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2014 DIGILAW 1012 (PNJ)

Lemhmber Singh v. Kuldeep Kaur

2014-07-04

NAVITA SINGH, S.S.SARON

body2014
S.S. Saron, J. 1. The marriage between the parties was solemnised according to Sikh religious rites and ceremonies at Village Kala Sanghian on 02.12.2001. After marriage, the parties resided together as husband and wife at Village Basheshrepur Post Office Lambra District Jalandhar. They had a son, namely, Sukhraj Singh, who was born on 23.11.2002. At present, the son is residing with the appellant-husband. On account of matrimonial disputes between the parties, the respondent-wife on 16.12.2010 filed a petition under Section 13 of the Hindu Marriage Act, 1955 ('Act' - for short) seeking dissolution of the marriage between the parties by a decree of divorce. Her petition was allowed by the learned Additional District Judge, Kapurthala vide judgment and decree dated 28.04.2012. Aggrieved against the same, the appellant-husband has filed the present appeal. According to the respondent-wife, the appellant had come from USA before the marriage and as per the demand from the side of the appellant, the father of the respondent solemnised the marriage with great pomp and show. An amount of ` 8 lacs, it is stated was spent in the marriage. Various dowry articles including gold ornaments were given. The appellant and his family members were however dissatisfied with the same. They taunted the respondent by proclaiming that no big item like a luxury car had been given, besides, their image had been lowered in the eyes of their brotherhood. The family members of the appellant started instigating the appellant to leave the respondent and they would perform his second marriage. It is alleged that the appellant ill-treated the respondent and even slapped her on many occasions. Her life became a hell. The appellant also demanded ` 2.00 lacs from her on the pretext that if she wanted to join the company of the appellant in USA, she should bring the said amount. Her father arranged the amount in the year 2006, which he gave to the appellant. The respondent then left India on 25.05.2007 to join the company of the appellant. In the USA it is alleged that the life of the respondent became from bad to worse. The appellant consumed heavy drinks, besides, used vulgar and indecent language against her. He used to treat the respondent like a servant and even used to talk to other ladies in her presence. When this was objected, the appellant gave her a merciless beating in January, 2008. The appellant consumed heavy drinks, besides, used vulgar and indecent language against her. He used to treat the respondent like a servant and even used to talk to other ladies in her presence. When this was objected, the appellant gave her a merciless beating in January, 2008. She was told that in case she wanted to live with him, she would have to bear all this. It is also alleged that the appellant stated that he has relations with other foreigners and she had no right to raise objection. The appellant is alleged to have slapped the respondent and turned her out from the matrimonial home. She stayed with her friends for 3-4 days and informed this fact to her in-laws but no one heard her. Then the respondent shifted to a rented accommodation in California and she resided there all alone. The appellant kept her minor son with him. The respondent then in October, 2009 came to know that the appellant was to come to India. She also came to India and went to the house of her in-laws to resolve the dispute but she was not allowed to enter the matrimonial home. She was threatened with dire consequences. It is alleged that abusive and indecent language was hurled at her. She returned to her parental home and narrated the entire story. Panchayat was convened on 02.11.2009 but due to the adamant behavior of the appellant, no fruitful results came out. Rather the appellant proclaimed that he would not keep the respondent as his wife. The appellant then went back to USA and did not allow the respondent to live with him. His parents did not allow her to stay in her in-laws house and said that their son was not interested in keeping her any more. In this way, it is alleged that the appellant treated her with cruelty and deserted her without any reasonable cause. 2. Upon notice, the appellant filed written statement. It is alleged therein that the respondent was misusing the process of law. The respondent cannot take benefit of her own wrongs besides she has been guilty of ill-treating and harassing the appellant with mental and physical cruelty. The respondent during the subsistence of the marriage, it is alleged that without his knowledge had performed second marriage with Sarabjit Singh son of Gurdial Singh. The respondent cannot take benefit of her own wrongs besides she has been guilty of ill-treating and harassing the appellant with mental and physical cruelty. The respondent during the subsistence of the marriage, it is alleged that without his knowledge had performed second marriage with Sarabjit Singh son of Gurdial Singh. On merits, the marriage between the parties and birth of the son is admitted. The other allegations as made have been denied. It is stated by the appellant that the respondent got married