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2003 DIGILAW 166 (PNJ)

Narinder Kaur v. Narinder Pal

2003-01-29

HEMANT GUPTA

body2003
Judgment Hemant Gupta, J. 1. The present appeal is by the wife aggrieved against the judgment and decree passed by learned Additional District Judge, Hoshiarpur dissolving the marriage between the parties on the ground of cruelty, desertion and adultery. 2. Marriage between the parties was solemnized on 21.1.1983 as per Sikh rites at village Barri Buddi, Police Station Nazibabad, District Bijnaur, U.P. Two sons were born out of the wedlock of the parties in June 1984 and June 1987. Respondent No. 1-husband has sought dissolution of marriage on the ground that the wife has been treating the husband with cruelty since after the solemnization of marriage. There is total destruction of love and affection on the part of the wife and it has become impossible for the husband to operate the marriage any more. It was alleged that at the time of solemnization of marriage of the husband, all his brothers & sisters were married & the husband was living with his parents in the ancestral house. The wife asked the husband for separate mess and residence immediately after the marriage and under the compelling circumstances the husband had to separate himself from his parents, although the father & mother of the husband were 93 and 90 years of age respectively. The husband has further alleged that the marriage of the cousin of his wife was solemnized in December, 1983 but the wife went to her parents house in September, 1983 along with her whole jewellery given to her in wari. At the time of marriage the wife handed over some of her jewellery to newly wedded cousin without the consent of the husband. However, the wife was reluctant to accompany the husband for his village. The wife came to the village of the husband in February 1984 with great persuasion and efforts of the husband. However, in April. 1984, the parents of the wife came to village Khudda and took her with them at village Bum Buddi. She had again taken all the jewellery articles. Even though a son-Harjit Singh was born in June. 1984 but the parents of the wife did not inform the husband on this occasion. Still, the husband went to see his wife at her village but he was not allowed to hug the newly born child nor was allowed to see the child. Even though a son-Harjit Singh was born in June. 1984 but the parents of the wife did not inform the husband on this occasion. Still, the husband went to see his wife at her village but he was not allowed to hug the newly born child nor was allowed to see the child. The wife did not turn up for her matrimonial home for a period of 2 years. Ultimately Darbari Lal, brother of the husband & his wife Santosh Kumari along with one Chaudhary Joginder Singh of village Munak Kalan went to the village and brought the wife with great efforts and persuasion. However, the wife kept her all jewellery articles with her parents. It is slated that the wife lived at village Khudda with the husband till June, 1993. 3. The husband further alleged that on 5.6.1993. one Inder Pal, brother-in-law of the husband died in a motor vehicular accident. At that time, the wife left the matrimonial home. She was found in the company of some transporters of the truck union, Mukerian. At another-occasion, she was found laundering with the son of Mela Singh Black-smith. It was, thus, alleged that the wife humiliated the husband and his other family members and lowered their reputation by indulging herself in such like acts which are very much anti-thesis of normal life. The husband further alleged that the wife developed intimacy with one Kuldip Singh, cousin of the husband, resident of village Rahlan. On 26.7.1995, the wife silently left the matrimonial home and the husband found her in the compromising position with Kuldip Singh at his tubewell at village Rahlan. He reported the matter to the maternal grand parents of the wife at village Cholang but they refused to intervene. Thereafter, the wife moved an application to the Sarpanch of Gram Panchayat, Khudda through Gram Panchayat of village Dwakhri on 25.8.1995. On 26.8.1995, the Panchayats of Rahlan, Jia Natha, Dwakhri and Khudda were convened and the wife was reluctant to live in the matrimonial home. The wife again moved an application on 2.9.1995 before the Police Station, Tanda levelling false allegations. However, the Panchayats of village Khudda and Dwakhri were convened and the wife was brought to the matrimonial home. On 15.9.1995, the wife again moved a false application before the police authorities at Khudda. The wife again moved an application on 2.9.1995 before the Police Station, Tanda levelling false allegations. However, the Panchayats of village Khudda and Dwakhri were convened and the wife was brought to the matrimonial home. On 15.9.1995, the wife again moved a false application before the police authorities at Khudda. However, at the instance of Sewa Kaur-Panch, Harbinder Kaur, member of Mahila Mandal and Udham Singh, Ex-Sarpaneh, it was decided that the wife will live in the ancestral home and the whole house-hold articles and regular maintenance will be given to her. She gave in writing that she will not accompany any other male member anywhere nor will call any person in the house. However, on 19.10.1995, the father of the wife came to village Khudda and took away all the articles in a vehicle and left the place along with the wife and the children. It is further alleged by the husband that on 4.1.1996, the Police authorities of Khudda received a complaint through police authorities of Nazibabad, whereby the accusation of demand of Rs.50.000/- and 10 tolas of gold was made against the husband and his father. Subsequently the husband filed the present petition under Section 13 of Hindu Marriage Act (for short to be referred as "the Act") for dissolution of marriage on 18.1.1996. 