* Husband files other petitions (HMA sec 9 - 1988 ) , wife acts as if she is compromising, but again runs away from the husband
* Husband has to run to courts to get divorce 26 years later !! i.e. in August 2014
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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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http://evinayak.tumblr.com/ ;
http://vinayak.wordpress.com/ ;
http://fromvinayak.blogspot.comIN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
FAO No.9-M of 2003
Date of Decision:22.08.2014
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Jai Gopal............Appellant
Versus
Maya Rani............Respondent
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CORAM:
HON'BLE MR. JUSTICE S.S. SARON
HON'BLE MS. JUSTICE NAVITA SINGH
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Present:
Mr. Nipun Mittal, Advocate, for the appellant with appellant-Jai Gopal in person.
Mr. Ajit Sihag, Advocate, for the respondent.
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NAVITA SINGH, J.
1. This appeal is preferred against the judgment and decree dated 31.10.2002 passed by the then District Judge, Jind, whereby the petition filed by the appellant under Section 13 of the Hindu Marriage Act, (hereinafter called the Act), was dismissed.
2. The facts of the case, put briefly, are that marriage between the parties was solemnized on 1.5.1987 at Hansi according to Hindu rites and ceremonies. The parties cohabited at Jind and one female child, Sweety, was born on 10.8.1988. The respondent has always been under the influence of her mother, who is a widow. The behaviour of the respondent towards appellant was never cordial. She was B.A. B.Ed and employed as a teacher at Tosham at the time of marriage. She refused to get herself transferred to Jind without any explainable reason. The appellant took a house on rent at Tosham though he was employed at District Courts in Jind. The interference of the mother of the respondent did not cease and it became impossible for the appellant to live in Tosham and he shifted back to Jind.3. On 1.7.1988, mother of the respondent took her to Hansi, who carried her jewellery etc. and thereafter the respondent did not return. Even the child was born at Hansi. She refused to join the company of the appellant despite requests and he ultimately filed a petition under Section 9 of the Act on 12.9.1988, which was dismissed as withdrawn on 19.4.1990 on the basis of compromise. The respondent returned to the matrimonial home, but just after two days, she left again for Hansi and deserted the appellant. He then filed a petition under Section 13 of the Act, which was compromised with the efforts of the then District Judge, Jind on 22.8.1996 and the statements of the parties were recorded. The appellant took a separate house in Jind, which was away from the house of the parents of the appellant and requested the respondent to get herself transferred to Jind but she did not do so. Learned District & Sessions Judge had even written a letter to Financial Commissioner and Secretary to Government of Haryana, Education Department, regarding transfer of the respondent to Jind but the latter stalled the procedure in that regard.
The appellant lived with the child at Jind and attended to her and the household chores. During the brief stay of the respondent in Jind after the compromise dated 22.8.1996, she became pregnant, but she said that her pregnancy was hurdle in her freedom and did not give birth to her child. http://evinayak.tumblr.com/ ;
http://vinayak.wordpress.com/ ;
http://fromvinayak.blogspot.com4. In January 1997, Sweety, daughter of the parties, told the appellant that her mother along with her had gone to a Pandit in Jind asking for some device to control her husband so that he would dance to her tune and the Pandit asked her to pay an amount of Rs.150/- for that purpose.
5. The respondent used to insult the friends and relatives of the appellant and the Mediator Sant Lal Dhamija went to the appellant in Jind on 17.2.1997 on the false calls of the respondent that she had been beaten by the appellant and he was shocked. Since the inception of marriage, the appellant was being subjected to mental cruelty by the respondent.
6. The respondent contested the petition on the ground that she did not make any endeavour to stop her transfer to Jind. She pleaded that all the allegations levelled by the appellant against her were false and he intended to defame her. She further pleaded that the appellant had never taken her and Sweety to Jind. The daughter was studying at Hansi.
7. In the replication, the appellant reiterated his averments.
8. The following issues were settled by the trial Court:-
1. Whether the petitioner is entitled to a decree of divorce on the ground of cruelty? OPP
2. Relief.
9. Learned counsel for the appellant argued that the court below wrongly dismissed the petition by holding that he had not been treated with cruelty.
The court wrongly held that whatever happened between the parties was normal wear and tear of married life. It was contended that the court also placed reliance on the fact that the daughter of the parties entered the witness box as RW3 and deposed against the appellant for coming to the conclusion that it was the appellant, who was not discharging his duties as a good father and husband, and thus the respondent was not at fault. He argued that since the daughter had not got an opportunity to live with the father for some considerable period of time and was always living with her mother, it was natural for her to depose in favour of the mother and against the father. There can be no presumption that a child would not speak against one of the parents while living with the other.
10. The trial Court ignored the facts that Mediator Sant Lal had appeared as PW4 and deposed that every time something happened between the parties. The appellant used to complain about the conduct of his wife
and Sweety had confirmed in his presence that the respondent had gone to some Pandit to get something for controlling her husband. He also spoke about the efforts made by the appellant to bring the respondent but she did not come.