for the second time with Sarabjit Singh and then went back to America with the appellant and she disclosed the said fact to him. She started pressurising him to divorce her and informed him that she wanted to call Sarabjit Singh to America and in case he failed to give her divorce, then she would go to Sarabjit Singh in India. The appellant intimated the said fact to his mother-in-law Jasbir Kaur and father-in-law who enquired about the marriage of the respondent with Sarabjit Singh. This fact was found to be true. The photographs and movie of the second marriage also came in the hands of the mother of the respondent as well as the father of the appellant. It is stated that the respondent without informing the appellant came to India on 08.12.2010 and went to the house of Sarabjit Singh and started residing with him as his wife. While returning, she took all the jewellery, cash and costly items which belong to the appellant. The appellant contacted the respondent on phone and requested her to come back and she flatly refused and reiterated the demand for divorce. When the mother and father of the respondent and other relatives came to know about this fact, all of them requested her to come back but the respondent did not care and continued to reside with Sarabjit Singh. The father of the appellant approached the respondent and requested her to go to America but she insulted and humiliated him. He prayed for dismissal of the case. 3. The learned trial Court in its impugned order has noticed that during the course of proceedings, the appellant was directed to appear in the Court and many opportunities were granted for reconciliation but he did not come. In terms of the provisions of Order 10 Rule 4 Clause 2 of the Civil Procedure Code, his defence was struck off. 3. The learned trial Court in its impugned order has noticed that during the course of proceedings, the appellant was directed to appear in the Court and many opportunities were granted for reconciliation but he did not come. In terms of the provisions of Order 10 Rule 4 Clause 2 of the Civil Procedure Code, his defence was struck off. The appellant was debarred from leading evidence but he was allowed to cross-examine the witnesses of the respondent. 4. From the pleadings of the parties, the following issues were framed:- 1. Whether the petitioner (now respondent) has been dealt with cruelty on the part of the respondent (now appellant)? OPP 2. Whether the petitioner (now respondent) has deserted by (sic.) the respondent (now appellant) without any reasonable cause? OPP 3. Whether the petitioner (now respondent) has got married second time and committed adultery? OPR 4. Whether the petition is not maintainable in the present form? OPR 5. Relief. 5. The respondent in order to prove her case examined herself as PW 1 and tendered in evidence her affidavit as Ex. PW 1/A. She reiterated the averments made by her in the petition. She also examined Nachhatar Kaur PW 2 who supported the case and version of the respondent. Darshan Singh PW 3 also supported the case and version of the respondent. Their affidavits were tendered in evidence. 6. The learned Additional District Judge, Kapurthala after considering the evidence and material on record has allowed the petition of the respondent by its impugned judgment and decree, which is assailed. 7. The appeal by the appellant was filed in this Court on 21.08.2012. It was barred by seven days. Objections were raised and the case was returned for refiling on 24.08.2012. The appeal was then refiled on 16.10.2012. Objections were again raised and the case was returned for refiling on 17.10.2012. The appeal was then refiled on 18.10.2012. Again objections were raised and the case was returned for re-filing on 19.10.2012. The appeal was then refiled on 02.11.2012. Objections were again raised and the case was returned for refiling on 03.11.2012. The appeal was then refiled on 06.11.2012. The appeal was listed before this Court on 07.11.2012. On the said date, notice in CM No. 27836-CII of 2012 seeking condonation of delay was issued for 15.01.2013. The appeal was then refiled on 02.11.2012. Objections were again raised and the case was returned for refiling on 03.11.2012. The appeal was then refiled on 06.11.2012. The appeal was listed before this Court on 07.11.2012. On the said date, notice in CM No. 27836-CII of 2012 seeking condonation of delay was issued for 15.01.2013. The notice issued to the respondent for 15.01.2013 was received back with the report that the respondent was not residing at the given address. Fresh notice was issued for 28.02.2013 on the appellant furnishing fresh address of the respondent. None appeared for the appellant on 28.02.2013 and last opportunity was granted to the learned counsel for the appellant to furnish fresh address of the respondent. In case needful was done within a week, it was ordered that notice be issued for effecting service on the respondent returnable on 04.04.2013. Again a last opportunity was granted to the learned counsel for the appellant on 04.04.2013 to furnish correct address of the respondent whereafter notice was ordered to be issued returnable on 28.05.2013. The registered notice issued to the respondent had not been received back served or otherwise on 28.05.2013. Therefore, a