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2020 DIGILAW 36 (ALL)

Neha Singh v. Chandan Pratap Singh

2020-01-06

BALA KRISHNA NARAYANA, SHAMIM AHMED

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JUDGMENT : 1. Service on sole respondent Chandan Pratap Singh was deemed to be sufficient on 11.10.2017. 2. Heard learned counsel for the plaintiff/appellant. 3. None appears on behalf of the defendant/respondent. 4. This appeal is directed against the judgment and decree dated 09.03.2017 passed by Principal Judge, Family Court, Varanasi in Matrimonial Petition No. 212 of 2015, 'Neha Singh Versus Chandan Pratap Singh' u/s 13 of the Hindu Marriage Act. 5. From the perusal of the record, it transpires that the plaintiff/appellant filed a matrimonial petition with a prayer for dissolution of her marriage with the defendant/respondent by a decree of divorce u/s 13 of the Hindu Marriage Act alleging therein that soon after their marriage, the defendant/respondent had become alcoholic and was squandering away all his earnings on liquor and other intoxicants and was treating the plaintiff/appellant with cruelty. The defendant/respondent used to remain absent from his house continuously for days without informing her as a result of which the plaintiff/appellant had to live in her house all alone. Her son Ansh aged about 3 years was suffering from a rare disease of bones which was diagnosed as D.M.D. and on account of the aforesaid disease, he was unable to move but the defendant/respondent was not providing any treatment to him. On the contrary, he used to say that the plaintiff/appellant was responsible for the illness of their son. He always returned home inebriated and when the plaintiff/appellant objected, he used to beat her. Under the influence of alcohol, he indulged in such cruel behaviour that he used to ease himself in the kitchen and on several occasion, he used to spit in the mouth of the plaintiff/appellant forcibly after pulling her hair as a result of which she used to vomit. The ill-treatment of the plaintiff/appellant by the defendant/respondent increased with the passage of time on account of which she suffered tremendous mental and physical agony and a situation was created when it became impossible for her to live with the defendant/respondent as his wife. For the reason of his having become alcoholic, he was neither able to perform his conjugal duties nor maintain his family and the plaintiff/respondent had become extremely insecure because of her cruel treatment by the defendant/respondent. For the reason of his having become alcoholic, he was neither able to perform his conjugal duties nor maintain his family and the plaintiff/respondent had become extremely insecure because of her cruel treatment by the defendant/respondent. Although the plaintiff/appellant tried her level best to save her married life and even took the defendant/respondent to the hospital for treatment with her family members to help him in getting rid of his habit of drinking but without any success. Since two years preceding the filing of the matrimonial petition, no physical relation of any kind existed between them and it was impossible for her to live with the defendant/respondent as she apprehended danger to her life from him and since there was an irretrievable breakdown of the marital relationship, she was left with no option but to file the petition for divorce. 6. The defendant/respondent did not contest the divorce petition filed by the plaintiff/appellant. 7. The plaintiff/appellant in order to prove her case examined herself as P.W.1 and her brother Saurabh Kumar Singh as P.W.2 and filed documentary evidence 17ka. 8. The Principal Judge, Family Court, Varanasi however dismissed the matrimonial petition inter-alia on the grounds that the plaintiff/appellant had failed to get the evidence of her witnesses corroborated by any independent witness; and to file documentary proof of the illness of her son. 9. It is contended by the learned counsel for the plaintiff/appellant that there is no law which provides that a suit cannot be decreed on the basis of the testimonies of the witnesses who are related to each other provided they are found to be fully reliable witnesses and their evidence appears to be consistent, trustworthy, reliable and clinching. He next submitted that the Principal Judge, Family Court, Varanasi committed a patent error of law in holding that the plaintiff/appellant in the absence of any documentary evidence, had failed to prove that her son was suffering from a bone disease which kept him confined to bed without noticing that the plaintiff/appellant and her brother Saurabh Kumar Singh who were examined as P.W.1 and P.W.2 respectively had unequivocally stated that son of plaintiff/appellant was suffering from a bone disease which had remained unrebutted. He lastly submitted that the impugned judgment which is based upon irrelevant considerations, cannot be sustained and is liable to be set-aside. 10. He lastly submitted that the impugned judgment which is based upon irrelevant considerations, cannot be sustained and is liable to be set-aside. 10. After having heard learned counsel for the parties and perused the material brought on record, we find there is force in the submissions made by the learned counsel for the plaintiff/appellant. 11. Record shows that in support of the allegations of cruelty made by the plaintiff/appellant in the matrimonial petition, she had examined herself as P.W.1 and one Saurabh Kumar Singh as P.W.2. 12. The Principal Judge, Family Court, Varanasi did not find the evidence of P.W.1 Neha Singh and P.W.2 Saurabh Kumar Singh either unreliable or untrustworthy or that P.W.1 and P.W.2 were not wholly reliable witnesses. Once the Principal Judge, Family Court, Varanasi did not find the evidence of P.W.1 Neha Singh and P.W.2 Saurabh Kumar Singh unreliable or untrustworthy, he could not have dismissed the suit on the ground that the plaintiff/appellant ought to have examined an independent witness for corroborating the evidence of the witnesses examined by her. 13. Having gone through the examination-in-chief of P.W.1 Neha Singh and P.W.2 Saurabh Kumar Singh which were filed on affidavits, we find that the allegations of cruelty made by the plaintiff/appellant against the defendant/respondent in the plaint and those regarding the illness of her son, stand fully proved and the learned Principal Judge, Family Court, Varanasi was not at all legally justified in taking a view to the contrary. 14. We are afraid that the view taken by the learned Principal Judge, Family Court, Varanasi is not only erroneous but is also per se illegal. Once the Principal Judge, Family Court, Varanasi did not find the evidence of P.W.1 Neha Singh and P.W.2 Saurabh Kumar Singh trustworthy or reliable, it was incumbent upon him to have decreed the suit. Upon perusal of the copies of the plaint and the testimonies of P.W.1 Neha Singh and P.W.2 Saurabh Kumar Singh which are on page 7 to 12 and 19 to 24 of this case, we are of the opinion that the allegations of cruelty made by the plaintiff/appellant in the plaint for seeking divorce, stand fully established from their evidence, entitling her to a decree for divorce on the ground of cruelty. 15. For the aforesaid reasons, this appeal succeeds and is allowed. The impugned judgment and decree is hereby set-aside. 16. 15. For the aforesaid reasons, this appeal succeeds and is allowed. The impugned judgment and decree is hereby set-aside. 16. The Matrimonial Petition No. 212 of 2015 is decreed and the marriage between the plaintiff/appellant and the defendant/respondent is dissolved by a decree of divorce. 17. There shall however be no order as to costs.