Veer Mati vs Bhola Ram on 21 November, 2014

[Cites 2, Cited by 0]

Punjab-Haryana High Court

Veer Mati vs Bhola Ram on 21 November, 2014

Equivalent citations: AIR 2015 (NOC) 398 (P. & H.)

1. The petition under Section 13 of the Hindu Marriage Act filed by the appellant-petitioner Smt. Veer Mati for dissolution of her marriage with respondent-Bhola Ram, was dismissed by Learned Additional District Judge, Fast Track Court, Patiala vide judgment dated 30.03.2013, which had been assailed by the appellant by way of present appeal.

2. The facts gained from the record are as under:-

Appellant Smt. Veer Mati was married to the respondent on 06.06.1997 at Tohana, District Jind, according to Hindu Rites and Ceremonies. After the marriage, the parties cohabited together as husband and wife and three children were born out of their wedlock, who had been, at the time of filing the petition, aged 9 years, 7 years and 5 years respectively and were in the custody of respondent-Bhola ASHOK KUMAR 2015.01.24 10:56 I attest to the accuracy and integrity of this document F.A.O (M) No. 213 of 2013 2 Ram.

The appellant alleged that for some time the behaviour of the respondent with her remained normal but thereafter, being liquor addict he started raising quarrels with her. He and his family members demanded more dowry in the shape of cash amount and valuable articles etc. from her and remarked that she was not a suitable match for him. When she showed inability to meet out their demands, she was given merciless beatings and was turned out of the matrimonial home during the night hours. With the intervention of some respectables the matter was patched up, but there was no change in the attitude of the respondent. He continued to be rude and abusive towards her.

It was further submitted by the appellant that the respondent filed a false petition under Section 97 of the Code of Criminal Procedure for issuing search warrant alleging that she had been kidnapped by one Tarsem Singh, Gurnaib Singh, Jabla Singh sons of Surta Singh and Nirmal Singh son of Bhola Singh. She appeared before the Court of Presiding Officer, Lok Adalat-cum-State Divisional Judicial Magistrate, Samana and gave statement that she was not in illegal confinement of anyone, rather was voluntarily residing with her parental aunt (father's sister). She also mentioned that she was being beaten by the respondent under the influence of liquor. Finding the petition false, it was dismissed on 26.09.2009. Yet another false First Information Report was lodged by the respondent against Tarsem Singh and others by stating wrong facts. ASHOK KUMAR 2015.01.24 10:56 I attest to the accuracy and integrity of this document F.A.O (M) No. 213 of 2013 3

The appellant pleaded that she apprehended danger to her life at the hands of the respondent who had threatened to kill her and that ever since October, 2007 after she was turned out from the matrimonial home, she was residing at Tohana. She had been caused mental and physical cruelty by the respondent and had been deserted by him without any sufficient cause and therefore, it was no longer possible for her to live with him under the same roof. Hence, the appellant prayed for dissolution of their marriage by a decree of divorce.

3. Respondent appeared and contested the petition. In the written statement filed by him, he raised preliminary objections with regard to maintainability of the petition, cause of action and concealment of true and material facts by the appellant.

Replying on merits, the respondent admitted that the appellant is his legally wedded wife and that three children were born out of their wedlock, who were residing with him, but he altogether denied the allegations of ill treatment levelled by the appellant against him and also denied that he had turned out the appellant from the matrimonial home. He submitted that he was a labourer by profession and was a simple living person. Because of the act and conduct of the appellant his and his children's life had become miserable. He alleged that the instant petition had been filed by the appellant at the instance of Tarsem Singh and others and to his knowledge, she was now pregnant, which was sufficient to show her immoral conduct. ASHOK KUMAR 2015.01.24 10:56 I attest to the accuracy and integrity of this document F.A.O (M) No. 213 of 2013 4

4. On the pleadings of the parties following issues were settled by learned trial court:-

i) a) Whether the respondent has treated the petitioner with cruelty? OPP

ii) b) Whether the respondent has deserted the petitioner? OPP

iii) Whether this petition is not maintainable in the present form?

OPR

iv) Whether the petitioner is entitled to decree of divorce as prayed for? OPP

v) Whether the petitioner has no cause of action to file this petition? OPR

vi) d) Relief.

5. Both the parties adduced their respective evidence. Finding that the appellant had failed to prove any act of cruelty on the part of the respondent and the allegation of desertion raised against him was also not true and that she had voluntarily walked out of the house of the respondent, learned trial court dismissed the petition with costs.

