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2001 DIGILAW 459 (PNJ)

Sunita Devi v. Jai Kishan

2001-04-25

R.L.ANAND

body2001
JudgmentJudgment R.L.Anand, J. 1. This is a wifes appeal and has been directed against the judgment and decree dated 31.1.2000, passed by the learned Additional District Judge, Hisar, who dismissed the divorce petition under Section 13 of the Hindu Marriage Act, 1955 , of the appellant Smt. Sunita Devi. 2. The brief facts of the case are that Smt. Sunita Devi-appellant filed a petition under Section 13 of the Hindu Marriage Act against her husband Jai Kishan and she sought a decree for dissolution of marriage which was solemnised on 25.6.1994 at Jind according to Hindu rites. As per the appellant-petitioner, marriage was duly consummated but no child was born out of this wedlock. It is alleged by the appellant-petitioner that after her marriage with the respondent, she came to know that the respondent and his parents were very greedy persons and they were not satisfied with the dowry articles given in the marriage by her parents and started demanding dowry items from her parents and started treating her with cruelty. The respondent is a man of bad habits and is under the influence of his mother. On 24.9.1996, when the appellant-petitioner came from outside then she fund the respondent and Babli (her Jethani) in a compromising position and then the respondent pounced upon her to kill her by administering spray poison but she was saved and a case was also registered against the respondent and Babli in this regard in the police station. The dowry articles are still in the custody of the respondent and now the appellant-petitioner cannot bear the inhuman treatment given to her. Hence, she filed the petition for divorce on the ground of cruelty. 3. Notice of the petition under Section 13 of the Hindu Marriage Act was given to the respondent who filed the reply and denied the allegations. According to him, he never treated the appellant-petitioner with cruelty nor inhuman treatment was given to her and that he is not a man of bad habits. He and Babli never poisoned her nor he has got any illicit relations with his sister-in-law and that the allegations are totally false. The appellant-petitioner never found the respondent and Babli in a compromising position. With this prayer, the respondent stated that the petition be dismissed. 4. He and Babli never poisoned her nor he has got any illicit relations with his sister-in-law and that the allegations are totally false. The appellant-petitioner never found the respondent and Babli in a compromising position. With this prayer, the respondent stated that the petition be dismissed. 4. The appellant-petitioner filed a rejoinder in which she reitered the allegations made in the petition by taking those of the written statements and from the pleadings of the parties, the Trial Court framed the following issues : (1) Whether the petitioner is entitled to decree of divorce on the grounds mentioned in the petition ? (2) Whether the petitioner is estopped to file the present petition by her act and conduct ? OPR (3) Whether the petition is not maintainable ? OPR (4) Whether the petition is bad for misjoinder of necessary parties ? OPR (5) Relief? 5. Both the parties led their oral as well as documentary evidence in support of their case and on the conclusion of the proceedings, issue No. 1 was decided against the appellant-petitioner and in favour of the respondent. Issues No. 2 and 4 were not pressed by the respondent. Resultantly, those issues were decided against the respondent. In view of the finding on issue No. 1 petition for divorce was dismissed. Not satisfied with the judgment and decree, the present appeal has been filed by the wife. 6. I have heard the learned Counsels for the parties and with their assistance I have gone through the record of the case. 7. Before I deal with the submissions raised by the learned Counsels for the parties on the context of issue No. 1, it will be appropriate for me to reproduce paras 13, 14 and 14-A of the judgment: "13. In this case, it is admitted fact that Sunita is the wife of Jai Kishan. P.W. I Sunita has stated that she cannot tell when this case was filed and by whom. She has stated that her signatures were obtained by her father at her residence. She has stated that she did not tell anybody that respondent was found in a compromising position with his sister-in-law as nobody was present there. She has stated that her father has given Rs. 60,000/- to the respondents father but she was unable to tell the date when this payment was made. She has stated that she did not tell anybody that respondent was found in a compromising position with his sister-in-law as nobody was present there. She has stated that her father has given Rs. 60,000/- to the respondents father but she was unable to tell the date when this payment was made. P.W. 2 Pirthi Singh has nowhere stated about the payment of Rs. 60,000/- made by him to the father-in-law of the petitioner. He has stated about the dowry demand of Rs. 10,000/- and nowhere stated that any payment was made by him to the in-laws of the petitioner. So, it is clear that the story of dowry demand is not acceptable. Moreover, the details of the dowry demanded has not been mentioned in the petition nor any specific date of dowry demand has been mentioned. 