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2001 DIGILAW 276 (PNJ)

Mam Kaur v. Ram Sarup

2001-03-01

R.L.ANAND

body2001
Judgment R.L.Anand, J. 1. Smt. Mam Kaur, appellant (wife) has filed the present appeal and it has been directed against the judgment and decree dated 16.3.1998 passed by Addl. District Judge, Kumkshetra, who dismissed her petition under Section 13 of the Hindu Marriage Act (hereinafter referred 10 as the Act) 2. In her petition under Section 13 of the Act Smt. Mam Kaur sought a decree of divorce by inter alia alleging that her marriage with respondent No. 1 was performed in March, 1985 according to Hindu rites and ceremonies in village Bargat Tehsil Thanesar, District Kurukshetra. Out of this wedlock no child was bom. According to the petitioner, respondent No. 1 is a greedy person and he wanted to usurp the land owned by her and her mother and that he had been beating them. He even tried to administer poison to the petitioner. It is further averred by the petitioner/appellant that respondent No. 1 has contracted second marriage with respondent No. 2, Parveen, who is being kept by respondent No. 1, in his house as wife and out of this illegal wedlock a female child namely Pooja was born on 5.9.1994. So much so, respondent No. 2 is again pregnant from the loins of respondent No. 1, and in this manner the respondent No. 1 is living in adultery with respondent No. 1 and on this ground also she is entitled to a decree of divorce. It is also the case of the petitioner that since respondent No. 1 is living in adultery with respondent No. 2, therefore, respondent No. 1 has committed an act of cruelty which is an additional ground for divorce. She made a complain t to the Superintendent of Police, Kurukshetra but to no effect. 3. Notice of the petition was given to respondents. Respondent No. 2 Parveen did not appear before the trial Court in spite of proper service and resultantly she was proceeded exports by the trial court on 22.1.1996. The divorce petition was contested by respondent No. 1. According to him, he performed marriage with respondent No. 2 with the consent of the petitioner, who has given affidavit dated 8.2.1995, and, therefore, the petitioner is estopped by saying that respondent No. 1 is living in adultery. The divorce petition was contested by respondent No. 1. According to him, he performed marriage with respondent No. 2 with the consent of the petitioner, who has given affidavit dated 8.2.1995, and, therefore, the petitioner is estopped by saying that respondent No. 1 is living in adultery. It is the case of respondent No. 1 that petitioner was not in a position to conceive a child because she was suffering from epilepsy and she was unable to perform matrimonial obligations due to her physical disability. Respondent No. 1 started residing with petitioner as "Ghar Jawai" and was turned out in August, 1995 and a demand of Rs. 1 lakh was made by the family of the petitioner from the respondent No. 1. According to this respondent the petition is a mala fide affair. 4. The petitioner filed rejoinder to the written statement filed by respondent No. 1. From the pleadings of the parties, the learned trial Court framed the following issues:- "1. Whether the respondent Ram Sarup has treated the petitioner Mam Kaur with cruelty, if so 10 what effect ? OPP 1. (a) Whether the petitioner has not been accessory to or connived at or condoned the acts of respondent No. 1 ? OPP 2. Relief." 5. The petitioner/appellant did not lead my evidence as her counsel made statement before the trial Court on 25.7.1996 to the effect that as the respondent had admitted the main allegations in the petition so he did not want to lead any evidence. Respondent No. 1 Ram Sarup appeared as his own witness as RW1 and also examined Karta Ram RW2. Some documents were also placed on record by the respondent No. 1 in the shape of Mark A, photo copy of ration-card, Mark B, photo copy of voter-list, Mark C, photo copy of electricity bill and Mark D, copy of khasra girdawri besides Bx.R1, affidavit of Mam Kaur. 6. The learned trial Court while deciding issues No. 1 and 1 (a) together came to the conclusion that these issues have not been proved by the petitioner/appellant, therefore, these are decided against the petitioner and in favour of the respondents. Resultantly the petition was dismissed. 7. Aggrieved by the judgment and decree of the trial Court dated 16.3.1998, the present appeal. 8. I have heard Mr. Pritam Saini, Advocate forjhe appellant, Mr. Resultantly the petition was dismissed. 7. Aggrieved by the judgment and decree of the trial Court dated 16.3.1998, the present appeal. 8. I have heard Mr. Pritam Saini, Advocate forjhe appellant, Mr. Jagdish Manchanda, Advocate for the respondent and with their assistance have gone through the records of this case. 9. Before I deal with the case of the appellant on merits, it will be appropriate for me to reproduce Paras 8 to 10 of the judgment of the trial court which are as follows :- "Issue No. 1 and 1(a).: 8. As far as the facts of the case are concerned, they are almost admitted one. Since it is an admitted case between the parties that respondentNo. 1 has also one female child from respondent No. 2 and that both are residing together. After the marriage between the petitioner and respondent No. 1, latter started residing as GHAR JAWAI with the petitioner. The controversy which requires to be decided in this case is whether the marriage between respondent No. 1 with respondent No. 2 had been with the consent of the petitioner or respondent No. 1 is leading an adulterous life. 9. The petitioner has sought divorce on the ground of adultery and cruelty. In the written statement respondentNo. 1 admitted his marriage with respondent No. 2 but with the consent and wishes of the petitioner. No evidence was led by the petitioners side and a statement was made by Shri L.D. Madan Advocate, learned counsel for the petitioner that since the respondent has admitted the main allegation so no evidence was required to be led which was not sufficient. No evidence was led by the petitioners side and a statement was made by Shri L.D. Madan Advocate, learned counsel for the petitioner that since the respondent has admitted the main allegation so no evidence was required to be led which was not sufficient. Keeping in view the stand taken by respondent No. 1 that he was residing with respondent No. 2 with the consent and wishes of the petitioner, who had also sworn in on affidavit dated 8.2.1995, this affidavit has been proved on the file as Ex.P-1, a perusal of which shows that the petitioner consented for the marriage of her husband with respondent No. 2 but its contents had not been properly verified, meaning thereby that the same can not be relied upon but a perusal of the evidence of respondent No. 1, who appeared as RW-1 and that of Karta Ram as RW-2 goes to show that respondent No. 1 has started keeping respondent No. 1 with him with the consent of the petitioner, which all go to show that she had condoned the allegation of adultery against her husband and moreover she herself did not turn up to depose that she never consented nor condoned keeping respondent No. 2 by respondent No. 1 with him. 10. As regards ground of cruelty, nothing has been brought on record whether any cruelty has been committed by respondent No. 1 to the petitioner. Thus, in these circumstances the observations made in Major Charanjit Singh v. Sandeep Kaur & another, 1979 M.L.J. 210, Dr. N.G. Dastane v. Mrs. S. Dastane, AIR 1975 Supreme Court 1534 and Smt. Nirmal v. Brij Mohan, 1982 M.L.J. 193 are of no help to the petitioner having arisen out of different facts. Consequently, both these issues stand decided against the petitioner and in favour of the respondents." 10. A With the assistance rendered by the learned counsel for the parties, I have gone through the reasons given by the trial court in dismissing the petition under Section 13 of the Act and in my opinion the learned trial Court has not rightly appreciated the evidence and the pleadings of the parties. A With the assistance rendered by the learned counsel for the parties, I have gone through the reasons given by the trial court in dismissing the petition under Section 13 of the Act and in my opinion the learned trial Court has not rightly appreciated the evidence and the pleadings of the parties. I may also make a mention that the trial Court has not even rightly framed the issues in the light of the pleadings and allegations made by the parties, but since no prejudice has been caused to the respondent with the non-framing of the proper issues, therefore, I am not inclined to remand the case. 11. Section 13(1) of the Act lays down that any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse. This wording in Section 13(l)(i) has been introduced by the legislature w.e.f. 1.10.1978 and earlier to that the ground of divorce was whether the opposite spouse is living in adultery. Thus the reading of the amended provision would show that even one act of voluntary sexual intercourse on the part of the erring spouse is enough to furnish a valid cause of action to the opposite spouse for a decree of divorce. According to Section 13(1)(ia), divorce can also be sought if the opposite spouse has treated the petitioner with cruelty. Cruelty has not been defined in the Act and it will be a question of fact depending upon the facts of each case. As in the present case it is established that respondent No. 1 Ram Sarup is living in adultery with respondent No. 2, this act on the part of respondent No. 1 would be certainly an act of cruelty qua appellant Mam Kaur as no Hindu wife can to terate her husband to perform sexual intercourse with another lady. In the present case it is proved on the record that Ram Sarup had committed voluntary sexual intercourse with respondent No. 2. So much so respondent No. 1 has married with Parveen, respondentNo. 2 and out of this wedlock two children, one male and one female, were bom. In the present case it is proved on the record that Ram Sarup had committed voluntary sexual intercourse with respondent No. 2. So much so respondent No. 1 has married with Parveen, respondentNo. 2 and out of this wedlock two children, one male and one female, were bom. In these circumstances, in my opinion the divorce can be valid ly granted to petitioner Mam Kaur on both counts. 12. In order to fortify my finding let me now first deal with the pleadings part of this case. It has been categorically stated by the petitioner/appellant that respondent No. 1 had contracted a second marriage with respondent No. 2 Parveen and was keeping that lady in his house regularly to the annoyance of the petitioner and that respondent No. 1 is cohabiting with respondent No. 2 regularly even in the presence of the petitioner. So much so, a female child was born out of this wedlock on 5.9.1994 and that respondent No. 2 is again pregnant from the loins of respondent No. 1. It is also stated by the appellant that even if the marriage between the respondent No. 1 and 2 could not be proved by legal evidence, still respondent No. 1 is living in adultery with respondent No. 2 and, therefore, a decree of divorce can be passed. The birth of the second child bom to respondent No. 2 had been entered in the register of the Chowkidar. Let us see what is the stand of respondent No. 1 in the written statement. According to respondent No. 1, his case is as follows :- "That the respondent No. 1 has performed the marriage with the respondent No. 2 with due consent and wishes of the petitioner. The petitioner had sworn affidavit dt. 8.2.95 in this regard which affidavit is duly witnessed by Gram Panchayat Bar-gat and attested by Notary Public, Kurukshetra." 13. Thus respondent No. 1 has admitted the main allegations of the appellant that he had performed the marriage with respondent No. 2 but with the consent and wishes of the petitioner. I will examine now what is the validity of this stand. It is the basic principle of law that admitted facts need not be proved. Thus respondent No. 1 has admitted the main allegations of the appellant that he had performed the marriage with respondent No. 2 but with the consent and wishes of the petitioner. I will examine now what is the validity of this stand. It is the basic principle of law that admitted facts need not be proved. Once respondent No. 1 has performed the marriage with respondent No. 2 without obtaining a decree of divorce from the petitioner, this marriage is not only invalid but it can be reasonably inferred that respondent No. 1 has performed sexual intercourse with respondent No. 2 after the commencement of the present Act and it has furnished a valid ground for divorce. Further, the act of respondent No. 1 will constitute an act of cruelty as no Hindu wife can tolerate that his husband should live in adultery with a stranger. 14. Now it is examined as to what is the stand of respondent at the trial stage. According to respondent No. 1, Ram Sarup, he was married with the appellant about 14-15 years back as per Hindu rites. One stillborn female child was born. Mam Kaur suffers from epilepsy fits occasionally. Because of this disease she was unable to perform any work. He further stated that appellant requested him to keep some another lady so that she could deliver child and also could look after him and Mam Kaur. Mam Kaurs mother and her other family members were also agreeable. Thereafter he kept some lady Parveen Devi. He stated that no regular marriage was performed with her. He, Parveen Devi as well as Mam Kaur remained joint for about three years. Mam Kaur has also given a writing in the form of affidavit Ex. R1. 15. Here I would like to mention that the affidavit Ex.R1, relied upon by the respondent No. 1, in my opinion, has not been duly proved. Assuming for the sake of argument that this affidavit stands proved, still it does not make a mention that appellant Mam Kaur had ever given a consent to respondent No. 1 to remarry in the presence of existing legal marriage. At the most the appellant had stated that respondent No. 1 may keep a woman in order to look after the household affairs. At the most the appellant had stated that respondent No. 1 may keep a woman in order to look after the household affairs. This affidavit Ex.Rl has no legal value in the eyes of law because such a confession cannot override the very object of the Act which does not permit bigamy. 16. Now 1 discuss the evidence. In the cross-examination it has been admitted by respondent No. 1 Ram Sarup that out of his relations with Parveen one daughter named Puja was born on 5.9.1994 and the same is entered in the register of Chowkidar as his daughter. It has also been admitted by respondent No. 1 that Parveen had also delivered a male child with his relation and that child is aged about six months. This statement of respondent No. 1 was recorded by the trial Court on 22.8.1996. Even RW2 Karta Ram admits in his cross-examinalion that to his knowledge one female child was bom to Parveen with the loins of respondent No. 1. Also, it has been admitted by this witness that no regular marriage was performed between respondent No. 1 and respondent No. 2 to his knowledge. However, with the consent of the petitioner, her mother and other family members, respondent No. 1 kept Parveen with him. Thus, from the statements of RW1 Ram Sarup and RW2 Karta Ram it stand proved to the hilt on the record that respondent No. 1 is keeping Parveen, respondent No. 2 in, his house and he had committed voluntary act of sexual intercourse with her. So much so, out of this illegal union, two children were born. What else other proof was required by the learned trial Court in allowing the petition ? In my opinion, the entire approach ofthe trial Court while deciding issue No. 1 and 1 (a) was erroneous. It is proved on the record that respondent No. I is guilty under Section 13(1)(i)and 13(1)(ia) of the Act. Therefore, I reverse the findings of the trial Court on issue No. 1 and 1 (a) and decide both these issues in favour of the appellant and againsi the respondents. Resultantly, this appeal is allowed, the impugned judgment and decree is hereby set aside and the petition under Section 13 is allowed and the marriage between the petitioner/appellant and respondent No. 1 stands dissolved forthwith. There shall be no order as to costs. Resultantly, this appeal is allowed, the impugned judgment and decree is hereby set aside and the petition under Section 13 is allowed and the marriage between the petitioner/appellant and respondent No. 1 stands dissolved forthwith. There shall be no order as to costs. Office is directed to prepare the decree-sheet.