6. Feeling aggrieved by the impugned judgment and decree dated 30.03.2013, passed by learned trial court, the appellant preferred the instant appeal.

7. Mr. B. P. S. Virk, learned counsel for the appellant and Mr. R. S. Jhand, learned counsel representing the respondent have been heard and record perused.

8. It was not a matter in issue that the appellant is the legally wedded wife of the respondent and that three children born out of their wedlock were ASHOK KUMAR 2015.01.24 10:56 I attest to the accuracy and integrity of this document F.A.O (M) No. 213 of 2013 5 presently residing under the care and custody of the respondent. It was also an admitted fact that ever since October, 2007 the appellant was not residing with the respondent at the matrimonial home. She filed the present petition for dissolution of marriage with the respondent alleging that she had been treated with cruelty by him and had also been deserted by him without any sufficient cause. Needless to say that onus to prove the said allegations was squarely on her.

9. Elaborating the acts of cruelty of the respondent, the appellant alleged that he was a drunkard and used to physically assault her under the influence of liquor. She also alleged that respondent and his family members had been demanding dowry in the shape of cash amount and valuable articles etc. and she was compelled to bring the same from her parents. Since she was unable to fulfill the demands, she was beaten and thrown out of the matrimonial home. It was also her allegation that the respondent had filed a false petition under Section 97 of the Code of Criminal Procedure against Tarsem Singh and others alleging that she had been kidnapped by them, whereas it was not true. Another First Information Report lodged against Tarsem Singh was motivated to implicate him in a criminal case.

10. Learned counsel for the appellant argued that from the deposition of the appellant, who appeared as PW1 and reiterated her allegations through affidavit Ex. PW-1/A, it stands established that during the period, the appellant was living with the respondent, she was not only being subjected to physical and mental cruelty but was also repeatedly turned out of the matrimonial home by him and she used to return on intervention of the respectables. The respondent wanted to use her for settling some scores with ASHOK KUMAR 2015.01.24 10:56 I attest to the accuracy and integrity of this document F.A.O (M) No. 213 of 2013 6 Tarsem Singh and others by implicating them in criminal case. Because she did not cooperate in his illegal motive, he threw her out of the matrimonial home. Learned counsel contended that the relationship between the appellant and respondent has turned so much sour because of the rude and harsh attitude of the respondent, that the appellant now apprehends danger to her life at his hands. Ever since she has left the matrimonial home the respondent has never bothered to enquire her welfare. Since the marriage has irretrievably broken down, the appellant is entitled to dissolution of the marriage by a decree of divorce.

11. The arguments raised by the learned counsel for the appellant were controverted with vehemence by learned counsel for the respondent and rightly so since the evidence available on record speaks volumes about the faults on part of the appellant herself and not on part of the respondent. At the first instance, it is worthwhile to mention that the pleadings of the appellant relating to her allegation that she had been treated with cruelty by respondent and for that matter even that she had been deserted by him, are not just general but also vague and unsustainable. Not a single incident with date or time was mentioned by her during which, either she had been physically assaulted or was turned out from the matrimonial home. She did not even mention the date, month or year when her husband filed the petition under Section 97 of the Code of Criminal Procedure for issuance of search warrant against Tarsem Singh etc. It was not her version that she was residing with her husband or was out of home with his consent, when he filed that petition. She further did not explain when and how she came to know about the petition and appeared before the court to refute the ASHOK KUMAR 2015.01.24 10:56 I attest to the accuracy and integrity of this document F.A.O (M) No. 213 of 2013 7 allegation that she was in illegal confinement of some persons. The particulars of the FIR lodged by her husband-respondent against Tarsem Singh and others, which appeared to have irritated her, were also not mentioned. She did not disclose in clear words that where and with whom she was residing since October, 2007 after she was turned out of the matrimonial home.

12. Coming to the evidence part, except for her own deposition made through her affidavit Ex. PW1/A, no substantive and reliable evidence could be produced by the appellant to support her version. The only witness, who appeared to corroborate her statement, was Angrej Singh son of Sukhda Singh PW-2. In his affidavit Ex. PW-2/A, Angrej Singh (using the same language as incorporated in the affidavit of the appellant) stated that the respondent would give merciless beatings to the appellant after taking liquor and would raise demand for dowry etc. But during his cross-examination, he could neither tell the date of marriage of the parties nor could tell the period, during which, they lived together and admitted that the respondent had never beaten or threatened the appellant in his presence. It is clear from his statement that he had come to support the appellant because the respondent had got a criminal case registered against him. He was not aware of any facts relating to the dispute between the parties and was simply a procured witness.

