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2003 DIGILAW 1346 (PNJ)

Joginder Kaur v. Gurdial Singh

2003-09-24

SATISH KUMAR MITTAL

body2003
JUDGMENT Satish Kumar Mittal, J. - Smt. Joginder Kaur, defendant, has filed this Regular Second Appeal against the judgment and decree passed by the Additional District Judge, Amritsar, vide which, while reversing the judgment and decree passed by the Sub Judge Ist Class, Patti, the suit of the respondent (plaintiff) was decreed and she was restrained from recovering the amount of maintenance @ Rs. 100/- per month from the respondent, which was granted to her by the Criminal Court vide order dated 11.3.1974 passed under Section 488 of the Code of Criminal Procedure (hereinafter referred to as the Code). 2. The case of the respondent was that the appellant was married with his elder brother Harbhajan Singh. Five years after the marriage, Harbhajan Singh expired in the year 1955. At that time, the appellant was pRegulation nt, and after the death of her husband, she gave birth to a daughter. It was further alleged that after the death of Harbhajan Singh, the appellant put pressure upon the parents of the respondent for her re-marriage with him. The said pressure was not accepted by the respondent and his parents and he did not perform marriage with the appellant. Later on, in the year 1976, when the respondent received an ex parte order dated 11.3.1974 passed in favour of the appellant, granting maintenance of Rs. 100/- per month to her against him by treating her as his wife, he filed an application for setting aside that order. But the said application was dismissed as time barred by the Court. Hence, the respondent filed the instant suit for declaration as well as injunction. 3. The appellant contested the suit. It was alleged that she was the legally wedded wife of the respondent and a daughter was born out of his loins to her. It was further pleaded that when the respondent did not maintain her, though she was his legally wedded wife, an order was legally and validly passed in her favour by the Criminal Court under Section 488 of the Code. 4. On the pleadings of the parties, the following issues were framed by the learned trial court :- 1. Whether the suit is within time ? OPP 2. Whether defendant was married with Harbhajan Singh elder brother of the plaintiff ? OPP 3. Whether defendant is the wife of Gurdial Singh ? OPP 4. 4. On the pleadings of the parties, the following issues were framed by the learned trial court :- 1. Whether the suit is within time ? OPP 2. Whether defendant was married with Harbhajan Singh elder brother of the plaintiff ? OPP 3. Whether defendant is the wife of Gurdial Singh ? OPP 4. In case issue No. 2 stands proved, whether the order for maintenance, against the plaintiff is liable to be set aside ? OPP 5. Whether the suit is not maintainable as alleged in written statement para No. 9 ? OPD 6. Whether the Court has no jurisdiction to try the present suit ? OPD 7. Whether plaintiff is estopped from filing the present suit by his act and conduct ? OPD 8. Relief. 5. After considering the evidence led by both the parties, the learned trial Court dismissed the suit of the respondent. It was held that the appellant was not married with Harbhajan Singh, rather she was married to the respondent and he was held to be her husband. Regarding the maintainability of the suit and the jurisdiction of the Civil Court, it was held that though the suit for declaration regarding the status of the parties was maintainable, by the suit for injunction was not maintainable. 6. Against the aforesaid judgment and decree, the respondent filed an appeal before the learned first appellate Court, which was allowed and his suit was decreed. Hence, this Regular Second Appeal. 7. I have heard the arguments of learned counsel for the respondent and have perused the record of the case. 8. The first appellate court only reversed the findings of the trial court on issue No. 3 i.e. whether the defendant is the wife of Gurdial Singh and observed as under:- "Without going into this controversy short question for the purpose of this appeal canvassed before me, which is now subject matter of issue No. 3 while dealing with the matter under this issue it is not out of place to mention that the respondent claimed pension from the State Government on an application dated 24.2.76 (Photostat copy PW4/A). So has been stated by PW4 Waryam Singh an official of the Department. He has proved from the record that the respondent was getting pension being widow of Gurdial Singh. Various documents in that behalf including the claim application dated 24.2.76 (PW4/A) is on the file. So has been stated by PW4 Waryam Singh an official of the Department. He has proved from the record that the respondent was getting pension being widow of Gurdial Singh. Various documents in that behalf including the claim application dated 24.2.76 (PW4/A) is on the file. PW5 Ram Nath Postman has categorically stated that he was delivering the amount of the pension to the defendant and he can recognize her. Strangely enough the respondent did not put in appearance in the court on 8.8.79 the day when the postman was examined. The defendant appearing as her own witness has also admitted in her cross examination that she did file an application for getting pension as widow of Gurdial Singh, which has been denied by her witnesses DW3 and DW4. It is also not out of place to mention that the defendant has recorded her age as 50 years in the application Ex.PW4/A as well as in the affidavit Ex.PW4/B, both dated 24.2.76 whereas she has given her age as 48 while appearing in the court on 10.5.79. The age of the plaintiff is recorded to be 44 years which has not been challenged during the cross examination. This shows that there is much age difference between the parties. No witness has been examined on behalf of the defendant to show who acted as granthi at the time of the marriage. The evidence led on the file is not convincing. The conduct of the respondent is not above board and the findings recorded by the learned trial court under issue No. 3 are in the nature of jumping conclusion and are hereby set aside. Consequently the respondent is not entitled to any maintenance being the wife of the plaintiff." 