years. She is not<\/p>\n
averred to have filed a plea under Section 9 of the Hindu Marriage Act<\/p>\n
during that period.    In the normal course of things, the parents of an<\/p>\n
estranged bride would go whole-hog to explore all possible avenues of<\/p>\n
reconciliation with the bridegroom side. The effort in that behalf could be<\/p>\n
in the form of filing of a petition under Section 9 of the Hindu Marriage Act<\/p>\n
or by securing the services of Biradri Panchayat or respectables. Though<\/p>\n
the appellant-wife testified on oath that she is still willing to live with the<\/p>\n
respondent, the circumstances available on record are not supportive of<\/p>\n
the genuineness of that offer made by her, particularly when it is common<\/p>\n
ground that the petition filed by her under Section 125 Cr.P.C. and also a<\/p>\n
complaint filed by her Section 498-A IPC, is still pending consideration of<\/p>\n
the Court. In the light of that conduct on the part of the appellant-wife, it<\/p>\n
can be justly said that she had no reasonable ground to stay away from the<\/p>\n
matrimonial house. The finding recorded by the learned Trial Judge on<\/p>\n
point of desertion shall stand upheld.\n<\/p>\n
             The finding upholding the plea of respondent-husband on<\/p>\n
point of desertion notwithstanding,            the riddle is not solved for the<\/p>\n
respondent who has not been able to explain why this petition was filed<\/p>\n
after delay of 11 years.\n<\/p>\n
             It is apparent from a perusal          of Section 23 of the Hindu
\n F.A.O. No.101-M of 1997                                    -6-<\/span><\/p>\n
                                       ***
\nMarriage Act that before a decree is passed in any proceedings for divorce<\/p>\n
under this Act (whether defended or not), the Court has to be satisfied that<\/p>\n
there has not been any unnecessary or improper delay in instituting the<\/p>\n
proceedings. As a necessary corollary thereof, the Court would be entitled<\/p>\n
to decline the relief to the petitioning party if it is found that the plea for<\/p>\n
divorce had been filed after (unexplained and) unreasonable delay.<\/p>\n
             The only explanation offered by the respondent-husband in<\/p>\n
the context is that he delayed the filing of the petitioner to await the<\/p>\n
outcome of the prosecution under Section 498-A IPC which had been<\/p>\n
launched against him by the appellant-wife.            That explanation was<\/p>\n
accepted by the learned Trial Judge for thoroughly unsustainable reasons.<\/p>\n
It is not even the plea on behalf of the respondent-husband that the<\/p>\n
proceedings under Section 498-A IPC have concluded till date. On the<\/p>\n
other hand, the appellant-wife testified on oath that the petition filed by<\/p>\n
her under Section 125 Cr.P.C. and also the complaint filed by her under<\/p>\n
Section 498-A IPC against the husband are still pending. That part of the<\/p>\n
statement was not challenged in the course of cross-examination. The<\/p>\n
respondent also did not place on record any copy of the order which could<\/p>\n
indicate the conclusion either of the above two proceedings.               Apart<\/p>\n
therefrom, it is plainly illogical on the part of the respondent-husband to<\/p>\n
have justified the delay of 11 years in filing of the petition just on account of<\/p>\n
pendency of above two litigation against him.\n<\/p>\n
             This part of the controversy has to be appreciated in the light<\/p>\n
of the following facts:-\n<\/p>\n
             As per the statement of the respondent-husband, the<\/p>\n
appellant-wife is residing at her natal house since the year 1984. She filed<\/p>\n
the private complaint against the respondent and members of his family in<\/p>\n
the year 1983. Initially, it was in the year 1988 that the appellant-wife is
\n F.A.O. No.101-M of 1997                                   -7-<\/span><\/p>\n
                                      ***
\nalleged to have accused the respondent to be impotent.            It is in the<\/p>\n
statement of the respondent-husband that she told Satpal in the month of<\/p>\n
May and June, 1983 that the respondent is impotent. Apart therefrom, the<\/p>\n
respondent conceded having refrained from mentioning that fact in the<\/p>\n
course of the counter filed by him in the course of proceedings under<\/p>\n
Section 125 Cr.P.C. The idea of reproducing these record-based facts is<\/p>\n
to indicate that, on the own showing of the respondent, it had become clear<\/p>\n
to him long ago that the appellant had been acting malafide and in an<\/p>\n
unjust manner vis-a-vis him and she did not appear to have left any scope<\/p>\n
for resumption    of the matrimonial relationship by having labelled the<\/p>\n
respondent as impotent and by his launching two proceedings (one under<\/p>\n
Section 125 Cr.P.C. and other 498-A IPC).         In this view of things, he<\/p>\n
cannot be said to have acted bonafide in delaying the filing of the present<\/p>\n
