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Shashi Kala vs Pravesh Chand Angra on 12 January, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

.
FAO No. 97 of 2010

Judgment Reserved on 5th January, 2018
Date of Decision 12th January, 2018

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Shashi Kala ….Appellant
Versus

Pravesh Chand Angra ….Respondent

Coram

The Hon’ble Mr. Justice Vivek Singh Thakur, J.

Whether approved for reporting?1

__
For the Appellant: Mr. G.R. Palsara, Advocate.

For the Respondent: Mr. Lovneesh Kanwar, Advocate.

Vivek Singh Thakur, J.

The appellant was married to respondent herein on

7.12.1994 according to Hindu Rites and out of their wedlock, a

female child Sujata was born on 31.12.1995. At the time of

marriage appellant was serving as Angan Wadi Worker in her

parental village Mahadev Tehsil Sundernagar. The respondent

was earning his livelihood at that time as daily wager at

Anandpur Sahib at Ropar. In the year 1998 respondent got a job

1
Whether Reporters of Local Papers may be allowed to see the judgment? Yes

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in Government Senior Secondary School, Saloh. In the year 2001,

respondent was appointed as a lecturer on contract basis in

.

Government Senior Secondary School, Sari Malog in District

Kangra. During this period appellant was continuing as Angan

Wadi worker in VPO Mahadev.

2. In the year 2007, respondent-husband filed a petition

under Section 13 of the Hindu Marriage Act, 1953 for dissolution

of marriage by a decree for divorce before the learned District

Judge, Una stating therein that appellant herein after marriage

stayed with him for a week in her matrimonial house and

thereafter, left for Mahadev (parental house) for continuing her

service as Angan Wadi worker and thereafter appellant visited

her in-laws house twice or thrice but for a very short period of

2/3 days and she avoided the company of petitioner on one

pretext or other and never intended to accompany the petitioner

in her matrimonial house or his place of posting by making

excuse of her employment as Angan Wadi worker in her parental

village.

3. It is further stated in petition that in the year 1998

after joining in Government Senior Secondary School, Saloh as

lecturer on contract basis, he, as desired by appellant, shifted his

residence from his native village Panjawar to Una town in the

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house of maternal grandfather of appellant by shifting the dowry

articles like furniture, utensils, dresses and gift items etc. and

.

since then all articles were lying there in the custody of appellant

and on his request to the appellant to accompany him, appellant

did not join him but she and her mother wanted to keep him as

Ghar Jawai, whereas, he was not in a position to accede to their

desire as he had to lookafter his widowed mother at native place

Panjawar. It is also averred that after getting job on contract

basis in Government Senior Secondary School, Sari Malog in

District Kangra in the month of September, 2001, appellant was

again requested to join the company of respondent, but she was

unwilling to perform matrimonial relations with the respondent

and after last week of January, 2002, she never joined

respondent and since then they are living separately.

4. Further that in the month of July 2002, appellant filed

an application under Section 125 Cr.P.C., in the Court of learned

Additional Chief Judicial Magistrate, Sundernagar, Mandi wherein

interim maintenance was ordered. On the basis of aforesaid

circumstances, decree for divorce has been prayed for on the

grounds of cruelty, non-performance of marital relations,

deprivation of matrimonial life resulting into spoiling of valuable

and golden period of marital life of the petitioner.

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5. Petition was contested by the appellant and it was

stated in reply that respondent and his relatives had insisted her

.

to continue the job of Angan Wadi worker and they themselves

had asked appellant to live at Mahadev for continuing her job

and appellant right from the beginning was intending and willing

to lead a peaceful and happy married life with her husband and

made every possible effort for the same by discharging

matrimonial obligations towards him and his family. However,

despite that soon after the marriage, respondent had started

taunting and demanding amount of salary earned by her and

torturing to pressurise her, her mother never intended to settle

her husband as Ghar Jawai and it was her husband who left her

in parental house after marriage in order to keep her job

continue and house of maternal uncle was transferred in the

name of her mother who, on the request of respondent,

transferred the same in the name of appellant and also got the

same vacated to hand over to the respondent. Whereafter,

respondent time and again pressurised her to transfer the said

house in his name and when she did not succumb his pressure,

she was turned out from the house along with her child.

Whereafter, she was not supported by her husband and when

she was facing scarcity of multiple household things like clothes,

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ration etc. the respondent did not accede to her request to

maintain her, whereupon she was constrained to file petition for

.

maintenance under Section 125 Cr.P.C. Lastly, it is stated that

she wanted to leave her job and always expressed her

willingness to live in the company of respondent and fulfilled her

matrimonial obligations to respondent but on account of his

unwarranted careless and selfish nature made her and child’s life

miserable.

6. In rejoinder to the reply, allegations of the appellant

were refuted and that of the petition were asserted.

7. Before framing the issues, case was listed for

conciliation, but on failure issues were framed and thereafter,

again on request of learned counsel for parties, matter was listed

for conciliation, which again failed. Thereafter, parties led their

respective evidence and on the basis of evidence on record,

learned District Judge has passed the decree of divorce.

