Research › Search › Judgment

Himachal Pradesh High Court · body

2021 DIGILAW 448 (HP)

Tek Chand v. Ratu Devi

2021-07-23

SATYEN VAIDYA

body2021
JUDGMENT Satyen Vaidya, J. - Appellant, by way of the instant appeal, has assailed the judgment and decree dated 20.07.2011, passed by learned District Judge, Mandi, HP, in case H.M.P. No.30/2008 titled Tek Chand Versus Ratu Devi. 2. Appellant was petitioner before the trial Court. He sought a decree of divorce on the ground of desertion under Section 13(1)(ib) of the Hindu Marriage Act, 1955 ( hereinafter referred to as the 'Act' for short). The petition filed by the petitioner was dismissed vide judgment and decree impugned in the present appeal. The parties, for the sake of convenience and clarity, herein are addressed in the same manner as before the trial Court i.e. as petitioner and respondent. 3. The petition for dissolution of marriage was instituted by the petitioner on 11.09.2008. Petitioner had averred that respondent was his legally wedded wife since 1990. Two sons and a daughter were born out of their wedlock, who were minors at the time of filing of the petition. 4. Petitioner further alleged that respondent started disobeying and neglecting him on petty matters, so much so, that she turned indifferent and hostile towards him and the children. It was also contended by petitioner that he was physically disabled, and for this reason, respondent started ignoring him. 5. According to petitioner, he and parents of the respondent were residents of the same village. Respondent without caring for the maintenance and welfare of minor children, started living for longer duration at the house of her parents. Repeated efforts by petitioner to call her back were ignored by respondent. She finally withdrew herself from the company of the petitioner w.e.f. 30.08.2006, whereafter she completely deserted and neglected the petitioner. 6. Petitioner also mentioned in the petition that he had also filed a case under Section 9 of the Act against the respondent on an earlier occasion but the same was dismissed by learned Civil Judge ( Junior Division), Chachiot at Gohar, District Mandi, H.P., vide judgment and decree dated 07.08.2008. 7. Per contra, respondent by way of written reply denied all the averments made in the petition in generality. In addition, respondent took a specific stand that so long as she lived in her matrimonial home her life was made miserable by the petitioner, who always quarreled with her. Petitioner was blamed to be the creator of entire trouble. 7. Per contra, respondent by way of written reply denied all the averments made in the petition in generality. In addition, respondent took a specific stand that so long as she lived in her matrimonial home her life was made miserable by the petitioner, who always quarreled with her. Petitioner was blamed to be the creator of entire trouble. According to respondent, petitioner did not treat her as his life partner. She was ill-treated and maltreated regularly. 8. It was further contended by respondent that in February, 2006, she was turned out from her matrimonial home by the petitioner without any reasonable cause or excuse. She also alleged of being manhandled by the petitioner. 9. As per respondent, she lodged a complaint with Gram Panchayat Baila, Tehsil Chachiot, District Mandi, where a compromise dated 04.04.2006 was arrived inter se the parties and petitioner agreed to keep her with him in future without giving her any cause of annoyance or complaint. On such assurance/ promise respondent stayed with petitioner intermittently. 10. Respondent further alleged that on 08.09.2006, petitioner swore an affidavit before Notary Public promising not to torture or maltreat the respondent and to keep her with him providing all necessities of life. As per respondent, she joined the company of petitioner for about 15 days immediately after 08.09.2006 but was again ill-treated and forced to leave the matrimonial home. 11. Respondent admitted the factum of filing of and decision in the petition under Section 9 of the Act filed by petitioner. She, however, asserted that the petition was hotly contested by her and the petitioner was found at fault being responsible for willfully deserting and neglecting the respondent after administering beatings to her. 12. Respondent specifically denied that she left her matrimonial home w.e.f. 30.08.2006 and asserted that she lived in the company of the petitioner for about 15 days after 08.09.2006 and she was turned out of the matrimonial home by the petitioner on or about 25.09.2006. 13. In short, defence of respondent was that her absence from matrimonial home was not without reasonable cause. 14. The averments made in the reply by the respondent were not rebutted by the petitioner by filing rejoinder. 15. Learned trial Court framed following issues arising from the pleadings of the parties: 1. Whether the respondent has deserted the petitioner without reasonable cause? OPP 2. Relief. 16. Parties were put to trial. 14. The averments made in the reply by the respondent were not rebutted by the petitioner by filing rejoinder. 15. Learned trial Court framed following issues arising from the pleadings of the parties: 1. Whether the respondent has deserted the petitioner without reasonable cause? OPP 2. Relief. 