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2009 DIGILAW 1588 (PNJ)

Seema Rathee v. Ajay Kumar Rathee

2009-09-08

VINOD K.SHARMA

body2009
Judgment Vinod K.Sharma, J. 1. This appeal by the appellant / wife is directed against the judgment and decree passed by the learned Addl. District Judge, Sonepat, allowing a petition filed under Section 13 of the Hindu Marriage Act (herein after referred to as the Act) for dissolution of marriage by a decree of divorce. 2. The respondent / husband filed a petition under Section 13 of the Hindu Marriage Act on the pleading, that the marriage between the parties was solemnized on 29.4.1998 at Rohtak according to Hindu Rites and ceremonies. After the marriage the appellant started residing with the respondent in the matrimonial home at Ganaur and the marriage was duly consummated. The appellant resided with the respondent for five days at Ganaur and thereafter for a period of ten months in three spells at Madras. A female child namely Jyotisana, was born out of the said wedlock. It was the case of the respondent/husband that since 8.12.2002, the appellant was residing at Rohtak in her matrimonial home without the consent of the respondent. The father of the appellant had expired on 8.12.2002, and the appellant left the matrimonial home on that very day. It was also pleaded case of the respondent/husband, that from the first day of marriage the appellant did not pay any regard to parents of the respondent and other family members, 3. It was claimed, that the mother of the appellant is a very clever lady and was not allowing the appellant to reside in the matrimonial home. The appellant was said to have left the company of the respondent/husband without any reasonable cause. 4. Prior to filing of this petition the respondent had filed a petition under Section 9 of the Act in which the appellant refused to join the company of the respondent. The petition filed under Section 9 of the Act was thereafter dismissed in default on 7.10.2005. 5. It was pleaded, that the appellant had taken away all the valuable articles at the time of leaving the matrimonial home. The respondent further claimed, that twice panchayat was convened and efforts were made to settle the matter but the appelant refused to join the company of the respondent at Ganaur. It was claimed, that the appellant deserted the respondent/husband and that there were no chances of reconciliation now. 6. The respondent further claimed, that twice panchayat was convened and efforts were made to settle the matter but the appelant refused to join the company of the respondent at Ganaur. It was claimed, that the appellant deserted the respondent/husband and that there were no chances of reconciliation now. 6. The petition was contested, wherein stand taken was that the appellant was thrown out of the matrimonial home in October, 2004 after giving merciless beatings. It was alleged, that the respondent and his family members were demanding dowry from the first day of the marriage. She also claimed, that she was subjected to harassment and torture for not bringing dowry. It was also the case of the appellant that the respondent as well as his family members had been beating the appellant by raising a demand of Rupees three lac for purchasing a car and another sum of rupees five lac for purchasing a house. The daughter of the parties, was born on 20.2.2001 at Rohtak. She was also residing with the appellant since her birth. It was denied, that the mother of the appellant was not allowing the appellant to live in the matrimonial home. The previous petition under Section 9 of the Act was dismissed on 12.5.2005 and an application for restoration was allowed on 14.9.2005, and the petition was again dismissed in default on 7.10.2005. 7. It was pleaded that the date 8.12.2002 was mentioned just to create ground of desertion. It was reiterated that the appellant was turned out of the matrimonial house in October, 2004 in only three wearing clothes along with her daughter. It was also pleaded, that the respondent had no cause of action to file the petition and further that the petition was not maintainable. 8. In the replication the averments made in the petition were reiterated and that of written statement were denied. 9. The learned matrimonial Court was pleased to frame the following issues :- "1.Whether the petitioner is entitled for a decree of divorce on the grounds mentioned in the petition, as alleged? OPP 2. Relief." 10. 8. In the replication the averments made in the petition were reiterated and that of written statement were denied. 9. The learned matrimonial Court was pleased to frame the following issues :- "1.Whether the petitioner is entitled for a decree of divorce on the grounds mentioned in the petition, as alleged? OPP 2. Relief." 