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2003 DIGILAW 836 (PNJ)

Sarabjit Kaur Randhawa @ Anju v. Joginder Pal Singh

2003-05-28

JASBIR SINGH

body2003
JUDGMENT Jasbir Singh, J. - Appellant/wife has filed this appeal against judgment and decree dated 8.2.2002, vide which her application under Section 9 of the Hindu Marriage Act, 1955 (in short the Act), was dismissed. 2. It was case of the appellant that the marriage was solemnised between her and respondent on 24.3.1986 at Sangrur by Anand Karaz ceremony. After marriage, parties resided together and co-habited as husband and wife at Bathinda and Sangrur and out of this wedlock, daughter namely Pawan Puneet Kaur was born on 16.11.989 at Nabha. It was further case of the appellant that the parties resided together as husband and wife till June, 1991 when respondent/husband went to U.S.A. for some training and he left the appellant with her parents alongwith a minor daughter. Appellant is in service at Nabha and she had been visiting her in-laws at Sangrur. When respondent came back to India, he did not inform the appellant. However, when appellant came to Sangrur, she met him and asked as to why she was not informed of his arrival. Then respondent replied in a very angry mood and told that he had no intention to live with the appellant and turned the appellant out of his house. It was also brought to her notice that he, now intends to settle in U.S.A. Appellant brought this incident to the notice of her parents on 13.2.1994. A gathering of respectables came to Sangrur and made a request that she be rehabilitated in her matrimonial house but the same was turned down. By stating all these facts, application under Section 9 of the Act for restitution of conjugal rights was filed by the appellant. 3. Upon notice, respondent put up his appearance and contested that application. Relationship between the parties was denied. It was also denied that the parties ever resided together and out of that wedlock, a daughter was born. It was stated that the respondent is a big land owner and some persons, with a view to grab his property, had put up the appellant and at their instance, she had moved that application. In that regard, one Amarjit Singh with whom, litigation of respondent was going on, was mentioned as a person who had persuaded appellant to initiate this litigation. In that regard, one Amarjit Singh with whom, litigation of respondent was going on, was mentioned as a person who had persuaded appellant to initiate this litigation. Subsequent thereto, written statement was amended and it was stated that the judgment and decree dated 30.8.2002, inter-se between the parties, operates as res-judicata and due to that, it was prayed that application moved by the appellant be dismissed. Parties were put to trial on the basis of following issues :- "1. Whether the petitioner is legally wedded wife of the respondent ? OPP 2. If issue No. 2 is proved, whether the respondent has any reasonable ground to withdraw from the society of the petitioner ? OPR 3. Whether the present petition is barred by the principle of Resjudicata ? OPR" 4. In order to prove her case, appellant appeared as AW1 as her own witness and she examined one Sewa Singh son of Kehar Singh as AW2. To prove birth of the child, she brought Hans Raj in the witness box as AW3, Dr. Jasbir Kaur as AW4 and to prove date of birth and parentage of the child, Raj Kamal Dhamil Clerk in some school was produced as AW5. Respondent with a view to rebut evidence, produced as many as 6 witnesses and also brought on record documentary evidence. 5. After hearing arguments of the parties, looking into the records of the case and evidence, as led by them, trial court dismissed application of the appellant, vide its judgment and decree dated 8.2.2002. Hence, this appeal. 6. Shri Arihant Jain, Advocate appearing on behalf of the appellant, by referring to the statements of AW1 i.e. the appellant and AW2 Sewa Singh, vehemently contended that factum of marriage between the parties, is proved. To strengthen his argument, counsel has also made reference to photographs, which were produced on record by the appellant as "Mark A1 to A9". He further, by referring to the statements of AW3 to AW5, argued that birth of the child out of marriage between the parties, is proved on record. He prayed that the appeal be accepted and judgment and decree under challenge be set aside. 7. Shri Arun Palli, Advocate appearing on behalf of the respondent has controverted the arguments raised by counsel for the appellant. He prayed that the appeal be accepted and judgment and decree under challenge be set aside. 