16. Parties were put to trial. Petitioner besides himself, as his own witness, (PW-1), examined one Sh. Inder Singh as PW-2. On the other hand, respondent examined herself as RW-1, besides one Sh. Ram Singh as RW-2. In addition, petitioner tendered copy of "Parivar" register Ext. PA in evidence. Respondent also placed on record certain documents viz. photocopy of compromise "Mark X", photocopy of compromise "Mark Y", copy of affidavit Mark Z" and photocopy of order dated 7.8.2008 passed by learned Civil Judge ( Junior Division), Chachiot at Gohar, District Mandi "Mark Z". 17. Learned Trial Court, after taking into consideration oral as well as documentary evidence on record, proceeded to dismiss the petition of the petitioner by holding that there was no evidence to conclude that the respondent had left the company of the petitioner with an intention to permanently bring cohabitation to an end. Learned trial Court held that necessary ingredients for seeking divorce on the ground of desertion were not proved by the petitioner. 18. Petitioner has assailed the impugned judgment mainly on the following grounds: - i) The findings recorded by learned trial Court were vitiated on account of misreading and mis-appreciation of pleadings and evidence of the parties. ii) Respondent had failed to prove factum of complaint having been filed by her against petitioner to the Gram Panchayat. It was inferable from record that respondent has deserted the petitioner with no intention to join his company. 19. I have heard learned Counsel for the parties and have gone through the records carefully. 20. Petitioner tendered his examination-in-chief by way of affidavit Ext. PA. Contents of Ext. PA and petition were substantially identical. In cross examination petitioner denied that he maltreated respondent and that a complaint was made by respondent against him to the Panchayat on 04.04.2006. He also denied that the matter was patched up on his statement made before Gram Panchayat. He further denied having made false allegations against respondent before the police and also having sworn an affidavit dated 08.09.2006. He denied that respondent remained with him till 25.09.2006. He also denied that the matter was patched up on his statement made before Gram Panchayat. He further denied having made false allegations against respondent before the police and also having sworn an affidavit dated 08.09.2006. He denied that respondent remained with him till 25.09.2006. It was also denied that on 30.08.2006, he had given beatings to his wife and torn her clothes. He even denied that the case filed by him under Section 9 of the Act was dismissed by learned Civil Judge (Junior Division) Chachiot at Gohar, District Mandi, H.P. by observing that petitioner was at fault. Petitioner admitted that respondent remained nicely with him and the children up to 30.08.2006 and that he had filed a case under Section 9 of the Act against respondent. 21. Pw-2, Inder Singh also tendered his examination-in-chief by way of an affidavit in which he specifically stated that after about 10 years of peaceful married life respondent started disobeying and neglecting the petitioner on petty matters. She turned indifferent and hostile towards petitioner and minor children. Respondent ignored the children and the petitioner and ultimately left the society of petitioner w.e.f. 30.08.2006 permanently. In cross-examination, he admitted his signature on document "Mark-X" at point "A" but feigned ignorance about its contents. He denied that the petitioner used to maltreat respondent. 22. Respondent also tendered her examination-in-chief by way of an affidavit RW1/A in which she reiterated the stand taken in her written reply. In her cross-examination, she admitted that she was residing in the house of her parents since last 4-5 years. She admitted that her husband was disabled and walked with the help of crutches. However, she clarified when she started residing with her parents, at that time her husband was not disabled. She denied that she left her husband in a disabled condition and she did not want to reside with her husband on account of his disability. 23. It is evident from the cross-examination of this witness that material facts stated by her on oath, were neither challenged nor contradictory. Facts, viz. complaint was made by her to Gram Panchayat Baila, compromise was affected thereafter, petitioner swore an affidavit dated 08.09.2006 to the effect that he would not torture and maltreat respondent and respondent resided with the petitioner till 25.09.2006 remained unchallenged. 24. Rw-2, Ram Singh also tendered his examination-in chief by way of an affidavit Ext. Facts, viz. complaint was made by her to Gram Panchayat Baila, compromise was affected thereafter, petitioner swore an affidavit dated 08.09.2006 to the effect that he would not torture and maltreat respondent and respondent resided with the petitioner till 25.09.2006 remained unchallenged. 