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2009 DIGILAW 750 (PNJ)

Gurmeet Kaur v. Malak Singh

2009-04-21

S.D.ANAND

body2009
Judgment S.D.Anand, J. 1. The appellant-wife is in appeal against the judgment and decree dated 12.8.2008, vide which the learned Trial Court allowed a petition under Section 9 of the Hindu Marriage Act filed by the respondent-husband. 2. The marriage between the parties was solemnized, as per the Anandkaraj ceremony, on 31.3.2002. A male child was born out of their union in the month of December, 2003. The behaviour of the appellant-wife, from the very inception of the marriage, was otherwise improper as she was insistent upon the respondent-husband shifting from the village and to become a resident son-in-law which proposal was not acceptable to him as he had also his an aged mother to support and he was the only bread earner of the family. The resistance offered by the respondent-husband to the proposal aforementioned led to the souring of his relations with the appellant-wife. In August, 2003, the appellants mother visited the matrimonial house of the parties and advised the appellant-wife to desist from pursuing the demand aforementioned. However, it did not have any effect upon the appellant-wife. 3. In the first week of December, 2003, the respondent-husband fetched the appellant-wife to latters natal village to enable her to visit her mother. However, on the day following, she refused to accompany the respondent to the matrimonial house and she continued living there only. On the birth of a male child to her at her natal house, the respondent-husband visited her,however, he found that the behaviour of the appellant towards him and his mother was not proper. The mother son duo had gone to perform some ceremony in connection with the birth of a male child. It was after great persuasion at the hands of the family of the respondent- husband that the appellant returned to the matrimonial house in March, 2004. However, there was no change in her adamant attitude. In order to remove the creases in their relations, the respondent- husband deposited a sum of Rs. 5 lacs in FDR in the name of the appellant-wife in the fond hope that it would smoothen her nerves and restore her confidence in his bonafides to maintain the matrimonial relations. The efforts proved abortive. 4. About six months prior to the filing of the petition, the appellant-wife was to go over to her natal house to attend the marriage of her sister. The efforts proved abortive. 4. About six months prior to the filing of the petition, the appellant-wife was to go over to her natal house to attend the marriage of her sister. The respondent-husband provide her a sum of Rs. 15,000/- in cash and also dropped at her natal house by car. While leaving the matrimonial house in the company of respondent-wife, the appellant-wife had taken along all her ornaments, the original FDR and the bank pass book. On the day the wedding of sister of the appellant-wife, there was an altercation between the parties but the respondent displayed sense of toleration in view of the fact that there was a marriage in the family. However, after the marriage ceremony had been performed, the appellant-wife refused to accompany the respondent-husband to the matrimonial house. Even the intervention by the Panchayat did not yield any fruitful result, thereby impelling the respondent-husband to ultimately file the decreed plea. 5. In the counter, the appellant denied the allegations levelled by the respondent-husband in toto. She challenged the maintainability itself of the petition as the respondent-husband had omitted to mention therein the fact that the appellant-wife had already filed a suit for recovery of maintenance against him. The plea, raised in the context, was that the filing of the petition under Section 9 of the Hindu Marriage Act was, infact, a counter blast to the maintenance plea filed by her. The trial proceeded on the following issues :- 1. Whether the petitioner is entitled to a decree for restitution of conjugal rights as alleged? OPP 2. Whether the respondent has withdrawn from the society of her man with just excuse ? OPR 3. Relief. 6. The learned Trial Court took up both the issues jointly for disposal and recorded a finding adverse to the appellant-wife in view of the fact that she had not been able to adduce any evidence to prove that she had any reasonable cause to stay away from the matrimonial house. It was noticed by the learned Trial Court that, for want of any evidence, the appellant-wife had not been able to rebut the affirmative evidence adduced by the respondent-husband to the contrary. 7. I have heard Mrs. Jaspal Kaur Gurna, learned counsel appearing on behalf of the appellant and Mr. Mahabir Sandhu, learned counsel appearing on behalf of the respondent and have carefully gone through the file. 8. 