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2009 DIGILAW 1105 (PNJ)

Kuldip Singh v. Shawinder Kaur

2009-07-08

VINOD K.SHARMA

body2009
Judgment Vinod K.Sharma, J. 1. CM No. 9425-CII of 2003 The applicant/appellant has moved this application to lead additional evidence, to produce on record OPD Card of PGI, showing prescription and various tests prescribed by doctors. Permission is also sought to place on record Medical Certificate and other reports, which though available were not produced on record. It is the case of the applicant that record sought to be produced is very relevant for proper decision of the case. The application is opposed on the ground that the application deserves to be dismissed, as it is mentioned in the application itself that these were in the knowledge of the applicant/appellant. On consideration, I find no merit in this application. The documents are not such which may be needed for pronouncement of judgment by the court, as the fact of nervous illness has already been taken note of. The documents sought to be produced by way of additional evidence are also not necessary for proper decision. Application dismissed. FAO No. 112-M of 1999 This appeal is directed against the judgment and decree dated 22.5.1997 passed by the learned District Judge, Rupnagar, vide which petition moved by the appellant under section 13 of the Hindu Marriage Act (for short the Act) stands dismissed. 2. The appellant filed a petition under section 13 of the Act on the allegations that the marriage between the parties was solemnized on 6.12.1987 at Patiala according to Anand Karaj. After the marriage the parties resided at Mundi Kharar along with the parents of the appellant. After some time respondent wife started compelling the appellant to live separately from his parents as she did not like them. The case of the appellant was that he tried to persuade her not to compel him to take that step. On account of this the respondent started misbehaving with the parents of the appellant and therefore, the appellant was left with no alternative but to shift to Mohali in September, 1990. 3. It is alleged that the respondent wife thereafter started compelling the appellant not to meet and support his parents. Whenever he went to meet his parents, she misbehaved with him, and in revenge she did not serve him food, and he had to sleep without meals. She also did not care for the small child. 3. It is alleged that the respondent wife thereafter started compelling the appellant not to meet and support his parents. Whenever he went to meet his parents, she misbehaved with him, and in revenge she did not serve him food, and he had to sleep without meals. She also did not care for the small child. It is alleged by the appellant that when the father of the appellant had come to see him at Mohali, she did not open the door and his father had to leave the place without meeting them. The appellant also pleaded that adamant temperament of the respondent/wife led to daily quarrel on minor matter. The appellant also alleged that the respondent did not allow him to enter the house immediately when he came back from his job by locking the door. She also refused to wash his clothes. The appellant had to take food outside the house. She was also alleged to have used physical violation upon him as well the child. It was also the allegation of the appellant that the respondent/wife used to visit her sisters house at Mohali without his consent, thus, the acts of wife caused mental torture to him. 4. This mental torture resulted in mental illness of the appellant in 1991 when he was admitted to PGI, Chandigarh and since then he is continuously under treatment of the doctors at PGI. The respondent/wife instead of taking care of the appellant at the PGI left the matrimonial home and went to her parents house at Mohali. When the respondent was brought back to the matrimonial house her behaviour became more rude and she refused to even give him medicines. It is the case of the appellant, that even doctors advised her to change her behaviour towards the appellant, if she wanted improvement in him. It was also the case of the appellant that the wife had approached the employer of the appellant to dismiss him from service. 5. On notice, the petition was contested wherein the allegations levelled were denied. It was denied that the respondent compelled him to live separate from his parents. She also denied having misbehaved with him. She claimed that she had love and affection for the parents of the appellant as also her son. 5. On notice, the petition was contested wherein the allegations levelled were denied. It was denied that the respondent compelled him to live separate from his parents. She also denied having misbehaved with him. She claimed that she had love and affection for the parents of the appellant as also her son. The case set up by the respondent further was, that her son was snatched away by the appellant and his parents, when she was turned out of the matrimonial home on 22.6.1991. The respondent also pleaded that after the marriage the parties lived at Mundi Kharar in the house of the father of the appellant. 