24. Rw-2, Ram Singh also tendered his examination-in chief by way of an affidavit Ext. RW-2/A. He stated that in February 2006, respondent was hammered by petitioner without any cause or excuse and was turned out of matrimonial home. She made a complaint to Gram Panchayat Baila. Petitioner swore an affidavit dated 08.09.2006 stating therein that he would not torture and maltreat respondent. Petitioner failed to keep his words and turned respondent out from matrimonial house. In cross-examination RW-2 admitted that petitioner was disabled but qualified that he had become disabled recently and was alright earlier. He denied that petitioner was not giving beatings to the respondent. He admitted that respondent had not visited the petitioner after his becoming disabled. 25. In order to make out a case for dissolution of marriage on the ground of desertion under the Act, certain basic and jurisdictional facts become necessary to be pleaded and proved. Section 13(1)(ib) of the Act reads as under:- "Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground: that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition." 26. The explanation appended to Section 13(1) further reads as under:- "In this sub Section, the 'desertion' means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly." 27. In order to succeed, it was for petitioner to plead and prove firstly that the respondent had deserted him for a continuous period of two years immediately preceding the date of filing of petition, secondly that such desertion was without reasonable cause and without the consent or against the wish of petitioner and thirdly that respondent had willfully neglected him. 28. 28. Perusal of oral evidence led by the parties reveal that the petitioner has failed to discharge the burden placed upon him. It was for the petitioner to plead and prove that respondent had deserted him for continuous period of two years immediately preceding the date of filing of petition without any reasonable cause. Except the bald statement of petitioner there is no corroboration to his version. Though, PW-2 has stepped into witness box to support the case of the petitioner but his testimony cannot be put to much use for the reason that he had not disclosed as to how he was aware about the facts which were very personal to petitioner and respondent?. How and in what manner he was related to the family of petitioner or respondent? In absence of such explanation this witness can be presumed to be a procured witness. Statement of PW-2 is otherwise also not worth credence especially when he claimed himself to be a Vice President of Panchayat and feigned ignorance about contents of document Mark-X despite the fact that he admitted his signature on such document. For the reasons so stated, the statement of PW-2 cannot be relied upon for the purpose of being corroborative to the claim of the petitioner. 29. The evidence led by petitioner, as noted above, lacks in essence. He admits in first line of his cross examination that respondent was nice to him till 30.8.2006. As per petitioner, respondent had permanently left him on 30.8.2006. If everything was fine till 30.6.2008 then what happened on said date prompting respondent to leave home, remained unexplained. Petitioner by making such statement has wiped out his allegations, as made by him in the petition, against respondent. 30. Learned Counsel for the petitioner has vehemently urged that the respondent has failed to prove her assertions with respect to maltreatment etc. at the hands of the petitioner, so much so that she had not been able to prove the allegations of complaint being made by her to Gram Panchayat Baila, Tehsil Chachiot, District Mandi, H.P., resultant compromise arrived inter se the parties on 04.04.2006 and subsequent affidavit sworn in by the petitioner on 08.09.2006. at the hands of the petitioner, so much so that she had not been able to prove the allegations of complaint being made by her to Gram Panchayat Baila, Tehsil Chachiot, District Mandi, H.P., resultant compromise arrived inter se the parties on 04.04.2006 and subsequent affidavit sworn in by the petitioner on 08.09.2006. Even though, learned counsel for the petitioner is right in saying that the documents produced by the respondent were not proved in accordance with law, but the petitioner cannot escape from the consequences of not contradicting respondent in her cross examination on the aspect of execution of said documents especially when such documents were pressed into service to prove the factum of ill and mal-treatment of respondent at the hands of petitioner. 31. Above all, the parties were not at dispute that there had been a previous litigation between them in pursuance to petition under Section 9 of the Act filed by the petitioner against the respondent. It is also not disputed that the Court which adjudicated upon said petition had jurisdiction to decide the matter. The judgment and decree passed in said petition find place on record as "mark Z". None of the parties have disputed the correctness and authenticity of the photocopy of judgment dated 07.08.2008 passed by learned Civil Judge (Junior Division), Chachiot at Gohar, District Mandi, H.P. in HMP No. 1-III/2007. The issues framed in said judgment find place at page-3 thereof which read as under: - 1. Whether the respondent has left the society of the petitioner without any reasonable cause as alleged? OPP. 2. Whether the petition filed is not maintainable as the petitioner has maltreated respondents and has treated her cruelty and has deserted her as alleged? OPR. 3. Relief. 