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2009 DIGILAW 468 (PNJ)

Kamla Devi v. Krishan Kumar

2009-03-09

S.D.ANAND

body2009
Judgment S.D.Anand, J. 1. A petition filed by Krishan Kumar, for dissolution of his marriage with Mst. Kamla Devi, was allowed by the learned Trial Court which granted a decree of divorce. The FAO against that order was initially disposed of as infructuous by the Lok Adalat, vide order dated 23.2.2000 (Annexure P-4) on account of death of the husband. However, that order came to be reviewed by another Bench of the Lok Adalat which observed that the matter has to be disposed of by this Court on the judicial side. 2. The appellant-wife and her husband Krishan Kumar shall hereinafter be referred to as the appellant and the respondent respectively. The second wife would be referred to as Mst. Usha Devi. 3. The marriage between the parties was otherwise performed on 5.2.1967. The respondent-husband filed a petition under Section 13 of the Hindu Marriage Act (hereinafter referred to as "the Act") on a pure and simple plea that the appellant stayed at the matrimonial house for a period of 4-5 days and, thereafter, left the matrimonial house for her parental house. She did not turn up thereafter. The appellant was otherwise doing job and was posted at a place different from the place of posting of the appellant. The appellant did not make any attempt to get herself transferred to the place of posting of the respondent who could not shift over to her place of posting as he had aged parents to look after. Even when the respondent got a promotion and got himself transferred to Moga (which was the nearest to Fazilka i.e. place of posting of the appellant), she did not join the matrimonial company. 4. The appellant contested the allegations levelled by the respondent and averred that she was turned out of the matrimonial house as the respondent and members of her in-laws family were not satisfied with the adequacy of the dowry brought by her and she was unable to meet their dowry demand of Rs. 50,000/- in cash and a scooter. For that purpose, she was belaboured a number of times by the respondent who was a big boozer and who even made an abortive attempt to do away with her. After her unceremonious ouster from the matrimonial house, she could return to the matrimonial house only with the intervention of the panchayat. The parties co-habited thereafter and the marriage was consummated. After her unceremonious ouster from the matrimonial house, she could return to the matrimonial house only with the intervention of the panchayat. The parties co-habited thereafter and the marriage was consummated. The parties cohabited as husband and wife till about a year before the filing of the petition. Thereafter, she was again ousted from the matrimonial house. 5. The trial proceeded on the following issues :- "1. Whether the respondent had, after the solemnisation of the marriage treated the petitioner with cruelty ? OPP 2. Whether the respondent has deserted the petitioner for a continuous period of not less than two years immediately proceeding the presentation of this petition ? OPP 3. Relief." 6. The learned Trial Judge recorded finding in favour of the respondent and against the appellant under both the issues. The precise finding recorded thereunder was that the appellant stayed over at the matrimonial house for a period of only 4-5 days and left it thereafter and never resumed co-habitation with the respondent at the matrimonial house. 7. The learned counsel, appearing on behalf of the appellant, argued at the very outset that the petition filed by the respondent deserves outright rejection on account of delay in the filing thereof. In that context, reliance was placed upon the averment made by the respondent that the appellant stayed over at the matrimonial house for a period of 4-5 days, left it thereafter and did not return to the matrimonial house till date. 8. The plea was resisted by the learned counsel for the respondent who argued that the appellant is estopped by her own averment in the pleadings that the parties co-habited as husband and wife till one year prior to filing of the petition. 9. The plea on behalf of the appellant does not deserve acceptance. A party is bound by its own admission in the pleadings. It was own plea of the appellant therein that she and the respondent cohabited, as husband and wife, till a year before filing of the petition. She cannot wriggle out of that admission. Even otherwise, no plea on point of delay was taken up in the pleadings at the trial. Thus, from any angle, the appellant cannot succeed on the above indicated plea. 10. She cannot wriggle out of that admission. Even otherwise, no plea on point of delay was taken up in the pleadings at the trial. Thus, from any angle, the appellant cannot succeed on the above indicated plea. 10. Insofar as the dowry-related allegations are concerned, it will be appropriate to notice here that the appellant had earlier filed a petition under Section 9 of the Hindu Marriage Act. In the course of her cross- examination, she conceded at the trial that Ex.P1 (copy of petition) aforementioned had been correctly drafted by her counsel under her instructions. In the course thereof, she had made a precise averment that the respondent had withdrawn from her matrimonial company on account of her inability to conceive and also on account of her resistance to the proposal that he should enter into a second marriage. There was no allegation in the course of that petition that she had been subjected to any dowry-related harassment. It is apparent from a perusal of Ex. P2, a copy of the order dated 22.12.1984, that the petition aforementioned came to be dismissed in default. There is no averment that it was ever got restored to file. The above facts would indicate that the plea presently raised by the appellant about her dowry-related harassment is an after thought and not credible. Infact, the record would indicate that the appellant did not come to the Court with clean hands by having refrained from mentioning the filing (and dismissed in default) of the petition under Section 9 of the Act in the written statement. 