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2009 DIGILAW 51 (PNJ)

Veena Sharma v. Vasdev Sharma

2009-01-09

S.D.ANAND

body2009
Judgment S.D.Anand, J. 1. The appellant-wife is in appeal against the order dated 13.9.1994 vide which a petition for dissolution of marriage filed by the respondent/husband was allowed by the learned Trial Court. 2. The marriage between the parties was solemnised on 27.10.1979. A female child born out of their union in October, 1980 died after 10 days of the birth. Another female child born out of their union on 28.11.1984 is presently residing with the appellant-wife. 3. The allegations of the respondent-husband were as under :- The behaviour of appellant-wife with members of her in-laws family was inappropriate from the very inception of the marriage. She would openly announce that respondent-husband was not of his liking and she was also not inclined to put up in a village. She had an altercation with the respondent- husband in May, 1982, whereafter she left for her natal house in Dinanagar. When all endeavours at getting her back to the matrimonial house failed, the respondent-husband was constrained to file a divorce plea in the court. That plea ended in a compromise. In pursuance thereof, the respondent-husband started residing at his in-laws house. There also, he tried to impress upon the appellant-wife that it would be appropriate to go over to the matrimonial house but his entreaties did not have any effect upon the appellant-wife. She was in a family way at that time. She initially held out an assurance that she would shift to the matrimonial house in the area of village Jhabkara. However, she backed out after the birth of the child and did not honour the commitment. The appellant-wife even secured all the dowry articles with the help of the police. She also filed a plea under Section 125 of the Code of Criminal Procedure to claim maintenance for self and the female child. The plea for maintenance for self was declined by the learned Court, however, maintenance at the rate of Rs.150/- per month was awarded in favour of the child. The respondent-husband had, thus, applied for grant of a decree of divorce on a plea of cruelty and desertion. 4 The appellant-wife did not dispute the averment that the initial divorce petition had ended in a compromise. The respondent-husband had, thus, applied for grant of a decree of divorce on a plea of cruelty and desertion. 4 The appellant-wife did not dispute the averment that the initial divorce petition had ended in a compromise. However, she pleaded that respondent- husband had entered into that compromise on 25.2.1984 only with a view to wriggle out of the predicament of having to pay the arrears of maintenance pendente-lite. The further averment is that, even after the compromise, the appellant-wife was turned out of the matrimonial house by respondent-husband who contracted a second marriage and is presently putting up with his second wife. In other words, the appellant-wife averred that her staying away from the matrimonial house is not without a reasonable cause. 5. Learned Trial Judge recorded findings adverse to the appellant-wife under both the issues. In the light thereof, the petition filed by the respondent- husband was granted and the marriage between the parties was ordered to be dissolved forthwith. 6. As none turned up on behalf of the parties to assist this Court, I have been through the file. It is apparent from a perusal of the grounds of appeal (para 3 thereof) that the wife indicated a grievance that though she had always been ready and willing to join the matrimonial company of respondent-husband, it was the latter who mal-treated her from the very inception of the marriage as he was not satisfied with the adequacy of the dowry brought by her. The further averment, in the course of the grounds of appeal, is that the respondent- husband entered into a compromise on 25.2.1984 (in the previous divorce plea) just in order to be able to evade liability for the payment of maintenance pendente-lite. There is a also a grievance in the grounds of appeal that the respondent-husband has contracted a second marriage. She, however, averred that she is even ready to put up with the respondent-husband and his second wife. 7. The appellant-wife stepped into witness box, as her own witness, as RW-1. Interestingly enough, there is not even a word in the course of her testimony that the respondent-husband had mal-treated her on account of inadequacy of dowry brought by her or on account of inability on her part to fulfill any dowry demand. The relevant part of the averment is, thus, unsubstantiated and illogical. 8. Interestingly enough, there is not even a word in the course of her testimony that the respondent-husband had mal-treated her on account of inadequacy of dowry brought by her or on account of inability on her part to fulfill any dowry demand. The relevant part of the averment is, thus, unsubstantiated and illogical. 8. It would require pointed notice, at this stage, that the internal bickering between the parties upto the date of the compromise (in the initial divorce plea), stood condoned once the parties compromised and resumed co-habitation. A precise plea made by respondent-husband in the petition was that, in terms of the compromise, he became a resident son-in-law. The corresponding para of the counter does not specifically deny that averment. The plea, taken up in the court, is that the respondent-husband entered into that compromise in order to be able to wriggle out of the liability to pay maintenance pendente- lite and he immediately thereafter turned the appellant-wife out of the matrimonial house. In view of the fact that the above indicated precise averment (made by the respondent-husband) about his having joined the company of appellant-wife by becoming a resident son-in-law had not been denied in the corresponding para of the counter, the plea above indicated would appear to be farcical. That plea would validly arise only if the appellant-wife who had joined the company of respondent-husband at the matrimonial house. 