divorce petition for   a period of 11 years.     In that view of things, it is<\/p>\n
apparent that plea taken up by the respondent to explain the delay in filing<\/p>\n
of the petition is a plain lie and a ruse to get over the provisions of Section<\/p>\n
23 of the Hindu Marriage Act.\n<\/p>\n
            Reliance placed by the Trial Judge upon 1991(1) S.L.J. 171<\/p>\n
in support of that finding is thoroughly misconceived.          The tenor of<\/p>\n
language recorded      by the learned Trial Judge in the context would<\/p>\n
indicate that delay in filing of the petition was validated by the judicial<\/p>\n
pronouncement reported as Om Parkash Dhawan Vs. Meena Dhawan<\/p>\n
1991(1) S.L.J. 171. In fact, nothing of the sort was held by the Division<\/p>\n
Bench of this Court in Om Parkash Dhawan’s case (supra). That was a<\/p>\n
case in which the Trial Court held that the wife had not been able to<\/p>\n
produce any cogent evidence to justify her living separately from the<\/p>\n
husband. She was, accordingly, held guilty of a charge of desertion. That<\/p>\n
finding was reversed by the learned Single Judge by holding that the
\n F.A.O. No.101-M of 1997                                  -8-<\/span><\/p>\n
                                         ***
\nrecord indicated that she had been compelled to live away from the<\/p>\n
matrimonial home because of husband’s unwillingness to keep her. It was<\/p>\n
further recorded that there was evidence to prove that there was no<\/p>\n
intention on her part to end co-habitation. Apart therefrom, the learned<\/p>\n
Single Judge also found that there was unexplained delay of more than<\/p>\n
seven years in filing of the petition.    The learned Single Judge reversed<\/p>\n
the finding recorded by the learned Trial Judge on merits and also on<\/p>\n
account of delay. The latter finding was contested on a plea that no issue<\/p>\n
in the context had been framed and in the absence of an issue on that<\/p>\n
point, the divorce petition could not have been dismissed. This Court held<\/p>\n
that even if there was no issue to that effect, a plea to that effect had<\/p>\n
instead been taken in the written statement and that averment had been<\/p>\n
contested in the replication too. It was further held that the provisions of<\/p>\n
Section 23 of the Hindu Marriage Act require the Court “to be satisfied that<\/p>\n
there has not been any unnecessary or improper delay in instituting the<\/p>\n
proceedings.” This Court further observed that a duty was thereby cast<\/p>\n
upon the Court “to see that there was no proper delay even if, the<\/p>\n
proceedings were not defended by the party.” Thus, this Court had only<\/p>\n
reiterated the law apparent from provision itself.      This Court nowhere<\/p>\n
validated the delay of seven years in filing of the petition in that case. The<\/p>\n
learned Trial Court inappropriately relied upon that ruling in support of the<\/p>\n
finding.\n<\/p>\n
            The view obtained by the learned Trial Judge in the context is<\/p>\n
perverse and thoroughly unsustainable. It (view) is also not reflective of<\/p>\n
responsible and appropriate appreciation of facts at the hands of the<\/p>\n
learned Trial Court. A litigation under the Hindu Marriage Act, obviously,<\/p>\n
not only affects the personal relationship between the parties, it also has<\/p>\n
momentous     emotional affect on the offsprings of the union and other
\n F.A.O. No.101-M of 1997                                     -9-<\/span><\/p>\n
                                     ***
\nsegments of the family. In that view of things, the handling of a litigation<\/p>\n
under the Act calls for a more mature and transparent handling in the<\/p>\n
matter of appreciation of evidence by a Court.\n<\/p>\n
            In the light of fore-going discussion, the appeal shall stand<\/p>\n
allowed.     The   upholding   of   the    finding   on    point   of   desertion<\/p>\n
notwithstanding, the petition filed by the respondent-husband shall stand<\/p>\n
dismissed as having been filed after unnecessary and improper delay.<\/p>\n
January 12, 2009                                          (S. D. ANAND)\nPka                                                           JUDGE\n\nNote: Whether to be referred to Reporter : Yes\/No\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Nachhatro Alias Asha Kumari vs Naib Singh on 12 January, 2009 F.A.O. No.101-M of 1997 -1- *** 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 **** CORAM : HON’BLE MR. JUSTICE S. […]<\/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-218499","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nNachhatro Alias Asha Kumari vs Naib Singh on 12 January, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/nachhatro-alias-asha-kumari-vs-naib-singh-on-12-january-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nachhatro Alias Asha Kumari vs Naib Singh on 12 January, 2009 - 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