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2009 DIGILAW 2002 (PNJ)

Amarjit Kaur v. Mohinder Singh

2009-11-18

VINOD K.SHARMA

body2009
Judgment Vinod K.Sharma, J. 1. Cheque for a sum of Rs. 6000/- (Rupees six thousand only) has been handed over to the learned counsel for the appellant/applicant towards maintenance pendente lite till December, 2009. FAO No. 69-M of 1998 2. This appeal by the wife is directed against the judgment and decree dated 2.4.1997 passed by the learned Additional District Judge, Ludhiana on a petition filed by the respondent/husband under Section 13 of the Hindu Marriage Act (for short the Act). 3. The respondent/husband sought a decree of divorce, by dissolution of marriage, on the pleadings that the marriage between the parties was solemnized in October, 1985 as per Anand Karaj and Sikh rites. Parties to the marriage cohabited and resided together as husband and wife. Out of this wedlock three children were born i.e. two daughters and one son. It was the case set up by the respondent/husband, that immediately after the marriage, the appellant/wife started residing with her parents, most of the time, or in the house of her uncle Palli for extraneous reasons. Wife of the uncle of the appellant was said to be residing in the house of her parents at village Lakhanwal District Kapurthala, whereas he alone was living in village Sansarpur. It was the case set up by the respondent, that several requests were made to the appellant to remain away from Palli, and live and cohabit with the respondent, but to no effect. 4. In March, 1995 the appellant proclaimed that she would not bring up the children at any cost and will live wherever she would like. 5. She further told the respondent that he had no right to say anything to her. 6. This act of the appellant was said to have caused immense degree of humiliation, mental torture and cruelty to the respondent as he had to cut a sorry figure due to constant desertion by the appellant for no fault on his part. 7. The case set up by the respondent was that the appellant deserted him from March, 1995 till November 1995, and it was thereafter that she was rehabilitated with great efforts made by the respondent by convening panchayat, but her behaviour did not change and she again deserted the appellant on one pretext or the other. 8. 7. The case set up by the respondent was that the appellant deserted him from March, 1995 till November 1995, and it was thereafter that she was rehabilitated with great efforts made by the respondent by convening panchayat, but her behaviour did not change and she again deserted the appellant on one pretext or the other. 8. On 29.7.1996 she told the respondent that she was going to village Sansarpur and wanted to live permanently with her parents and uncle Palli there. Request of the appellant not to do so did not yield any result, in spite of the fact that he had to perform duties of emergent nature being Deputy Superintendent of Police. 9. It was also the case of the respondent that the appellant claimed that as she commands enough influence and would get the respondent dismissed from police service, in case he became a tumbling block in her path of illicit relationship with Palli. 10. It was also the case of the appellant that she took away Rs. 10,000/- (Rupees ten thousand only) with her. It was also claimed that marriage had come to dead end and there was no hope of it being retrieved. It was also pleaded that the appellant willfully and intentionally neglected the respondent. 11. The appellant was proceeded against exparte. In support of the petition the appellant besides examining himself examined Sawinder Singh PW 1 and placed on record copies of documents Ex.P.1 to P.30. 12. On the pleadings and evidence referred to above learned Additional District Judge granted a decree of divorce by recording as under :- "I have heard the learned counsel for the petitioner and have gone through the evidence carefully. 4. The learned counsel for the petitioner has submitted that Mohinder Singh, petitioner on oath has deposed about all the averments contained in the petition and his testimony is supported by Sawinder Singh, PW 1 and the case is proved. I find merit in his submission. The testimony of Mohinder Singh, Petition PW 2, is corroborated by Sawinder Singh PW 1 and all facts of the case and the evidence being ex-parte has to be believed. By ocular and documentary evidence which is unrebutted, the petitioner is successful to prove the petition. The evidence being exparte has to be believed. It is, accordingly allowed. The marriage solemnized between the parties on October 1995 stands dissolved. By ocular and documentary evidence which is unrebutted, the petitioner is successful to prove the petition. The evidence being exparte has to be believed. It is, accordingly allowed. The marriage solemnized between the parties on October 1995 stands dissolved. An ex-parte decree of divorce is passed under section 13 of Hindu Marriage Act in favour of the petitioner and against the respondent, with no order as to costs. Counsel fee is assessed at Rs. 500/-. Decree sheet be prepared. File be consigned to the record room." 13. It is pertinent to note here that the appellant/wife had moved a transfer application No. 14126-CII/96 in this court for transfer of the petition filed by the respondent for custody of children as well as the petition under Section 13 of the Hindu Marriage Act. The application was moved by the appellant on 2.12.1996. Plea taken in the transfer application was that when the appellant/wife had come to appear in court she was attacked by the body- guard of the respondent, therefore, she had apprehension of danger to her life to appear in the court. Notice of the application was issued and in the presence of the respondent the petition was ordered to be transferred to the court of competent jurisdiction at Jalandhar. Order passed by this court on 14.5.1997.reads as under :- "Prayer here in the present application filed under Section 24 of the Code of Civil Procedure is to transfer two cases instituted by the husband, one under section 13 of the Hindu Marriage Act and the other to obtain custody of the minor children,who are admittedly at present with the petitioner. Petitioner wife states that it would be very difficult for her to contest this dual litigation at Ludhiana where husband resides and is posted as Deputy Superintendent of Police. The financial difficulty apart, petitioner also apprehends danger to her life. Considering the facts and circumstances of this case, the Court is of the view that both these case i.e. petition under section 13 of the Hindu Marriage Act and the other to secure custody of the children should be transferred to a place where the wife resides i.e. Jullandhar. So order. Parties are directed to appear before the District Judge, Jullandhar, on June 11, 1997 who may either himself deal with the cases or entrust the same to any of the Addl. District Judge posted in his district." 