4. The respondent filed the written statement and denied the allegations stating that since after the solemnization of marriage, the husband always ignored the wife with the allegation that she had not brought much dowry. It was alleged that infact. it became the tradition of the family of the husband to seek divorce and then to conduct second marriage due to lust of dowry. She stated that she wanted to live in the joint family and to serve her father-in-law and mother-in-law with great respect but they always taunted her by compelling her to bring colour T.V., fridge, scooter etc. in addition to sufficient dowry given to them. She pointed out that all the ornaments were in the custody of the mother of the husband which were taken by her immediately after the marriage. She further stated that the husband insisted on a scooter as a condition precedent to take her to the matrimonial home, after the birth of a male child. She pointed out that all the ornaments were in the custody of the mother of the husband which were taken by her immediately after the marriage. She further stated that the husband insisted on a scooter as a condition precedent to take her to the matrimonial home, after the birth of a male child. However, it was due to intervention of the respectable, the matter was settled and the husband undertook to keep the wife and the child with full love and affection, after the father of the wife made efforts in January, 1985. She denied the allegations levelled against her in respect of the son of Mela Singh. She further stated that Kuldip Singh is the son of sister of the mother of the husband. The husband borrowed Rs.5,000/- from Kuldip Singh but he did not repay the same inspite of repeated requests made by Kuldip Singh and, thus, the husband has levelled false allegations. She denied having given any thing in writing as alleged by the husband. She further stated that she was admitted in the hospital after she was severely beaten by the husband. When she was admitted in the hospital, the father of the wife moved an application to the Panchayat of village Khudda on 19.10.1995 to the effect that he is taking away the wife along with her children to village Bari Budhi but the village Panchayat gave an assurance that the husband will not do anything bad in future. However, the father of the wife visited the matrimonial home on 21.19.1995 and came to know that the wife was beaten by the husband with sticks and was not provided food for 2 days. At that time, the father of the wife had no alternative but to take the wife along with the children with him to his house in U.P. 5. Respondent No.2 also filed written statement and denied the allegations stating that the husband has taken false plea of adultery- He mentioned that it is the husband who used to tell lie and was in the habit of not making the payment, if any, of the purchased goods. He stated that the husband borrowed Rs.5,000/- from him but did not re-pay the same inspite of repeated requests. He stated that the husband borrowed Rs.5,000/- from him but did not re-pay the same inspite of repeated requests. The wife approached the Gram Panchayat and both the parties entered into an agreement in which the husband paid Rs.2500/- to respondent No.2 and, thus, the husband felt humiliated. 6. In support of respective allegations, the husband appeared as AW-7 and produced PW-1 Parkash Singh-Sarpanch, Gram Panchayat Khudda. The said witness has proved Ex.R2, compromise dated 2.9.1995, wherein the parties decided to live together after removing their differences. PW-2 is Darbari Lal, brother of the husband. He deposed regarding illicit relations of the wife with Kuldip Singh and to the effect that once she was found with the son of Mela Singh. PW-3 is Joginder Singh and he deposed to the effect that the wife wanted to live separately in residence, mess and land from the parents of the husband. PW-4 is Harvinder Kaur, Panch of village Khudda. She deposed regarding complaints made by the wife to the Panchayat. AW-6 is the widowed sister of the husband who deposed regarding the conduct of the wife. 7. On the other hand, wife herself appeared as RW-3 and- produced RW-1 Tarsem Singh of village Rahlan i.e. the village of Kuldip Singh. RW-2 is Dr. Upasak Kumar who deposed regarding the injuries suffered by the wife. RW-4 is Surjit Singh-Sarpanch of village Jia Natha. Kuldip Singh, the alleged adulterer, appeared as RW-4. 8. Learned trial Court granted a decree of divorce accepting the allegations levelled by the husband. Thus, the wife has filed the present appeal aggrieved against the such decree of divorce. 9. As per facts pleaded by the husband, the wife left the matrimonial home in September 1983 and then in April, 1984 with jeweller. However, the fact remains and is admitted that the wife joined the matrimonial home & stayed with her husband till 5.6.1993 when she is alleged to have left matrimonial home without any information but as per the husband himself, the matter was patched up. She continued to live in the matrimonial home till 26.7.1995 when the alleged act of adultery is alleged to have been committed by her. The petition for dissolution of marriage was filed on 18.1.1996. She continued to live in the matrimonial home till 26.7.1995 when the alleged act of adultery is alleged to have been committed by her. The petition for dissolution of marriage was filed on 18.1.1996. It is, thus, apparent that the allegations pertaining to leaving of the house by the wife in the month of September, 1987 April, 1984 and then in June, 1993 stand condoned as admittedly the parties resided after each such incident. 10. The entire sequence of events, as mentioned by the husband, thus, revolves around the allegation of adultery on 26.7.1995. The said allegation is the basis for dissolution of marriage and is the ground of cruelty as well. It may be mentioned that the husband has sought dissolution of marriage on the ground of desertion but as per the husband itself, the wife left the matrimonial home on 19.10.1995 and thus, on the date of filing of petition on 18.1.1996, statutory period of separation of 2 years was not completed, therefore, the question which is required to be examined is whether the wife has treated the husband with cruelty or/and that she committed the act of adultery on 26.7.1995. 