Punjab-Haryana High Court
Rashwinder Kaur vs Ravinder Pal Singh on 27 August, 2012
Author: Surya Kant
Bench: Surya Kant
FAO No. M-128 of 2010 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO No. M-128 of 2010
Date of decision : August, 27th 2012
Rashwinder Kaur ............ Appellant
Versus
Ravinder Pal Singh .......... Respondent
CORAM : HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE R.P. NAGRATH
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present:- Mr. P.S. Bajwa, Advocate
for the appellant.
None for the respondent.
R.P. NAGRATH, J.
The appellant-wife filed a petition for divorce under Section 13 of the Hindu Marriage Act before the District Judge, alleging that the marriage between the parties was solemnized on 11.02.1998 and a female child was born out of the wedlock on 14.03.1999. It was stated that sufficient dowry was given in the marriage including jewellery and other household articles. An amount of ` 10 lacs is stated to have been spent on the marriage. The respondent and his family members started FAO No. M-128 of 2010 (2) maltreating her in order to coerce her to bring more dowry articles including a car. Her parents were not able to fulfill this demand. On account of constant harassment meted out to her, she once tried to strangulate herself. The respondent used to turn her out of the matrimonial home by giving her beating. On each such occasion the matter used to be settled with the intervention of respectables. The respondent is also addicted to vices and he sold valuable articles to spend on his bad habits like liquor and purchase of lotteries. Ultimately, respondent and his parents turned the appellant out of matrimonial home in the third week of April, 2007. All efforts to rehabilitate the appellant proved futile.
2. An additional ground was also taken that the respondent and his family was suspecting her fidelity of having illicit relations with one Bharpur Singh, a resident of the village. The respondent and his family members gave beating to aforesaid Bharpur Singh, who died as a result of injuries on his person and FIR No. 52 dated 21.04.2007 for offence under Section 304/34 IPC was registered against the respondent and his father. The respondent also threatened the appellant to be killed.
3. On an application filed by the appellant-wife under Section 24 of Hindu Marriage Act for the grant of maintenance pendente lite and litigation expenses, the learned lower Court granted her ` 3,000/- as litigation expenses and ` 2,000/- per mensem for appellant and ` 1,000/- per month for the minor child as maintenance pendente lite with effect from the date of passing the order i.e. 03.04.2008. The petition for divorce was instituted on 03.10.2007. The respondent did not make FAO No. M-128 of 2010 (3) payment of litigation expenses as well as maintenance pendente-lite and his defence was struck off.
4. The appellant produced evidence and opportunity was availed by the respondent to cross-examine the witnesses of the appellant. Since his defence was struck off, the respondent was not permitted to lead his evidence.
5. The learned trial Court framed the following issues in the case:-
(i) Whether the petitioner is entitled to a decree of divorce for the dissolution of her marriage against the respondent on the ground of cruelty, as alleged?
(ii) Relief.
6. After hearing the counsel for the parties, the learned trial Court dismissed the petition for divorce, holding that the ground of cruelty as alleged was not proved. It was also observed that the appellant in fact had extra marital relations with Bharpur Singh. Aggrieved by this decision, the wife has preferred the present appeal.
7. During pendency of the appeal, the respondent was directed to pay ` 11,000/- as litigation expenses by an order dated 14.10.2010. Vide another order dated 09.12.2010, the respondent was directed to pay ` 20,000/- to the appellant as it was informed that the respondent, who was earlier in jail had since been acquitted of the criminal charge. Thereafter, the case was sent to the Mediation Cell for amicable settlement but no settlement was reached. The respondent later on did not appear despite the arrest warrants issued against him. Ultimately, the FAO No. M-128 of 2010 (4) notice was issued to his Counsel for hearing the appeal but none appeared for the respondent.
8. We have heard the learned counsel for the appellant and also carefully perused the record.
9. It cannot be disputed that the respondent was arrested in an FIR for the offence under Section 304/34 IPC for having killed Bharpur Singh. Contents of the FIR (Ex. PW-3/A) would show that Bharpur Singh came during midnight to meet appellant at her matrimonial home. The respondent and his father attacked Bharpur Singh aforesaid and caused him injuries, resulting into the death of Bharpur Singh. It appears from the record that the respondent has since been acquitted of the said charge. So the apprehension of the appellant that the respondent was suspecting her fidelity was real. The respondent cannot be heard to dispute the aforesaid apprehension of the appellant, as his defence was struck off, for non-payment of the litigation expenses and arrears of maintenance pendente lite. There was otherwise no suggestion in her cross-examination as PW-1, that in fact she was having illicit affair with Bharpur Singh aforesaid, and, thus, cannot take advantage of her own wrong. The only question put to the appellant with regard to aforesaid Bharpur Singh is that she did not mention in her affidavit that her husband and father-in-law inflicted injuries on the person of Bharpur Singh. However, perusal of the affidavit (Ex. PW-1/A) makes a mention of this fact in paragraph 13. Therefore, the appellant cannot be disbelieved in her allegation of being treated with cruelty on that account. There is also the statement of Ujjagar Singh, father of the FAO No. M-128 of 2010 (5) appellant (PW-2), who supported his daughter. Even in his cross- examination, the respondent has not reiterated the stand that his wife had illicit affair with Bharpur Singh.
10. It is also clear from the facts and circumstances of the case that the respondent has shown no concern towards his wife and even meagre amount of litigation expenses and maintenance pendente-lite has not been paid to her. That by itself would be an act of cruelty.
11. The evidence on record shows that parties had strained relations for the past many years. It appeared in the cross-examination of the appellant as well as her father that the dispute between the couple had earlier gone to the police and the matter was compromised in the Panchayat about 3 years before the murder of Bharpur Singh. The copy of the 'panchayatnama' is Mark 'A' and the respondent has himself proved on record Ex. DI, DDR No. 14 dated 20.03.2004, recorded at the Police Station on the basis of the aforesaid compromise, during the cross- examination of PW-3, a police official from Police Station Bhawanigarh. The terms of settlement as per mark 'A' suggest that the appellant was made to live in a suffocating atmosphere. There cannot be anything wrong in the term that the appellant would obey her mother-in-law and father-in-law. But restrictions were imposed on her movements that if the appellant had to go anywhere outside, she has to seek their prior permission. Further it was stipulated that if she files any case of dowry, the same would be deemed to be false, as no such demand of dowry was raised.
12. The learned trial Court has basically discussed the issue of FAO No. M-128 of 2010 (6) cruelty in the light of allegation of demand of dowry that the same has not been proved. It has also been observed by the learned trial Court that even the wife of brother of the respondent, was living a happy married life at her in-laws place. However, the other aspects, which are the real basis for giving cause for filing the divorce petition to the appellant, have not been dealt with.
13. From the reasons given in the penultimate paragraphs, we hold that the appellant has been able to prove the ground of cruelty, entitling her to the decree of divorce.
14. As a result, we allow the appeal, setting aside the findings of the lower Court on the material issue framed in the case and the decree of divorce is granted in favour of the appellant and against the respondent, dissolving the marriage between the parties with effect from today. The appellant would be at liberty to seek remedy of recovery of outstanding amount of litigation expenses and maintenance pendente lite in accordance with law on the basis of the orders passed in her favour during the pendency of the divorce case.
( Surya Kant ) ( R.P. Nagrath )
Judge Judge
August 27, 2012
jk