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2002 DIGILAW 351 (PNJ)

Sarjiwan Singh v. Surjit Kaur

2002-04-02

J.S.NARANG

body2002
Judgment J.S.Narang, J. 1. Petitioner-husband Sarjiwan Singh and respondent No. 1 wife Smt. Surjit Kaur contracted marriage on February 22, 1987.The marriage was solemnised by performance of Anand Karaj ceremony at village Jheeta Kaian, Tehsil and District Amritsar. The marriage was co-habited and a daughter namely Inderjit Kaur was born on February 10, 1998 at Amritsar. Both the spouses developed some difference. The complaint of the husband is that his wife developed illicit relations with her brother-in-law Balwinder Singh Malhi and resultantly the trust in the marriage has broken down. 2. On the other hand, respondent No. 1 the wife has controverted all these allegations and has stated that she had been living with him at village Makhanwindi. She had become pregnant twice but the child so conceived was aborted at the asking of the husband because on both occasions as per the test, a female child had been conceived. Whereas the husband was always wanting a male child being the only son of his parents. Thus, the allegation has been levelled only to create a hypothetical ground for seeking divorce from the respondent. 3. The petitioner filed a petition under Section 13 of the Hindu Marriage Act, for seeking dissolution of marriage by way of decree of divorce on the ground of cruelty and infidelity. 4. The petitioner appeared as his own witness and has stated that while being posted as security man to the then chief Secretary, he was residing at House No. 2165, phase-VII, Mohali. It was on November 3, 1994 at about 3.30 p.m. he came back to the house and he did not find anybody downstairs and he went upto the room of Balwinder Singh Malhi and knocked at the door. The door was opened after about 15 minutes by respondent No. 1 i.e. his wife and that her hair were dislevelled and Balwinder Singh was also present in the room. On enquiry, both of them were unable to give any answer as to why they both were in the room. It is also stated that said Balwinder Singh Malhi used to come to the village of the petitioner and his wife used to come back with him. He did not like this act on the part of his wife. On enquiry, both of them were unable to give any answer as to why they both were in the room. It is also stated that said Balwinder Singh Malhi used to come to the village of the petitioner and his wife used to come back with him. He did not like this act on the part of his wife. She was taken to Golden Temple at Amritsar where she stated on oath that she will not have any such relation with any person in future. She had also stated that if any such relations are found by him relating to her, she may not be spared and he shall be entitled to act in the manner in which he may like. It is further stated that despite this fact he did not trust her and resultantly started living separately. He has not been able to condone her such acts. He has not been able to disclose as to who owns House No. 2165 Phase VII, Mohali but has only stated that it is owned by some relations of Smt. Surjit Kaur wife of Salwinder Singh Malhi. It has been admitted by him that Shri Balwinder Singh Malhi has one adopted son and a daughter. The sister of his wife Surjit Kaur is a Teacher at Gurdaspur and that normally she resides at Gurdaspur but visits Mohali during vacations or on leave. He has also stated that he had never executed any rent deed in respect of the premises and had never paid any rent to any person. He has also admitted that the pay drawn by him is about Rs. 3500/3600 per month. He has not been able to produce the bills for electricity and water consumption which could be said to have been paid by him. It has also been admitted that in 1994 Akhand Path was held in village Makhanwindi. 5. Apart from the petitioner his father appeared as PW3. No suggestion has been made in respect of the infidelity allegedly stated to have been committed by respondent No. 1 nor any question has been put to him regarding any act of cruelty. However, he has admitted that he wanted that respondent should deliver male child. Another witness Santokh Singh PW4 has been produced by the petitioner and he has dented any knowledge in respect of any dispute which may have occurred between the parties at Sri. However, he has admitted that he wanted that respondent should deliver male child. Another witness Santokh Singh PW4 has been produced by the petitioner and he has dented any knowledge in respect of any dispute which may have occurred between the parties at Sri. Har-mander Sahib. 