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2011 DIGILAW 997 (PNJ)

Kiran Bala v. Raj Kapoor

2011-04-05

K.KANNAN

body2011
JUDGMENT Mr. K. Kannan, J.: - The appeal has been filed by the wife against the dismissal of a petition for divorce. The appellant’s contention was that her husband was a drunkard and was a womanizer. He used to beat her mercilessly and on one occasion on 30.06.2002, he levelled false allegations against her imputing unchastity and threw her out of the house. There had been two children, a boy and a girl through the marriage and she always wanted to go back to live with him if he had assured himself of good conduct. Panchayat was convened on 04.08.2003 in the presence of respectable members but the respondent was not prepared to take her back. 2. The respondent had denied all allegations and also brought in evidence a document of compromise purported to have been executed voluntarily by the appellant and the respondent on 07.04.2004 when she voluntarily declared that she will not have any association with a person by name, Khan and that she would go and live with their children in the husband’s house without any quarrel. The wife denied the contents of the document although she admitted the signature but said that this was brought about at the police station using her signature taken on blank paper. At the trial, the appellant sought to explain that the signature was taken in her own house and the signature found in the same document of all persons named Ashwani Kumar and Raj Kumar were very well known to her. The wife also admitted that Raj Kumar was her coemployee. 3. The appellant examined herself in evidence to say about the physical cruelties and beatings alleged to have been visited on her by the husband. The wife had contended that children have grown reasonably big above 10 years of age and they had no love for their father since the father never attempted to establish any contact with them. They did not also want to live with their father. The respondent examined himself and brought two witnesses, one of whom was a neighbour at the place of residence in Ferozepur. Both of them had stated that there used to frequent quarrels between the husband and the wife but there was nothing particularly wrong about the conduct of the husband. 4. The respondent examined himself and brought two witnesses, one of whom was a neighbour at the place of residence in Ferozepur. Both of them had stated that there used to frequent quarrels between the husband and the wife but there was nothing particularly wrong about the conduct of the husband. 4. The trial Court on examination of the evidence of parties found that the appellant had not established the cruel conduct against the respondent. On the other hand, he found that the recitals (Ex.R1) could not have been brought on blank papers as contended by her and found the fact of contradiction of where she had signed the papers as material to discredit her evidence. The recital in the compromise admitted to two things, (i) her promise not to be associated with a person by name, Khan and (ii) she would go and live with the husband. At the trial, the wife also contended that the husband had contracted several loans with persons and this indebtedness was a further cause for disharmony for the family. The Court found that there was no need of such indebtedness for the respondent. It was further found that the appellant herself had secured appointment on compassionate grounds on the death of the mother of the husband and she was not justified in her separate living. 5. I can notice that the relations between parties have soured. I have seen that the husband was not having any interest in even maintaining children or taking care for them. In the cross-examination to the appellant, it was suggested that the father used to visit Muktsar or make phone calls which the appellant had denied. In the crossexamination of the respondent himself when he was asked whether he had visited his children or whether he used to make phone calls, he admitted that he had never made any attempt to establish any contact with the children. He even stated that the averments in the affidavit in proof of chief-examination had been prepared by his counsel and he did not know whether there were any recitals in the affidavit to the effect that he used to regularly meet with his children. He even stated that the averments in the affidavit in proof of chief-examination had been prepared by his counsel and he did not know whether there were any recitals in the affidavit to the effect that he used to regularly meet with his children. Though I do not find that there was any independent evidence to support the plea of the wife that the husband was guilty of cruelty, one thing can be noticed that the wife’s contention that the husband was not interested in living with her and he used to beat her. RW1 and RW2, who were the neighbours, did not go as far as to state that the respondent never used to beat her. They were merely contending for what was obvious that the respondent and the appellant had frequent quarrels, but they had not seen the respondent beating the appellant. Physical assaults need not be in the presence of parties. I do not think even if the so-called compromise were taken as established, it proves anything that the wife was guilty of infidelity. It shows that in a veiled manner the respondent-husband did not want her wife to see in the company of Khan. She was a working woman and she ought to have had several acquaintances including men. In fact, there had been even a suggestion to the appellant by the husband that there was a colleague to her by name Raj Kumar and that the appellant was in the company of Raj Kumar for about a week. 6. There are serious allegations of matrimonial infidelity of one against another. If the allegations of the respondent were to be false, that itself would amount to cruelty and if, on the other hand, if the allegations of the respondent were to be true, then it should be taken as a case of the wife being dis-entitled to obtain a decree of divorce against the husband. By being guilty of matrimonial wrong, she could not be expected to take advantage of her own wrong. In this case, we have a situation where the husband makes allegations of matrimonial infidelity against the wife and the wife also states that the husband was a womanizer and drunkard. It has come through evidence that the children are not taken care of by the father and they have been living away since 2002. In this case, we have a situation where the husband makes allegations of matrimonial infidelity against the wife and the wife also states that the husband was a womanizer and drunkard. It has come through evidence that the children are not taken care of by the father and they have been living away since 2002. I do not find any scope for preserving the sanctity of marriage in such a situation. I will take the averments of cruelty attributed to the husband as established by the appellant’s own assertions coupled with the fact that the appellant has been living away from her husband with the children, who are now grown up and who were in the age group of 14 and 12 at the time of trial in 2005. The husband has been served but he has not put in appearance through himself or counsel to resist the claim for divorce. I have no reason to suspect any collusion in a case where there was keen contest at the trial. 7. Under the circumstances, I set aside the decree of the trial court and grant to the wife a decree of divorce by dissolution of marriage. 8. The appeal is allowed. ---------0SL0----------