presumption of service was taken to have arisen in accordance with Order 5 Rule 9 of the Code of Civil Procedure. The respondent was taken to be deemed to be served. As a consequence, the respondent was proceeded against ex parte. The case was adjourned to 29.08.2013. On the said date, i.e., 29.08.2013, Mr. Vivek K. Thakur, Advocate put in appearance on behalf of the respondent. He was allowed to participate in the proceedings. It was ordered that the appellant shall pay ` 15,000/- to the respondent as litigation expenses. On the next date of hearing, the case was adjourned to 21.11.2013. On the said date, i.e., 21.11.2013, learned counsel for the appellant prayed for an adjournment to comply with order dated 29.08.2013 regarding payment of ` 15,000/-. According to learned counsel for the appellant, an amount of ` 15,000/- was paid as litigation expenses to learned counsel for the respondent. The case was taken up on 13.01.2014 and reply to the application seeking condonation of delay was filed in Court, which was taken on record. The trial Court record was requisitioned which has since been received. The case was adjourned to 07.03.2014. The case was taken up on 13.01.2014 and reply to the application seeking condonation of delay was filed in Court, which was taken on record. The trial Court record was requisitioned which has since been received. The case was adjourned to 07.03.2014. On the said date, it was submitted by learned counsel for the respondent that in fact the respondent-wife had remarried on 01.04.2013 with Sarabjit Singh son of Gurdial Singh, resident of Village Ucha Bet, Post Office Safiabad, District Kapurthala. 8. Learned counsel for the appellant prayed for time to verify the position and address arguments. The case was adjourned to 29.04.2014. On the said date, learned counsel for the appellant after verification submitted that the position of marriage of the respondent-wife on 01.04.2013 was correct. 9. It may be noticed that the application CM No. 27836-CII of 2012 seeking condonation of delay has not been decided and the delay in filing the appeal has not been condoned. 10. Learned counsel for the appellant has contended that in fact the respondent all along has been taking benefit of her own wrong. It is submitted that it is the case of the appellant that he was willing to settle with the respondent, besides, he had clearly stated that she was living as wife of Sarabjit Singh with whom now she is stated to have married. It is also stated that the parties have a son and for the sake of the son, the appellant is desirous that the marriage subsists and continues. It is also submitted that in fact service of the appeal had been effected on the respondent at the address as given by her and she had been evading service and taking a wrong stand that service could not be effected. Therefore, it is submitted that the application seeking condonation of delay is liable to be allowed and appeal be also allowed as the respondent is taking benefit of her own wrong. 11. In response, learned counsel for the respondent has submitted that the respondent has validly solemnised her marriage with Sarabjit Singh after the period of limitation for filing the appeal had expired. It is submitted that the presumption of notice in this Court was taken on 28.05.2013 while she had remarried on 01.04.2013. Besides, there can be no presumption of service of notice when she was not served. It is submitted that the presumption of notice in this Court was taken on 28.05.2013 while she had remarried on 01.04.2013. Besides, there can be no presumption of service of notice when she was not served. As regards receiving an amount of `15,000/- towards litigation expenses, it is submitted that at that time, the learned counsel was probably not aware of the facts and therefore, it was taken as litigation expenses which he shall return to the learned counsel for the appellant. 12. We have given our thoughtful consideration to the entire matter. The marriage between the parties has been dissolved by a decree of divorce as the appellant did not lead any evidence and his defence was struck off. He was allowed to cross-examine the respondent. The appellant has been residing in USA. He did not come to participate in the proceedings in the trial Court despite several opportunities being granted. On the basis of the evidence and material led by the respondent-wife, her petition for divorce was allowed. Thereafter, the appellant delayed the filing of the appeal during which period the respondent has solemnised her second married on 01.04.2013. 