13. The third witness, who stepped into the witness box to support the appellant, was Ram Dev son of Ram Diya PW-3. His deposition made in the shape of affidavit Ex. PW-3/A, was also of no help to the appellant, since the witness did not turn up to face cross-examination by the opposite party. ASHOK KUMAR 2015.01.24 10:56 I attest to the accuracy and integrity of this document F.A.O (M) No. 213 of 2013 8 When the right to cross examine the witness was declined to the respondent, the statement made by him could not be read in evidence.

14. The above scrutiny of the evidence of the appellant shows that virtually except for solitary affidavit of the appellant herself, she could produce no evidence in support of her allegations. Here, it is worthwhile to note that even her own testimony deserves to be given no credence in the light of her cross-examination. Though, she stated that her children were studying in school but she could not speak out a word about their present status i.e. the class or the name of the school, in which they were studying. She further deposed that she last visited the house of her mother 3 years ago. It was also admitted by her that when she appeared in the court for statement in the petition under Section 97 of the Code of Criminal Procedure, she was accompained by Nirmal Singh and Tarsem Singh etc. and that she was having good relations with them and they had been accompanying her on every date of hearing in the present petition also.

15. The conduct of the appellant displayed by her deposition proved that she was hardly interested in her husband or her children. She was also not keeping any connection with her parents. She was in the company of Nirmal Singh and Tarsem Singh etc., against whom her husband had filed a petition under Section 97 of the Code of Criminal Procedure to get her released. The statement made by her in the said petition coupled with the admissions made during her deposition as PW-1 prove that the instant petition was being prosecuted by her with the active help and participation of PW-2 Angrej Singh and Tarsem Singh etc.

16. Importantly, Mithia Ram son of Kehar Singh, the maternal uncle and ASHOK KUMAR 2015.01.24 10:56 I attest to the accuracy and integrity of this document F.A.O (M) No. 213 of 2013 9 Rajbir Singh son of Jogi Ram, the real brother of the appellant stepped into the witness box as RW-1 and RW-2 respectively. They unequivocally deposed that the respondent had been keeping and maintaining the appellant well and that he or his family members had never raised any demand for dowry. They consistently stated that the appellant had herself left the matrimonial home without any reasonable cause. RW-2 Rajbir Singh deposed that because of the act and conduct of the appellant, the life of the respondent and his children had become miserable. In that manner, both the maternal uncle and brother of the appellant favoured the respondent and corroborated his part of the story. They showed sympathy towards him and not towards the appellant. According to them, the appellant was at fault and not the respondent.

17. The deposition of maternal uncle and brother of the appellant projected peculiar facts and circumstances. Normally, if a lady is maltreated and harassed by her husband or in-laws' family, the parents, brother and other near relatives feel more pinched and get hostile against the husband and in-laws' rather than the lady herself. Also the first soft ear a lady can find to disclose her tale of agony arising from her ill treatment at the hands of her husband and in-laws' is that of her parents. In the instant case, it is obvious that the appellant is keeping no connection with her parents. Her brother and other relatives were putting all blame on her for the marital discord. In such state of facts, the conclusion irresistible is that it is appellant-wife, who committed glaring faults, which led to the marital dispute and to take benefit of her own faults, she had filed the instant petition.

18. It is very soundly established that the appellant had walked out of the ASHOK KUMAR 2015.01.24 10:56 I attest to the accuracy and integrity of this document F.A.O (M) No. 213 of 2013 10 matrimonial home of her own and without any reasonable cause. Thus, finding that the appellant had utterly failed to prove her allegations of cruelty and desertion against the respondent and her petition was rightly dismissed by Learned Additional District Judge, Fast Track Court, Patiala, the appeal is hereby dismissed.

                      (AJAY KUMAR MITTAL)                  (SNEH PRASHAR)
                             JUDGE                             JUDGE


           November 21, 2014
           ashok

           Note:- Whether to be referred to Reporter? Yes/No




ASHOK KUMAR
2015.01.24 10:56
I attest to the accuracy and
integrity of this document

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