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2011 DIGILAW 2130 (PNJ)

Ewelina Stepkowska v. Ravinder Singh

2011-11-29

G.S.SANDHAWALIA, HEMANT GUPTA

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JUDGMENT Mr. G.S. Sandhawalia, J.: - The present appeal has been filed by the petitioner-wife, who is dissatisfied against the decision dated 24.11.2009 passed by the Addl. District Judge, Hoshiarpur wherein her petition under Section 27 of the Special Marriage Act, 1954 (hereinafter referred to as “the Act”) for grant of divorce has been dismissed. 2. The case of the petitioner-wife was that the marriage between the parties was solemnised on 7.7.2005 under the Act before the Marriage Officer, Hoshiarpur. The parties had lived and cohabited as husband and wife at village Dhugga Kalan, District Hoshiarpur and no child was born from the said wedlock. The respondent-husband was a Mechanical Engineer whom the petitioner had married but after marriage she came to know that he was not doing anything and remained idle. The petitioner wife alleged that she had come from Poland to live with her Uncle Dalwinder Singh at Hoshiarpur and after the marriage respondent-husband and his family members had pressurised her to take the respondent to Poland but she had showed her inability to take the respondent as she wanted to live with him in India as she had come after leaving her parents against their wishes. On this denial, the respondent-husband had insulted her and started maltreating her and that she was abused in the presence of neighbours and defamatory language was used against her in the presences of his friends due to which an effort for reconciliation and advise was made with the help of her Uncle Dalwinder Singh which resulted in her being turned out on 18.1.2006. The the petitioner-wife alleged that she lived at Hoshiarpur with her uncle Dalwinder Singh. Thereafter as respondent-husband never tried to contact her, nor her uncle to rehabilitate her, she left for Poland for few months. Thereafter after living for few months at Poland, she came to India and was living in the care of her uncle Dalwinder Singh at Hoshiarpur but the respondent-husband had never bothered about her nor tried to rehabilitate her. Hence, the petition was filed on 15.9.2008 on the ground that respondent-husband had treated her with cruelty and also deserted her for a period of more than two years. 3. Notice of the petition was given to the respondent but he failed to appear and hence proceeded against exparte on 17.12.2008. Hence, the petition was filed on 15.9.2008 on the ground that respondent-husband had treated her with cruelty and also deserted her for a period of more than two years. 3. Notice of the petition was given to the respondent but he failed to appear and hence proceeded against exparte on 17.12.2008. The petitioner-wife thereafter produced as many as three witnesses including herself, Gurmit Kaur wife of late Dalwinder Singh and her cousin brother, namely, Chander Mohan as PW-3. The learned Addl. District Judge has dismissed the petition on the ground that the petition has been presented in collusion with the respondent-husband and only purpose for which the parties had entered into matrimonial alliance was to settle the respondent abroad. It was also noticed that the respondent on receipt of summons sent to the address abroad had said that he has no objection, if the petition was allowed and the marriage between the parties was dissolved. Accordingly, the trial Court proceeded to dismiss the petition saying that there was no evidence supporting the fact that there was any desertion or cruelty. 4. It is in the said circumstances, the present appellant has filed the appeal which was barred by limitation by 364 days but the delay was condoned on 5.4.2011. 5. Learned counsel for the appellant has contended that in view of the unrebutted evidence on record in the form of affidavit of petitioner sworn at Hoshiarpur and supported by the evidence of Gurmit Kaur wife of late Dalwinder Singh specific reference of whom is made in the petition and even address of the petitioner is also given of same residence, the trial Court was not justified in dismissing the petition by reaching to an adverse conclusion that the marriage was entered into for the purpose of sending the respondent-husband abroad and the petition was presented in collusion with the respondent-husband. Stress was also laid upon the statement of Chander Mohan PW-3, who had also given an affidavit in support of the petitioner. 6. There is considerable merit in the submission of the learned counsel for the petitioner-wife. Admittedly, the petitioner-wife is of Polish background which would be clear from her name and address and photograph placed on record of the marriage along with the certificate of marriage issued by the Deputy Commissioner-cum-Marriage Officer, Hoshiarpur dated 7.7.2005 (Ex. P3). 6. There is considerable merit in the submission of the learned counsel for the petitioner-wife. Admittedly, the petitioner-wife is of Polish background which would be clear from her name and address and photograph placed on record of the marriage along with the certificate of marriage issued by the Deputy Commissioner-cum-Marriage Officer, Hoshiarpur dated 7.7.2005 (Ex. P3). In the said certificate, the name of Dalwinder Singh specifically finds mention along with signature who is alleged to be the uncle of the petitioner-wife. In the pleadings, it is specifically mentioned that she has been deserted since 18.1.2006 and the petition has been filed on 15.9.2008 and the specified period of desertion of two years preceding the presentation of petition under Section 27(1)(b) of the Act has been satisfied. This has been further strengthened by the fact that the petitioner-wife came in to submit her evidence by way of affidavit on 13.10.2009 more than a year after the presentation of the petition which she had filed with an affidavit and the facts go on to show that she has been visiting India on and off continuously prior to the marriage and after her marriage also and has been present before the Court. The Court has also noticed the fact that respondent on being served on the summons has sent a reply that he has no objection, if the petition is allowed. In view of the said background, it is not for the Court to come to an adverse opinion that marriage was entered into for the sole purpose to settle the respondent-husband abroad and that the petition had been presented in collusion with the respondent-husband. Once the parties themselves do not want to continue with their matrimonial bond, it is not for the Court to substitute its opinion and bind the parties together as has been done in the present case vide impugned judgment and decree. 7. Once the petitioner-wife had produced evidence in support of her case and which was unrebutted and not controverted by the husband in written statement nor the witnesses have been cross-examined, moreover, neither any such plea had been set up as has been observed by the trial Court, there was no occasion for the Court to come to unjustified conclusion that it has reached to. 8. Accordingly, the appeal is allowed and the judgment and decree dated 24.11.2009 passed by the learned Addl. 8. Accordingly, the appeal is allowed and the judgment and decree dated 24.11.2009 passed by the learned Addl. District Judge, Hoshiapur is set aside and the petition filed under Section 27 of the Act is allowed and the marriage between the parties is dissolved on the ground of desertion under Section 27(1)(b) of the Special Marriage Act, 1954.