10. In support of the petition, the respondent examined himself as PW-1 and produced Ram Phal as PW-2, Inder Singh as PW-3 and tendered the copy of the complaint dated 7.11.2001 mark-A, copy of petition under Section 9 of the Act Mark-B, copy of application under Section 24 of the Act Mark-D and copy of the order dated 5.3.2005 Mark-E. 11. Respondent appeared in the witness box as PW-1. The respondent while appearing as PW-1 asserted the stand taken in the petition under Section 13 of the Act, i.e. after the marriage the parties resided for five days at Ganaur and the marriage was duly consummated. The appellant was said to have resided with the respondent for a period of ten months in three spells at Madras and it was on account of death of the father of the appellant on 8.12.2002, that the appellant left the matrimonial home here after. He also deposed regarding filing of a petition under Section 9 of the Act. He also deposed regarding visit of the Panchayat. 12. PW-2 Ram Phal also stated that the appellant had left the matrimonial home on 8.12.2002. PW-3 Inder Singh, on the other hand, submitted that the respondent had taken appellant to Madras where they resided for 9/10 months. He also deposed that since 8.12.2002 the appellant was residing at her parental house at Rohtak and she had refused to join the company of the respondent. 13. On the other hand, appellant categorically stated, that she was turned out of the matrimonial home in October, 2004. She denied, that she was residing in Rohtak since 2.12.2002. She also reasserted the allegations of demand of dowry, and that she was subjected to cruelty at the hands of the respondent and his family members. She denied, that any Panchayat was convened or that the appellant was contacted to reconcile the matter. She, however, admitted that she had filed a complaint against the respondent and his family members after the filing of the petition by the husband against her. She denied, that any Panchayat was convened or that the appellant was contacted to reconcile the matter. She, however, admitted that she had filed a complaint against the respondent and his family members after the filing of the petition by the husband against her. However, she stated that she was still ready and willing to join the company of her husband. 14. The learned matrimonial Court considered the evidence, referred to above, and found that no reconciliation was possible between the parties. The learned matrimonial Court held, that there was no documentary evidence with regard to the demand of dowry or cause of cruelty and further that the statement of appellant was not corroborated by any independent witness, therefore, heid that as the statement of respondent was corroborated by the other witnesses it was proved, that the appellant was living at Rohtak since 8.12.2002 and that she had not joined the company of the respondent. The learned matrimonial Court on the basis of evidence held that appellant willfully neglected the company of the respondent. Issue No.l was decided in favour of the respondent and consequently marriage between the parties was dissolved by decree of divorce. 15. Mr. R.S. Sihag, learned counsel for the appellant challenged the judgment and decree firstly on the ground, that the learned Addl. District judge, Sonepat had no jurisdiction to entertain and try the present petition. In support of this contention the learned counsel for the appellant referred to the averments made in the petition filed by the respondent under Section 13 of the Hindu Marriage Act, 1955 , wherein it was specifically pleaded, that marriage between the parties was solemnized on 29.4.1998 at Rohtak. He further referred to para 4 of the petition, wherein it was pleaded by the respondent/husband that, both the husband and wife lived together only for five days at Gannaur and ten months at Madras with triple breaks. The reference was also made to para 6 of the petition filed by the respondent, wherein it was mentioned that, the parties were living separately since 8.12.2002, as the father of the appellant died on 8.12.2002, and the parties to the petition went to Rohtak at the house of the appellant and since then the appellant has been residing with her family. 16. 16. A reference was also made to para 17 of the petition, which reads as under:- "17.That the petitioner has been residing at Ganaur Tehsil Ganaur Distt. Sonepat and the marriage of the petitioner had consummated at Ganaur Distt. Sonepat, which is within the territorial jurisdiction of this Honble Court and hence this Honble Court has got jurisdiction to try and entertain the present petition." 17. In the written statement filed by the appellant, a preliminary objection was raised with regard to the jurisdiction of the Court to entertain the petition. 18. The learned counsel for the appellant submits that, as per Section 19 of the Hindu Marriage Act, 1955 the petition can be filed:- (i) Where the marriage was solemnized, or (ii) Where the respondent, at the time of presentation of the petition, resides, or (iii) Where the parties to the marriage last resided together,or (iv) where the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him he were alive. 