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2004 DIGILAW 1321 (PNJ)

Naib Singh v. Nachhatro Alias Smt. Asha Kumari

2004-12-07

G.S.SINGHVI, M.M.AGGARWAL

body2004
Judgment G.S.Singhvi, J. 1. This appeal under Clause X of the Letters Patent is directed against judgment dated 3.8.2001 vide which the learned Single Judge allowed the appeal filed by the respondent and set aside the decree of divorce passed by Additional District Judge, Ambala in H.M.A. case No. 39 of 1995. 2. The marriage between the parties was solemnised on 28.5.1981 according to Hindu rites and ceremonies at Village Kathemajra, Tehsil Naraingarh, District Ambala. After about 14 years, the appellant filed a petition under Section 13 of the Hindu Marriage Act, 1955 (for short, the Act) for dissolution of marriage on the grounds of cruelty and desertion by alleging that the wife had been living away from him since January, 1984 and that she had ill-treated him and his family members. 3. On notice, the respondent appeared and filed written statement to contest the petition filed by the appellant. She denied the allegation of desertion and cruelty. Simultaneously, she made a counter allegation that the appellant had ill-treated her and had demanded dowry. 4. On the pleadings of the parties, the trial Court framed the following issues: "1. Whether the petitioner is entitled to the decree of divorce on the grounds of cruelty and desertion as alleged? OPP 2. Relief." 5. The appellant appeared as PW1 and examined Satpal-PW2 and Balwan Singh-PW3. The respondent appeared as RW1 and examined Labh Chand-RW2, Ajmer Singh-RW3 and Maya Ram-RW4. Both of them also produced documentary evidence. 6. On an evaluation of the pleadings of the parties and the evidence produced by them, the learned Additional District Judge held that the petitioner (appellant herein) has been able to prove desertion on the part of the respondent but could not establish the plea of cruelty. Accordingly, he answered issue No. 1 partly in favour of the petitioner and partly in favour of the respondent and granted decree of divorce on the ground of desertion. 7. Feeling aggrieved with the judgment and decree passed by the Additional District Judge, the respondent filed an appeal under Section 28 of the Act. The learned Single Judge allowed the appeal of the respondent, albeit without analysing the pleadings and evidence of the parties and without holding that the finding recorded by the trial Court on the issue of desertion suffers from an error of law or was otherwise unsustainable. The learned Single Judge allowed the appeal of the respondent, albeit without analysing the pleadings and evidence of the parties and without holding that the finding recorded by the trial Court on the issue of desertion suffers from an error of law or was otherwise unsustainable. The only point which appealed to the learned Single Judge was that the wife had expressed her willingness to live with the husband and the latter was not prepared to keep her. The relevant extract of the impugned judgment which contains the solitary reason recorded by the learned Single Judge for setting aside the decree passed by the Trial Court, read as under: "Learned counsel for the appellant has pointed out that the wife was willing to live with the husband and she was forced to live separately as the husband was not willing to keep her. I find force in this contention. There may have been quarrels and bickerings at times on account of which the wife may have separated from the husband but it cannot be stated that she had permanently abandoned the matrimonial home. The Lok Adalat has recorded that the husband was not prepared to take back the wife though the wife was willing to stay with the husband. Though the period of desertion relevant for deciding divorce petition is two years preceding the filing of the petition, subsequent conduct may also be taken into account in support of the intention of the parties. Having regard to all the circumstances of the case, I am unable to uphold the findings of desertion recorded by the Trial Court. The same is consequently set aside." 8. Shri Surinder K.Garg, learned counsel for the appellant argued that the impugned judgment is liable to be set aside because while reversing the decree passed by the Trial Court, the learned Single Judge did not consider the crucial issue whether the respondent had deserted the appellant, a fact which was found proved by the trial Court after thorough evaluation of the evidence produced by the parties. He further argued that while exercising the appellate jurisdiction, the learned Single Judge was duty-bound to consider the evidence produced by the parties, which he has failed to do in the present case and then decide whether or not the decree passed by the trial Court is legally sustainable. He further argued that while exercising the appellate jurisdiction, the learned Single Judge was duty-bound to consider the evidence produced by the parties, which he has failed to do in the present case and then decide whether or not the decree passed by the trial Court is legally sustainable. In support of this argument, Shri Garg relied on the judgment of the Supreme Court in Santosh Hazari v. Purushottam Tiwari (dead) by LRs. J.T. 2001(2) S.C. 407. 9. We have given serious thought to the arguments of the learned counsel and carefully perused the record. In our opinion, the impugned judgment is liable to be set aside because while reversing the. decree passed by the trial Court, the learned Single Judge ignored the principles of law governing the exercise of appellate jurisdiction. 10. In Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh and Ors., A.I R. 1951 S.C. 120, their Lordships of the Supreme Court considered the ambit of the appellate Courts jurisdiction to interfere with the finding of fact reached by the trial Court and laid down the following propositions: "Where the question for consideration for the appellate Court is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case, the appellate Court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Court. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is-and it is nothing more than a rule of practice-that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact. The appellate Court is wrong in thinking that it would detract from the value to be attached to a trial Judges finding of fact if the Judge does not expressly base his conclusion upon the impressions he gathers from the demeanour of witnesses. The duty of the appellate Court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial Court arrived at or whether there is an element of improbability arising from proved circumstances which, in the opinion of the Court, outweighs such finding." 11. In Santosh Hazari v. Purushottam Tiwari (supra), their Lordships of the Supreme Court emphasised that the appellate Court should not readily interfere with the finding of fact arrived at by the trial Court and observed: "While writing a judgment of reversal the Appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the Appellate Court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. If the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the Appellate Court is entitled to interfere with the finding of fact. When there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the Appellate Court should not interfere with the finding of the trial Judge on a question of fact the Appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding." 12. By applying the ratio of the afore-mentioned judgments to the present case, we hold that the learned Single Judge committed a serious error by reversing the finding of fact recorded by the trial Court on the issue of desertion without considering the evidence produced by the parties and without recording the conclusion that the finding of fact recorded by the trial Court was vitiated by an error of law. 13. At this stage, Shri Surinder K.Garg made a request that we may finally dispose of the matter on merits, but we do not consider it proper to do so because- (i) the judgment of the learned Single Judge suffers from an inherent defect, inasmuch as, it is contrary to the law laid down by the Supreme Court regarding the scope of the jurisdiction of the first Appellate Court and we are convinced that it is a fit case in which the matter should be remitted for fresh adjudication of the appeal filed by the respondent; and (ii) the respondent has not appeared to contest the case and, therefore, it will not be proper to pass any order adversely affecting her right. 14. In the result, the appeal is allowed. The judgment of the learned Single Judge is set aside and the case is remanded for fresh adjudication of the appeal filed by the respondent. 15. The Registry is directed to issue notice to the respondent to appear in person or though an authorised Advocate/representative on 17.1.2005 to espouse her cause before the learned Single Judge.