FAO No.M-124 of 2011 (OM) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
FAO No.M-124 of 2011 (OM)
DATE OF DECISION : 10.12.2019
Sarbjit Kaur …Appellant
Versus
Lakhvir Singh …Respondent
CORAM: HON’BLE MR. JUSTICE RAJAN GUPTA
HON’BLE MR. JUSTICE KARAMJIT SINGH
Present : Mr. V.K.Sandhir, Advocate,
for the appellant.
Ms. Sushma Sharma, Advocate,
for Mr. Amandeep Soni, Advocate.
for the respondent.
KARAMJIT SINGH, J.
Sarbjit Kaur, the appellant-wife, is before this Court, by way of
instant appeal under Section 13 of the Hindu Marriage Act, 1955 (for short ‘the
HMA’) to assail correctness of judgment and decree dated 25.02.2011, whereby
learned Additional District Judge, Jalandhar, has allowed the petition
(No.H.M.A. Case MP./85 of 2006), which was brought by the respondent-
husband for dissolution of his marriage with the appellant-wife on the ground
of cruelty and desertion citing various instances of cruelty attributable to the
appellant-wife.
In brief, the facts are that the respondent-husband was initially
married with one Baljinder Kaur @ Kulkiran Kaur and out of the said wedlock,
three children, namely, Davinder Kaur (daughter) and Ranjit Singh and Onkar
Singh (sons) were born. The said marriage of respondent-husband and
Baljinder Kaur was dissolved with mutual consent under Section 13-B of the
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HMA vide judgment and decree dated 25.02.1997. It is alleged that after
dissolution of first marriage, the respondent-husband got married with
appellant-wife on 13.10.2000, after apprising her about dissolution of his first
marriage. After the marriage, both the parties started living together as
husband and wife, however, no child was born out of this wedlock. Appellant-
wife failed to conceive despite getting proper medical treatment. When she
came to know that she was unable to bear a child, she started behaving in a
strange manner. She started quarreling with the respondent and other members
of his family on a trivial issues and she started creating scene in her
matrimonial home over petty issues. She refused to cook food. Devinder Kaur,
daughter of the respondent-husband from his first marriage was studying in
BDS in the State of Karnataka. The appellant-wife tried to obstruct her studies.
She also started ill-treating Ranjit Singh son of the respondent-husband from
his first wife and on this he was shifted to boarding school at Dehradun. The
appellant-wife also started ill-treating her mother-in-law and even assaulted
her. Once, she also tried to strangulate the youngest son of the respondent-
husband from his first wife. When the parents of the appellant-wife came to
know about the said incident, they visited her matrimonial home and took her
along with them to Amritsar and while leaving the matrimonial home, she took
away gold jewellery weighing six tolas and cash worth Rs.8,000/- along with
her. Thereafter, she never came back. All the efforts made by the respondent-
husband for reconciliation had failed. Hence, the divorce petition was filed.
The divorce petition was contested by the appellant-wife, who
filed written statement. The marriage between the parties was admitted,
however, it was pleaded in the written statement that the respondent-husband
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had suppressed the material facts while approaching the Court. At the time of
the marriage, the respondent-husband did not disclose about the dissolution of
his first marriage with Baljinder Kaur. So, the respondent-husband played
fraud with her. It was denied that she maltreated her husband and his children
from the first marriage. Rather, she properly looked after the children of her
husband, from the first marriage, with love and affection. It was also pleaded
that her husband did not allow her to conceive the child and he and his parents
treated her with cruelty. The other averments of the divorce petition were
denied being wrong. It was pleaded that the divorce petition be dismissed.
The respondent-husband filed replication, whereby he
controverted the assertions made by the respondent-wife in her written
statement.
The respondent-husband while appearing in the witness-box as
PW1 reiterated the averments of the divorce petition. His mother Sukhwinder
Kaur appeared in the witness-box as PW2, while Joginder Singh was examined
as PW3 and Ram Murti was examined as PW4. All three of them corroborated
the statement of the respondent-husband. In order to rebut the said evidence,
appellant-wife stepped into the witness-box as RW1 and reiterated the
assertions of the written statement, RW3 Jaswant Singh, her father and RW2
Avtar Singh corroborated the testimony of the appellant-wife. She also proved
on record a copy of FIR (Exhibit R1). During her cross-examination, one
photograph (Exhibit D1) was put to her and she admitted the same.
After hearing learned counsel for the parties, the court of learned
Additional District Judge, Jalandhar, allowed the petition vide judgment and
decree dated 25.02.2011. Aggrieved by the same, the present appeal has been
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filed by the appellant-wife.
We have heard learned counsel for the parties and have perused
the record carefully.