8. I have heard learned counsel for parties and have

also gone through evidence placed on record.

9. During pendency of petition before learned District

Judge, conciliation between the parties was tried more than

once, but the efforts were not materialised. During pendency of

the appeal in this Court also, parties were called for re-

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conciliation on 7.9.2016, but said attempt had also failed.

Thereafter, on 14.6.2017 learned counsel for the parties were

.

again directed to explore the possibility of amicable settlement.

In response thereto, respondent had offered payment of

Rs.2,50,000/- in lump sum for amicable settlement between the

parties, but the said offer, by giving reference of earlier offer of

Rs.8lacs, was not accepted, whereupon, it was explained on

behalf of respondent that the said offer was at the initial stage,

whereafter payment of more than Rs.10 lacs has been paid as

maintenance to appellant in proceedings under Section 125

Cr.P.C. Thereafter, on joint submissions made on behalf of

parties, matter was referred for amicable settlement through

mediation by directing presence of parties before the learned

Mediator. Appellant did not appear before learned Mediator and

conciliation could not be materialized.

10. Respondent-husband, besides himself, has examined

two witnesses PW1 Jagjeet Singh and PW2 Raghubir Chand, who

in their evidence, filed by way of affidavit(s), have supported his

case. In his statement, respondent, in addition to asserting the

averments made in petition, also mentioned the instance of

hearing taken place before the H.P. State Women Commission,

Shimla wherein appellant had refused to live in the company of

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respondent, but had expressed desire to have divorce. It is also

averred that a legal notice, sent to appellant, was received by

.

her but not responded. In cross examinations of PW1 and PW2, it

was stated that it was respondent-husband who was not willing

to keep appellant with him, whereas no such suggestion has

been put to respondent-husband in his cross examination.

11. Appellant had examined herself as a witness and

closed her evidence thereafter. In evidence filed by way of

affidavit, she supported her version submitted in reply to

petition. In her cross examination, she admitted that since 2002,

both of them were residing separately and she was residing in

her maternal home, whereas her husband was residing at Una.

She admitted that respondent was serving on contract basis in

District Kangra, where she visited 3-4 times and her last visit was

on 25/26th January, 2001 or 2002. Her statement was recorded

on 6.11.2009. Though in her affidavit filed in evidence, she

claimed that her husband was not paying maintenance to her

and their daughter, but in cross examination, she admitted the

receipts Ext.P3, Ext.P4, Ext.P8, Ext.P9 and Ext.P10 indicating the

payment of maintenance by her husband. She also admitted that

in petition filed under Section 125 Cr.P.C., she had received a

sum of Rs.20,000/-. Firstly, she stated that she did not remember

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that before filing the case, her husband had served notice upon

her. But she admitted the acknowledgment Ext.P2 was bearing

.

her signatures and she also admitted that she did not reply to

notice Ext.P1. She admitted the hearing taken place before the

Women Commission, Shimla, but she denied that she had made

the statement that she did not want to live with her husband and

wanted divorce. She admitted that dowry articles including

furniture were lying in her maternal father’s house and same

were in her lock and keys. She further stated that respondent

refused to own her daughter as his child. Finally, she stated that

even at the time of making statement she was not ready to live

with respondent and expressed that she was facing harassment

from the respondent.

12. It is an admitted fact that parties are residing

separately since 26.1.2002. Petition has been filed for decree of

divorce in 2007. Petition was opposed by the appellant, but in

her cross examination she has expressly refused to join the

company of respondent. Appellant has filed petition under

Section 125 Cr.P.C. for maintenance wherein interim

maintenance has also been awarded but she is not ready to join

the company of her husband. She had admitted receiving legal

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notice wherein she was asked to join the company of respondent,

but she did not bother to reply the same.

.

13. From the above facts, circumstances and discussion,

it is evident that appellant is breathing hot and cold in one

breathe. She is complaining against the respondent for not

keeping her with him but at the same time, she is expressly

stated that she is not willing to live with respondent. She is ready

for decree of divorce for Rs.8 lacs, but not coming forward for

conciliation or amicable settlement either before the Court or

before the Mediator.

14. It is an admitted fact that since 26.1.2002, there is

no co-habitation between the appellant and respondent, rather

there is no communication between them except through Court

or their respective counsel. In these circumstances, learned

District Judge has rightly held that respondent-husband is

entitled to decree for divorce under Section 13(1)(ia) and (ib) of

the Hindu Marriage Act, 1955. The conclusion arrived at by

learned District Judge is based on evidence on record, after

appreciating it completely and correctly. There is no irregularity,

illegality or perversity pointed out in judgment and hence no

interference is warranted. Hence present appeal being devoid of

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any merit is dismissed. No order as to costs. Record be sent back

forthwith.

.

January 12, 2018 (Vivek Singh Thakur)
(ms) Judge

r to

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