Punjab-Haryana High Court
Naresh Kumar vs Rekha on 25 November, 2014
Equivalent citations: AIR 2015 (NOC) 497 (P.&H.)
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
FAO No.9437 of 2014(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.9437 of 2014 (O&M)
Date of decision: 25.11.2014
Shri Naresh Kumar
......Appellant
Vs.
Smt. Rekha
.....Respondent
CORAM: HON'BLE MR. JUSTICE AJAY KUMAR MITTAL
HON'BLE MRS. JUSTICE SNEH PRASHAR
Present: Mr. DVS Yadav, Advocate for the appellant.
Ajay Kumar Mittal,J.
1. This appeal has been preferred by the appellant - husband against the judgment and decree dated 16.7.2013 passed by the trial Court, whereby the petition filed by him under section 13 of the Hindu Marriage Act, 1955 (in short, "the Act") for dissolution of marriage has been dismissed.
2. A few facts relevant for the decision of the controversy involved as available on the record may be noticed. Marriage between the parties was solemnized on 11.5.1998 as per Hindu rites and ceremonies at Village Jaurasi, Tehsil Taoru, District Mewat. After the marriage, the parties GURBAX SINGHlived together as husband and wife and out of the wedlock, a son namely 2015.01.14 13:26 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.9437 of 2014(O&M) 2 Gaurav and a daughter namely Gudia was born. Minor son has been residing with the appellant whereas the minor daughter has been residing with the respondent wife. According to the appellant, the behaviour of the respondent was rude towards him and his parents from the very beginning. She lived at her matrimonial home for one year after the marriage and thereafter she left the same of her own without the permission and consent of the appellant and his family in the month of September 1999. She took along gold and silver ornaments given by the parents of the appellant at the time of marriage. She was brought back to her matrimonial home after two years in the first week of October 2001 but there was no change in her behaviour. In the month of December 2001, she left her matrimonial home and at that time she was pregnant. She delivered a daughter who is in her custody. The mother of the respondent had expired. She has been living separately from her brother in a separate house without the consent of the appellant. On 30.6.2009, the appellant went to bring her back but she flatly refused to join him. Thereafter, the appellant filed a petition under Section 9 of the Act for restitution of conjugal rights but the respondent refused to live with the appellant when her statement was recorded. The said petition was dismissed on 14.12.2010. Upon notice, the respondent appeared and filed written statement controverting the averments made in the petition. The trial court after examining the entire evidence on record dismissed the petition under section 13 of the Act filed by the appellant vide judgment and decree dated 16.7.2013 impugned herein. Hence the instant appeal by the appellant husband.
GURBAX SINGH3. We have heard learned counsel for the appellant and perused 2015.01.14 13:26 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.9437 of 2014(O&M) 3 the record.
4. On the pleadings of the parties, the trial court framed the following issues:
"1. Whether the petitioner is entitled for a decree of divorce on the grounds mentioned in the petition, as alleged? OPP