19. The contention of the learned counsel for the appellant, therefore, was that even if the averments made in petition are taken to be correct, still the learned Addl. District Judge, Sonepat did not have the jurisdiction, as admittedly parties were married at Rohtak and they last resided at Madras. The parties stayed at Garmaur only for five days. There is force in this contention of the learned counsel for the appellant, but the question for consideration is whether this plea can be raised in appeal. 20. Mr. Vikas Bahl, learned counsel appearing on behalf of the respondent vehemently contended, that it is not open to the appellant to challenge the territorial jurisdiction of the Court in absence of proof of any prejudice. 21. The contention of the learned counsel for the respondent was that, the appellant failed to press the issue ofjurisdiction before the learned matrimonial Court, therefore, it is not permissible for the appellant to challenge the judgment and decree for want of territorial jurisdiction. 22. 21. The contention of the learned counsel for the respondent was that, the appellant failed to press the issue ofjurisdiction before the learned matrimonial Court, therefore, it is not permissible for the appellant to challenge the judgment and decree for want of territorial jurisdiction. 22. In support of this contention the learned counsel for the respondent placed reliance on the judgment of this Court in the case of Darshan Singh v. Smt. Swawn Kaur, (1988-1)93 The Punjab Law Reporter 344, wherein this Court was pleased to lay down as under :- "4. The finding of the learned trial Judge on merits has not been challenged on behalf of the respondent-wife and, therefore, the facts need not be gone into. The only question to be determined is whether the court at Ambala had jurisdictioh to entertain the petition. It is quite evident that no such issue was claimed by the wife in this behalf. As a matter of fact whether the parties last resided Kundi or not, for the purpose of section 19 of the Hindu Marriage Act, was a question of fact and unless there was an issue and the parties were allowed to lead evidence, the same could not be decided as such, Section 21 of the Code of Civil Procedure provides that no objection as to the place of suingshall be allowed by any appellate or revisional court unless such an objection is taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. In the present case the parties had led their evidence on the issue framed by the trial Court. No objection of any kind as to the jurisdiction of the court was relied on behalf of the wife respondent and under these circumstances it was not open to the trial Court to dismiss the petition on this ground alone, particularly when it has been found on merits that the wife has deserted her husband. Even in this court the learned counsel for the wife-respondent was unable to suggest that there has been a consequent failure of justice on account of this lack ofjurisdiction if any. In the absence of any failure of justice, the divorce petition could not be dismissed on this technical ground without framing any issue." 23. Even in this court the learned counsel for the wife-respondent was unable to suggest that there has been a consequent failure of justice on account of this lack ofjurisdiction if any. In the absence of any failure of justice, the divorce petition could not be dismissed on this technical ground without framing any issue." 23. The reliance was also placed on the judgment of this Court in the case of Mrs. Abha Gupta v. Shri Rakesh Kumar, (1995-1)109 The Punjab Law Reporter 453, wherein this Court was pleased to lay down as under:- 6. Learned counsel for the appellant next contended that the court at Faridabad lacked territorial jurisdiction to try the petition. Learned counsel referred to Section 19 of the Hindu Marriage Act to contend that Faridabad was neither the place where marriage was solemnised nor the respondent was residing there at the time of presentation of the petition for divorce. Learned counsel submitted that the parties did not establish a matrimonial home at Faridabad and they also did not last reside together at Faridabad. According to the learned counsel for the appellant their casual stay for a day or two at Faridabad could not be taken to mean that the parties last resided together at Faridabad and such casual stay could not confer jurisdiction on the Court at Faridabad. Learned counsel in support of his submission placed reliance upon Smt. Kalpana Devi v. Ranjit Kumar Choudhary and another, 1980 H.L.R. 787. However, 1 am of the opinion that the contention has no merit. Clause (iii) of Section 19 of the Act confers jurisdiction on a court where parties to the marriage last resided together. It was not the case of the appellant that they had established matrimonial home at a place other than Faridabad. Normally the residence of the husband is the place of matrimonial home unless shown otherwise. In this case, the husband is a practicing Chartered Accountant at Faridabad and after the marriage the parties came to Faridabad and stayed there. The parents of the husband also held a reception for the newly weds at that place. The parties to the marriage did not take any other house on rent where