6. Respondent appeared as her own witness and has categorically stated that Shri Balwinder Malhi is just like my father and I call him as my elder brother. She has further categorically stated that she has no illicit relations with him. She has further denied that she has ever resided in house No. 2165, Phase-VII, Mohali alongwith the petitioner. She has categorically stated that the petitioner sometimes used to reside in a room in the showroom and on some occasions she had also come to reside with him. It is also stated that for claiming the house rent, the petitioner had given his address as House No. 2165 Ph. VII Mohali and for corroborating this fact he also obtained fraudulently a ration-card against this address. She has stated that she had never brought or drawn any ration on that card. She has further stated that she used to reside at the village of her husband i.e. Makhandwindi as the child was to be sent to the school. She categorically stated that she got pregnant twice and the test was carried out at the instance of the parents of her husband. Resultantly, the female child conceived was aborted as the parents of the petitioner wanted a male child. One such report has been produced which has been marked as Ex.R1. She has stated that she is willing to live with her husband. It has been alleged that the petitioner wanted to take forcible possession of the showroom belonging to her father. Thus, considering the intentions of the petitioner he was thrown out of the room occupied by him in the said showroom and that he was paid a sum of Rs. 35,000/- for buying the property. It has also been stated that articles like fridge etc. were given to her by her parents as dowry. She has categorically denied that upon her visit to Sri Harmander Sahib she had admitted her guilt. 7. Father of respondent No. 1 Gurbax Singh appeared as RW2. He has categorically stated that he forcibly got vacated the room in his showroom occupied by his son-in-law i.e. the petitioner. were given to her by her parents as dowry. She has categorically denied that upon her visit to Sri Harmander Sahib she had admitted her guilt. 7. Father of respondent No. 1 Gurbax Singh appeared as RW2. He has categorically stated that he forcibly got vacated the room in his showroom occupied by his son-in-law i.e. the petitioner. Since general power of attorney in respect of the showroom had been given by him to his daughter Balibir Kaur wife of respondent No. 2, the petitioner was unhappy about. He has also stated that his daughter Smt. Surjit Kaur was turned out by the petitioner as the she could not produce a male child. He had been given a sum of Rs. 35,000/- for purchasing a plot. He has also stated that he had taken a Panchayat of Makhanwindi to the house of the petitioner and that some writing was executed which was signed by members of the Panchayat which has been exhibited as Ex.R.3. He has emphatically denied that Surjit Kaur even had any illicit relations with Sh. Balwinder Singh Malhi. 8. The sister of respondent No. 1 Smt. Balbir Kaur wife of Shri Balwinder Singh Malhi has also stepped into the witness box as RW3. She has categorically stated that she was present no November 3, 1994 in the portion of the house occupied by her husband and that her children were also with her on that day. The said day was a festival day of Diwali and on account of the said holiday she had come from Gurdaspur to Mohali. She has also stated that her husband Shri Balwinder Singh Malhi treated Surjit Kaur as child being youngest in the family. She has also stated that on November 18, 1994, she had visited the village of the petitioner on account of the Akhandpath. She has also corroborated the fact that Smt. Surjit Kaur her sister was turned out of the house by the petitioner and his parents because she could not deliver a male child. The statement of this witness to the effect November 3, 1994, was a festival day of Diwali and she was present in the house along with the children has not been demolish as no suggestion in this regard has been given to herein the cross-examination. 9. The statement of this witness to the effect November 3, 1994, was a festival day of Diwali and she was present in the house along with the children has not been demolish as no suggestion in this regard has been given to herein the cross-examination. 9. Learned counsel for the appellant-petitioner has fairly conceded that for claiming divorce on the ground of cruelty, no evidence has been brought on record nor any evidence has been given by the petitioner. Thus, the petition is not not sustainable on the ground of cruelty. 