It has already been observed above that the trial Court had put a
specific question to the appellant as to whether she was willing to live with the
respondent, to which she replied in negative and the reason given by her was
that her husband was drug addict and was doing nothing and, therefore, she did
not want to live with him. The court held that the actual reason for separation of
the parties was the illness of the respondent and not on account of any cruelty on
the part of the respondent. This conclusion by the trial Court is quite far-fetched
because since the appellant is seeking divorce, she would naturally have said
that she did not want to live with her husband. If the husband is addicted to
drugs and is not earning anything, this itself is cruelty to the wife.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
FAO No.M-296 of 2012
Date of Decision:11.07.2014
Jasvir Kaur
Versus
Harjinder Singh
CORAM:
HON’BLE MR. JUSTICE S.S. SARON
HON’BLE MS. JUSTICE NAVITA SINGH
Citation; AIR 2014 P and H 187
Learned counsel for the appellant has been heard. Respondent was
proceeded against ex parte vide order dated 24.1.2014.
2.
The present appeal has been filed against the judgment and decree
dated 20.08.2012 passed by District Judge, Fatehgarh Sahib, vide which the
petition filed by Jasvir Kaur-appellant-wife was dismissed.
3.
The case of the appellant, in the petition filed by her, was that the
marriage between the parties took place on 19.11.1997 at village Bilaspur,
District Fatehgarh Sahib by Anand Karaj Ceremony and one female child was
born out of the wedlock. After the marriage, the respondent and his family
members started maltreating the appellant and demanded various dowry articles
including a motor-cycle. They started creating dispute over trivial matters and
even beat the appellant. The respondent was a drug addict and used to consume
some capsules and under intoxication, he used to subject the appellant to
physical torture. The appellant tried to persuade the respondent to treat her
properly but all her entreaties fell on deaf ears. The parties were residing
separately for more than two years before the date of presentation of the petition
and the respondent had deserted the appellant without any reasonable cause.
4.
The respondent, admitting the marriage and the birth of the child,
took a defence, denying the allegations on the ground that she had based her
case on falsehood. There was no demand of dowry nor the appellant was ever
physically or mentally tortured on account of dowry or for any other reason.
Whatever she had stated was a bundle of lies. It was pleaded that rather the
appellant was a careless woman and did not perform the marital obligations.
She used to leave matrimonial home without information to the respondent or
any other family member and did not take proper care of the daughter even. It
was denied that the respondent was addicted to any kind of intoxicating stuff. It
was admitted that the parties were residing separately for the period stated by
the appellant but it was not admitted that the respondent had deserted the
appellant. She had left the matrimonial home on her own and it was she who had
actually deserted the appellant. The respondent along with his mother and some
relatives including Gurbax Singh and Kuldeep Singh visited the parental home of
the appellant for requesting her to return to the matrimonial home but the efforts
proved fruitless.
5.
The following issues were settled by the court below: -
1.
Whether the respondent had treated the petitioner (now appellant) with
cruelty?OPP
2.
Whether the respondent has deserted the petitioner (now appellant)
continuously for a period of two years immediately preceding of filing of
this petition, without any reasonable cause and excuse?OPP
3.
6.
Relief.
It may be pointed out, at the outset, that it is mentioned in paras 7
and 11 of the impugned judgment that the defence of the respondent was struck
off vide order dated 4.5.2012 because he had not paid anything towards the
maintenance fixed by the trial Court under Section 24 of the Hindu Marriage Act
(Act for short). It is mentioned that the application filed under Section 24 of the
Act was allowed and maintenance to the tune of Rs.3500/- per month was
granted to the appellant and her daughter apart from litigation expenses from the
date of filing the application i.e. 5.5.2011. A warning was issued to the
respondent vide order dated 19.4.2012 that in case the maintenance was not
paid by him, his defence would be struck off. He did not comply with the order
and his defence was struck off on 4.5.2012. However, a perusal of the record
shows that the case was not even fixed for 4.5.2012, what to talk of the defence
of the respondent having been struck off on that date. A perusal of the entire
order sheet of the court below shows that there was no order at any place
regarding striking off the defence of the respondent. Furthermore, it is mentioned
in para 7 of the judgment that maintenance was granted at Rs.3500/- per month
together with litigation expenses of Rs.10,000/- whereas the order on the
application under Section 24 of the Act passed by District Judge, Fatehgarh
Sahib on 8.5.2010 shows that maintenance and litigation expenses were
quantified at Rs.1000/- per month and Rs.5000/- respectively. Thus, it is clear
that the defence of the respondent was not struck off at any time during the
proceeding.
7.
There is another mistake in the order of the trial Court in para 11 of
the judgment where it is mentioned that the respondent appeared as his own
witness as RW1. The daughter of the parties Jaspreet Kaur appeared as RW2
and after the examination of the said two witnesses, the defence of the
respondent was struck off vide order dated 4.5.2012. This is again a mistake
because the statement of the respondent was recorded on 22.5.2012 and that of
Jaspreet Kaur on 8.6.2012, therefore, there is no question of striking off the
defence on 4.5.2012 `after’ the statement of two witnesses were recorded. In any
case, it has already been noticed above that there is no such order passed on
4.5.2012.
8.