they might have lived or had the intention to live or settle. The parents of the husband also held a reception for the newly weds at that place. The parties to the marriage did not take any other house on rent where they might have lived or had the intention to live or settle. Temporary stay for a day or two at Agra or elsewhere would not be taken to be the place they last resided together, or established a matrimonial Home. Address on the passport of the wife, Exhibit Ex.PX is again that of Faridabad and the marriage, if at all, was consummated at Faridabad where they first stayed together after the marriage. Doctrine of permanence of residence, in the facts and circumstances of this case also applies to Faridabad and no other place because of professional obligations of the husband, especially when it was neither alleged nor shown that they ever resided together at any other place. The husband while appearing as PW-1 as his own witness clearly stated that he was a qualified Chartered Accountant and was practicing as such at Faridabad since 1984 and had established a good practice at that place and had become permanent resident of the town and that Shri R.K.Aggarwal was his partner in the profession and that he was maintaining his permanent residence at House No. 565 Sector 7-B, Faridabad and the office was also in the same house. The husband was not cross-examined on this aspect of the matter. Thus it has to be taken that the matrimonial home was at Faridabad and there was no change in the said address till at least the date of filing of the petition. Stay of the parties for a day or two at a place other than Faridabad did not and could not take away the jurisdiction of the Court at Faridabad. 24. The learned counsel appearing on behalf of the respondent contended that, in order to challenge the territorial jurisdiction it is required to be shown that the trial has resulted in failure of justice. In absence of this finding, the appellate or revisiona! Court cannot entertain any objection as regards the place of suing. In support of this contention the reliance was placed on the judgment of the Honble Supreme Court in the case of Pathumma (Daughter of Koopilan Uneen) and others v. Kuntalan Kutty (Son of Koopilan Uneen) Dead by L.Rs. In absence of this finding, the appellate or revisiona! Court cannot entertain any objection as regards the place of suing. In support of this contention the reliance was placed on the judgment of the Honble Supreme Court in the case of Pathumma (Daughter of Koopilan Uneen) and others v. Kuntalan Kutty (Son of Koopilan Uneen) Dead by L.Rs. and others, (1981)3 S.C.C. 589, wherein the Honble Supreme Court was pleased to lay down as under:- "In order that an objection to the place of suing may be entertained by an appellate or revisional Court, the fulfillment of the following three conditions is essential (1) The objection was taken in the Court of first instance; (2) It was taken at the earliest possible opportunity and in cases where issues are settled, at or before such settlement; (3) There has been a consequent failure of justice. 6. All these three conditions must co-exist. Now in the present case conditions Nos.l and 2 are no doubt fully satisfied; but then before the two appellate Courts below could follow the objection to be taken, it was further necessary that a case of failure of justice on account of the place suing having been wrongly selected was made out. Since the respondents failed to point out even before this Court that a failure of justice had occurred by reason not only was no attention paid to this aspect of the matter but no material exists on the record from which such failure of justice may be inferred. We called upon learned counsel for the contesting respondents to point out to us even at this stage any reason why we should hold that a failure of justice had occurred by reason of Manjeri having been chosen as the place of suing but he was unable to put forward any. In this view of the matter we must hold that the provisions of the sub-section above extracted made it imperative for the District Court and the High Court not to entertain the objection, whether or not it was otherwise well founded. We, therefore, refrain from going into the question of the correctness of the finding arrived at by the High Court that the Manjeri Court had no territorial jurisdiction to take cognizance of the application praying for final decree." 25. We, therefore, refrain from going into the question of the correctness of the finding arrived at by the High Court that the Manjeri Court had no territorial jurisdiction to take cognizance of the application praying for final decree." 25. The contention raised by the learned counsel for the appellant to challenge the jurisdiction of the Court is rejected in view of the settled proposition of law, referred to above. 26. Mr. R.S. Sihag, learned counsel appearing on behalf of the appellant also challenged the finding of the learned Matrimonial Court on issue No.l by contending that, the learned Court erred in law in accepting the statements of the witnesses examined by the respondent/husband even though the statements ran contrary to the pleadings in the petition. 