Learned counsel for the appellant-wife contended that the
respondent-husband has miserably failed to prove that he was meted with
cruelty by the wife. No medical record was produced in order to establish that
the appellant-wife was unable to conceive due to some medical problem. None
of the children from his first marriage was examined by the respondent-
husband in order to establish that the appellant-wife used to maltreat them. No
reliable evidence was led to prove that the appellant-wife tried to obstruct the
studies of Devinder Kaur, daughter of the respondent-husband from his first
marriage. It is further submitted that no specific instance of cruelty was
pleaded by the respondent-husband in the petition. On the contrary, it stands
proved that the respondent-husband ill-treated the wife and compelled her to
leave the matrimonial home and resultantly, a criminal case under Section 406
and Section498-A of the Indian Penal Code was registered against the respondent-
husband. He also neglected the appellant-wife on which she filed an
application under Section 125 of the Code of Criminal Procedure. Learned
counsel for the appellant-wife further contended that the findings given by the
court of learned Additional District Judge, Jalandhar, are not sustainable and
requires to be overturned.
On the other hand, learned counsel for the respondent-husband
contended that there is no illegality or perversity in the judgment and decree
under challenge. The respondent-husband while appearing in the witness-box
deposed with regard to different acts of cruelty committed by his wife against
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him and his children from his first marriage. Even the real sister and mother-
in-law of the respondent-wife corroborated the statement of the respondent-
husband in that regard. It is further contended that false FIR was got registered
by the respondent-wife against the appellant-husband under Section 406 and
Section498-A IPC, just to harass her husband and his children from his first marriage.
The appellant-wife tried to obstruct the studies of the children of the
respondent-husband and she also treated them badly, on which they were
shifted to boarding school. The wife left the matrimonial home without any
reason and while leaving, she also took away all her gold jewellery and cash
worth Rs.8,000/-. So, the court of the learned Additional District Judge,
Jalandhar, rightly observed that the ground of cruelty stands proved against the
appellant-wife.
We have considered the submissions made by the learned counsel
for the parties and have perused the record carefully.
It was second marriage of the respondent-husband, who earlier got
divorce from his first wife, Baljinder Kaur, under Section 13B of the HMA,
vide decree dated 25.02.1997. He was having one daughter, Devinder Kaur,
and two sons, Ranjit Singh and Onkar Singh, from his first marriage, who were
also residing with the respondent-husband, at the time of his second marriage
with the appellant-Sarbjit Kaur on 13.10.2000.
The respondent-husband has alleged that he was meted with
cruelty by the appellant-wife. As per the respondent-husband, his daughter,
Devinder Kaur, was studying in BDS and the appellant-wife tried to obstruct
her studies. Said Devinder Kaur was mature enough to depose in the Court but
she was not produced in the witness-box by the respondent-husband to prove
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the aforesaid allegations of cruelty. The date, month and year, when the
appellant-wife attempted to strangulate the youngest son of the respondent-
husband was not disclosed in the divorce petition or during the testimony by
him. The same is position regarding the alleged act of assault committed by the
appellant-wife against her mother-in-law. No medical record was produced by
the respondent-husband in order to establish that the appellant-wife was unable
to conceive despite being provided proper medical treatment. There are also
allegations that the appellant-wife started behaving in odd manner, when she
came to know that she was unable to conceive due to medical problem. She
started misbehaving with her husband and other members of his family. Mere
trivial irritation, quarrels and normal wear and tear of the marriage life, which
happen in day to day life, would not be adequate for grant of divorce on the
ground of mental cruelty. A few isolated instances over a period of years will
not amount to cruelty. The ill-conduct of the wife must be persistent for a
fairly long period. Such instances of cruelty should be near proximity with the
filing of the divorce petition. In the case in hand, no date, month and year of
the alleged incidents of cruelty were disclosed. The respondent-husband, while
appearing in the witness-box, admitted that a criminal case under Sections 406
and Section498-A IPC was registered against him by the appellant-wife and she had
also filed an application for grant of maintenance against him. The respondent-
husband failed to produce any document to show that in both the above-said
cases, he was found innocent by the Court. So, the evidence led by the
respondent-husband to establish the ground of cruelty was deficient and thus,
deserves to be ignored.
As a sequel to the above, the present appeal stands allowed and the
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impugned judgment and decree dated 25.02.2011 passed by the court below are
set aside and the divorce petition of the respondent-husband stands dismissed.
(RAJAN GUPTA) (KARAMJIT SINGH)
JUDGE JUDGE
10.12.2019
adhikari
Whether speaking/non-speaking : Yes/No
Whether reportable : Yes/No
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