Regarding merits of the case, learned counsel for the appellant
argued that the appellant had proved that she was treated with cruelty and that
she had always been tortured for not bringing adequate dowry and there was no
demand of motor-cycle. She further stated in her evidence that the respondent
used to take some capsules and drugs and under the influence of drugs, he used
to subject her to physical and mental torture. The father of the appellant
appeared as PW2 and supported the version of his daughter. However, on the
other hand, besides the respondent himself, Jaspreet Kaur, daughter of the
parties, appeared as RW2, who was 13 years of age at the time of her testimony
and stated that her father never maltreated her mother. The trial Court held that
the case of the appellant received fatal blow when Jaspreet Kaur, daughter of the
parties, deposed against her mother. It was observed that as a child she was the
most natural witness. Heavy reliance was placed on her testimony by the court
below and it was also held that father of the appellant appearing as PW2 had
only halfheartedly stated that his son-in-law did not keep good health and was
addicted to intoxicants. The court had put specific question to the appellant
whether she was willing to live with the respondent, to which she replied in the
negative.
9.
So far as the statement of Jaspreet Kaur is concerned, it appears
that undue weightage was given by the trial Court to her evidence. There is
ample possibility rather probability that the child had been poisoned against her
mother by the respondent and his family and was under their influence. Any
particular date of desertion is not given but it is pleaded by the appellant in her
petition that the parties were living separately for more than two years preceding
the date of petition. The petition was filed on 17.9.2009. This would mean that
the parties were living separately at least since August/September 2007.
Jaspreet Kaur was examined in the court on 8.6.2012 when she gave her age
just as 13 years. In 2007, she must be somewhere around 8 years old. It is very
difficult for the child to remember the details of the matrimonial discord between
her parents and to say that her mother had left at the instance of her (appellant’s)
mother. She was brought as a witness in court and deposed that her father had
never
beaten
her
mother
and
never
demanded
dowry.
It
is
not
understandable as to how a child of tender age could depose whether her father
treated her mother with cruelty or not specially with regard to matters which could
be in the knowledge of elders only. The trial Court erred in basing its judgment
on the evidence of Jaspreet Kaur alone
10.
Bringing Jaspreet Kaur, daughter of the parties, in the witness box
after tutoring her and using her in an effort to convince the court about the cruelty
allegedly purported by the appellant on the respondent, rather reflects on the
deprecable conduct of the respondent who did not even spare his child and used
her as a tool. He succeeded in his malicious motive insomuch as the court below
was taken in and practically granted the decree of divorce only on the basis of
statement of Jaspreet Kaur. It is seen that though it was for the appellant, who
was the petitioner, to prove her case, yet onus becomes immaterial after parties
have led their evidence, and so, the evidence of the respondent would be equally
important.
He had categorically mentioned in his written statement that his
mother along with other relatives including Gurbax Singh and Kuldeep Singh had
visited the parental house of the appellant for requesting her to return to the
matrimonial home but to no avail.
However, none of those witnesses was
examined and when it was suggested to the appellant in her cross examination
that her mother-in-law along with said two persons went to the house of the
appellant for bringing her back, she categorically replied in the negative.
11.
It has already been observed above that the trial Court had put a
specific question to the appellant as to whether she was willing to live with the
respondent, to which she replied in negative and the reason given by her was
that her husband was drug addict and was doing nothing and, therefore, she did
not want to live with him. The court held that the actual reason for separation of
the parties was the illness of the respondent and not on account of any cruelty on
the part of the respondent. This conclusion by the trial Court is quite far-fetched
because since the appellant is seeking divorce, she would naturally have said
that she did not want to live with her husband. If the husband is addicted to
drugs and is not earning anything, this itself is cruelty to the wife. Sukhdev Singh
father of the appellant cannot be said to be an interested witness because he
being the father was well conversant with the facts of the case and it is quite
natural that the daughter would narrate her woes to her parents.
12.
Regarding desertion, the trial Court erred in holding that the
appellant was not deserted by the respondent. There is no need to give any
particular date of desertion in each case. It was sufficient that the appellant had
stated that she had been living separately from the respondent for more than two
years before presenting the petition because she had been treated with cruelty.
Even if the wife was compelled to leave the matrimonial home due to the conduct
of her husband and family, it would amount to desertion by the husband. No
cross examination was conducted on the appellant on this point. It was not even
suggested to her that the parties were not living separately for the period stated
by her and/or that the separation has not taken place due to cruelty by the
respondent. Rather period of separation was admitted but desertion was denied.
13.
Sukhdev Singh, PW2 has also stated that his daughter was being
treated cruelly in the matrimonial home but there was nothing in his cross
examination on that count. Even in the cross examination, the witness
maintained his stand that his son-in-law i.e. respondent was addicted to
intoxicants and consumed Proxivon capsules. Nothing was put to the appellant
and her father that the former had not been deserted by the respondent.
14.
This appeal was heard ex parte against the respondent, who had
refused to accept notice sent by this Court.
It is, thus, clear that he is not
bothered about the result of the appeal. He did not say before the trial Court that
he was willing to keep the appellant as his wife nor he appeared before this Court
to contest the appeal. It seems that he has contested the petition before the trial
Court just for the sake of harassing the appellant and without any intention to
rehabilitate her. If he intended to live with his wife, he would have come forward
to contest the appeal as well.
15.
In view of the detailed discussion made above, judgment and decree
passed by the trial Court are reversed. The appeal is allowed and the marriage
between the parties is dissolved by a decree of divorce. Decree sheet be drawn
up accordingly.
(S.S. SARON)
JUDGE
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