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2004 DIGILAW 485 (PNJ)

Vijay Kumar Duggal v. Kamlesh Kumari

2004-04-28

V.M.JAIN

body2004
Judgment V.M.Jain, J. 1. This order shall dispose of the main appeal filed by the husband and the cross-objections filed by the respondent wife against the judgment and decree dated 21.9.1995 passed by the Additional District Judge, Jagadhri. 2. The facts, in brief, are that the appellant husband filed a petition under Section 13 of the Hindu Marriage Act, 1955 (for short, the Act) seeking dissolution of marriage by a decree of divorce against the respondent wife, alleging therein that the marriage between the parties was solemnized on 3.2.1987 and after marriage, the parties lived together as husband and wife and a male child, who was now aged 5 years, was born out of their wedlock. It was alleged that even though the husband treated the respondent wife nicely, yet the respondent refused to live with him at the behest of her parents and started pressurising him to separate from his joint family and finding no alternative, he took a house on rent near the house of her parents and that the respondent spent all her time in her parents house ignoring the petitioner even though he had come on leave to live in the house only for few days. It was alleged that on 14.12.1989, she put lock on the rented house and took away all the ornaments and cash etc. with her. It was alleged that the respondent started levelling false allegations against the petitioner and refused to come and live with him inspite of his best efforts. It was alleged that in this manner, the respondent had treated the petitioner with mental and physical cruelty and had withdrawn from his society and deserted him since 14.12.1989. The said petition was dated 13.3.1993. The respondent wife contested the said petition by filing the written statement controverting the allegations made by the petitioner and alleging therein that in fact, the petitioner husband had illicit relations with his own Bhabhi, Smt. Vijay Kumari. It was alleged that the separate room was taken by the petitioner only to have illicit relations with his Bhabhi. It was alleged that on 13.12.1989, the petitioner and his Bhabhi, Smt. Vijay Kumari, gave poison to the minor son Munish, who was immediately taken to the hospital and with great difficulty, his life was saved. It was alleged that in fact, it was the petitioner husband, who had deserted the respondent. It was alleged that on 13.12.1989, the petitioner and his Bhabhi, Smt. Vijay Kumari, gave poison to the minor son Munish, who was immediately taken to the hospital and with great difficulty, his life was saved. It was alleged that in fact, it was the petitioner husband, who had deserted the respondent. Allegations of ill-treatment on account of demand of dowry were also levelled. 3. The petitioner husband filed replication. Various issues were framed. 4. During the pendency of the main petition, the respondent wife filed an application under Section 27 of the act, seeking disposal of the property jointly owned by the parties, giving the list of various articles. The petitioner husband filed reply to the said application. From the pleadings of the parties, various issues on the said application were also framed. 5. After hearing both sides and perusing the records, the learned Additional district Judge found that the respondent wife had deserted the petitioner husband since 1989. Similarly, the allegations of cruelty were also found to be proved against the respondent wife. Thus, the issues regarding desertion and cruelty were decided in favour of the husband and against the wife. With regard to the allegation of the respondent wife that the petitioner husband was living in adultery with his Bhabhi, it was found that the respondent wife had failed to prove this allegation against the petitioner husband. Accordingly, the issue in this regard was decided against the respondent wife. With regard to the application under Section 27 of the Act, it was held that various articles detailed in the list Ex.RW7/A were given to the petitioner at the time of marriage and accordingly, it was held that the petitioner husband was liable to return these articles to the respondent wife. Resultantly, the learned Additional District Judge, while granting a decree of divorce in favour of the husband and against the wife, also directed the petitioner husband to return the dowry articles to the respondent wife under Section 27 of the Act, vide judgment and decree dated 21.9.1995. Aggrieved against the same, the husband filed the present appeal challenging the order of the trial Court directing to return the dowry articles to the respondent wife, whereas the respondent wife filed the cross-objections challenging the decree of divorce passed in favour of the petitioner husband and against the respondent wife. Aggrieved against the same, the husband filed the present appeal challenging the order of the trial Court directing to return the dowry articles to the respondent wife, whereas the respondent wife filed the cross-objections challenging the decree of divorce passed in favour of the petitioner husband and against the respondent wife. Since the appeal and the cross-objections are against the same judgment and decree passed by the trial Court, the appeal and the cross-objections are being disposed of by a single judgment. 6. I have heard the learned counsel for the parties in the appeal as well as in the cross-objections and have gone through the records carefully. 