14. So order. Parties are directed to appear before the District Judge, Jullandhar, on June 11, 1997 who may either himself deal with the cases or entrust the same to any of the Addl. District Judge posted in his district." 14. It is surprising that on 14.5.1997 when the order was passed by this court the respondent/husband did not disclose the fact that he has obtained ex parte decree of divorce from the court of Addl. District Judge Ludhiana. 15. It was only when the appellant appeared before the court at Jalandhar in pursuance to the order passed by this court that it was revealed that ex-parte order had been obtained. 16. It is pertinent to mention here that the appellant had also moved an application for setting aside ex-parte order dated 21.2.1997. Even though vide order dated 14.5.1997 the proceedings were ordered to be transferred to the court of competent jurisdiction at Jalandhar, learned Additional District Judge, Ludhiana dismissed the application moved for setting aside ex parte order vide order dated 14.8.1997. 17. This order, thus, is prima facie without jurisdiction as after 14.5.1997, in view of the order passed by this court, the learned court at Ludhiana had no jurisdiction to entertain and try the petition, or pass any order on the application. 18. Needless to say that the order dated 14.5.1997 was passed in the presence of the counsel for the respondent. The order rejecting the application for setting aside ex-parte order was prima facie without jurisdiction and therefore, cannot be sustained in law and deserves to be set aside. 19. It may also be pertinent to mention here that in spite of the knowledge of transfer application, filed by the appellant in this court, the respondent got an ex parte order by not disclosing to the court that proceedings for transfer were pending in the High Court. 20. Furthermore, immediately after ex parte decree of 2.4.1997 he contracted second marriage on 5.5.1997, thereby in violation of section 15 of the Act, in immediately marrying without waiting for the result in appeal. 21. In the normal circumstances this court would have set aside the ex parte judgment and decree and remanded the case to the learned matrimonial court permitting the parties to contest the case on merit. 21. In the normal circumstances this court would have set aside the ex parte judgment and decree and remanded the case to the learned matrimonial court permitting the parties to contest the case on merit. However, it would not be required in the present case as the allegations of cruelty made in the petition are totally vague and lack material particulars. Impression given in the petition is as if the appellant/wife had not stayed with the respondent, and had been staying with her parents since immediately after the marriage. At the same time it is not disputed that 3 children were born out of this wedlock i.e. 2 daughters and one son. 22. Furthermore, allegations of adultery have been made against the uncle of the appellant without impleading him party. The petition on the ground of adultery, therefore, could not be entertained in view of the statutory rules framed by this court stipulating therein that in order to succeed on the ground of adultery the adulterer has to be made a party. 23. Even otherwise, allegations are too vague, especially when in the petition it has been mentioned that the appellant/wife was persuaded to come and join him and she, in fact, joined him and thereafter again she left the matrimonial home. 24. The husband cannot succeed even on the ground of desertion as on the date of filing of petition statutory period of 2 years had not expired. 25. Even in this court the wife had shown her willingness to join the company of the husband, but it was noticed that the respondent has not only married second time against law but in order to defeat the rights of the appellant and her children had transferred the property in the name of his second wife. The second wife does not get the status of a legally wedded wife, in view of the fact that the appeal against the ex parte decree of divorce was pending. 26. Conduct of the respondent throughout has been dishonest. 27. The facts and circumstances referred to above show, that the decree under appeal was obtained by the respondent by playing fraud on the court by not disclosing the true facts. It is well settled law that fraud vitiates everything. 28. 26. Conduct of the respondent throughout has been dishonest. 27. The facts and circumstances referred to above show, that the decree under appeal was obtained by the respondent by playing fraud on the court by not disclosing the true facts. It is well settled law that fraud vitiates everything. 28. The allegations of cruelty even if taken on their face value, do not make out a case for grant of divorce, being vague and lacking material particulars. As already observed the plea of adultery was not available to the respondent, as the alleged adulterer was not made party. Even otherwise, the allegations are against uncle which on the face of it look improbable specially in view of the conduct of the respondent, in not permitting the appellant to contest the case on merit. 29. For the reasons stated above, the appeal is allowed. The judgment and decree passed by the learned Additional District Judge is set aside. The petition filed by the respondent under Section 13 of the Act is ordered to be dismissed with costs which are assessed at Rs. 20,000/- (Rupees twenty thousand only).