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Shashi Bala vs Anil Kumar And Anr on 2 May, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No. 205 of 2011
Date of Decision: 02.05.2017

.

[

Shashi Bala ………Appellant
Versus

Anil Kumar and Anr. ………. Respondents.

Coram
Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting1? Yes

For the Appellant:
r Mr. Adarsh K. Vashishta, Advocate.
For the respondents: Mr. Ajay Sharma, Advocate, for respondent No.1.

Sandeep Sharma, J. (Oral)

Instant appeal filed under Section 28 of the Hindu Marriage Act,

1955, is directed against the judgment and decree dated 3.3.2011, passed by

the learned Additional District Judge, Fast Track Court, Hamirpur, in HMA

petition No. 18 of 2008, whereby the petition under Section 13 of the Hindu

Marriage Act, 1955 (25 of 1955) for the dissolution of marriage by a decree of

divorce having been filed by the petitioner namely Anil Kumar (respondent

No.1 herein) came to be decreed.

2. Briefly stated facts as emerge from the record are that petitioner

(herein after referred to as respondent No.1/petitioner) preferred a petition

under Section 13 of the Hindu Marriage Act, 1955 in the Court of learned

Additional District Judge, Fast Track Court, Hamirpur (H.P.), averring therein

Whether reporters of the Local papers are allowed to see the judgment?

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that his marriage with the appellant (Shashi Bala) (herein after referred to as

the appellant/respondent No.1) was solemnized on 17.6.2003 at village

Nanawin, P.O. Malangar, Tehsil Bangana, District Una, H.P., as per Hindu rites

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and ceremonies. Out of their wedlock, two children (Ankit and Muskan) were

born. The petitioner/respondent No.1 further claimed before the Matrimonial

Court that after marriage, appellant/respondent No.1, remained with him for

about 4 years and during this period, she developed illicit relationship with

respondent No.2 namely Jeet Kumar. He further stated before the Court

below that despite repeated requests, the appellant/respondent No.1 failed

to mend herself and continued her illicit relations with respondent No.2. On

6.4.2008, at about 11 pm, appellant/respondent No.1 and respondent No.2

were caught red handed in the room of the appellant by the family members

of respondent No.1/petitioner and room was locked by the villagers.

Respondent No.1/petitioner (i.e. husband of the appellant) further stated

before the Court below that on the pretext that she has to answer the

nature’s call, the appellant/respondent No.1 ran away from the house and on

search of the room, respondent No. 2 was found inside the bed box. It is also

alleged in the petition that after the aforesaid incident, appellant/respondent

No.1 remained with respondent No.2 for 6-7 days. In the aforesaid

background, the respondent No.1/petitioner alleged that cruelty was

practiced by the appellant/respondent No.1 on him and that is why, he

preferred aforesaid petition, praying therein for dissolution of marriage on the

ground of cruelty.

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3. The appellant herein, by way of filing reply to the petition

refuted the aforesaid claim of the respondent No.1/petitioner) and

specifically denied the allegation of her illicit relations with respondent No.2.

.

She further submitted that her mother-in-law is suffering from paralytic disease

and at one occasion, her father-in-law tried to fulfill his sexual desire with her

and thereafter, she was compelled to file petition, which was subsequently

compromised and the respondent No.1/petitioner had agreed to provide

separate rented accommodation to her. With the aforesaid

contentions/submissions, the respondents (i.e. the appellant as respondent

No.1 before the Court below and respondent No. 2 Jeet Kumar), sought

dismissal of the petition filed by respondent No.1/petitioner, for dissolution of

the marriage on the ground of cruelty. Learned court below on the basis of

pleadings adduced on record by the parties, framed following issues:-

“1.Whether respondent No.1 being wife of the petitioner,
has been living in adultery with respondent No.2, i.e. Jeet
Ram, as alleged?OPP.

2. Whether the petition is not maintainable, as

alleged?OPR

3.Relief.”

4. Subsequently, learned Additional District Judge, vide judgment

dated 3.3.2011, decreed the petition having been filed by the respondent

No.1/petitioner and ordered dissolution of his marriage with respondent No. 1

(appellant herein) on the ground of cruelty. In the aforesaid background, the

present appellant approached this Court praying therein for quashment and

setting aside the judgment dated 3.3.2011, passed by the learned court

below.

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5. Mr. Adarsh K. Vashishta, Advocate, representing the appellant

vehemently argued that the judgment passed by the court below is not

sustainable in the eye of law, as the same is not based upon the correct

.

appreciation of evidence adduced on record by the respective parties and

as such, same deserves to be quashed and set-aside. While inviting attention

of this Court to the impugned judgment passed by the learned court below,

Mr. Vashishta, strenuously argued that bare perusal of the same suggests that

evidence led on record by the respective parties, was not read in its right

perspective, as a result of which, erroneous findings have come on record to

the detriment of the appellant, who successfully proved on record that she

had not developed any illicit relation with respondent No.2 namely Jeet

Kumar. Mr. Adarsh, during arguments having been made by him, made this

Court to travel through the evidence led on record by the petitioner

(respondent No.1 herein) to suggest that he was unable to prove beyond

reasonable doubt that the appellant had developed illicit relation with

respondent No.2. Mr. Adarsh, further stated that if the statement having been

made by PW1 Anil Kumar is read in its entirety, it nowhere suggests that he

had an occasion to see Jeet Kumar i.e. respondent No.2 in the room as

alleged by other family members, rather, his own case is that at the time of

alleged incident, he was away in connection with his service and he was

informed by the family members and as such, no reliance could have been

placed upon her version, whereby an attempt has been made to prove illicit

relationship of the appellant with respondent No.2 . In the aforesaid

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background, Mr. Vashista, prayed that impugned judgment passed by the

learned court below may be quashed and set-aside.

