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2016 DIGILAW 2256 (HP)

Bhagat Ram v. Kanta Devi

2016-10-24

DHARAM CHAND CHAUDHARY

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Dharam Chand Chaudhary, J. This appeal is directed against the judgment and decree dated 22.3.2005 passed by learned Additional District Judge, Mandi in a petition under Section 13 of Hindu Marriage Act registered as HMP No. 10 of 2005 whereby the petition has been dismissed and the decree for grant of divorce on the ground of cruelty sought by the appellant (hereinafter referred to as ‘petitioner’) against his wife the respondent has been declined. 2. The parties to the present lis have solemnized marriage on 13.10.1984 in accordance with Hindu customs and ceremonies. One son is born to them out of this wedlock in the year 1986. According to the petitioner the respondent allegedly left the matrimonial home after two months of the birth of child and started living in her parents’ house at village Dehar, Tehsil Sundernagar District Mandi. He visited the place of his in-laws to bring her back to the matrimonial home, however she refused to do so. He accompanied by one Beli Ram and Kushal again went to the place of his in-laws and asked her to accompany him to the matrimonial home but she refused to do so. She is working as JBT teacher and posted as such in Govt. Primary School, Saul (Salapar). The complaint, therefore, is that respondent has abandoned his company without any justifiable cause and thereby treated him with cruelty. He, therefore, has sought the dissolution of his marriage with respondent by a decree of divorce. 3. The respondent when put to notice had contested the petition on the grounds, inter-alia, that the petitioner during subsistence of a valid marriage with her has remarried with another lady namely Tripta Devi. Four issues i.e. three daughters and one son is born to Tripta Devi from the loins of the petitioner. On merits, it is denied that she has abandoned the company of the petitioner without any justifiable cause as according to her it is rather the petitioner who himself has turned out her from the matrimonial home along with her son in the year 1988 and since then she is residing at her parental house along with her son. It is rather the petitioner who allegedly treated her with cruelty because according to her she has been turned out from the matrimonial home at the behest of Tripta Devi, his second wife. 4. It is rather the petitioner who allegedly treated her with cruelty because according to her she has been turned out from the matrimonial home at the behest of Tripta Devi, his second wife. 4. On the pleadings of the parties, the following issues were framed: 1. Whether the petitioner is entitled for the decree of divorce as alleged ? OPP 2. Whether this petition is not maintainable? OPR 3. Relief. 5. The petitioner-husband has stepped into the witness box as PW1 and examined Shri Beli Ram PW2. He has placed reliance on Ext.P1, birth certificate of Master Banti born to him out of his wedlock with the respondent, Ext.P2 the order passed by learned Sub Divisional Judicial Magistrate, Sundernagar dismissing thereby the complaint under Section 406 IPC filed by the respondent against the petitioner and his father, Ext.P3 the petition for seeking divorce which was filed previously by the petitioner against the respondent and Ext.P4 the order passed in the petition Annexure-P3 consequent upon the compromise arrived at between the parties. 6. The respondent on the other hand has examined RW1 Smt. Sharda Devi, Centre Head Teacher, Government Central School, Naulakha who has produced the admission certificate and proved the extract thereof Ext.RW1/A. RW2 Shri Khub Ram was Election Kanungo in the office of SDM, Sundernagar. He has proved the voter list Ext.RW2/A. RW3 Dassu Ram is a witness examined by her in support of her case. She herself has stepped into the witness box as RW4. 7. Learned trial Judge on appreciation of the oral as well as documentary evidence has arrived at a conclusion that the petitioner has failed to prove that he has been treated with cruelty by the respondent, the petition as such has been dismissed. 8. The legality and validity of the impugned judgment and decree has been questioned on the grounds, inter alia, that learned trial Court has not appreciated the evidence available on record in its right perspective and placed undue reliance on the documents Ext.RW1/A and Ext.RW2/A while answering issue No. 1 against the petitioner. It is pointed out that Ext.RW1/A and Ext.RW2/A are not proved on record in accordance with the provisions contained under the Evidence Act. The same as such could have been ignored. No reliance could have also been placed on the testimony of RW3 and RW4. 9. Mr. It is pointed out that Ext.RW1/A and Ext.RW2/A are not proved on record in accordance with the provisions contained under the Evidence Act. The same as such could have been ignored. No reliance could have also been placed on the testimony of RW3 and RW4. 9. Mr. Neeraj Gutpa, Advocate, learned counsel representing the petitioner has vehemently argued that the respondent as per the cogent and reliable evidence available on record has abandoned the company of the petitioner without any justifiable cause and thereby treated him with cruelty. Therefore, according to learned Counsel the petition in all probability was required to be allowed and the decree of divorce as sought by the petitioner granted in his favour. Mr. G.R. Palsra, learned Counsel representing the respondent has pointed out from the record that the another lady Smt. Tripta Devi is residing with the petitioner in the capacity of his wife and that four issues have been born to her from his loins. Therefore, according to Mr. Palsra it is rather the petitioner who has treated the respondent with cruelty. 