9. The findings on the other issues including issues No. 2, 5 and 6 have not been touched. The aforesaid finding recorded by the learned first appellate Court, in my opinion, is totally perverse and against the evidence available on the record and the same is not sustainable. Normally, the findings of fact recorded by the Courts below are not to be interfered in the Regular Second Appeal. After amendment of Section 100 of the Code in the year 1976, the interference in the judgment and decree passed by the Courts below can be made in the Regular Second Appeal only on the substantial question of law. Normally, the findings of fact recorded by the Courts below are not to be interfered in the Regular Second Appeal. After amendment of Section 100 of the Code in the year 1976, the interference in the judgment and decree passed by the Courts below can be made in the Regular Second Appeal only on the substantial question of law. But in one circumstance where the judgment and decree passed by the Courts below is based upon the perverse finding of facts, which are against the evidence on record and based upon assumptions and conjectures, this Court has the jurisdiction to deal with the issue and set aside such finding of facts even in Regular Second Appeal. The Honble Supreme Court in Kulwant Kaur v. Gurdial Singh Mann, AIR 2001 SC 1273(SC), while explaining the scope of jurisdiction of the High Court under Section 100 of the Code, has held as under :- "Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure Amendment Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the findings stands vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-a-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication - what is required is a categorical finding on the part of the High Court as to perversity." 10. In the light of the aforesaid legal position, I have examined the impugned judgment and decree passed by the learned first appellate court. 11. Needless to say however, that perversity itself is a substantial question worth adjudication - what is required is a categorical finding on the part of the High Court as to perversity." 10. In the light of the aforesaid legal position, I have examined the impugned judgment and decree passed by the learned first appellate court. 11. While reversing the findings of the learned trial court on issue No. 3, the learned first appellate court has relied upon two factors; firstly that application dated 24.2.1976 (Ex.PW4/A) proves that the appellant was getting pension being widow of Gurdial Singh and secondly that in this application (Ex.PW4/A) and the affidavit dated 24.2.1976 (Ex.PW4/B), she alleged her age as 50 years, whereas when she appeared in the Court on 10.5.1979 she gave her age as 48 years, but the age of Gurdial Singh was 44 years, therefore, there was much difference of age between the parties. From these two factors, the learned first appellate court has inferred two things; firstly that if at the time of filing the said application she would not have been the widow of Harbhajan Singh because the respondent was alive, then how she was getting widow pension from the Government as the widow of Gurdial Singh and secondly that the marriage between the parties to the suit could not have taken place because respondent was much younger to the appellant. In my opinion, the aforesaid two inferences drawn by the learned first appellate court are totally perverse. The documents Ex.PW4/A and PW4/B have been produced by the respondent, in which the appellant has been shown as widow of the respondent. From this, it cannot be inferred that she claimed herself as the widow of Harbhajan Singh. On the other hand, when the finding of the learned trial court on issue No. 2, in which it was clearly held that the appellant was not married with Harbhajan Singh, was not touched and reversed, it cannot be inferred that the appellant was the widow of Harbhajan Singh. 12. There is another factor, which goes against the respondent. It is not case of the respondent that he was married to some body else than the appellant. It is also not his case that he was a bachelor. When the respondent wanted to marry for the second time, the appellant filed a criminal complaint against him under Section 494 IPC. There is another factor, which goes against the respondent. It is not case of the respondent that he was married to some body else than the appellant. It is also not his case that he was a bachelor. When the respondent wanted to marry for the second time, the appellant filed a criminal complaint against him under Section 494 IPC. In those proceedings, it was never the case of the respondent that he was not married to the appellant. The said complaint was dismissed only on the ground that it was not established that the respondent contacted second marriage with woman named in the complaint. This factor also goes against the respondent. Initially, when the appeal was admitted, operation of the judgment and decree of the learned first appellant court was stayed by this Court on 10.5.1982 and in view of the said order, the appellant might have been getting maintenance of Rs. 100/- per month for her survival in this world. It will be wholly unjust and unreasonable if the case of the respondent for restraining the appellant from getting maintenance allowance as ordered by the Criminal Court under Section 488 of the Code is accepted. 13. In view of the aforesaid discussion, I allow this appeal with costs and set aside the judgment and decree dated 8.12.1981 passed by the learned first appellate court. The costs are quantified at Rs. 5,000/-. Appeal allowed.