32. On the above issues, learned Civil Judge (Jr. Divn.), Chachiot at Gohar, District Mandi, H.P. has returned following specific findings in para-15 of the judgment:- "In the present case, it has come on record that the petitioner is estopped and cannot walk. However, the sole ground does not in any manner entitle the petitioner to the relief of restitution of conjugal rights and solely on the ground sympathy of the court cannot be attracted. It has come on record that the petitioner used to ill-treat the respondent and regarding if the respondent had also approached the panchayat who had tried to settle the dispute amicably. It has come on record that the petitioner used to ill-treat the respondent and regarding if the respondent had also approached the panchayat who had tried to settle the dispute amicably. The demeanor of the petitioner was also watched throughout the proceeding of the litigation which too was not found satisfactory. beside his sole testimony no other evidence has been adduced by the petitioner in support of his pleadings. On the other hand, as discussed by me above, the respondent has been able to establish that she is not residing with the petitioner since, he used to physically beat her and ill-treat her. Thus, on my above findings, the issue no.1 is decided against the petitioner and issue no 2 is decided in favour of the respondent." 33. From the above, it is clear that the issues involved in the petition under Section 9 of the Act were directly and substantially the same as in the petition in hand, therefore, the findings recorded by learned Civil Judge (Junior Division), Chachiot at Gohar, District Mandi, H.P. in Case No. HMP No.1-III/2007 having attained finality became res-judicata between the parties. The petitioner, therefore, was precluded from claiming that the respondent had left his company without any reasonable and probable cause, which is sine-qua-non for grant of relief to the petitioner. 34. In light of above discussion, no fault can be found in the impugned judgment as far as appreciation of the evidence is concerned. Learned Trial Court has considered and taken into account the oral as well as documentary evidence on record. The view arrived at by learned trial Court is reasonable and does not suffer from any perversity. 35. Section 13 (1) (ib) of the Act also makes it imperative that a minimum period of two years of desertion is required to elapse in order to entitle a person to institute petition under said section. The language of aforesaid provision of the Act leaves no doubt about the mandate of the legislature in this behalf because the expression used is "deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition". 36. The language of aforesaid provision of the Act leaves no doubt about the mandate of the legislature in this behalf because the expression used is "deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition". 36. In the case in hand, though petitioner had mentioned a specific date, i.e. 30.08.2006, on which respondent had left his house, but respondent had taken a specific stand that she resided in the house of the petitioner for about 15 days w.e.f. 08.09.2006 till about 25.09.2006 and thereafter left the matrimonial home. 37. While assessing the material on record, in order to appreciate rival contentions in this behalf, it can be said that the petitioner has not led any corroborative evidence to prove the actual date of desertion. He only relied upon his own statement in this behalf. The respondent, on the other hand, in her examination-in-chief tendered by way of an affidavit Ext. RW1/A, specifically mentioned about the factum of the affidavit dated 08.09.2006, having been sworn by the petitioner and also that she thereafter joined the company of the petitioner and resided with him for about 15 days till about 25.09.2006. In cross examination of the respondent, conducted on behalf of the petitioner, this part of the statement has not been challenged at all, meaning thereby that the petitioner admitted this version of the respondent. This being so, the conclusion that the petition was filed by the petitioner prematurely without waiting for statutory period of two years, becomes inevitable. The petition was instituted on 11.09.2008 and as concluded above, respondent has been able to prove that she lived in the company of the petitioner till 25.09.2006. The statutory period of two years had not elapsed before filing the petition. Hence, the petition was not maintainable and liable to be dismissed on this score alone. 38. Though, this fact escaped from the notice of the learned trial Court, yet, this Court in exercise of appellate jurisdiction is not precluded from noticing the illegality apparent on the face of record and to adjudicate on it in accordance with law. 39. The appellant has failed to make out any case for interference with the impugned judgment and decree, hence, the same is affirmed. Consequently, the appeal is dismissed with no order as to costs. Decree sheet be drawn accordingly. 40. 39. The appellant has failed to make out any case for interference with the impugned judgment and decree, hence, the same is affirmed. Consequently, the appeal is dismissed with no order as to costs. Decree sheet be drawn accordingly. 40. Record of learned Trial Court be returned. 41. Pending miscellaneous application(s) if any, stand disposed of accordingly.