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2018 DIGILAW 2899 (PNJ)

Harjinder Kaur @ Rajinder Kaur v. Subhash Singh

2018-07-16

ANUPINDER SINGH GREWAL, M.M.S.BEDI

body2018
JUDGMENT : ANUPINDER SINGH GREWAL, J. 1. This appeal is directed against the judgment and decree dated 11.12.2015 passed by the District Judge, Sangrur, whereby the petition preferred by respondent No.1 under Section 13 of the Hindu Marriage Act, 1955 (as amended by Marriage Laws (Amendment) Act, 1976) (hereinafter referred to as ‘the Act’) has been allowed and a decree of divorce on the grounds of cruelty and desertion has been granted. 2. The appellant and respondent No.1 were married on 04.04.2003 at village Ugrahan, Tehsil Sunam, District Sangrur and out of the wedlock a child was born on 09.12.2004. Respondent No.1 in his petition for grant of divorce on the grounds of cruelty, desertion and adultery, had alleged that the appellant had treated him (respondent No.1) and his family members with cruelty and had been abusing them. She did not do any household work and had insulted him (respondent No.1) and his family members in the presence of others and had threatened to involve them in false case. It was also alleged that the appellant and respondent No.1 started living separately from the parents of respondent No.1 in the same house but the appellant left the matrimonial house leaving behind the minor child and despite efforts of respondent No.1 she did not join his company. She had been working as a Nurse in a hospital at Sunam. It was also alleged that the appellant was having extramarital affair with respondent No.2. 3. The allegations have been denied by the appellant-wife in her reply wherein it was alleged that respondent No.1 and his parents had treated the appellant with cruelty. They had been demanding dowry and pressurising her to take share in the property of her father. They had raised demand for a car. It was also alleged that she had gone to Sunam for treatment, as she was suffering from a kidney ailment and respondent No.1 did not help her at that time and did not provide her any monetary support. The appellant was not allowed to meet her son, who was studying at Akal Academy, as respondent No.1 had instructed the Principal of the school not to permit her to meet the child. The appellant was not allowed to meet her son, who was studying at Akal Academy, as respondent No.1 had instructed the Principal of the school not to permit her to meet the child. It was also stated that she had taken admission in a Nursing Institute and the expenses were met by her father and despite efforts by the father of the appellant, respondent No.1 refused to accept the appellant as his wife and allow her to stay with him. She has categorically denied that she had any illicit affair with respondent No.2. 4. The following issues were framed :- 1. Whether the respondent no.1 has treated the petitioner with cruelty after solemnization of marriage of the parties? OPP 2. Whether the respondent no.1 has deserted the petitioner for a continuous period of two years or more immediately prior to filing of the petition? OPP 3. Whether respondent No.1 has been living in adultery with respondent no.2? OPP 4. Relief. 5. The trial Court held under issues no.1 & 2 that the appellant had treated her husband with cruelty besides deserting him. No finding was given regarding intention of appellant to desert. Under issue no.3, it was held that the evidence led on behalf of husband regarding adultery was not sufficient to prove that the appellant-wife was living in adultery with respondent No.2. 6. When the matter had come up before this Court, on 22.09.2016, the dispute was referred to the Mediation and Conciliation Centre of this Court. The Mediation Centre had reported that despite issuance of notice respondent No.1 did not participate in the mediation and, therefore, the file was sent back to this Court. 7. The case came up before this Court on 28.02.2017 and 22.01.2018 whereon no one appeared for respondent No.1. Even today nobody has put in appearance on behalf of respondent No.1 and, therefore, we proceed to decide the matter after proceeding ex parte against respondent No.1 and have heard the counsel for the appellant. 8. Counsel for the appellant has contended that the District Judge has erred in allowing the petition under Section 13 of the Act and passing a decree of divorce on the grounds of cruelty and desertion even though it was respondent No.1, who had turned out the appellant from her matrimonial home. She had been constantly harassed on account of inadequate dowry. She had been constantly harassed on account of inadequate dowry. He also contended that respondent No.1 had made unfounded allegations of adultery against the appellant which have not been proved and, therefore, this act in itself would in fact amount to cruelty to the appellant by respondent No.1 and would disentitle him to a decree of divorce. 9. After hearing counsel for the appellant, we have gone through the case file. 10. The appellant-wife had pleaded that she had been suffering from kidney ailment and respondent No.1 had turned her out of the matrimonial home after pressurising her for more dowry. She has produced in her evidence Doctors and Radiologists, who had treated her. They include RW1 Dr. Rajni Vadwa; RW2 Dr. Harbans Singh, Radiologist; RW3 Dr. Atul Gupta, Radiologist; RW4 Dr. Jasbir Kaur Sodhi and RW5 Dr. Vijay Aggarwal, Anaesthetic. They have stated that the appellant had a stone in her kidney for which she was under treatment. The District Judge has surprisingly come to the conclusion that kidney ailment of the appellant was not very serious and is normally faced by every north Indian. We do not agree with this finding and are of the view that the appellant has duly proved that she had been undergoing treatment at Sunam and, therefore, the factum of her ailment could not be lightly brushed aside. 11. Furthermore, the allegations of cruelty against the appellant could not be established by respondent No.1. Such allegations have to be proved by cogent evidence. Except the bald statements of respondent No.1 and his family members there is no other evidence which would suggest that respondent No.1 was treated with cruelty by the appellant. The appellant had in fact been able to justify her absence from the matrimonial home as she had been turned out of her matrimonial home and was undergoing treatment for her ailment and was not provided with any financial help. 12. It deserves to be noticed that serious allegations of adultery which had been levelled by respondent No.1 against the appellant have not been proved. It was alleged that she was having illicit relation with respondent No.2. The District Judge has recorded that the evidence led on behalf of respondent No.1 regarding adultery between the appellant and respondent No.2 was not sufficient to prove that they had been actually living in adultery. It was alleged that she was having illicit relation with respondent No.2. The District Judge has recorded that the evidence led on behalf of respondent No.1 regarding adultery between the appellant and respondent No.2 was not sufficient to prove that they had been actually living in adultery. The issue was decided against respondent No.1 and in favour of the appellant. This finding against respondent No.1 has not been challenged by him and has, thus, attained finality. It is well settled that levelling unsubstantiated allegations of adultery, which are not proved, would by itself be an act which would amount to cruelty and the wife would be entitled to relief in terms of Section 23-A of the Act. The evidence which has been produced by respondent No.1 to establish cruelty cannot in any manner be said to be such which would persuade us to hold that the conduct of the appellant constitutes cruelty. The respondent No.1 having levelled baseless allegations which were found to be unproved would disentitle him to any relief under Section 23 (1) (a) of the Act. Therefore, we are of the view that the finding of the lower court on issues no. 1 & 2 deserve to be reversed and the judgment and decree passed by the District Judge also deserves to be set aside. 13. Consequently, the appeal is allowed. The judgment and decree dated 11.12.2015 passed by the District Judge, Sangrur are set aside. The petition filed by respondent No.1 for decree of divorce under Section 13 of the Act is dismissed throughout. 14. Decree-sheet be drawn accordingly.