FAO-128-M of 2005 (OM) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
******
IOIN-FAO-128-M of 2005
FAO-128-M of 2005 (OM)
DATE OF DECISION : 20.12.2019
Lakhwinder Kaur …..Appellant
Versus
Jasbir Singh …..Respondent
CORAM : HON’BLE MR. JUSTICE RAJAN GUPTA
HON’BLE MR. JUSTICE KARAMJIT SINGH
Present : Mr. B.P.S.Virk, Advocate,
for the appellant.
None for the respondent.
KARAMJIT SINGH, J.
The instant appeal has been preferred by the appellant-wife
impugning the judgment and decree dated 22.03.2005, passed by Learned
Additional District Judge (Adhoc), Patiala (hereinafter referred to as the ‘Ld.
Court below’) whereby, the petition filed by the respondent-husband under
Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the
HMA’) for granting decree of divorce, was allowed in favour of the
husband.
A few facts necessary for adjudication of the case, as narrated
in the petition filed by the respondent-husband before the Ld. Court below,
may be noticed. Marriage between the parties was solemnized on
24.11.1997 at Samana, District Patiala. After the marriage, the parties
resided and cohabited together as husband and wife till September, 1999
but no child was borne out the wedlock. According to the husband, the
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appellant-wife was not cooperative due to which their relations worsened.
The appellant-wife used to misbehave with her husband in front of
respectable. She also lodged false FIR against her husband and other and
members of his family alleging cruelty on their part. The respondent-
husband made all efforts to settle the dispute amicably. The matter was
compromised and an amount of Rs.2.5 lac was paid by him to his wife in
lieu of her entire maintenance and dowry articles. Thereafter, the parties
filed joint petition under Section 13-B of the HMA and got recorded their
statements at the time of first motion. However, the said Divorce Petition
was disposed of on 25.01.2002, as the appellant back-tracked from the
above said compromise and did not appear in the court concerned for
getting recorded her consent statement at the time of second motion. The
appellant-wife deserted her husband in the month of September, 1999 and
thereafter she never came back. Hence, the divorce petition was filed by the
husband on the ground of cruelty and desertion,.
Per contra, the case was contested by the appellant-wife and
she also pleaded that she never uttered any unparliamentary language. She
further contended that the respondent-husband and his family members
forced her to bring more dowry and money from her parents for purchase of
car and she brought the money from her parents and handed it over to the
husband but after some time he again demanded more money from her
parents and subjected her to cruelty. She denied the fact that she ever
accepted Rs.2.5 lacs from her husband as full and final settlement of her
claim regarding maintenance and dowry articles. Actually, the husband
agreed to pay Rs.4 lacs by way of compromise regarding all her claims.
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However, the said compromise was not materialized as the respondent failed
to pay the aforesaid amount to her. Consequently, the divorce petition filed
under Section 13-B of the HMA was dismissed. It was pleaded that the
present petition also deserves to be dismissed.
The respondent-husband filed replication controverting the
averments made in the written statement of appellant-wife and on such
pleadings of the parties, the following issues were framed by the Ld. Court
below:-
“1. Whether the respondent has deserted the petitioner since
September, 1999 without any reasonable cause as
alleged in the petition? OPA
2. Whether the respondent has treated the petitioner with
cruelty as alleged in the petition?OPA
3. Relief.
The respondent-husband himself appeared in the witness-box
as PW-5 and proved original agreement-Ex.P-1, vide which terms of
settlement qua petition moved under Section 13-B of the HMA were
recorded, as well as other documents Ex.P-2 to Ex.P-6 relating to the said
compromise and filing of joint petition under Section 13-B of the HMA.
PW2-Satnam Singh and PW4-Takhat Singh also proved the execution of
agreement, Ex.P1, being its marginal witnesses, PW1-Inderjit Singh and
PW3-Joginder Singh were also examined by the respondent-husband to
prove his case.
On the other hand, appellant-wife herself appeared in the
witness box as RW2. She also examined her father Avtar Singh as RW3
and Hazur Singh as RW1.
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After hearing counsel for the parties, the learned court below
passed the decree of divorce in favour of the respondent-husband on the
ground of desertion as well as cruelty. Aggrieved by the impugned
judgment and decree, the present appeal has been filed by the appellant-
wife.
We have heard learned counsel for the appellant and perused
the evidence on record meticulously.