14. Moreover, as per FIR mark "B" registered by the petitioners father Pirthi Singh under Sections 307/328 of the Indian Penal Code against the respondent and his sister-in-law on 26.9.1996 clearly shows that there was no dispute between the parties and the story put forward by Sunita is only afterthought version. There is no proof that she was ever given beatings by the respondent and her in-laws for dowry demand. Moreover, the parties were residing separately from his other family members i.e. Babli and Suraj Bhan. 14-A. With regard to the poisoning, it is clear from Exhibits R1 and R2 that the report of the FSL on the basis of which the various articles were sent for analysis that there was no poisoning. So, it cannot be said that the petitioner was poisoned by the respondent simply on the basis of the FIR Mark "B". In view of this, the petitioner is not entitled to decree of divorce on the grounds mentioned in the petition; As such this issue No. 1 is decided in favour of the respondent and against the petitioner" 8. Learned Counsel for the appellant vehemently submitted that it is proved on the record that respondent had treated the appellant with cruelty. He made a demand of dowry and a sum of Rs. 60,000/- was paid to the respondent. Learned Counsel for the appellant vehemently submitted that it is proved on the record that respondent had treated the appellant with cruelty. He made a demand of dowry and a sum of Rs. 60,000/- was paid to the respondent. It is also alleged that respondent is a man of bad character and he also remains under the influence of his mother and on one occasion, he was found in compromising position with Babli (his Bhabi) and when the appellant reached there, she was forcibly poisoned by them and she became unconscious. A criminal case was also registered against the respondent. On the contrary, the learned Counsel for the respondent submitted that all the allegations levelled by the appellant are false. In fact, the appellant had deserted the respondent. She wants to get rid of the respondent who is not interested to give divorce to her. She has made reckless allegation regarding the alleged compromising affair and in these circumstances, the appeal be dismissed especially when Babli has not been made a party to the main petition. 9. Learned Counsel for the appellant relied upon Romesh Chander v. Savitri, I (1995) DMC 231 (SC)=1995 (1) Hindu Law Reporter 325, in which it was held that when a marriage has become dead emotionally and practically, it will not be proper to prolong the agony of the couple. Also reliance was placed upon M.R.G.L.J. Vaishery v. Ramola Vailshery, 1998 (2) Hindu Law Reporter 165, wherein it was held that in a case of divorce, it is not necessary to prove adultery by direct evidence. Such evidence cannot be given credit even if produced. Adultery has to be inferred from circumstances which exclude any presumption of innocence in favour of the person against whom it is alleged. In matrimonial proceedings, the Court has to be vigilant that the burden of proof is satisfactorily established and properly discharged. Adultery, from its nature, is a secret act. The Court must have due regard to the social conditions and the manner in which the parties are accustomed to live. Adultery can generally be proved by presumptive proof upon circumstantial evidence such as non-access and the birth of the children. Adultery, from its nature, is a secret act. The Court must have due regard to the social conditions and the manner in which the parties are accustomed to live. Adultery can generally be proved by presumptive proof upon circumstantial evidence such as non-access and the birth of the children. When a man and a woman otherwise not related are found to be living together under suspicious circumstances, secretly, it cannot be said that they had met to say prayers and that they were not guilty of matrimonial offence. Yet reliance was also placed by the learned Counsel for the appellant on N. Sarda Mani v. G. Alexander and Anr., I (1998) DMC 573 (FB)=1998 (2) Hindu Law Reporter 98. Before I enter into discussion, I may state at the first instance that there is no dispute with regard to the proposition of law relied upon by the learned Counsel for the appellant and propounded by the Honble Supreme Court. We all know that if there is a broken marriage, it is always desirable on the part of the law Courts to dissolve such type of marriage but in the present case, there is nothing on the record to suggest that it is a broken marriage as admittedly the marriage between the parties was solemnised on 26.4.1994. The parties are still young and there can be chances of compromise if the appellant repents about her frivolous allegations which were levelled by her