Research › Search › Judgment

Punjab High Court · body

2009 DIGILAW 60 (PNJ)

Amarjeet Kaur v. Joginder Singh

2009-01-12

S.D.ANAND

body2009
Judgment S.D.Anand, J. 1. The respondent-husband filed a petition under Section 13 of the Hindu Marriage Act for the dissolution of the marriage on plea of cruelty. The petition came to be allowed by the learned Trial Court thereby impelling the appellant-wife to come up in appeal. 2. The marriage between the parties was solemnised in the year 1980. Two children (one female and the other male) were born out of their union. The attitude of the appellant-wife towards the respondent-husband was insulting and non cooperative from the very inception of the marriage. She hated rendering services to the aged parents and an unmarried uncle of the husband who had been putting up with them. The appellant would always insist upon separation (in mess and residence) from the family to which the respondent was not agreeable. On account thereof, the appellant developed aversion to the respondent and their children. The appellant would not leave a chance to insult the respondent in the presence of the relations and guests. The appellant would further held out a threat that she would poison her children and commit suicide in order to frame the respondent in a criminal case. In execution of that threat, she consumed pesticide on 26.7.1980. However, she was immediately hospitalised by the respondent at Civil Hospital, Kotkapura. From there, she was shifted to CMC, Ludhiana, where she remained admitted for the period from July 26, 1990 to 31 July, 1990. The medical bill for that hopitalisation and treatment was paid by the respondent. However, appellants parent came over thereafter and fetched her to her natal house, without even bothering to speak to the respondent. Three days thereafter, the appellant lodged a report with the police that respondent and his relations had tried to kill her by forcing pesticide into her mouth. In a Panchayat held as a reconsideration endeavour, the appellant conceded her lapse and promised to behave well in the times to come. Those proceedings were documented in the presence of Iqbal Singh Sarpanch, The parties also signed the proceedings in the presence of respectable and relations who attended that Panchayat. However, the appellant again left the matrimonial house in the absence of the respondent who was thereby compelled to file a divorce plea on 23.10.1990. Again, the appellant expressed a feeling of remorsefulness and assured to mend her ways. On that basis, the respondent withdrew that petition. However, the appellant again left the matrimonial house in the absence of the respondent who was thereby compelled to file a divorce plea on 23.10.1990. Again, the appellant expressed a feeling of remorsefulness and assured to mend her ways. On that basis, the respondent withdrew that petition. The appellant did not, however, honour that commitment, thereby impelling the respondent to file the present divorce petition on 27.7.1991. 3. The appellant denied that her behaviour was not cooperative or that it was insulting towards the respondent. She also denied having held out any threat to administer any poison to her children or to commit suicide to falsely frame the respondent in criminal case. She alleged that the respondent did not find her likable, that he used to beat her up and she was initially turned out of the matrimonial house in January, 1988 after she had been belaboured. She went over to her natal house in three bare clothes. Her restoration to the matrimonial house came about with the intervention of a cousin of hers. However, the appellant was against belaboured and turned out of the house in the month of January, 1991. She did not admit the factum of her having conceded her lapse before the Panchayat. She otherwise conceded that the Panchayat had effected a compromise between the parties. The trial proceeded on the following issues :- "1. Whether the respondent has deserted the petitioner ? OPA 2. Whether the respondent has treated the petitioner with cruelty ? 3. Whether this petition is barred by the principle of resjudicata ? OPA 4.Relief" 4. The respondent examined the Accountant of CMC, Ludhiana as AW-2 and Iqbal Singh, Sarpanch as AW-3, besides entering the witness box, as his own witness. As against it the appellant entered the witness box, as her own witness, as RW-2 and also examined her maternal Uncle Dial Singh as RW-1. 5. Learned Trial Judge noticed that issue No. 1 did not at all arise from the pleadings of the parties. Under issue No. 2, the finding recorded was that the respondent had been able to prove that it was the appellant who had her treated with mental cruelty . The finding recorded under issue No. 3 was that the petition was not barred by resjudicata. 6. None entered appearance on behalf of the parties to assist this court. I have been through the record. The finding recorded under issue No. 3 was that the petition was not barred by resjudicata. 6. None entered appearance on behalf of the parties to assist this court. I have been through the record. The jurisdiction limit of First Appellate Court in the context of a finding of fact, was indicated by the Apex Court in Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh and others, AIR 1951 SC 120., wherein their Lordships of the Supreme Court 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. 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." 7. 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." 7. 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. 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." I would, now, proceed to examine the finding of fact recorded by the learned Trial Judge on the touch-stone of the judicial pronouncements afore-mentioned. 8 It is beyond the pale of controversy that the appellant did come to be hospitalised at CMC, Ludhiana. The plea raised by the respondent was that she had herself consumed that pesticide; whereas the grievance of the appellant was that pesticide had been forced upon her by the respondent in connivance with his mother Mukhtiar Kaur and uncle Kewal Singh. 9. The plea raised by the respondent was that she had herself consumed that pesticide; whereas the grievance of the appellant was that pesticide had been forced upon her by the respondent in connivance with his mother Mukhtiar Kaur and uncle Kewal Singh. 9. Learned Trial Judge noticed that the relevant bill issued by the CMC, Ludhiana had been produced by the respondent-husband. The plea by the appellant that the bill had, infact,been paid by her uncle and that she brought the prescription slip and the bill to the matrimonial house was negatived. In that context, it was noticed that the appellant had conceded that her maternal uncle did not pay up the bill in her presence. Though the name of her uncle Dial Singh does find mention in the CMC record but the mere mention of that fact, as a relation of the appellant, is not of any significance. There was nothing unnatural if Dial Singh RW-1 went out to visit his niece during the period she was hospitalised over there. 10. Apart therefrom, the admission made by the appellant before the Panchayat was testified on oath by Iqbal Singh, Sarpanch. In the course of that writing, she had conceded blame for the impugned episode. In view of the contents of Ex. A/3, it is not open to the appellant to plead that it was a pure and simple compromise and that nothing incriminating qua her appears in the course thereof. 11. Learned Trial Court also noticed that the appellant had conceded at the trial that she did not instruct her counsel that the respondent administered insecticide to her with the helper of her mother and uncle. If things had happened that way only, there is no reason why the appellant would not have instructed her counsel accordingly in order to enable that fact to be incorporated in the pleadings. 12. Learned Trial Court very appropriately noticed the fact that the appellant had herself conceded, in the course of cross-examination that she neither filed any plea for restitution of conjugal rights nor did she prefer any petition to obtain the custody of children. In the normal course of things, if the wife was inclined to resume co-habitation, she would have taken recourse to a petition for restitution of conjugal rights. In the normal course of things, if the wife was inclined to resume co-habitation, she would have taken recourse to a petition for restitution of conjugal rights. The refrain on her part in filing the petition for restitution of conjugal rights and also a petition to obtain the custody of her children, is supportive of the averment by the respondent that she developed aversion towards him and their children and there was no love in her mind for even her children. 13. Learned Trial Court had taken a view which was based upon proper appreciation of evidence. This Court has not been able to find any illegality or perversity in the manner of appreciation by the learned Trial Court. 14. It is, thus, apparent that finding recorded by the learned Trial Judge is in order and line of reasoning recording in support thereof deserve affirmation. The appeal is held to be devoid of merits and is ordered to be dismissed.