Research › Search › Judgment

Punjab High Court · body

2001 DIGILAW 1009 (PNJ)

Jaswinder Kaur v. Jaswinder Kang

2001-09-12

JASBIR SINGH, R.L.ANAND

body2001
JUDGMENT R.L. Anand, J. (Oral) - Sh. Nachhattar Singh, father of the respondent is also present. 2. Reconciliation efforts made but not succeeded. 3. There is a delay of 499 days in filing the present FAO. For the peculiar reasons mentioned in the application which is supported by an affidavit, the application for condonation of delay is hereby allowed as we are satisfied that sufficient cause has been made out in the same. 4. On merits, we have heard the learned counsel for the parties and with their assistance have gone through the record of this case. 5. This FAO has been directed against the judgment dated 3.6.1998 passed by the court of Additional District Judge, Sangrur who granted ex-parte decree under Section 13 of the Hindu Marriage Act in favour of Shri Jaswinder Kang against his wife Smt. Jaswinder Kaur for the reasons given in para No. 4 of the impugned order which read as under :- "I have gone through the evidence on the record and have perused the averments of the petition. It is made out from the evidence on file that the marriage between the parties was solemnized on 1.10.95 by way of Anand Karaj ceremony at Amritsar and after the marriage the respondent had treated the petitioner with cruelty and had left his house without any just cause. The panchayat took by the petitioner could not pursode the respondent and she did not come round about. Apart from all this, the petitioner did not dare to face the petitioner and rather she shied away from the proceedings despite service through publication. As such the evidence led by the petitioner has gone unrebutted. There is nothing on the record to disbelieve the same. As such the petition is allowed and a decree of divorce is passed exparte against the respondent and the marriage between the parties is dissolved with immediate effect on the grounds of cruelty and desertion. The parties are left to bear their own costs. Decree sheet be prepared. Records be consigned." 6. The brief facts of the case are that Shri Jaswinder Kang filed a petition under Section 13 of the Hindu Marriage Act against her wife Smt. Jaswinder Kaur by inter-alia alleging that the marriage between the parties was soleminised at Amritsar as per Sikh rites. Decree sheet be prepared. Records be consigned." 6. The brief facts of the case are that Shri Jaswinder Kang filed a petition under Section 13 of the Hindu Marriage Act against her wife Smt. Jaswinder Kaur by inter-alia alleging that the marriage between the parties was soleminised at Amritsar as per Sikh rites. After their marriage, they cohabited with each other and a son was born from this wedlock on 29.7.1996. It was further submitted by the husband that he is living in Italy since 1989. Soon after marriage, the respondent-wife started pressurising him not to go to Italy, rather, the parties should settle at Amritsar. This demand of the respondent-wife could not be met by the petitioner. The husband also alleged that the respondent was insisting that he should live in her house as Ghar Jawai at Amritsar. This request of the respondent was not accepted, as a result of which the respondent started insulting the petitioner and his family members. It was also alleged by the petitioner that the respondent is a short tempered lady who used to pick up quarrels with the petitioner and his family members. The petitioner further alleged that after the birth of the son, he took Panjiri but she did not allow him to see the child. He took Panchayat for reconciliation of the matter, but to no effect. With these allegations the petitioner has alleged that the respondent treated the petitioner with cruelty. 7. Notice of the petition was given to the respondent but she could not be served. Finally, she was ordered to be served through publication on 1.5.1998 but she did not appear and was proceeded ex-parte. 8. In support of his averments, the petitioner appeared as his own witness as PW1 in the trial court. He also examined Shri Pritpal Singh as PW2. Father of the petitioner Nachhattar Singh appeared as PW3. Thereafter, the petitioner closed his case. 9. On the basis of the ex-parte evidence, for the reasons given in para 4 of the judgment, quoted above, the learned Additional District Judge granted ex- parte decree in favour of the husband. 10. Aggrieved by the exparte decree, the present FAO. 11. We have heard Mr. D.S. Pheruman, counsel appearing on behalf of the appellant, Mr. J.R. Mittal, Sr. Advocate on behalf of the respondent and with their assistance have gone through the record of the case. 12. 10. Aggrieved by the exparte decree, the present FAO. 11. We have heard Mr. D.S. Pheruman, counsel appearing on behalf of the appellant, Mr. J.R. Mittal, Sr. Advocate on behalf of the respondent and with their assistance have gone through the record of the case. 12. The preliminary objection taken by the learned counsel for the respondent is that the present appeal filed by the wife is not legally maintainable and she should file application under Order 9 Rule 13 of CPC, in the trial court. In support of this, learned counsel for the respondent has relied upon 1982 HLR 573 and 1987 PLR 1. We have gone through both the citations and are of the opinion that these are not relevant. Section 96(2) CPC clearly stipulates that an appeal is maintainable against ex-parte decree. The decree passed under Section 13 of the Hindu Marriage Act has a force of decree. Moreover, on the basis of the judgment the trial court has also framed the decree. We are of the opinion that there were many remedies available to the respondent/appellant in the decree passed by the trial court. She could file an appeal before this court and she could also file an application under Order 9 Rule 13 of the CPC by taking the plea that she was not heard and decree was obtained by fraud. 13. A glance of the petition under Section 13 of the Hindu Marriage Act would show that Sh. Jaswinder Kang had tried to play fraud upon the wife when he had given her address in a tricky manner which may be described in the following manner :- Jaswinder Kaur wife of Jaswinder Kang daughter of Jangir Singh r/o Majitha Road, Amritsar. 14. No street number has been mentioned in the address purposely. Even in the publication conducted by the trial court, similar address had been given by the petitioner. It appears that petitioner was interested to get exparte decree against his wife. This aspect of the case could have been examined even by the appellate court. Even otherwise, reading of para No. 4 of the impugned judgment would show that the appellate court committed patent illegality in coming to the conclusion that respondent-wife treated the petitioner-husband with cruetty. No reasons have been given how the conduct of the respondent- wife forced her husband not to live with her. Even otherwise, reading of para No. 4 of the impugned judgment would show that the appellate court committed patent illegality in coming to the conclusion that respondent-wife treated the petitioner-husband with cruetty. No reasons have been given how the conduct of the respondent- wife forced her husband not to live with her. Resultantly, we allow this appeal, set aside the judgment and decree of the trial court and dismiss the petition under Section 13 of the Hindu Marriage Marrage Act, with no order as to costs. Appeal allowed.