7. So far as the cross-objections field by the respondent wife challenging the decree of divorce are concerned, in my opinion, there is no merit in these cross-objections and the same are liable to be dismissed. While deciding the issue regarding cruelty in favour of the husband, it was found by the learned trial Court that the respondent wife had levelled allegations of adultery against the petitioner husband saying that he was living in adultery with his Bhabhi. It was found that the respondent wife had miserably failed to substantiate these allegations. It was found that RW-3 Smt. Sheela Rani had stated that the petitioner had illicit relations with his Bhabhi. However, she could not give any instance from which she could say that the petitioner had illicit relations with his Bhabhi. It was also found that Smt. Kamlesh Kumari respondent herself had appeared in the witness box and had stated that she had seen the petitioner in a compromising position with his Bhabhi, Smt. Vijay Kumari. However, this part of her statement could not be believed because this fact was nowhere mentioned by her in the written statement. It was also found that except the testimony of these two witnesses, there was nothing on the records to show that the petitioner was living in adultery with his Bhabhi. On the other hand, it was found that the petitioner had deposed that he was brought up by his brother and Bhabhi and that he treated his Bhabhi as his mother. Thus, it was found that in fact, by levelling such false allegations against the petitioner husband, the respondent wife had treated the petitioner husband with cruelty. On the other hand, it was found that the petitioner had deposed that he was brought up by his brother and Bhabhi and that he treated his Bhabhi as his mother. Thus, it was found that in fact, by levelling such false allegations against the petitioner husband, the respondent wife had treated the petitioner husband with cruelty. It was also found that the respondent wife had also admitted that she had written a complaint to the Army Authorities (where the petitioner was employed) that the petitioner had illicit relations with his Bhabhi and had also written letters that the petitioner had poisoned his son. It was found that there was no evidence to substantiate these allegations either regarding illicit relations or about poison and as such, it would be clear that the respondent had caused cruelty to the petitioner. In this regard, reference was made to the statement of Dr. Rajnish Mehta, RW-2, who stated that he could not say as to what was the disease with which the son of the respondent, namely, Munish, was suffering as the record was destroyed. It was found that in the absence of any material, it could not be said that Munish was given poison. The learned counsel appearing for the respondent wife could not point out any material from the record to show that the findings recorded by the learned trial Court on the question regarding cruelty were contrary to the records or that there was any mis-reading of evidence. In fact, from the perusal of the entire evidence led by the parties, in my opinion, it could be said that the learned Additional District Judge was perfectly justified in holding that the respondent had treated the petitioner with cruelty by levelling false allegations against him and that the petitioner husband is entitled to the dissolution of marriage by a decree of divorce on the ground of cruelty besides the ground of desertion. Accordingly, I up-hold the findings of the trial Court on the various issues in respect of the main petition under Section 13 of the Act. 8. Accordingly, I up-hold the findings of the trial Court on the various issues in respect of the main petition under Section 13 of the Act. 8. Coming to the findings of the trial Court on the application under Section 27 of the Act, it has been submitted before me by the learned counsel for the appellant husband that the provisions of Section 27 of the Act apply only to those articles which could be termed as the property jointly owned by the parties. It has been submitted that he various articles detailed in the application under Section 27 of the Act, Ex.RW7/A, could not be said to be jointly owned by the parties and as such, the learned Additional District Judge had erred in law in directing the appellant husband to return those articles to the respondent wife. Reliance is placed on the law laid down by this Court in Ram Pal v. Shakuntla Devi, (1987-2)92 Punjab Law Reporter 481; Suresh Kumar v. Smt. Saroj Bala, (1987-2)92 Punjab Law Reporter 496 and Inderjit Singh v. Smt. Manjit Kaur, 1987(2) All India Hindu Law Reporter 496. 9. A perusal of the application under Section 27 of the Act, Ex.RW7/A, would clearly show that in the said application, various golden ornaments either for use of the husband or for use of the wife have been detailed besides cash at the time of Thakka, Shagun and Milni. Besides that, clothes of the wife, husband and other relatives were detailed in addition to various utensils. Besides that, various miscellaneous goods were detailed including one HMT watch of the husband, one iron petti, one Usha sewing machine, one orient ceiling fart, one sofa set, one double bed and one dressing table. In view of the provisions of Section 27 of the Act and the law laid down by this Court in the above mentioned authorities, in my opinion, no orders for the return of golden ornaments, clothes and cash can be passed under Section 27 of the Act. With regard to utensils, in my opinion, no case is made out for directing the appellant husband to return those utensils to the respondent wife at this stage considering that the marriage had taken place in the year 1987 and more than 17 years have passed since then. With regard to utensils, in my opinion, no case is made out for directing the appellant husband to return those utensils to the respondent wife at this stage considering that the marriage had taken place in the year 1987 and more than 17 years have passed since then. With regard to the wrist watch given for the husband, again the provisions of Section 27 of the Act would have no application. However, necessary orders under Section 27 of the Act can be passed in respect of iron petti, sewing machine, ceiling fan, sofa set, double bed and dressing table which can be said to be the joint property of the parties, since it was for the joint use of both the parties. Since the marriage between the parties had been dissolved by a decree of divorce, in my opinion, it would be appropriate if the aforesaid articles, which are admittedly in possession of the appellant husband, are ordered to be returned to the respondent wife under Section 27 of the Act. So far as the other articles including jewellery and cash are concerned, in my opinion, the learned Additional District Judge had erred in law in ordering the return of those articles and cash to the respondent wife. 9. In view of the above, the cross-objections filed by the respondent wife are dismissed. The appeal filed by the appellant husband is partly allowed and instead of directing the appellant husband to return all the articles detailed in the list, Ex.RW7/A, the appellant husband is directed to return one big iron petti, one Usha sewing machine, one orient ceiling fan, one sofa set, one double bed and one dressing table to the respondent wife under Section 27 of the act.