10. Learned counsel has argued that the statement of the petitioner to the effect that he had gone to the house of Balwinder Singh Malhi and had found respondent No. 1 in the house has remained unrebutted. Both were unable to give answer as to why they were together in the room. Thus, the inference could be safely drawn regarding her illicit relations with Shri Balwinder Singh Malhi. In the Indian Society, no wife can be seen in a room locked by her brother-in-law (sisters husband) and specially when no one is seen in the house. This created distrust in the mind of the petitioner and resultantly mental cruelty has been suffered by the petitioner. The act of adultery stands established against respondent No. 1. Respondent No. 1 has not disclosed the age gap between herself and Balwinder Singh Malhi but has made a bald statement that he is like a father to her and in the same breath it has been stated that she treats him like her own brother. This statement has not been corroborated by any of the other witnesses i.e. her sister and her husband. 11. Learned counsel for the respondent has argued that the petitioner has miserably failed to establish any ground of cruelty and also an act of adultery against the respondent. Uncorroborated statement has been made by the petitioner by levelling loose allegations against his own wife. The purpose is only that he wanted a male child from her which he was unable to produce as is evident from the fact that two abortions were suffered by her at the asking of her husband when it had been found that the child conceived is a girl child. The purpose is only that he wanted a male child from her which he was unable to produce as is evident from the fact that two abortions were suffered by her at the asking of her husband when it had been found that the child conceived is a girl child. It is not in the hands of woman to produce a male child, mysterious are the ways of nature so far as birth of a child is concerned. It has been further argued that the admittedly the husband and wife did produce a child though that child happens to be a girl. Is a girl child less dearer than a male child? It must be accepted that a child born to a couple is a reflection of union, be it a male child or a girl child. 12. It has been argued that the totality of the evidence brought-forth on record by the petitioner does not establish the allegation of adultery against respondent No. 1. The person against whom the allegation has been levelled has appeared as a witness and has categorically refuted the charge. This allegation has been further denied by the sister of respondent No. 1 who has appeared as RW3. The unrebutted evidence of Smt. Balbir Kaur to the effect that November 3, 1994, was a festival day of Diwali and she was present along with the children lends support to the evidence of respondent No. 1 that the petitioner had never come on that day to the house of Sh. Balwinder Singh Malhi and that she was not present at the house as alleged by the petitioner. A miserable effort has been made for seeking divorce with the objective to get married again in the hope of producing a male child. The trial Court has come to a correct conclusion that the petitioner has not been able to establish the allegation of adultery. The statement made by the petitioner in this regard cannot be accepted as supportive of the attendant circumstances alleged to have been stated. 13. I have considered rival contentions of learned counsel for the parties. I have perused the statements of the witness and the documentary evidence brought on record. I am of the view that the petitioner has not been able to establish the allegation of adultery against respondent No. 1. 13. I have considered rival contentions of learned counsel for the parties. I have perused the statements of the witness and the documentary evidence brought on record. I am of the view that the petitioner has not been able to establish the allegation of adultery against respondent No. 1. Apart from his own statement, there is no evidence which has been brought on record. The father of the petitioner has appeared as prosecution witness but no such averment has been made by him in the examination-in-chief and nothing has been remotely mentioned about this fact in his cross-examination. It is absolutely unsafe to accept such kind of the allegations against the wife especially when such statement made by the husband is not supportive of the attendant circumstances. The statement of sister of respondent No. 1 Smt. Balbir Kaur establishes beyond any doubt that she was present in the house on November 3, 1994 as the occasion was Di-wali on that day and obviously holiday alt around and that the children were also present. The petitioner has not been able to establish from any other piece of evidence that Smt. Surjit Kaur wife of the petitioner could be said to be present in the house of Balwinder Singh Malhi on the said date. 14. The petitioner has not been able to prove the pleadings by way of corroborative cogent evidence. Resultantly, I find no merit in this appeal and the same is dismissed. With no orders to costs.