9. The averment, made in the course of the counter that respondent-husband has contracted a second marriage, is neither here nor there. The name of second wife has not been indicated by the appellant-wife. The timing of marriage had also not been indicated. There also is no evidence (documentary or otherwise) to corroborate that statement of the appellant-wife. In that view of things, it is illogical for the appellant-wife to aver that she is prepared to put up with the respondent-husband even with the second wife. In the Indian societal scenario, the girl side people would go whole-hog to explore in the first instance the path of rapprochement. They would like to get through to the family of the estranged son-in-law to effectuate endeavour at reconciliation. There is not even an allegation that the appellant side ever convened any Panchayat or sought the good office of the any relatives to explore the possibility of a settlement. They would like to get through to the family of the estranged son-in-law to effectuate endeavour at reconciliation. There is not even an allegation that the appellant side ever convened any Panchayat or sought the good office of the any relatives to explore the possibility of a settlement. Infact, as recorded by the learned Trial Judge, the appellant-wife rushed to the Criminal Court and filed a plea under Section 125 of the Code of Criminal Procedure to claim maintenance pendente-lite for self and the female child born out of the union of parties. Her plea for maintenance pendente-lite for self was declined, though the plea for maintenance pendente-lite for the female child was allowed by the Court. She challenged that order in revision before the Court of Sessions which affirmed that order. In the course of the testimony on oath (in the course of 125 Cr.P.C. proceedings), the appellant-wife is noticed to have made a categorical statement that she never intended to live in the house of respondent-husband at village Jhabkara. A copy of that statement was produced in those proceedings as Ex. A/2. After noticing that fact, the learned Trial Court held that the statement made by the appellant-wife in the present divorce proceedings (to the effect that she is ready to live with the petitioner) is illogical. This part of the discussion appears in paras 18 and 19 of the judgment under challenge. Those paras are reproduced as under for facility of reference:- "18. Coming to the facts of the instant case, it is quite apparent that the respondent had made up her mind as far back as in the year 1984 when she filed an application under section 125 Cr.P.C. that she never intended to live in the house of the petitioner at village Jhabkara as per statement Ex.A2 made by her in those proceedings. The statement made by the respondent in this case that she is still ready to live with the petitioner cannot be taken into consideration. She has been living separate from her husband since May, 1984 as pleaded by her. She had filed application under section 125 Cr.P.C. for the grant of maintenance which was declined. She then sought the help of the police to get the dowry articles recovered from the house of the petitioner. She has been living separate from her husband since May, 1984 as pleaded by her. She had filed application under section 125 Cr.P.C. for the grant of maintenance which was declined. She then sought the help of the police to get the dowry articles recovered from the house of the petitioner. From the sequence of events as enunciated above, it is quite apparent that the respondent treated the petitioner with cruelty and she had deserted the petitioner without any reasonable cause. 19. The petitioner stated that the respondent got a case registered against him in Dinanagar Police Station where he was summoned and was beaten and that the police entered his house at the instance of the respondent and took away all the dowry articles including his household goods in the year 1984 and that she never resided with him thereafter. This act of the respondent amounts to cruelty on her part towards the petitioner. It also stands proved that the respondent deserted the petitioner long back and made up her mind not to live with the petitioner which amounted to desertion." 10. In Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh and others, AIR 1951 SC 120, their Lordships of the Supreme Court considered the ambit of the appellate Courts jurisdiction to interfere with the finding of fact reached by the trial Court and laid down the following propositions : "Where the question for consideration for the appellate Court is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case, the appellate Court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Court. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is-and it is nothing more than a rule of practice- that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Juges notice or there is sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact. The appellate Court is wrong in thinking that it would detract from the value to be attached to a trial Judges finding of fact if the Judge does not expressly base his conclusion upon the impressions he gathers from the demeanour of witnesses. The duty of the appellate Court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial Court arrived at or whether there is an element of improbability arising from proved circumstances which, in the opinion of the Court, outweighs such finding." 11. In Santosh Hazari v. Purushottam Tiwari, 2001(3) RCR(Civil) 243 : JT 2001(2) SC 407, their Lordships of the Supreme Court emphasized that the appellate Court should not readily interfere with the finding of fact arrived at by the trial Court and observed :- "While writing a judgment of reversal the Appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the Appellate Court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. If the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the Appellate Court is entitled to interfere with the finding of fact. If the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the Appellate Court is entitled to interfere with the finding of fact. When there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the Appellate Court should not interfere with the finding of the trial Judge on a question of fact. Secondly, while reversing a finding of fact the Appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding." 12. I have examined the judgment appealed against on the touchstone of the law laid down by the Apex Court in Sarju Pershad Ramdeo Sahus case and Santosh Hazaris case (Supra). I find that the findings of fact recorded by the learned Trial Judge do not merit interference at all. In the light of the fore-going discussion, it is apparent that the petition filed by the appellant-wife is devoid of merit and is ordered to be dismissed.