Learned counsel for the appellant-wife has challenged the
impugned judgment and decree. It is contended that actually respondent-
husband ill-treated his wife in the matrimonial home as her parents failed to
fulfill the demand of more dowry raised by him. It is further contended that
even FIR was also registered against the respondent-husband under Section
406 and 498A IPC with regard to the cruelty caused by the respondent-
husband to his wife. Learned counsel further argued that with the
intervention of the respectables, compromise was also effected between the
parties, as per which, the respondent-husband agreed to pay Rs.4,00,000/-
for settlement of her claims. On the basis of the said settlement, petition
under Section 13-B of the HMA was filed, however, lateron, the respondent
retracted and failed to pay the settled amount of Rs.4,00,000/- and finally
the divorce petition filed under Section 13-B of the HMA was dismissed.
Learned counsel for the appellant-wife further contended that the said act of
backtracking also amounted to cruelty on the part of the husband. While
concluding his arguments, learned counsel for the appellant-wife urged that
the appeal deserves to be allowed, as the husband cannot take benefit of his
own wrongs.
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We have considered the submissions made by the learned
counsel for the appellant.
Admittedly, the parties got married on 24.11.1997 but no child
was born out of the said wedlock. Due to matrimonial dispute, the parties
are living separately for the last about 20 years. It is not disputed that in
2001, compromise was effected between the parties and then, the parties
filed joint petition under Section 13-B of the HMA. It is the case of the
appellant that as per the said compromise, she was to get Rs.4,00,000/- from
her husband but the said amount was never paid to her and that is why the
above-said joint petition under Section 13-B of the HMA was dismissed.
On the other hand, the plea of the respondent is that entire settled amount of
Rs.2,50,000/- was paid to the appellant, as per the settlement deed (Ex.P1),
but lateron, the appellant backed out.
Appellant-Lakhwinder Kaur while appearing in the witness-
box, admitted that joint petition under Section 13-B of the HMA was filed
by the parties. She also admitted her signatures on the compromise deed
(Ex.P1). The execution of the said compromise deed has also been proved
by PW2-Satnam Singh and PW4-Takhat Singh, in whose presence the said
compromise deed was executed by both the parties. Even, RW3-Avtar
Singh, father of the appellant, admitted the execution of the compromise
deed (Ex.P1), in his deposition. So, the execution of the compromise deed
(Ex.P1), stands proved. As per the said compromise deed, the dispute
between the parties was settled on 18.07.2001 and as per the settlement,
appellant received Rs.2,50,000/- in total from the respondent and the parties
also agreed to file joint petition under Section 13-B of the HMA.
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FAO-128-M of 2005 (OM) -6-Accordingly, the parties filed joint divorce petition on 20.07.2001.
However, lateron, appellant had broken the promise and consequently, the
said divorce petition was dismissed. As per the order (Ex.PZ/1) dated
22.02.2003, the application moved by the appellant under Section 24 of the
HMA in the present divorce petition was dismissed by the court of learned
Additional District Judge, Patiala, while observing that she had already
received Rs.2,50,000/- from the husband, in terms of aforesaid compromise
deed. Even the application filed by the appellant under Section 125 Cr.P.C
for grant of maintenance was also dismissed by the revisional court on the
same very ground, vide order (Ex.PZ) dated 08.07.2004. It is not disputed
that the appellant also lodged FIR under Sections 406 and 498-A IPC
against the respondent but lateron, she gave affidavit (Ex.PZ/2) for
cancellation of the said criminal case. Even, while appearing in the witness-
box, she admitted that the said FIR was lateron cancelled, at one point of
time.
The appellant is living separately from her husband since
September, 1999, and thereafter, she never turned up to live with the
respondent. In 2001, she entered into compromise with her husband and
also received Rs.2,50,000/- for settlement of all her claims from him, vide
compromise deed (Ex.P1) and consequently, joint petition under Section 13-
B of the HMA was filed by the parties but lateron, appellant withdrew her
consent. So, it could be easily inferred that the appellant-wife deserted the
respondent and caused cruelty to him. In this context, reliance has been
placed on Radha Shyam Saraf v. Smt. Mamta Saraf, 2005(29)
R.C.R.(Civil) 887, (Chhattisgarh), wherein, wife received Rs.1,00,000/-
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FAO-128-M of 2005 (OM) -7-for her maintenance and joint petition under Section 13-B of the HMA on
the ground of mutual consent was filed by the husband and wife. However,
lateron, the wife withdrew her consent resulting in dismissal of the said
petition and thereafter, the husband filed divorce petition on the ground of
cruelty and desertion, which was allowed by the Hon'ble High Court in the
appeal.
In view of the above discussion, the present appeal is devoid of
merits and is hereby dismissed. However, the parties are left to bear their
own costs.
(RAJAN GUPTA) (KARAMJIT SINGH)
JUDGE JUDGE20.12.2019
adhikariWhether speaking/non-speaking : Yes/No
Whether reportable : Yes/No7 of 7
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