6. Per contra, Mr. Ajay Sharma, Advocate representing respondent

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No.1, supported the impugned judgment passed by the learned court below.

While refuting the aforesaid submissions having been made by Mr. Vashishta,

Mr. Sharma, invited attention of this Court to the impugned judgment passed

by the court below to suggest that each and every aspect of the matter has

been dealt with very carefully and meticulously and there is no mis-

appreciation of evidence as has been alleged by the learned counsel for the

petitioner. Mr. Sharma, while specifically inviting attention of this Court to the

evidence led on record by respondent No.1/petitioner stated that factum

with regard to the illicit relations of respondent No.2 with the appellant stands

duly prove and as such, there is no scope of interference whatsoever, of this

Court, especially, in view of the fact that there is overwhelming evidence

adduced on record by the petitioner. Mr. Sharma, further contended that

otherwise also bare perusal of the reply having been filed by the appellant

nowhere suggests that any serious opposition to the allegation having been

made by the respondent No.1/petitioner, was made, rather an attempt was

made to make altogether a new case by leveling allegation against her

father-in-law, which was not otherwise proved in accordance with law. With

the aforesaid statement, Mr. Sharma, stated that there is no illegality and

infirmity in the judgment passed by the court below and as such, same

deserves to be upheld.

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7. I have heard the learned counsel for the parties and carefully

gone through the record.

8. While ascertaining the genuineness and correctness of the

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impugned judgment passed by the court below as well as submissions having

been made by the learned counsel for the parties, this Court had an

occasion to peruse the pleadings as well as evidence adduced on record by

the respective parties, perusal whereof, certainly not suggest that there is mis-

appreciation , misconstruction and misreading of the evidence led on record

by the respondent No.1/petitioner, rather this Court has no hesitation to

conclude that the appellant, while defending her case, has made an

attempt to level baseless allegations against her father-in-law, which has not

been supported by any corroborative evidence.

9. This Court after having carefully perused the reply filed by the

appellant-respondent No.1 sees substantial force in the arguments of Mr.

Sharma, that there is no denial, if any, to the averments contained in the

petition as far as her illicit relationship with respondent No. 2 is concerned.

Rather, appellant/respondent No. 1 by leveling serious allegations against the

father of the petitioner, made an endeavor to change the entire complexion

of the case as far as allegation of adultery is concerned. It stands duly

proved with overwhelming evidence available on record that the appellant

was caught read handed in her bed room with respondent No.2. Apart from

the statements of PW1 and PW2, who may be termed as interested witnesses,

there is independent witness i.e. PW3 namely Lekh Raj Sharma, Member of

Gram Panchayat. It has specifically come in his statement that Jeet Kumar

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(respondent No.2) was caught in the house of the petitioner and appellant/

respondent No. 1 had already left the place. He also stated that later on Jeet

Kumar was handed over to the police. If the testimony of this witness, who is

.

admittedly an interested witness, is read in conjunction with the statement

having been made by PWs 1 and 2, it leaves no scope for this Court to agree

with the contention raised by the Mr. Vashishta, that petitioner was unable to

prove cruelty, if any against appellant/respondent No.1.

10. This Court carefully perused the statement having been made

by the appellant/respondent No.1 before the Court, perusal whereof further

compels this Court to reiterate that there is no serious opposition, if any, to the

allegation having been made by the petitioner against the respondent, rather

entire attempt has been made to malign the father-in-law of the appellant. It

has come in her statement that at one point of time, her father-in-law tried to

fulfill his sexual desire with her but she resisted. But interestingly, there is no

mention, if any, of such allegation in the divorce petition (Mark Y), which was

filed by her immediately after the alleged occurrence and as such, learned

court below rightly ignored the same being devoid of any merit.

11. Apart from above, this Court also carefully perused the

documentary evidence i.e. Ext.PW4/A which further corroborates the version

put forth by the respondent No.1/petitioner as well as other petitioner

witnesses that on 5.4.2008, respondent No. 2 Jeet Kumar, was found in the

room of appellant/respondent No.1 because PW4 Arjun Kumar, from SDM

office, categorically deposed before the court below that he has brought

copy of the proceedings i.e. Ext.PW4/A pending against respondent No.2. It

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has come in his statement that there was apprehension of breach of peace in

the area as respondent No. 2 was found in the room of the

appellant/respondent No.1 during the odd hours. Cross examination

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conducted on the petitioner witnesses nowhere suggests that respondent was

able to shatter their testimony with regard to the specific allegation of illicit

relationship of respondent No.1/appellant with respondent No.2.

12. This Court after having carefully perused the material made

available on record, more particularly, the evidence led on record by

respondent No.1/petitioner sees no illegality and infirmity in the judgment

passed by the Court below, rather this Court is of the view that same is based

upon the correct appreciation of evidence and there is no scope of

interference, whatsoever, of this Court and accordingly, the present appeal is

dismissed being devoid of any merit.

2nd May, 2017 (Sandeep Sharma),
Judge

manjit

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