11. To prove the allegation of adultery the husband appeared as AW-7 and in support of such allegation, he has produced his widowed sister AW-6, who has allegedly visited the tubewell of Kuldip Singh on the night of 26.7.1995. However, statements of both the witnesses are not only contradicted but also not reliable. Husband. AW-7 has denied the suggestion that his sister Surinder Kaur is residing in his village. On the other hand, it is stated by AW-6 Surinder Kaur that after the death of her husband, she is residing in village Khudda i.e; her parental village. Again AW-6 has deposed that her brother told her that the wife was absent from the house in the night of 26.7.1995 at about 12 p.m. Village Rahlan is at a distance of 2 kms. but still, inspite of prior information, they have not associated any independent person. Still further, the stand of both the witnesses that they were attacked with Kassi when they asked Kuldip Singh to open the door is doubtful as there is no evidence that any injury was suffered by both these witnesses. It appears that the story of absence of the wife in the night of 26.7.1995 is only a concocted one. 12. Still further, the stand of both the witnesses that they were attacked with Kassi when they asked Kuldip Singh to open the door is doubtful as there is no evidence that any injury was suffered by both these witnesses. It appears that the story of absence of the wife in the night of 26.7.1995 is only a concocted one. 12. Even otherwise, 1 am of the opinion that the husband is not entitled to seek dissolution of marriage on the basis of alleged incident of 26.7.1995. Under Section 23(1)(b) of the Act, it is provided that where the ground of divorce is under Clause (i) or Sub-section (1) of Section 13, it is necessary for the petitioners to prove that there is no connivance or condonation of the act or acts complained of. Section 23(1)(b) of the act reads as under:- 23. Decree in proceedings.- (1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that-(a) xx xx xx xx (b) Where the ground of the petition is the ground specified or in Clause (i) of Sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty." PW-1 Parkash Singh, Sarpanch of village Khudda has proved compromise-Ex.R1 dated 2.9.1995 i.e. after the incident on 26.7.1995. In the said compromise, it is mentioned that the parties had agreed to sink their differences and to live together. In pursuance of such compromise, the wife has admittedly stayed with her husband till 19.10.1995. Such a resolution of the Panchayat and the admitted fact that the wife stayed with the husband till 19.10.1995 shows that the husband has condoned such act of cruelty even if such an allegation is presumed to be correct. The said document when put to the husband, stated that he cannot identify his signatures on photostat copy without seeing the original. At another place, he admits that a Panchayat consisting of Sewa Kaur, Panch and Harbinder Kaur was convened and it was compromised to the effect that the wife was to be not separated in mess and residence in village Khudda from his parents. At another place, he admits that a Panchayat consisting of Sewa Kaur, Panch and Harbinder Kaur was convened and it was compromised to the effect that the wife was to be not separated in mess and residence in village Khudda from his parents. He also stated that on 2.9.1995, the wife filed an application to Police Station, Tanda and the Panchayats of village Khudda and Dwakhri took the wife to her matrimonial home. 13 The said document has been proved by the witness of the husband. Further, it is deposed by him that the wife stayed with him till 26.8.1995. Although in the petition itself, it is mentioned that the wife stayed in the matrimonial home with the husband till 19.10.1995. Thus, keeping in view the fact that the wife stayed in the matrimonial home, as pleaded by the husband, till 19.10.1995, the husband has condoned the act of adultery. Therefore, it is not open to the husband to seek dissolution of marriage on the ground of wife having committed sexual intercourse with another person in terms of Section 13(t)(i) of the Act. 14. The husband has sought divorce on the ground of cruelty as well. Such cruelty is attributed on account of various complaints made by the wife to the Panchayat as well as to the police officials. Such complaints are dated 26.8.1995 or thereafter, as mentioned above, the parties had entered into a settlement on 2.9.1995 and compromise Ex. R1 was executed wherein the parties decided to remove their differences. Therefore, it is not open to the husband to raise any grievance of the complaints made prior thereto. The wife has allegedly lodged complaints after 2.9.1995 i.e. firstly on 15,9.1995, secondly in October 1995 and thirdly on 4.1.1996. There is no evidence regarding the complaint made by the wife on 15.9.1995. However, the complaints dated 19.10.1995 and 4.1.1996 are admitted to have been made by the wife, i! the wife has made complaints against the acts of beating etc, on her person by the husband, it cannot be said that such complaints amount to cruelty. 15. There is no evidence regarding the complaint made by the wife on 15.9.1995. However, the complaints dated 19.10.1995 and 4.1.1996 are admitted to have been made by the wife, i! the wife has made complaints against the acts of beating etc, on her person by the husband, it cannot be said that such complaints amount to cruelty. 15. In view of the above, allegation levelled by the husband are not sufficient to dissolve marriage between the parties Consequently, I allow the present appeal and set aside the judgment and decree dated 14.1.2000 passed by learned Additional District Judge, Hoshiarpur and dismiss the petition filed by the husband herein for dissolution of marriage with, costs assessed at Rs.3000/-.