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2017 DIGILAW 1251 (RAJ)

GURJEET KAUR v. VISHAL SINGH

2017-05-16

GOVIND MATHUR, MANOJ KUMAR GARG

body2017
JUDGMENT : 1. This appeal is preferred to examine correctness of the judgment and decree dated 6.1.2017, passed by learned Family Court, Sriganganagar, dismissing an application preferred by the appellant as per section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act of 1955'). 2. In brief, facts of the case are that appellant Smt. Gurjeet Kaur entered into a wedlock with respondent Vishal Singh as per Hindu rites and customs at Sriganganagar on 21.2.2014. The appellant, after marriage, shifted to her matrimonial home at Jodhpur. Alleging desertion and cruelty against the respondent, the appellant preferred an application under Section 13 of the Act of 1955 before the Family Court, Sriganganagar. As per the appellant, immediately after marriage, the respondent harassed and humiliated her by making comments about her facial looks and the family status. The harassment and humiliation extended was of high degree and that was a cause of certain disputes in matrimony. The respondent ultimately deserted the appellant and was not taking any care of her. The appellant stated that her parents made best efforts to console the parties for having good matrimony, but of no consequence as the respondent was quite adamant. In the application preferred under Section 13 of the Act of 1955 she mentioned certain specific instances pertaining to cruelty also. Despite service of notice issued by Family Court the respondent did not choose to appear before the court, therefore, on 29.9.2016 an order was passed to proceed ex-parte. The Family Court recorded the evidence adduced by the appellant and after examining that, arrived at the conclusion that the appellant failed to establish desertion and cruelty, therefore, is not entitled to have a decree to annul marriage. 3. In appeal, the argument advanced by learned counsel appearing on behalf of the appellant is that the appellant in her statement quite unambiguously stated that she was deserted by the respondent and despite effort he did not choose to enjoy marriage. She also stated that the respondent was in habit of harassing and humiliating the appellant mentally as well as physically. The evidence adduced by the appellant was not at all contested by the respondent, but the Family Court ignoring the same dismissed the application preferred under Section 13 of the Act of 1955. She also stated that the respondent was in habit of harassing and humiliating the appellant mentally as well as physically. The evidence adduced by the appellant was not at all contested by the respondent, but the Family Court ignoring the same dismissed the application preferred under Section 13 of the Act of 1955. It is asserted that the Family Court though has noticed the facts stated by the appellant on oath, but failed to appreciate the same objectively. 4. This Court admitted the appeal on 7.2.2017. Despite service of notice, no one has put in appearance to oppose the appeal. At the cost of repetition, it would be appropriate to state that even the application under Section 13 of the Act of 1955 was not contested before the Family Court, Sriganganagar. 5. Heard learned counsel for the appellant and examined the record. 6. As already stated, the Family Court dismissed the application by arriving at the conclusion that ex-parte evidence adduced by the appellant is not sufficient to establish desertion as well as cruelty. From perusal of the evidence adduced by and on behalf of the appellant we do not find ourselves in agreement with the Family Court. The appellant submitted a statement of facts in the form of affidavit before the Family Court with specific assertion that immediately after her marriage the respondent started harassing and humiliating her for several reasons including about facial looks and also extended physical harassment. In quite unambiguous terms she stated that the respondent deserted her and did not make any effort to have a peaceful matrimony. A specific statement was given that on 1.1.2015 the respondent sent all the clothing of the appellant by parcel. On receiving the parcel the appellant made contact with the respondent but he was quite adamant for not continuing the marriage. The Family Court also recorded statements of father of Smt. Gurjeet Kaur and as per him, his daughter after marriage complained about harassment and humiliation extended by the respondent and also about desertion. This witness also stated that despite best efforts the respondent did not choose to have a peaceful and good matrimony. He was adamant to remain independent and further to harass the appellant for one or other reason. This witness also stated that despite best efforts the respondent did not choose to have a peaceful and good matrimony. He was adamant to remain independent and further to harass the appellant for one or other reason. It is important to notice that despite service of notice of the application preferred under Section 13 of the Act of 1955 the respondent did not choose to appear before the court to contest the same and even to rebut the allegation made against him. He is also not contesting the instant appeal as no one is appearing on his behalf despite service. 7. Be that as it may, from perusal of the evidence available on record, as stated above, we are having no doubt that the appellant suffered desertion and cruelty from the respondent and the evidence adduced by her remained un-controverted. The Family Court did not believe the statement given by the appellant and her father on the count that the same are not supported by any document. We are of considered opinion that for the allegations made by the appellant and the ocular evidence adduced in this regard was not supposed to be supported by documents as no one rebutted the same. Not only this, the facts stated by the appellant are quite specific and the only conclusion of that is physical and emotional sufferings of the appellant. We are aware of the fact that a decree to annul marriage is not required to be given merely on the count that other party has not rebutted the same, but in the instant matter in addition to non-rebuttal of the evidence, the evidence adduced is specific and reliable. There is no reason to disbelieve the testimony of the witnesses. 8. In entirety, this appeal under section 19 of the Family Courts Act, 1984 deserves acceptance. Accordingly, the same is allowed. The judgment and decree dated 6.1.2017, passed by Family Court, Sriganganagar in Civil Misc. Case No. 54/2016 is set aside. The application preferred by the appellant under section 13 of the Hindu Marriage Act, 1955 is also allowed. The marriage solemnised between the parties on 21.2.2014 at Sriganganagar is annulled. A decree is granted accordingly. The office is directed to prepare and issue necessary decree annulling the marriage between the parties.