13. Learned counsel for the appellant has cited Tejinder Kaur v. Gurmit Singh, AIR 1988 SC 839 to contend that the appeal which has been filed by the appellant does not become infructuous on account of remarriage of the spouse. In the said case, decree for dissolution of marriage on the ground of cruelty was passed by the learned Additional District Judge, Patiala on 29.03.1986. The wife preferred an appeal in this Court, which was dismissed on 16.07.1986. A preliminary objection was raised that the petition had become infructuous as the respondent-husband had in the meanwhile married again on 17.08.1986, i.e. just after a month of dismissal of her appeal. A reference was made to the proviso to Section15 of the Act, which has since been deleted by the Marriage Laws (Amendment) Act, 1976. It is, however, to be noticed that in the said case, the appeal had been filed by the wife in this Court within the period of limitation. It was held that the party could remarry only after waiting for 90 days from the date of the decree of divorce. It is, however, to be noticed that in the said case, the appeal had been filed by the wife in this Court within the period of limitation. It was held that the party could remarry only after waiting for 90 days from the date of the decree of divorce. In the said case, the respondent-husband in the counter affidavit denied any knowledge of the fact that an appeal had been preferred in this Court or of its dismissal on 16.07.1986. It was asserted that he was justified in solemnizing his second marriage on 17.08.1986, i.e., immediately after the expiry of one month from the date of decree of dissolution of marriage passed by the learned Additional District Judge on 29.03.1986. The said fact was controverted by the petitioner-wife in her affidavit. She placed on record a copy of the registered notice dated 31.05.1986 intimating the respondent regarding the filing of an appeal by her. It was held that in view of this, it was incumbent upon the respondent to have enquired about the fate of the appeal. At any rate, this Court having dismissed the appeal on 16.07.1986, it was held that the petitioner could have presented a Special Leave Petition within 90 days therefrom in terms of Article 133(c) of the Limitation Act, 1963, i.e., till 14.09.1986 and till that period was over it was not lawful for either party to marry again as provided under Section 15 of the Act. It was incumbent upon the respondent as observed in Lila Gupta v. Laxmi Narain and others, 1978 (3) SCR 922 to have apprised himself as to whether an appeal in the High Court was still pending and if not whether the period for filing a Special Leave Petition before the Supreme Court had expired. Accordingly, the preliminary objection was over-ruled. It was added that consequent to the decision in Lila Gupta's case (supra) while dealing with the effect of deletion of the proviso it was observed that; the net result is that now since the amendment, parties whose marriage is dissolved by a decree of divorce can contract marriage soon thereafter provided of course the period of appeal has expired. It was after expiry of period of limitation that the parties could marry. 14. It was after expiry of period of limitation that the parties could marry. 14. In the present case, after marriage, the appeal was time barred and respondent has solemnised her marriage on 01.04.2013, i.e., after the expiry of the period of limitation. In S.P. Srivastava v. Smt. Prem Lata Srivastava, AIR 1980 Allahabad 336, the husband filed a petition for divorce under Section 13 of the Act which was decreed ex parte on 02.06.1973. The respondent-wife on 15.04.1976 made an application under Order 9 Rule 13 C.P.C. for setting aside the ex parte decree claiming that she came to know of the same only on 15.04.1976. She also filed an application for restraining the husband from marrying again. The injunction order was served on 18.04.1976. The husband had contracted second marriage with another lady on 14.04.1976. The trial Court by its order dated 22.12.1977 set aside the ex parte decree. Against the same, the husband filed a revision petition before the Allahabad High Court. It was contended on behalf of the wife that after the order of the Court below had been set aside and the application for setting aside the ex parte decree was allowed, it would be condemning the wife without being heard. This was held to be incorrect and it was held that once the wife had constructive knowledge of divorce proceedings she had to come to take recourse to the remedy provided under the law. Since she did not avail of that remedy, she was in a sad state of affairs. The time for filing the appeal had expired and husband had waited for 34 months before he solemnised his second marriage. Even the application for setting aside the ex parte decree was made after the second marriage had been solemnised. The marriage in the said circumstances could not be said to be invalid. The interest of third party had intervened. In the circumstances, it was held that it would not be proper nor justified to uphold the order passed by the Courts below. Therefore, after the period of limitation had expired the second marriage could not be held to be invalid. 15. The interest of third party had intervened. In the circumstances, it was held that it would not be proper nor justified to uphold the order passed by the Courts below. Therefore, after the period of limitation had expired the second marriage could not be held to be invalid. 