against her husband. N. Sarda Mani v. G. Alexander and Anr., (supra), is not applicable at all as there is nothing on the record to show that the respondent was found in suspicious circumstances with a lady who was not related with him. Every case has to be seen on its own facts and circumstances. Divorce in this case has been sought by Smt. Sunita Devi - appellant on the ground that respondent has ill-treated her and made a demand for dowry and on one occasion, her father gave him Rs. 60,000/- and secondly that she saw her husband in a compromising position with Babli on 24.9.1995. Now, let us see whether this aspect of the case is correct or not and also whether by preponderance of evidence the appellant has been able to prove it or not. 60,000/- and secondly that she saw her husband in a compromising position with Babli on 24.9.1995. Now, let us see whether this aspect of the case is correct or not and also whether by preponderance of evidence the appellant has been able to prove it or not. The main reliance is on the document mark "B" i.e. the First Information Report registered under Sections 307/328 of the Indian Penal Code. There is no finding either by the Criminal Court or by any competent Court of jurisdiction that respondent had committed offence as alleged in the First Information Report. On the contrary, the report Exhibit R1 of the FSL indicates that there is no evidence of poison. In view of this documentary evidence, the allegations of the appellant that she was allegedly administered poison on 24.9.1996 appears to be false. Now let us examine the oral evidence led by the appellant. Sunita Devi appeared as P.W. 1. She stated that respondent used to beat her and also used to make dowry demands. In her examination-in-chief, it is never stated by her that respondent made a demand of Rs. 60,000/- or this amount was paid to the respondent. Mere gossip or bald statement on the part of the appellant that respondent used to beat her will not lead us to anywhere. Then she stated that respondent and his sister-in-law were lying on a cot and when she reached there, she was forcibly poisoned by them and she became unconscious and she regained consciousness after 6/7 days. No date of incident has been given. In cross-examination, the entire story of the appellant falls to the ground when she states as follows : "I do not recollect when this case was filed and by whom. My signatures were obtained by my father at my residence. I did not tell anybody that respondent was lying in a compromising position with his sister-in-law when I entered the room as no one was available in the house. Even the neighbourers were not available." 10. In view of this statement, no reliance can be placed on the statement of Sunita Devi when she stated that she saw the respondent in a compromising position with Babli. In cross-examination, the appellant started saying that her father gave Rs. 60,000/- to her father-in-law for the construction of their house. Even the neighbourers were not available." 10. In view of this statement, no reliance can be placed on the statement of Sunita Devi when she stated that she saw the respondent in a compromising position with Babli. In cross-examination, the appellant started saying that her father gave Rs. 60,000/- to her father-in-law for the construction of their house. Be that as it may, when Sunita Devi was further probed, she had to admit that she could not tell the date of payment. She could not tell whether this payment had been given by her father. With regard to the story of the alleged incident dated 24.9.1996, it has come in the statement of the lady that she stated about the illicit relations of the respondent with his sister-in-law to her mother on her earlier visits to the parental home and prior to that her father might have lodged the FIR on the same ground. The mother has not come in the witness box. She has also examined her father Prithi Singh who stated that the respondent used to beat his daughter and he used to make dowry demands. For this reason, she was totally disturbed and was not in a position to continue in the matrimonial home. He had admitted that prior to the consumption of poison by his daughter, he was aware that his son-in-law had illicit relations with his sister-in-law. In such a situation, the entire story of the appellant falls to the ground. As against this, we have the statement of the respondent who categorically stated that he never made a demand for dowry nor he maltreated the appellant and administrated poison to her. A false case has been registered against him at the instance of the parents of the appellant. Babli also appeared as R.W. 5 and she stated that she does not have any illicit relations with the respondent. In view of this oral and documentary evidence, I am totally convinced that the findings of the Trial Court on issue No. 1 are correct and according to law. 11. Resultantly, this appeal is devoid of any merit and is accordingly dismissed with no order as to costs. CM. also stands disposed of with the dismissal of the appeal.