11. At that time when the appellant used to talk to the witness about the behaviour of his wife, he did not do it for creating evidence because at that time there was no litigation. Rather it sounds very natural that the aggrieved person would complain to the person who had arranged the
marriage. Sant Lal was known to both the parties and, therefore, he had no reason to favour one of them unjustifiably.
12. The respondent appeared as her own witness as RW1 and admitted that the appellant had got admission of their child Sweety in a school at Jind and that the appellant had opened two bank accounts of Rs.1000/- each in her name and in the name of her daughter. The money in the name of Sweety was being saved for her marriage and the account for the respondent was for saving money for her future use. All this rather shows that the appellant was concerned about the welfare of his family. She denied a letter produced in the earlier divorce petition as Ex.PW2/A, which
was an application written by her, copy of which was produced as Mark AX in the present case. Since the letter was exhibited in the other case, it must have been proved as per law. She had written to the Director, Secondary School Education, Haryana for cancelling her transfer order to Jind. She went on to say that she had levelled allegations against her husband that he was residing with other woman and had filed a complaint against him in the family counselling centre in Jind. She said that she did not know whether levelling of such scandalous allegations against her husband could harm his reputation or not. It is not believable that she did not know that the allegations of adultery would damage the reputation of her husband. She, however, did not plead any such ground and further stated that she could not tell the name of the woman nor she could tell since when her husband was living in adultery. Some person from the neighbourhood of the appellant informed her but she failed to produce any of them as witness.
13. It came in the statement of the respondent and Sweety (RW3) that both of them lived with the appellant at Jind from 16.6.1996 to 14.4.1997. Nothing could be shown as to why the respondent was not living in the matrimonial home before or after the said period. Sweety, daughter of the parties, stepped into the witness box on 4.10.2002 and her age at that time was little above 14 years. The pregnancy of the respondent for the second time came to light in the first week of September 1996 at which time the child was 8 years old. However, appearing in the witness box, the child said that her mother was taken by her father to PGIMS Rohtak for delivery.
She also gave the exact dates of not attending her school, the months in which her mother was allegedly beaten by her father and the date on which the appellant had allegedly asked her mother to withdraw the entire amount from the bank account. She gave specific dates when the appellant asked the respondent to bring all the money lying deposited at Jind and Hansi. How a child who was only 9 years old at that time could give the exact dates is beyond comprehension. Rather this goes to show that Sweety was thoroughly tutored by her mother before she appeared as a witness. In the cross examination she showed ignorance about her parents having lived separately from her grand-parents. Interestingly, she was able to give dates which she was not supposed to remember but she could not tell whether they were residing separately in Jind from the parents of the appellant or not. It is not believable that she did not know that her grand parents were living in the same city i.e. Jind where she was liviig for some time with her parents in a separate house. She, further down in the cross examination, stated that she used to be in the house of her grand-father or paternal aunt, till her mother returned to Jind from her duty and also stated that it took less than 10 minutes on two-wheeler to reach their rented house from the house of her grand-parents. She therefore knew that they were living separately from the grand-parents but earlier in the cross examination she said that she did not know about it. The statement of the girl, therefore, cannot be given much credence. She said that she did not know that her birthday was celebrated on 10.7.1996 and photographs were clicked. Surprisingly, she remembers the dates on which her father asked her mother to withdraw money from the bank and all the dates when her mother was allegedly beaten but she does not remember the celebration of her birthday. Nothing more is required to prove that she was a tutored witness. She being intelligent, could manage some of the answers in the cross examination but at other places she made it obvious that the entire statement was not voluntarily made and she was tutored by her mother in that regard. http://evinayak.tumblr.com/ ;
http://vinayak.wordpress.com/ ;
http://fromvinayak.blogspot.com14. The conduct of the respondent is also clear from the fact that despite the appellant having lived separately from his parents, the respondent did not live in the matrimonial home and to avoid litigation, she entered into compromise with the appellant in the earlier petitions under Section 9 and Section 13 of the Act. After withdrawal of the first petition, she lived only for two days with the appellant and after compromise in the divorce petition, for a few months. She requested her department that she should not be transferred to Jind showing her intention not to live with her husband. Such conduct can surely be termed as `mental cruelty'. The appellant was deprived of the company of his child and wife though he made all efforts to keep them with him.
15. The appellant was therefore entitled to divorce on the ground of cruelty and the trial Court erred in declining the relief to him. The appeal is allowed. The judgment and decree under challenge are reversed. The marriage between the parties is dissolved by a decree of divorce. No costs.
(S.S. SARON) (NAVITA SINGH)
JUDGE JUDGE
22.08.2014
ishwar
Whether to be referred to reporter: Yes
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regards
Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist
