Punjab-Haryana High Court
Balwinder Singh vs Ranjit Kaur on 9 May, 2013
Author: S.S. Saron
Bench: S.S.Saron
FAO No.M-243 of 2012 (O & M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.M-243 of 2012 (O & M)
Date of decision: 09.05.2013
Balwinder Singh .....Appellant
versus
Ranjit Kaur ..... Respondent
CORAM : HON'BLE MR. JUSTICE S.S.SARON
HON'BLE MR. JUSTICE S.P.BANGARH
Present: Mr.K. K. Saini, Advocate for the appellant with
appellant in person.
Mr. Vijay Lath, Advocate for the respondent with
respondent in person.
S.S. SARON, J.
An amount of Rs.11000/- has been tendered by the appellant in Court today. The same has been handed over to the respondent who is present in person.
Heard learned counsel for the parties.
The marriage between the parties was solemnized on 10.02.2007 as per Sikh religious rites at village Sukhgarh, Tehsil and Distt. SAS Nagar, Mohali. The parties had a daughter namely Sonia who was born on 09.11.2007. She is in the custody of the respondent. The appellant filed a petition seeking dissolution of the marriage between the parties by a decree of divorce on 24.12.2008. FAO No.M-243 of 2012 (O & M) -2- It was alleged by the appellant that the respondent had treated him with cruelty from the beginning. She had not given any love and affection to him; besides, had neglected him. She had also insulted him and his parents in the presence of others. The respondent had been saying that she did not like him and she would remarry. Besides, she had married the appellant only for the satisfaction of her parents. According to the appellant, the respondent left her matrimonial home without informing anyone. She had been openly declaring that she had an affair with some other person. The appellant persuaded her and requested her to cooperate with him so as to preserve their matrimonial life. It is further alleged that ultimately the conduct of the respondent became unbearable. The appellant had recovered some photographs of an unknown person from the respondent. On inquiry about the said photographs, she misguided him and stated that the said person was her relative. The respondent also threatened the appellant that she would involve him in a false dowry case. The appellant had not disclosed about the cruel treatment and misbehaviour of the respondent to her parents hoping that she would improve herself. She had given an application against the appellant to the Women Cell, Mohali. Even at the time of inquiry of the said application, the respondent had openly declared that she does not want to live with the appellant. With the intervention of the respectables from both the sides, it was agreed FAO No.M-243 of 2012 (O & M) -3- that the marriage be dissolved. An agreement in this regard was executed on 13.10.2008. It was agreed that the dowry articles would be returned to the respondent and the daughter would remain in the custody of the respondent. Later the respondent initiated proceedings under Section 125 of the Code of Criminal Procedure (Cr.P.C.-for short) which were pending in the Court of learned Sub Divisional Judicial Magistrate, Kharar. It is alleged that once the parties had executed an agreement for getting the marriage dissolved by a decree of divorce by mutual consent, there was no requirement of initiating proceedings under Section 125 Cr.P.C by the respondent. The respondent had been unnecessarily harassing the appellant. The appellant sought a decree for divorce on the grounds of desertion, cruelty and adultery.
On notice of the petition, the respondent filed her written statement denying the allegations that she treated the appellant with cruelty. She submitted that the appellant and other members of his family had been maltreating her. They wanted a male child. However, when the respondent gave a birth to a daughter, neither the appellant nor any member of his family came to see the new born child. She alleged that the appellant and other members of his family on coming to know that her father had sold some properties had been demanding dowry from the respondent. When their demand was not fulfilled, the appellant maltreated her. The respondent FAO No.M-243 of 2012 (O & M) -4- denied that any agreement was entered into regarding dissolution of the marriage between the parties or that it had been executed in the Women Cell at SAS Nagar, Mohali. The other allegations were denied. The following issues were framed by the learned Additional District Judge, SAS Nagar, Mohali:-