11. As against it, the precise plea raised by the respondent was that the appellant stayed at the matrimonial house for a period of only 4-5 days. The latter (i.e. the appellant) denied it and averred that she had been visiting the respondent off and on at his place of posting. However, the evidence on that point does not inspire confidence. The appellant was not even in a position to disclose the address of the respondent at Moga where she had been allegedly visiting him. She was also not in a position to give the address of the respondent at Amritsar. She also did not examine any one from the vicinity of the place where the respondent was residing all along. The appellant was not even in a position to disclose the address of the respondent at Moga where she had been allegedly visiting him. She was also not in a position to give the address of the respondent at Amritsar. She also did not examine any one from the vicinity of the place where the respondent was residing all along. In that view of things, I have no hesitation in affirming the finding recorded by the learned Trial Judge that she had not been visiting the respondent at the matrimonial house. 12. There is plethora of law to support the proposition that a wife who denies conjugal bliss to the husband, would be accountable on a charge of having caused mental cruelty to the latter. This view is supported by Smt. Shakuntala Kumari v. Om Parkash Ghai, AIR 1981 (Delhi) 53 in which the following observations were made by the Delhi High Court :- "A normal and healthy sexual relationship is one of the basic ingredients of a happy and harmonious marriage. If this is not possible due to ill health on the part of one of the spouses, it may or may not amount to cruelty depending on the circumstances of the case. But wilful denial of sexual relationship by a spouse when the other spouse is anxious for it, would amount to mental cruelty, especially when the parties are young and newly married." 13. No law to the contrary was cited before this Court. 14. In the light of the foregoing discussion, I have no hesitation in affirming the finding recorded by the learned Trial Court and also the reasoning recorded in support thereof. The appeal is completely denuded of merit and is ordered to be dismissed. 15. Before this Court, the impleadment of second wife as a party was ordered by a Coordinate Bench of this Court (Vinod K. Sharma, J.) vide order dated 30.8.2007. On 19.3.2008, a Coordinate Bench of this Court (Surya Kant, J.) passed the following order :- "In order to explore the possibility of a settlement between the parties, the matter has been discussed with learned counsel for the parties. It would be fair to both the parties if they agree that from the month of June, 2008 onwards, the appellant (Smt. Kamla Devi) will get 60% of the family pension whereas the remaining 40% is paid to the respondent (Smt. Usha Devi). It would be fair to both the parties if they agree that from the month of June, 2008 onwards, the appellant (Smt. Kamla Devi) will get 60% of the family pension whereas the remaining 40% is paid to the respondent (Smt. Usha Devi). This arrangement shall continue for a period of five years i.e. upto 31.5.2013. From the month of June, 2013 onwards, both Smt. Kamla Devi and Smt. Usha Devi shall be entitled to equal amount i.e.50% each. For the aforesaid limited purpose, both the appellant-Smt. Kamla Devi and respondent-Smt. Usha Devi are being treated as legally wedded wives of late Krishan Kumar. Let the parties file their respective affidavits agreeing to the aforesaid terms." 16. In pursuance thereof, the relevant affidavit was filed only by the second wife Mst. Usha Devi. The first wife i.e. Mst. Kamla Devi also filed an affidavit thereafter but she did not acquiesce to the proposal in terms of the order dated 19.3.2008. 17. I have heard Mr. P.S. Goraya, learned counsel appearing on behalf of the appellant and Mr. B.R. Mahajan, learned counsel appearing on behalf of the respondent in the context of the controversy inter-se between the parties Mst. Kamla Devi and Mst. Usha Devi about the validity of the second marriage. 18. The petition came to be allowed in favour of Krishan Kumar and against Mst. Kamla Devi by the learned Trial Court on 26.10.1994. It is common ground that Krishan Kumar married Mst. Usha Devi on 18.10.1995. 19. Mr. P.S. Goraya, learned counsel appearing on behalf of Mst. Kamla Devi, argued that the marriage contracted by Krishan Kumar with Mst. Usha Devi was invalid inasmuch as it had been contracted during the pendency of the appeal. He also argued that the appeal having been filed within the period of limitation, Krishan Kumar could not have contracted remarriage even in the absence of an order of staying the operation of the impugned judgment. Reliance, in support of the view advocated, was placed upon the provisions of Section 15 of the Hindu Marriage Act (hereinafter referred to as "the Act") which is reproduced hereunder for the facility of reference :- "15. Reliance, in support of the view advocated, was placed upon the provisions of Section 15 of the Hindu Marriage Act (hereinafter referred to as "the Act") which is reproduced hereunder for the facility of reference :- "15. Divorced persons when may marry again :- When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again." 20 It would be apparent from a perusal of the above quoted provision of the Act that it (provision) conceputalises two eventualities. A situation could be conceived where there is no right of appeal against a decree or where there is such a right of appeal but the time for filing thereof is over and none comes to be filed. In both the eventualities, "it shall be lawful for either party to the marriage to marry again." The same would be true of an eventuality when an appeal has been presented but has been dismissed. Thus, there can be no dispute with the proposition that if an appeal came to be filed within the period of limitation prescribed for it, the party in whose favour divorce had been granted would not be entitled to remarry. 21. In this case, the original FAO record had been burnt in a fire in the Registry of this Court. The record was reconstructed. The plea raised by the learned counsel for Mst. Kamla Devi to the effect that the FAO in the matter came to be filed in the year 1994 (20.12.1994) draws sustenance from the fact that the appeal is indicated to have been typed out on that date but it does not enable the acceptance of the plea in view of the report made by the Registry that the FAO aforementioned came to be entered in the Percept Register on 19.4.1995 which was, obviously, well beyond the period of limitation prescribed for filing of an appeal against the decree granted under the Act. If the appeal had been proved to have been filed within the period of limitation, the obvious inference which would have followed was that the marriage of Krishan Kumar with Mst. Usha Devi was invalid. However, it is apparent from the record that the appeal was not filed within the period of limitation prescribed for it. That being so, the only inference deducible in the circumstances of the case is that it was lawful for Krishan Kumar to have remarried Mst. Usha Devi. The controversy shall stand disposed of accordingly.