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Lakhwinder Kaur vs Jasbir Singh on 20 December, 2019

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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FAO-128-M of 2005 (OM) -2-

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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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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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 JUDGE

20.12.2019
adhikari

Whether speaking/non-speaking : Yes/No
Whether reportable : Yes/No

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