IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

FAO No. 303 of 2009.

Reserved on : 20.04.2018.

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Decided on : 26th April, 2018.

Malkiyat Singh …..Appellant.

Versus

Smt. Asha Devi ….Respondent.

Coram:

The Hon’ble Mr. Justice Sureshwar Thakur, Judge.

Whether approved for reporting?1

For the Appellant: Mr. Ajay Sharma, Advocate.
For the Respondent : Mr. Bimal Gupta, Senior Advocate
with Ms. Rubeena Bhatt, Advocate.

Sureshwar Thakur, Judge.

The instant appeal stands directed against the

pronouncement recorded by the learned District Judge,

Kangra at Dharamshala, H.P., on 23.05.2009, in, H.M.A.

Petition No. 34-N/III/2005,whereby, he refused to annul the

marital ties inter se the appellant herein with the respondent

herein.

1

Whether reporters of the local papers may be allowed to see the judgment?

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2. The brief facts of the case are that the respondent

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herein is the legally wedded wife of the appellant

herein/petitioner. It is pleaded that after her marriage with

the petitioner/appellant herein three children were born, who

are living with their mother. After the marriage till April,

1998, the relations inter se the litigating parties were cordial,

but in the month of April, 1998, the brother of respondent,

namely, Kirshan Chand came to the house of the petitioner

and he wanted to take the respondent with him. The

appellant/petitioner permitted the respondent to accompany

her brother and thereafter she never came back. On the

contrarily, the respondent had filed a petition under Section

125, Cr.P.C., for maintenance, wherein, she was awarded

maintenance of Rs.500/- per month. Thereafter, in the year

2001, a petition under Section 125, Cr.P.C., was again filed on

behalf of the minor children through the respondent against

the petitioner. Consequently, maintenance allowance of

Rs.300/- per month each was granted n favour of the minor

children, and, inspite of best efforts, the respondent refused

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to join the company of the appellant/petitioner. The

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appellant/petitioner was employed in the Assam Rifles. The

respondent had launched proceedings under Section 498-A,

IPC against the petitioner/appellant herein and his relatives

just to harass them and Commanding Officer of Assam Rifles

terminated the services of the petitioner in December, 2002

and the life of the petitioner has been made hell by the

respondent amounting to cruelty. It is also alleged that the

petitioner had sustained mental as well as physical cruelty at

the hands of the respondent.

3. The petition for divorce instituted by the petitioner

before the learned District Judge concerned, stood contested

by the respondent, by hers instituting a reply thereto,

wherein, she controverted all the allegations constituted

against her in the apposite petition. It is alleged that the

petitioner had suppressed the material facts from the court.

The petitioner and his family members had been giving

beatings to the respondent on the ground that she did not

bring the sufficient dowry and her appearance was also not

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good. The petitioner and his family members had cursed the

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respondent that she had given birth to a female child and also

gave beating to the respondent had neglected the respondent

and her children, including the newly born child and

threatened that the petitioner would marry one Anju Kumari,

daughter of Sh. Chuni Lal, resident of Chatter, Tehsil Nurpur,

District Kangra, H.P. It is pleaded that in pursuance of this,

the petitioner with the help of his sister and family members,

had eloped with said Anju Kumari and also did not avail two

months’ leave. It is further pleaded that the respondent was

turned out from her matrimonial home.

4. On the pleadings of the parties, the learned trial

Court struck the following issues inter-se the parties at

contest:-

1. Whether the respondent has treated the petitioner
with cruelty, as alleged?OPP.

2. Whether the petition is not maintainable, as
alleged?OPR

3. Whether the petitioner is estopped by his act and
conduct from filing the present petition?OPR

4. Relief.

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5. On an appraisal of evidence adduced before the

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learned District Judge, the latter dismissed the apposite

petition.

6. The petitioner for proving the apposite issue,

onus, of, proof whereof, was cast upon him, stepped into the

witness box as PW-1, and, in his examination-in-chief, he,

rendered a testification, in concurrence with the averments,

borne in the petition. His testification is lent corroboration by

PW-2. The testifications of the aforesaid are not sufficient, for

constraining this Court, to record affirmative findings, upon

the apposite issue(s). The reasons for forming the aforesaid

conclusion, ensues from (a) of PW-2 admittedly residing in a

locality contradistinct vis-a-vis the matrimonial home of the

respondent herein; (b) his acquiescing qua his never visiting

the matrimonial home of the respondent; (c) thereupon, it

being inevitable to infer of his being unaware of the

happenings inside the matrimonial home, of, the respondent,

(d) concomitantly his being disabled to firmly disclose

whether the petitioner maltreated or meted cruelty upon the

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respondent; (e) his acquiescing qua the respondent, staying,

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at her matrimonial home along with her in-laws and brother-

in-laws, yet with none of the aforesaid standing examined,

whereas, they constituted the best evidence, in support of the

apposite averments, cast in the Hindu Marriage Petition,

thereupon, the omission of their examination, despite theirs

constituting the best evidence, hence constrain an inference,

of, the apt omissions being deliberate, for blunting the

emanation of truth therefrom.

7. Contrarily, this Court, upon, emergence of cogent

proof, hence, impute sanctity to the contentions reared by the

respondent, in her reply furnished to the apposite petition,

wherein, she espouses of hers rather holding, good,

reasonable, and, tangible ground, for not, cohabiting with the

petitioner at the latter’s home. The apposite ground(s), is,

comprised in the petitioner maltreating her, and, also is

comprised in the petitioner maintaining, one Anju Kumari, as

his mistress. The apt evidence in proof of the aforesaid, is,

comprised (a) in a complaint, existing on record, embodying

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therein commission, of, offences under Section 498 of the IPC,

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by the petitioner vis-a-vis the respondent; (b) recitals

occurring in a letter, borne in Ex. R-7, qua the petitioner

holding an amorous relationship with another lady. The

aforesaid documentary evidence, when read along with the

factum of the services of the petitioner being terminated, on

account of his contracting an invalid second marriage, hence,

lead to a firm conclusion, of, the petitioner perpetrating

cruelty, upon, the respondent, during, the period of her stay

with the petitioner, at the latter’s home, and, also hers hence

holding tangible reasons, for, not, cohabiting with the

petitioner at her matrimonial home.

8. The above discussion unfolds that the conclusions

as arrived by the learned trial Court are based upon a proper

and mature appreciation, of, the relevant evidence existing on

record. While rendering the findings, the learned trial Court

has not excluded germane and apposite material from

consideration.

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9. For the foregoing reasons, there is no merit in the

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instant appeal which is accordingly dismissed. The impugned

judgment and decree is maintained and affirmed. All pending

applications also stand disposed of. Records be sent back

forthwith.

26th April, 2018.

(jai)
r to (Sureshwar Thakur)
Judge.

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