"1. Whether the respondent has treated the petitioner with cruelty? OPP
2. Whether the respondent has been living in adultery? OPP
3. Whether the respondent has deserted the petitioner without any reasonable cause? OPP
4. Relief."
The learned trial Court decided issue No.1 and 2 together against the appellant. It was noticed that there was no specific instance of cruelty that had been mentioned. The appellant had stated that photographs of an unknown person were recovered from the respondent and that the respondent falsely claimed the said person to be her relative. The appellant examined his uncle Jagir Singh as PW-1. He examined himself as PW-2 and examined Bhajan Singh as PW-3. The compromise deed arrived at during proceedings before the Women Cell was proved on record as Ex.P1. However, the fact that a compromise deed had been executed, in terms of which it was inter alia agreed that the parties would get the FAO No.M-243 of 2012 (O & M) -5- marriage dissolved by mutual consent would not amount to proving of cruelty or adultery. The allegations of the appellant are that the respondent had been neglecting him from the beginning. She had been insulting him. She used to leave the house according to her whims without disclosing anything to anyone and that photographs of an unknown person were recovered from her. The allegation of adultery indeed have not been proved on record. The name of alleged adulterer has not been mentioned or disclosed. Even otherwise allegations in this regard are unspecific and vague. This Court in exercise of powers under Section 14 and 21 of the Act has framed the Hindu Marriage (Punjab) Rules, 1956. Rule 6 thereof reads as under:-
"6. Full acts of adultery to be given,--- In any petition for divorce the petitioner shall be required to give particulars as nearly as he can of the acts of adultery alleged to have been committed by the respondent or respondents as the case may be."
Therefore, the failure on the part of the appellant to mention in his petition the particulars of the act or acts of adultery goes to show that the allegations are hollow and bereft of material particulars. It is well-known that to prove the allegations of adultery, the standard of proof in respect of the matrimonial offence is that the Court is to be satisfied beyond reasonable doubt and it is quasi FAO No.M-243 of 2012 (O & M) -6- criminal in nature. In the case of Earnist John White versus Mrs. Kathleen Oliva White and others AIR 1958 S.C. 441 which was a case under the Indian Divorce Act, the husband sued his wife for dissolution of their marriage on the ground of adultery between his wife and the two co-respondents who it was alleged were the adulterers. The said petition was dismissed by the Patna High Court in Earnist John White versus Kathleen Oliva White and others AIR 1954 Patna 560. The husband in the said case alleged various acts of adultery between his wife and two co-respondents. The allegation of adultery on the part of the wife with one of the respondents was held to be not made out and the husband did not challenge the same. The allegations of adultery between the wife and the other respondent were also held to be not proved. In appeal before the Hon'ble Supreme Court the husband confined his case to acts of adultery alleged to have been committed at the Central Hotel, Patna where the wife and respondent No.2 therein it was alleged had resided for three days under assumed names. The wife pleaded that she had come to Patna solely with the object of having her tooth extracted and returned to Samastipur, the same day. The Hon'ble Supreme Court referred to the provisions of Section 14 of the Indian Divorce Act which provides:-
"S.14. In case the Court is satisfied on the evidence that the case of the petitioner has been proved FAO No.M-243 of 2012 (O & M) -7- ......" (emphasis added) The Hon'ble Supreme Court after referring to the above provision held as follows:-
"The important words requiring consideration are "satisfied on the evidence". These words imply that the duty of the Court is to pronounce a decree if satisfied that the case for the petitioner has been proved but dismiss the petition if not so satisfied. In S.4 of the English Act, Matrimonial Causes Act of 1937 the same words occur and it has been there held that the evidence must be clear and satisfactory beyond the mere balance of probabilities and conclusive in the sense that it will satisfy what Sir William Scott describes in Loveden versus Loveden (1810) 161 E.R.648 (D) as "the guarded discretion of a reasonable and just man". Lord Mac Dermott referring to the description of Sir William Scott said in Preston Junes versus Preston Jones, 1951 A.C.391 at p.417 (E): "The jurisdiction in divorce involves the status of the parties and the public interest requires that the marriage bond shall not be set aside lightly or without strict enquiry. The terms of the statute recognise this plainly, and I think it would be quite out of keeping with the anxious nature of its provision to hold that the Court might be "satisfied" in respect of a ground for dissolution, with something less that proof beyond reasonable doubt. I should, perhaps, add that I do not base my conclusion as to the appropriate standard of proof on any analogy drawn from the criminal law. I do not think it is possible to say, at any rate since the decision of this House in Mordaunt versus Moncreiffe, (1874) 30 L T 649 FAO No.M-243 of 2012 (O & M) -8- (F), that the two jurisdictions are other than distinct. The true reason, as it seems to me, why both accept the same general standard--proof beyond reasonable doubt,----lies not in any analogy but in the gravity and public importance of the issue with which each is concerned."
