IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
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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
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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
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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
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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
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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
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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
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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
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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.
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January 12, 2018 (Vivek Singh Thakur)
(ms) Judge
r to
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