7. I have heard Mrs. Jaspal Kaur Gurna, learned counsel appearing on behalf of the appellant and Mr. Mahabir Sandhu, learned counsel appearing on behalf of the respondent and have carefully gone through the file. 8. It may be noticed, at the very outset, that the appellant-wife also filed (in appeal only) a plea for being allowed to adduce additional evidence. She applied for the leave of the Court to thereby prove on record compromise Annexure P-1 and also Annexure P-2, a copy of petition for maintenance which she filed against the respondent. She also applied to the Court to thereby place on record Annexure P-3, a copy of the counter filed by her in the petition under Section 9 of the Hindu Marriage Act. The plea, raised in the context, is that the factum of compromise would indicate that the mother and uncle of respondent-husband had fetched the appellant-wife from her natal house by assuming that there would be no quarrel at all in future and that she would also not be beaten up. They had thereby agreed, it is argued, that if any harm comes to the life and liberty of the appellant-wife, they would be accountable for it. Annexure P-2, it is argued, would enable the appellant- wife to prove that she had filed a plea for maintenance prior in point of time and that the petition under Section 9 of the Hindu Marriage Act was filed later on. as a counter blast thereof. 9. It is apparent from the record that the respondent-husband had adduced on file evidence of affirmative character to prove the above quoted allegations at the trial. It is further apparent from the pleadings of the parties that he had raised a precise plea that, in order to inspire the confidence of the appellant, the respondent-husband had deposited a sum of Rs. 5 lacs in FDR in the name of the appellant-wife. 10. In that context, the learned counsel appearing on behalf of the appellant argues that funds for the raising of that FDR had, infact, been provided by her father and it was with a mischievous design that the respondent-husband had obtained that FDR in the name of self and the appellant. 11. That argument was almost a reiteration of the averment made by her in the counter Annexure P-3. 11. That argument was almost a reiteration of the averment made by her in the counter Annexure P-3. (It is otherwise pleaded in para 4 of Annexure P-3 that the respondent-husband desired her either to leave the matrimonial house or get the land left by her father mutated in his name and that it was her mother who entered into an agreement to sell off the agricultural land and provided a sum of Rs. 5 lacs to the respondent-husband who obtained an FDR in his name and that of the appellant. 12. As already noticed there is not even an iota of evidence on record to prove that funds for the raising of the FDR aforementioned had been provided by the mother of the appellant-wife. If there was even an iota of truth in the allegation in the relevant averment, the appellant ought to have adduced documented evidence to prove that her mother did actually enter into an agreement to sell a part of the agricultural land left by her deceased husband. Further, documentary evidence could also be adduced by summoning a bank official to prove that the FDR was in the name of the respondent and also the appellant. It was incumbent upon the appellant-wife to adduce evidence to that effect in view of the precise averment by the respondent-husband that it was he only who obtained that FDR in the name of the appellant-wife out of his own funds. 13. Faced with the predicament aforementioned, the learned counsel appearing on behalf of the appellant-wife argues that the learned counsel representing the appellant at the trial did not, at all, inform her that any witness was to be examined/summoned and it was on that account only that she had not been able" to adduce evidence in support of the averments made by her in the course of the counter at the trial. 14. It is neither here nor there for the appellant-wife to raise the plea aforementioned. In the natural course of things, a party litigating in the context of a personal relationship of such paramount importance, would be expected to stay in touch with the counsel representing that party. It is unnatural to expect that the appellant wife did not interact with her learned counsel about the progress of the case. In the natural course of things, a party litigating in the context of a personal relationship of such paramount importance, would be expected to stay in touch with the counsel representing that party. It is unnatural to expect that the appellant wife did not interact with her learned counsel about the progress of the case. In any case, the adjudication at the hands of the learned District Judge, had come about on the basis of the material obtaining on the file and the appellant-wife cannot be presently heard to argue in favour of the grant of leave to adduce additional evidence which is apparently aimed at getting over the lacunae found by the learned Trial Court. A plea of indicated category is not acceptable. Even otherwise, the proposed additional evidence would not be supportive of the plea of the appellant-wife that the funds for the raising of the FDR aforementioned had been paid by her mother. It may be noticed, in the context, that there is no request on the part of the appellant-wife for being allowed to adduce evidence to prove any agreement vide which her mother had agreed to sell a part of the agricultural land inherited by her from her deceased husband. 15. The present is, thus, a case in which the affrinative evidence adduced by the respondent-husband, in support of the plea forming the foundational premise of the plea for the conjugal rights was not rebutted by any evidence whatsoever on the part of the appellant-wife who did not even enter the witness box, as her own witness. In the light of the foregoing discussion, the appeal is held to be denuded of merit and is ordered to be dismissed.