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2017 DIGILAW 454 (HP)

Shashi Bala v. Anil Kumar

2017-05-02

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. Instant appeal filed under Section 28 of the Hindu Marriage Act, 1955, is directed against the judgment and decree dated 3.3.2011, passed by the learned Additional District Judge, Fast Track Court, Hamirpur, in HMA petition No. 18 of 2008, whereby the petition under Section 13 of the Hindu Marriage Act, 1955 (25 of 1955) for the dissolution of marriage by a decree of divorce having been filed by the petitioner namely Anil Kumar (respondent No.1 herein) came to be decreed. 2. Briefly stated facts as emerge from the record are that petitioner (herein after referred to as respondent No.1/petitioner) preferred a petition under Section 13 of the Hindu Marriage Act, 1955 in the Court of learned Additional District Judge, Fast Track Court, Hamirpur (H.P.), averring therein that his marriage with the appellant (Shashi Bala) (herein after referred to as the appellant/respondent No.1) was solemnized on 17.6.2003 at village Nanawin, P.O. Malangar, Tehsil Bangana, District Una, H.P., as per Hindu rites and ceremonies. Out of their wedlock, two children (Ankit and Muskan) were born. The petitioner/respondent No.1 further claimed before the Matrimonial Court that after marriage, appellant/respondent No.1, remained with him for about 4 years and during this period, she developed illicit relationship with respondent No.2 namely Jeet Kumar. He further stated before the Court below that despite repeated requests, the appellant/respondent No.1 failed to mend herself and continued her illicit relations with respondent No.2. On 6.4.2008, at about 11 pm, appellant/respondent No.1 and respondent No.2 were caught red handed in the room of the appellant by the family members of respondent No.1/petitioner and room was locked by the villagers. Respondent No.1/petitioner (i.e. husband of the appellant) further stated before the Court below that on the pretext that she has to answer the nature’s call, the appellant/respondent No.1 ran away from the house and on search of the room, respondent No. 2 was found inside the bed box. It is also alleged in the petition that after the aforesaid incident, appellant/respondent No.1 remained with respondent No.2 for 6-7 days. In the aforesaid background, the respondent No.1/petitioner alleged that cruelty was practiced by the appellant/respondent No.1 on him and that is why, he preferred aforesaid petition, praying therein for dissolution of marriage on the ground of cruelty. 3. It is also alleged in the petition that after the aforesaid incident, appellant/respondent No.1 remained with respondent No.2 for 6-7 days. In the aforesaid background, the respondent No.1/petitioner alleged that cruelty was practiced by the appellant/respondent No.1 on him and that is why, he preferred aforesaid petition, praying therein for dissolution of marriage on the ground of cruelty. 3. The appellant herein, by way of filing reply to the petition refuted the aforesaid claim of the respondent No.1/petitioner) and specifically denied the allegation of her illicit relations with respondent No.2. She further submitted that her mother-in-law is suffering from paralytic disease and at one occasion, her father-in-law tried to fulfill his sexual desire with her and thereafter, she was compelled to file petition, which was subsequently compromised and the respondent No.1/petitioner had agreed to provide separate rented accommodation to her. With the aforesaid contentions/submissions, the respondents (i.e. the appellant as respondent No.1 before the Court below and respondent No. 2 Jeet Kumar), sought dismissal of the petition filed by respondent No.1/petitioner, for dissolution of the marriage on the ground of cruelty. Learned court below on the basis of pleadings adduced on record by the parties, framed following issues:- “1.Whether respondent No.1 being wife of the petitioner, has been living in adultery with respondent No.2, i.e. Jeet Ram, as alleged? OPP. 2. Whether the petition is not maintainable, as alleged? OPR 3.Relief.” 4. Subsequently, learned Additional District Judge, vide judgment dated 3.3.2011, decreed the petition having been filed by the respondent No.1/petitioner and ordered dissolution of his marriage with respondent No. 1 (appellant herein) on the ground of cruelty. In the aforesaid background, the present appellant approached this Court praying therein for quashment and setting aside the judgment dated 3.3.2011, passed by the learned court below. 5. Mr. Adarsh K. Vashishta, Advocate, representing the appellant vehemently argued that the judgment passed by the court below is not sustainable in the eye of law, as the same is not based upon the correct appreciation of evidence adduced on record by the respective parties and as such, same deserves to be quashed and set-aside. While inviting attention of this Court to the impugned judgment passed by the learned court below, Mr. While inviting attention of this Court to the impugned judgment passed by the learned court below, Mr. Vashishta, strenuously argued that bare perusal of the same suggests that evidence led on record by the respective parties, was not read in its right perspective, as a result of which, erroneous findings have come on record to the detriment of the appellant, who successfully proved on record that she had not developed any illicit relation with respondent No.2 namely Jeet Kumar. Mr. Adarsh, during arguments having been made by him, made this Court to travel through the evidence led on record by the petitioner (respondent No.1 herein) to suggest that he was unable to prove beyond reasonable doubt that the appellant had developed illicit relation with respondent No.2. Mr. Adarsh, further stated that if the statement having been made by PW1 Anil Kumar is read in its entirety, it nowhere suggests that he had an occasion to see Jeet Kumar i.e. respondent No.2 in the room as alleged by other family members, rather, his own case is that at the time of alleged incident, he was away in connection with his service and he was informed by the family members and as such, no reliance could have been placed upon her version, whereby an attempt has been made to prove illicit relationship of the appellant with respondent No.2 . In the aforesaid background, Mr. Vashista, prayed that impugned judgment passed by the learned court below may be quashed and set-aside. 