10. On analyzing the rival submissions and also reappraisal of the evidence available on record, in the considered opinion of this Court learned trial Judge has not committed any illegality or irregularity while declining the decree of divorce for the reasons that he has miserably failed to prove that his wife the respondent has treated him with cruelty. The evidence as has come on record by way of own testimony of the petitioner and also by that of RW1 and RW2 as well as that of the respondent herself while in the witness box as RW4 make it crystal clear that it is rather the petitioner who has treated the respondent with cruelty because irrespective of the petitioner himself and PW2 Beli Ram having denied the suggestion that the petitioner has solemnized marriage with Tripta Devi, denied being wrong. It is proved from the documents Ext.RW1/A and Ext.RW2/A that Tripta has been shown the wife of the petitioner in the record of Govt. Central School, Naulakha, Tehsil Sundernagar District Mandi. Ext.RW1/A is the extract of the admission and withdrawal register which has been maintained in the school. As per the entries in this document Kumari Dimple is daughter of Bhagat Ram, though name of her mother is not there in this document. Central School, Naulakha, Tehsil Sundernagar District Mandi. Ext.RW1/A is the extract of the admission and withdrawal register which has been maintained in the school. As per the entries in this document Kumari Dimple is daughter of Bhagat Ram, though name of her mother is not there in this document. It has not been put to RW1 in her cross-examination that Dimple is not born to Tripta Devi from his loins. The extract of voter list Ext.RW2/A reveals that Tripta Devi has been shown wife of Bhagat Ram. No suggestion was given to RW2 that Tripta Devi in this document is some other lady and Bhagat Ram also is someone else. Such documentary evidence substantiates the claim of the respondent that Tripta Devi is living with the petitioner as his wife. Although the petitioner while in the witness box has denied the suggestion that the petitioner has brought to his house another lady Tripta Devi in the year 1986 and that they both are residing together as husband and wife. Similarly, the suggestion that from the loins of petitioner said Tripta Devi has given birth to three daughters and one son and that Dimple and Rajni two girls are residing with him in his house. Yet the documentary evidence discussed hereinabove reveal that he is treating Tripta Devi as his wife and she is living with him in his house. Kumari Dimple is born to said Tripta Devi from his loins. He has admitted that compromise was arrived at between him and the respodent in the divorce petition, HMP No. 2 of 1990 previously filed by him against the respondent and that the condition of the compromise was that in future he will not live in the company of some other lady. This also lead to the only conclusion that Tripta Devi is living with the petitioner in the capacity of his wife. Admittedly the respondent is residing since 1987 in village Dehar at the place of her parents. She however, had abandoned the company of the petitioner for justifiable reasons because no wife will tolerate that during subsistence of the marriage her husband is having relations with some other lady. 11. Admittedly the respondent is residing since 1987 in village Dehar at the place of her parents. She however, had abandoned the company of the petitioner for justifiable reasons because no wife will tolerate that during subsistence of the marriage her husband is having relations with some other lady. 11. True it is that a complaint under Section 406 IPC filed by the respondent against the petitioner has been dismissed at initial stage itself vide order Annexure-P2 because the preliminary evidence was not suggestive of that the respondent has entrusted the dowry articles to the petitioner and his father Dhungal Ram. The another complaint she filed under Section 494 of the Indian Penal Code has also been dismissed by learned Judicial Magistrate Ist Class vide judgment dated 26.11.2010 and the appeal she preferred also stand dismissed being not maintainable vide order dated 25.6.2016 passed by learned Additional Sessions Judge-I, Mandi Camp at Sundernagar. However, it is not known that any appeal is preferred by the respondent in this Court or not. Anyhow, the judgment Ext.P2 and the judgment of acquittal in complaint which was filed by the respondent against the petitioner and Tripta Devi under Section 494 of the Indian penal code cannot be taken to arrive at a conclusion that the petitioner is not living with Tripta Devi nor four issues born to her from his loins. It is a separate matter that respondent has failed to prove the solemnization of marriage by the petitioner with Smt. Tripta Devi because it is not so easy to prove the factum of solemnization of 2nd marriage. However, there cannot any bearing of dismissal of complaint under Section 494 of Indian Penal code, the respondent had filed against the petitioner in the preset proceedings. 12. The present as such is a case where the respondent has not treated the petitioner with cruelty and rather it is he who has subjected her to mental as well as physical cruelty because in view of he is living in the company of Tripta Devi in his house and four issues are born to them, the possibility of the respondent having been tortured by him and turned out from the matrimonial home cannot be ruled out. Learned trial Judge, therefore, has appreciated the evidence available on record in its right perspective. The findings recorded by learned trial Court cannot be said to be legally and factually unsustainable. Learned trial Judge, therefore, has appreciated the evidence available on record in its right perspective. The findings recorded by learned trial Court cannot be said to be legally and factually unsustainable. Being so, the impugned judgment and decree deserves to be affirmed. 13. In view of what has been said hereinabove, this appeal fails and the same is accordingly dismissed. No order so as to cost. 14. Pending application(s), if any, also stands disposed of.