2. Relief."
In support of his case, the appellant-husband appeared as PW1 and deposed that the behaviour of the respondent from the very beginning was very rude. She stayed with him for one year and left the matrimonial home after leaving the children. All his efforts to bring her back proved futile. He even filed petition under Section 9 of the Act for restitution of conjugal rights wherein the respondent refused to come back. His statement was corroborated by Sher Singh, PW2. He deposed that the respondent has been residing at Village Phool Bagh, Tehsil Bhiwadi for the last 9-10 years. She has constructed a house there. She is living alone and she does not want to reside with the appellant. On the other hand, the respondent wife appeared as RW1 and denied the allegations levelled by the appellant. The trial court after examining the entire evidence on record held that only general and vague allegations had been levelled by the appellant against the respondent. Even in the judgment passed by the Family Court Gurgaon, in proceedings udner Section 9 of the Act, it had been observed that the appellant did not make sincere efforts to take the respondent back to her matrimonial home. He never tried to meet his daughter. He had not filed an application for the custody of his minor daughter. The relevant finding recorded by the trial court reads thus:-
GURBAX SINGH2015.01.14 13:26 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.9437 of 2014(O&M) 4
"21. In this case, the oral evidence led by he petitioner that the respondent treated him with cruelty and deserted him without any rhyme or reason, has been rebutted by the oral evidence led by the respondent. The petitioner has not given the date, time, month and year of the acts of cruelty allegedly committed by the respondent. Only general and vague allegations have been levelled against the respondent that she would not prepare food and would abuse the petitioner which have been denied by the respondent while appearing in the witness box as RW1 and she specifically deposed that she would do all the house hold chores and did not use filthy language towards the petitioner and his family members. Her behaviour towards her in laws was good. She further deposed that on the death of her mother, nobody from the side of her in-laws came for condolence. She attended the marriage of her sister in law but was driven out of the house after giving severe beatings by her husband. She further deposed that she was ready and willing to live with the petitioner as an obedient wife provided he resided separately from other family members as in the joint family she was tortured by all the family members. In his cross examination the petitioner has deposed that one morning when he got up he found the respondent missing form his house. But there is nothing on the record that he had lodged a missing report with the police regarding the said incident. He has further deposed in his cross examination that it was correct that the respondent had asked him that she was ready and willing to live with him provided he lived separately from other family members. Ex.P.1 is copy of judgment dated 14.12.2010 passed in HMA case No.445 of 17.7.2009 titled as Naresh Kumar vs. Rekha under Section 9 of Hindu Marriage Act which speaks that petition under Section 9 of HMA filed by petitioner Naresh in this case, was dismissed by Shri S.K.Goyal, the then learned District GURBAX SINGH Judge, Family Court, Gurgaon with the observations that the 2015.01.14 13:26 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.9437 of 2014(O&M) 5 petitioner did not make sincere efforts to take the respondent back to her matrimonial home. He never tried to meet his daughter. There is nothing on the record that petitioner had filed any petition for the custody of his minor daughter.
In my opinion, the allegations levelled by the petitioner against the respondent are not borne out from the evidence on record. Some minor incidents take place in every matrimonial home. The allegations levelled by the petitioner against the respondent are natural wear and tear of married life and these are not sufficient for passing a decree of divorce on the grounds of cruelty and desertion."
5. Learned counsel for the appellant was unable to demonstrate that the findings recorded by the trial court were erroneous or perverse. Nothing could be shown that the conclusion was a result of misreading of evidence which was available on record. The findings of the trial court thus require no interference by this Court.
6. Additionally, there is a delay of 390 days in filing the appeal (wrongly mentioned as 450 days as mentioned in the application). Learned counsel for the appellant has not been able to show any satisfactory explanation for such an inordinate delay in filing the appeal.
7. In all fairness, reference is made to judgments relied upon by learned counsel for the appellant. Learned counsel placed reliance on judgments in Harkanwalpreet Singh vs. Harshpreet Kaur, AIR 2014 Punjab and Haryana 60, Improvement Trust Ludiana vs.Ujagar Singh and others, (2010) 6 SCC 786, Gurdev Singh and others v. Major Singh and others, 2010(4) PLR 194 and Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others, AIR 1987 SC 1353.
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8. In Harkanwalpreet Singh's, (supra), the wife had spouse living at the time of marriage with the appellant-husband. The Court declared the marriage void. Such is not position here. In Ujagar Singh's case (supra), regarding condonation of delay, the court held that each case is to be weighed on its facts and circumstances. In the present case, there being no satisfactory explanation for condonation of delay and no ground for interference even on merits, the judgment does not come to the rescue of the appellant. Similar is the position in Gurdev Singh's case (supra). In Mst. Katiji's case (supra), the Apex Court held that courts should adopt liberal approach while considering condonation of delay and reasons for adopting such approach should be stated. Herein, the appellant has not been able to show any reasonable cause for such an inordinate delay of 350 days. Thus, on the ground of delay in filing the appeal and even on merits, the appeal is liable to be dismissed. Ordered accordingly.
(Ajay Kumar Mittal)
Judge
November 25, 2014 (Sneh Prashar)
'gs' Judge
GURBAX SINGH
2015.01.14 13:26
I attest to the accuracy and
integrity of this document
High Court Chandigarh