6. Per contra, Mr. Ajay Sharma, Advocate representing respondent No.1, supported the impugned judgment passed by the learned court below. While refuting the aforesaid submissions having been made by Mr. Vashishta, Mr. Sharma, invited attention of this Court to the impugned judgment passed by the court below to suggest that each and every aspect of the matter has been dealt with very carefully and meticulously and there is no misappreciation of evidence as has been alleged by the learned counsel for the petitioner. Mr. Sharma, while specifically inviting attention of this Court to the evidence led on record by respondent No.1/petitioner stated that factum with regard to the illicit relations of respondent No.2 with the appellant stands duly prove and as such, there is no scope of interference whatsoever, of this Court, especially, in view of the fact that there is overwhelming evidence adduced on record by the petitioner. Mr. Mr. Sharma, further contended that otherwise also bare perusal of the reply having been filed by the appellant nowhere suggests that any serious opposition to the allegation having been made by the respondent No.1/petitioner, was made, rather an attempt was made to make altogether a new case by leveling allegation against her father-in-law, which was not otherwise proved in accordance with law. With the aforesaid statement, Mr. Sharma, stated that there is no illegality and infirmity in the judgment passed by the court below and as such, same deserves to be upheld. 7. I have heard the learned counsel for the parties and carefully gone through the record. 8. While ascertaining the genuineness and correctness of the impugned judgment passed by the court below as well as submissions having been made by the learned counsel for the parties, this Court had an occasion to peruse the pleadings as well as evidence adduced on record by the respective parties, perusal whereof, certainly not suggest that there is misappreciation , misconstruction and misreading of the evidence led on record by the respondent No.1/petitioner, rather this Court has no hesitation to conclude that the appellant, while defending her case, has made an attempt to level baseless allegations against her father-in-law, which has not been supported by any corroborative evidence. 9. This Court after having carefully perused the reply filed by the appellant-respondent No.1 sees substantial force in the arguments of Mr. Sharma, that there is no denial, if any, to the averments contained in the petition as far as her illicit relationship with respondent No. 2 is concerned. Rather, appellant/respondent No. 1 by leveling serious allegations against the father of the petitioner, made an endeavor to change the entire complexion of the case as far as allegation of adultery is concerned. It stands duly proved with overwhelming evidence available on record that the appellant was caught read handed in her bed room with respondent No.2. Apart from the statements of PW1 and PW2, who may be termed as interested witnesses, there is independent witness i.e. PW3 namely Lekh Raj Sharma, Member of Gram Panchayat. It has specifically come in his statement that Jeet Kumar (respondent No.2) was caught in the house of the petitioner and appellant/ respondent No. 1 had already left the place. He also stated that later on Jeet Kumar was handed over to the police. It has specifically come in his statement that Jeet Kumar (respondent No.2) was caught in the house of the petitioner and appellant/ respondent No. 1 had already left the place. He also stated that later on Jeet Kumar was handed over to the police. If the testimony of this witness, who is admittedly an interested witness, is read in conjunction with the statement having been made by PWs 1 and 2, it leaves no scope for this Court to agree with the contention raised by the Mr. Vashishta, that petitioner was unable to prove cruelty, if any against appellant/respondent No.1. 10. This Court carefully perused the statement having been made by the appellant/respondent No.1 before the Court, perusal whereof further compels this Court to reiterate that there is no serious opposition, if any, to the allegation having been made by the petitioner against the respondent, rather entire attempt has been made to malign the father-in-law of the appellant. It has come in her statement that at one point of time, her father-in-law tried to fulfill his sexual desire with her but she resisted. But interestingly, there is no mention, if any, of such allegation in the divorce petition (Mark Y), which was filed by her immediately after the alleged occurrence and as such, learned court below rightly ignored the same being devoid of any merit. 11. Apart from above, this Court also carefully perused the documentary evidence i.e. Ext.PW4/A which further corroborates the version put forth by the respondent No.1/petitioner as well as other petitioner witnesses that on 5.4.2008, respondent No. 2 Jeet Kumar, was found in the room of appellant/respondent No.1 because PW4 Arjun Kumar, from SDM office, categorically deposed before the court below that he has brought copy of the proceedings i.e. Ext.PW4/A pending against respondent No.2. It has come in his statement that there was apprehension of breach of peace in the area as respondent No. 2 was found in the room of the appellant/respondent No.1 during the odd hours. Cross examination conducted on the petitioner witnesses nowhere suggests that respondent was able to shatter their testimony with regard to the specific allegation of illicit relationship of respondent No.1/appellant with respondent No.2. 12. Cross examination conducted on the petitioner witnesses nowhere suggests that respondent was able to shatter their testimony with regard to the specific allegation of illicit relationship of respondent No.1/appellant with respondent No.2. 12. This Court after having carefully perused the material made available on record, more particularly, the evidence led on record by respondent No.1/petitioner sees no illegality and infirmity in the judgment passed by the Court below, rather this Court is of the view that same is based upon the correct appreciation of evidence and there is no scope of interference, whatsoever, of this Court and accordingly, the present appeal is dismissed being devoid of any merit.