6. Thereafter, the father of the appellant sold house and the parties along with parents of the appellant shifted to Mohali in September, 1990. It was also alleged by the respondent/wife, that the appellant as well as his brother, used to take liquor heavily and squander money to satisfy their lust for liquor, The appellant took job with different employers, however his services used to be terminated due to excessive drinking and absence from duty for weeks together. Excess intake of liquor had affected his health adversely and his nerves system was impaired greatly. 7. The elder brother of the petitioner had also died due to taking of heavy liquor, and his dead body was found in a Ganda Nullah near village Desu Majra. The respondent has alleged, that the appellant used to give her beating under the influence of liquor, whereas, the respondent/wife was performing all matrimonial duties towards the appellant and treating the appellant with love and affection. 8. She also denied having visited the house of her sister without the consent of the appellant. The case set up by the respondent was that it was due to heavy intake of liquor that his nerves system was damaged. 9. For this treatment he had to be admitted in PGI. The respondent had been visiting PGI to look after him. During the treatment the respondent stayed with his parents who visited the PGI in turn with respondent/wife to look after the appellant. Other allegations levelled were also denied. 10. No replication was filed and on the pleadings of the parties the following issues were framed :- 1. Whether the respondent has treated the petitioner with cruelty ? OPP 2. Relief. 11. Other allegations levelled were also denied. 10. No replication was filed and on the pleadings of the parties the following issues were framed :- 1. Whether the respondent has treated the petitioner with cruelty ? OPP 2. Relief. 11. The appellant appeared as PW 1 in support of his case, whereas Sukhpal Singh was examined as PW 2. Hardev Singh appeared as PW 3 who produced copy of Discharge and follow up card Ex.P.1 and the evidence was closed. 12. The respondent produced Ajmer Singh as RW 1 while she appeared herself as RW 2 and closed her evidence. 13. The witnesses produced by the appellant supported the version set up by him in the petition. On the basis of evidence led it was claimed by the appellant that in view of the law laid down by Honble Madhya Pradesh High Court in the case of Harbhajan Singh v. Amarjeet Kaur, AIR 1986 Madhya Pradesh 41 that the appellant was entitled to divorce, as keeping the husband waiting outside the door of the house, on his return from office for half and hour amounts to cruelty. 14. The judgment in the case of Smt. Savita Chadha v. Ravinder Singh Chadha, 1987(2) HLR 412 was also pressed into service to plead that the cruelty is not only physical, but mental cruelty also constitute cruelty for dissolving the marriage. 15. To the same effect reliance was placed by the appellant on the judgment of Honble Andhra Pradesh in the case of Smt. Parimi Mehar Seshe v. Parimi Nageswara Sastry, AIR 1994 Andhra Pradesh 92. 16. The plea raised was contested by the respondent/wife on the plea that she had never maltreated the appellant nor misbehaved with him. The evidence produced was of interested witnesses who supported the wrong case set up by the appellant. 17. The respondent relied on the admission made by PW 3, wherein he admitted that the house owned by the father of the appellant was sold in September, 1991. Admission was also made, that the appellant had shifted to Mohali 4 months after his parents had shifted to Mohali. Appellant was also not able to disclose the month and date, when the wife was said to have misbehaved with the appellant. In her statement she reiterated her stand that she never ill- treated the appellant. 18. Admission was also made, that the appellant had shifted to Mohali 4 months after his parents had shifted to Mohali. Appellant was also not able to disclose the month and date, when the wife was said to have misbehaved with the appellant. In her statement she reiterated her stand that she never ill- treated the appellant. 18. Learned matrimonial Court came to the conclusion that the appellant had failed to produce any neighbour or any independent person in support of the assertion made in the petition. The allegations of all possible types were levelled against the respondent. Learned Matrimonial court also held that the stand of the appellant that the wife had not visited PGI, could also not be believed as it was she who had given history of the case to Dr. Sunita at PGI. 19. Learned matrimonial court in view of the admission made by the witnesses of the appellant came to the conclusion that the allegations could not be believed, as admittedly the parties had shifted to Mohali in September, 1990 after house at Mundi Kharar was sold. The learned matrimonial court also held that once the parties were not residing at Mohali till September, 1990 the allegations of cruelty were not proved. The issue No. 1 was decided against the appellant and consequently the petition filed under section 13 of the Act was ordered to be dismissed. 20. Mr. K.S. Dadwal, learned counsel appearing on behalf of the respondent has stated at the bar that the parties have reconciled, and have started living in the same house. The statement made by the learned counsel for the respondent is objected to by the learned counsel appearing on behalf of the appellant. The learned counsel for the appellant stated that the wife has come to matrimonial home, but they are living separately in the same house, therefore, the petition is to be decided on merit. 