The Hon'ble Supreme Court after referring to the above Rule held as follows:-
"In our opinion the rule laid down by the House of Lords, would provide the principle and rule which Indian Court's should apply to cases governed by the Act and the standard of proof in divorce cases would therefore be such that if the judge is satisfied beyond reasonable doubt as to the commission of the matrimonial offence he would be satisfied within the meaning of S.14 of the Act."
Under the Hindu Marriage Act, to claim the matrimonial relief of divorce on the ground of adultery, Section 13(1)(i) of the Act may be noticed, which reads as under:-
"13. Divorce.--(I) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party--
(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse,"
Section 23(1) of the Act is also apposite and the same reads FAO No.M-243 of 2012 (O & M) -9- as under:-
"Decree in Proceedings--(1) In any proceedings under this Act whether defended or not, if the Court is satisfied that --
(a) any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of Cl. (ii) of Sec. 5 is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and
(b) where the grounds of the petition is the ground specified or in Cl. (i) of sub-section (1) of Sec. 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, which the ground of the petition is cruelty, the petitioner has not in any manner condoned the cruelty, and (bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force fraud or undue influence, and
(c) the petition (not being a petition presented under Sec.11) is not presented or prosecuted in collusion with the respondent, and
(d) there has not been any unnecessary or improper delay in instituting the proceedings, and
(e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the Court shall decree such relief accordingly. (Emphasis added) The relief, therefore, in terms of Section 23 (1) of the Act is to be granted if the Court is satisfied that any of the grounds for FAO No.M-243 of 2012 (O & M) -10- granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief. Therefore, merely because a photograph of some unknown person is said to have been recovered and the respondent stated that he was her relative is hardly a ground to prove or establish adultery. The learned trial Court has held that the appellant has not been able to prove that the respondent had treated him with cruelty and she was living in adultery and the findings and conclusions reached at by the learned trial Court are based on evidence and material on record.
Insofar as the ground regards desertion is concerned, the said ground is not made out. In terms of Section 13(1)(1b) of the Hindu Marriage Act, it is in fact is to be established that the respondent had deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of petition. The continuous period of not less than two years immediately preceding the presentation of petition has not been established. As already noticed the marriage between the parties was solemnized on 10.2.2007 and the parties had a daughter on 09.11.2007. The petition for seeking divorce was filed on 24.08.2008. Therefore, a period of two years had not lapsed even from the date of the marriage, leave alone from the date of alleged desertion which in any case is not mentioned. Therefore, desertion FAO No.M-243 of 2012 (O & M) -11- for a continuous period of not less than two years before filing the petition for divorce has not been established and the said ground is not available to the appellant.
In view of the above we find no infirmity with the judgment and decree of learned District Judge.
For the foregoing reasons there is no merit in the appeal and the same is accordingly dismissed.
( S. S. Saron ) Judge ( S.P. Bangarh ) Judge 09.05.2013 A.Kaundal