27. It was contended that, the witnesses examined by the respondent could not be said to be independent witnesses. The learned counsel made special reference to the statement made by PW2 Ram Phal wherein he admitted the fact that, his house was situated at a distance of 5-6 Kilometers from the house of the respondent. He further admitted of having not visited Madras. In the cross-examination he admitted that the contents of his affidavit in examination-in-chief were told to him by the respondent. The contention raised, therefore, was that the evidence of PW-2 was hearsay evidence, therefore, no reliance could be placed thereon. 28. Similarly, PW-3 also in the cross-examination admitted the fact that he did not know whether any Panchayat was convened by the petitioner or his family members. He also denied having gone to Rohtak for reconciliation purposes. There was also clear admission by him. It is also further,pertinent to note here that Ram Phal while appearing as PW-2 could not tell the presence of the persons, who were present on behalf of the respondent in the Panchayat, whereas he was said to be a Member of Panchayat. Even respondent while appearing in the witness box stated that, on 8.12.2001 he along with appellant had gone to Rohtak by air and remained there till 12.12.2001. The plea taken by respondent that the appellant had left matrimonial house as pleaded in the plaint was not even proved by the respondent/husband. 29. In view of the clear admission by PW-2 & PW-3 that their evidence was based on hearsay, no reliance could be placed on their statements. The plea taken by respondent that the appellant had left matrimonial house as pleaded in the plaint was not even proved by the respondent/husband. 29. In view of the clear admission by PW-2 & PW-3 that their evidence was based on hearsay, no reliance could be placed on their statements. Once their evidence is taken out from consideration, then we are left with the statement of the respondent / husband against that of the appellant/wife. 30. Mr. Vikas Bahl, learned counsel appearing on behalf of the respondent, on the other hand, contended that the factum of the appellant living separately for more than two years immediately before presentation of petition was proved, as per the pleadings and evidence. The contention of the learned counsel for the respondent that, the statement of the respondent was fully supported by independent witnesses and furthermore the appellant had refused to join the matrimonial home during conciliation proceedings in a petition filed for restitution of Conjugal rights. The contention of the learned counsel for the respondent, therefore, was that the separation with an intention to bring the matrimonial relation permanently to an end stood proved. 31. On consideration, I find force in the contention raised by the learned counsel for the appellant. Once the witnesses produced by the respondent had categorically admitted the fact that, the statement made by them in examination-in-chief was on the instructions issued by the respondent, and further that their statement was merely on hearsay it could not be formed a basis by the learned Matrimonial Court to record a finding of desertion. 32. The respondent in this case also could not prove the factum that the appellant had left the matrimonial home, as contended by him, rather in the evidence the respondent admitted that, on the receipt of news of death of father of the appellant he along with appellant and their daughter had flown from Madras to Rohtak, to her maternal home. 33. No other evidence was led as to whether the appellant was taken back to the matrimonial home. The appellant also failed to prove the stand, that the parties were living together till 2004. It is settled law that the plaintiff/petitioner has to stand on his own legs and cannot take benefit of the weaknesses of the evidence of the respondent. No other evidence was led as to whether the appellant was taken back to the matrimonial home. The appellant also failed to prove the stand, that the parties were living together till 2004. It is settled law that the plaintiff/petitioner has to stand on his own legs and cannot take benefit of the weaknesses of the evidence of the respondent. The appellant took a positive stand, that she was willing to join the matrimonial home, but offer was declined by the respondent - husband, therefore, it has to be held that, the respondent failed to prove the plea of desertion. The respondent was merely able to prove the separation, but has failed to prove animus deserendi. The findings of learned Matrimonial Court, therefore, on issue No.l cannot be sustained and are reversed. 34. In view of the findings recorded above, the appeal succeeds. The judgment and decree passed by the learned Matrimonial Court is set aside and the petition filed by the respondent/husband under Section 13 of the Hindu Marriage Act, 1955 is ordered to be dismissed, but with no order as to costs.