15. In Smt. Barsha Arora v. Satish Kumar Arora, 1991 (2) HLR 424 (Allahabad), the question that was considered was if the husband obtained an ex parte decree for divorce, and the first appeal by the wife is dismissed and thereafter the husband remarries after the period of limitation for filing second appeal and that the additional period for obtaining certified copy is over and the second appeal by the wife filed before the said Court after allowing her benefit of Section 5 of the Limitation Act can be dismissed as infructuous on account of the said remarriage of the husband or not. The husband filed a petition for divorce under Section 13 of the Act, the wife had filed a petition for restitution of conjugal rights under Section 9 of the Act earlier to the petition of the husband. Both the cases were consolidated. The trial Court directed that the husband suit be proceeded with ex parte. In the ex parte proceedings, the husband's evidence was taken on 03.11.1988 and the evidence was closed. Some applications were moved by the wife for recalling the ex parte evidence. However, the trial Court vide its order dated 25.02.1989 dismissed the restoration of the application and passed ex parte decree in the divorce petition filed by the husband. The wife's appeal before the Additional District Judge, Varanasi was filed within time but was dismissed on 25.01.1990. A second appeal was filed before the Allahabad High Court on 12.4.1990 along with an application under Section 5 of the Limitation Act. Notices were issued by the High Court on the application for limitation. It was noticed that the stamp reporter of the Office of the Court reported that the second appeal was within time only till 08.04.1990. The matter was listed on 04.12.1990 when the delay in filing the second appeal was condoned with leave to the respondent to agitate the question of condonation of delay on merits again after service. It was directed in the order dated 04.12.1990 that the appeal would be listed for admission and final disposal on the date fixed. The matter was listed on 04.12.1990 when the delay in filing the second appeal was condoned with leave to the respondent to agitate the question of condonation of delay on merits again after service. It was directed in the order dated 04.12.1990 that the appeal would be listed for admission and final disposal on the date fixed. In the meantime, husband put in appearance and apart from challenging the order of condonation of delay, he raised a preliminary objection about the maintainability of the appeal on the ground that he had remarried on 10.04.1990. The Allahabad High Court in the said circumstances, held that it was impossible to accept the contention that the Section 5 of the Limitation Act stands at par with Section 12 insofar as giving benefit to either party in filing an appeal under the Act against a decree under Section 13 of the Act is concerned. A reference was made to the provisions of Section 15 of the Act whereby its proviso has been dropped. It was observed that there used to be a bar of one year from the date of the decree for remarriage. But in view of the amendment, it was held that either party to the marriage can remarry anytime after the decree of divorce is passed if there is no right of appeal. If there is a right of appeal against the decree passed, either party can remarry only after the time for appealing by the aggrieved party has expired without filing of an appeal or the appeal has been filed but has been dismissed. The preliminary objection of the husband was accepted and the appeal of the wife was dismissed as infructuous. 16. In Vijayalakshmi v. Kannappan, 2011 (2) R.C.R. (Civil) 368 : 2010 (3) ICC 778 (Madras), it was held that remarriage after the period of limitation had expired, the right conferred upon a spouse by virtue of Section 15 of the Act cannot be defeated by condoning the delay when no sufficient cause is shown for the said purpose. The position in the present case is similar. The respondent has solemnised her second marriage on 01.04.2013 with Sarabjit Singh. The appeal filed by the appellant was barred by time and notice on the application seeking condonation of delay was issued. The position in the present case is similar. The respondent has solemnised her second marriage on 01.04.2013 with Sarabjit Singh. The appeal filed by the appellant was barred by time and notice on the application seeking condonation of delay was issued. Even if it is taken that the notice was deemed to have been served on the respondent on 28.05.2013, she had, however, married earlier on 01.04.2013. 17. Learned counsel for the appellant though has vehemently contended that in fact the notice was served at the address, which was known and she was aware of the proceedings, however, the same would be inconsequential as no such presumption can be taken to have arisen. The proceedings and the interim order show that the appellant had not acted with due diligence in pursuing the appeal and serving the respondent. The respondent having solemnised her marriage insofar as the appeal is concerned it has become infructuous. In fact even before the trial Court, he did not lead his evidence and failed to appear which resulted in the petition of the respondent being allowed. Thereafter, he was not vigilant enough in pursuing the appeal. The fact that the learned counsel for the respondent had taken ` 15,000/- towards litigation expenses is not of much consequence and would not defeat the rights of the respondent. Learned counsel for the respondent has agreed to return the said amount. There is no merit in the appeal and the same is accordingly dismissed. However, learned counsel for the respondent shall return ` 15,000/- to learned counsel for the appellant.