7. Shri Arun Palli, Advocate appearing on behalf of the respondent has controverted the arguments raised by counsel for the appellant. He has stated that a bare reading of oral testimony of AW1 and AW2 shatters the very case of the appellant. There exists large number of discrepancies and contradictions in their statements, which cannot be re-conciled. By referring to the statements of AW3 to AW5, he has stated that the documents brought on record by those witnesses are self created evidence and cannot be relied upon. He further, by referring to the judgment and decree dated 30.8.2002, passed by the Court of Civil Judge (Jr. Division), Sangrur inter-se between the parties, stated that the finding arrived at in that judgment shall operate as res- judicata between the parties and in view of that present appeal is liable to be dismissed. 8. After hearing counsel for the parties and going through the records, this Court is of the opinion that appeal is liable to be dismissed. 9. It is apparent from the records that apart from appearing as her own witness, appellant has failed to produce any independent witness to prove the factum of marriage between the parties. Even her parents and any other relative had failed to appear in the witness box. No person from the locality has come forward and supported her version. Only one Sewa Singh, who, it was alleged that had performed Anand Karaz ceremony, as a Granthi (Preacher), has appeared in the witness box to support her version. This Court, after reading statements of AW1 and AW2, is convinced that Sewa Singh AW2 is a procured witness. This fact is gathered, due to large number of discrepancies and contradictions existing between the statements of AW1 and AW2. Those contradictions were noticed by the court below in its judgment, while non- suiting the appellant and this Court feels that the opinion arrived at by the court below is perfectly justified. 10. So far as the photographs on record are concerned, a perusal thereof, indicates that these photographs do no pertain to the marriage ceremony. Those contradictions were noticed by the court below in its judgment, while non- suiting the appellant and this Court feels that the opinion arrived at by the court below is perfectly justified. 10. So far as the photographs on record are concerned, a perusal thereof, indicates that these photographs do no pertain to the marriage ceremony. Furthermore, the appellant has failed to prove these photographs on record as per law and as such, these cannot be looked into at this stage and no benefit of these photographs can be given to the appellant. It is apparent from the evidence that the appellant had failed to prove that she had been residing with the respondent as her wife over a long period. Except bald statement made by her, no other oral/documentary evidence had been brought on record to prove this fact and as such any presumption, regarding marriage, as has been argued by the counsel for the appellant, can not be raised in this case. Court below, by noticing various facts and contradictions as exist in the statements of AW1 and AW2, had rightly come to a conclusion that the presence of Sewa Singh AW2 is doubtful at the time of alleged marriage. As is apparent, that by chance Shri Sewa Singh came present at the time of marriage and thereafter, after about a period of more than 10 years, was again available to depose in Court, in favour of the appellant. Trial Court, by noticing conduct of Sewa Singh when he appeared in Court, had rightly formed an opinion that he was a planted witness. His testimony had rightly been ignored by the trial Court. Regarding documents, which had been produced on record to prove that Pawan Puneet Kaur is the daughter of respondent, the Court below had rightly overlooked those documents. Reasons given to ignore those documents are justified. Court below has also noticed judgment and decree dated 30.8.2000 inter-se between the parties. Finding of the Court below that this judgment and decree cannot operate as res-judicata between the parties is correct, however, the finding given in that judgment regarding relationship of the parties can be looked into while deciding this matter. In that judgment, civil court, after recording detailed evidence, had come to a conclusion that there existed no relationship of husband and wife between the parties. No such marriage as alleged, was solemnised. In that judgment, civil court, after recording detailed evidence, had come to a conclusion that there existed no relationship of husband and wife between the parties. No such marriage as alleged, was solemnised. Civil Court further opined that in fact, defendant/respondent was married with one Rubi Randhawa and out of that marriage, two children namely Vineet-daughter and Mahipal-son were born. It was further opined that the present appellant had no concern so far as the family of respondent is concerned. 11. Shri Palli has placed on record one judgment dated 29.1.2003, vide which appeal filed by appellant against the above mentioned judgment dated 30.8.2000 was dismissed. In view of the facts stated above, no case is made out to interfere in the judgment passed by the trial Court. Appeal is dismissed. Appeal dismissed.