21. Learned counsel for the appellant has challenged the findings recorded by the learned matrimonial court primarily on the ground, that the learned matrimonial court committed an error in rejecting the evidence led by the appellant merely on the ground, that no independent witness was produced. 22. 21. Learned counsel for the appellant has challenged the findings recorded by the learned matrimonial court primarily on the ground, that the learned matrimonial court committed an error in rejecting the evidence led by the appellant merely on the ground, that no independent witness was produced. 22. The contention of the learned counsel for the appellant is that, the allegations of cruelty levelled were only known either to the appellant or to the close relatives and no neighbour or independent witness could come know. Therefore, the evidence of the appellant could not have been rejected merely for want of production of neighbours or any independent witness. 23. This contention of the learned counsel for the appellant is misconceived. One of the allegation of the appellant is, that whenever he reached home from office respondent/wife did not permit him to enter the house, and he had to wait outside and take meals outside. This allegation if true would be easily known to neighbours or any other independent witnesses. It cannot be said to be in his personal knowledge. 24. Even otherwise, learned matrimonial court has not non-suited the appellant merely for want of independent witness but also on the ground that the stand taken in the petition and evidence led was falsified, from the fact, that the parties had shifted to Mohali in September, 1990 after house at Mundi Kharar was sold. This was also admitted by the witnesses produced by the appellant. The contention raised by the learned counsel deserves to be noticed and rejected. 25. The learned counsel for the appellant also contended that the evidence led by the appellant stood corroborated by his father who appeared as PW2 to support his version. However, the learned court has not given any reason as to why the statement of PW 2 was being rejected. This contention is also misconceived as admittedly PW 3 is the close relation of the appellant who admitted that the parties had shifted to Mohali after the sale of house in Mundi Kharar. The very basis that the appellant had to shift to Mohali due to insistence by the respondent/wife was proved to be false and baseless. Learned matrimonial court on appreciation of evidence, therefore, rightly rejected the case set up by the appellant. 26. The very basis that the appellant had to shift to Mohali due to insistence by the respondent/wife was proved to be false and baseless. Learned matrimonial court on appreciation of evidence, therefore, rightly rejected the case set up by the appellant. 26. Learned counsel for the appellant thereafter contended that the learned matrimonial court had failed to take note of the medical evidence brought on record which showed that the appellant was suffering from mental disorder due to acts of respondent/wife. 27. This argument also does not advance the case of the appellant, it was not disputed by the wife that the appellant was suffering from mental disorder but according to her it was on account of his own habits, in which she had no role to play. 28. A positive stand was taken that she was attending the appellant at PGI, and in fact she had given the history of the appellant to Dr.Sunita. It cannot, therefore, be said that any evidence has been ignored by the matrimonial court, to hold that the allegations of cruelty were not proved. 29. Learned counsel for the appellant contends that a bald statement of wife should have been rejected. This plea is also misconceived. The learned court, while appreciating the oral evidence had to form an opinion as to which of the version was to be believed in the facts and circumstances brought on record. 30. In the present case, the very basis for alleged maltreatment was that she wanted to live separately, which stood belied from the proved fact that the parties had shifted to Mohali, only after the sale of the house at Mundi Kharar and not on account of her adamant attitude, pleaded in the petition for divorce. The learned matrimonial court, therefore, was to accept one oral version, against other. That is what the learned matrimonial court has done. It cannot be said that the statements of respondent and her witnesses could not be accepted to non-suit the appellant. 31. It is well settled law that it was for the appellant to prove the allegations of cruelty. The appellant failed to prove his case. On the facts and circumstances of the case the pleadings and the evidence led by the respondent/wife inspire confidence. 32. 31. It is well settled law that it was for the appellant to prove the allegations of cruelty. The appellant failed to prove his case. On the facts and circumstances of the case the pleadings and the evidence led by the respondent/wife inspire confidence. 32. In view of what has been stated above, there is no merit in the appeal, which is ordered to be dismissed, but with no order as to costs.