Smt. Narinder Kaur vs Bhagat V. D. Bhagat on 3 March, 2011

[Cites 19, Cited by 1]

Punjab-Haryana High Court

Smt. Narinder Kaur vs Bhagat V. D. Bhagat on 3 March, 2011

1. The wife is in appeal before this court against the judgment and decree dated 25.4.2006, passed by the learned court below, accepting the petition for divorce filed by the respondent-husband on the ground of cruelty.

2. Briefly, the pleaded facts are that marriage of the parties was solemnised according to Sikh rites on 16.10.1987 at Jalandhar. At the time of filing of the petition by the husband, he was employed as Lt. Col. in Indian Army. Giving the details about his family, it was stated that father of the husband was a retired Gazetted Officer from Indian Air Force, younger brother was a Major in Indian Army, who was happily married and the sister was settled abroad after marriage. The mother of the husband was a retired teacher from Central School. Two children were born out of the marriage, namely, the daughter was born in the year 1988, whereas the son was born on 24.12.1997. In between, a son was born on 21.8.1993, who unfortunately died merely 45 days after birth due to illness. Both the children are living with the appellant-wife. Narrating number of incidents ever since the marriage had taken place, prayer for dissolution of marriage on the ground FAO No. 120-M of 2006 [ 2] of cruelty was made. In addition to that, divorce was also sought on the ground of desertion, as it was pleaded that the wife had left the company of the husband since September, 1998. The divorce petition was filed on 22.11.2001. The wife is employed as a Teacher in Central School.

3. Reply to the petition was filed by the wife in which the allegations made by the respondent were denied. However, thereafter on account of the fact that the wife had written a complaint to the Chief of the Army Staff regarding the conduct of the husband, which was down marked and comments of the husband were sought thereon. Finding that to be an additional act of cruelty in which inter-alia allegations regarding the character of the husband were levelled, the petition was amended. The amendment was allowed by the learned court below vide order dated 26.8.2002. Thereafter, amended written statement and replication were filed.

4. As in the pleadings originally filed, the learned court below had already framed the issues 20.4.2002, after the amendment of the pleadings, additional issue was framed on 26.10.2002. The issues finally framed for determination by the court were as under:

"1) Whether the respondent treated the petitioner with cruelty? OPP 1(a) Whether the respondent has levelled false and frivolous allegations against the petitioner as alleged in para No. 18

(a) of the replication, if so, its effect ?OPP

2) Whether the respondent has deserted the petitioner without any cause for the last more than two years before filing the present petition ? OPP

3) Whether the petition is not maintainable in the present form ? OPR

4) Whether the petitioner has not come to the court with clean hands and have suppressed the material facts from the court ?OPP

5) Relief.

5. In order to prove his case, the respondent-husband examined PW1-Major K.S. Gill, PW2- Sukhbir Singh LDC, PW3- Pardeep Puri, Senior Assistant, PW4- S. M. Marwaha Clerk, PW5- Harjinder Singh, FAO No. 120-M of 2006 [ 3] PW6- Gunner Satya Veer Singh, PW7/A- Daljit Kaur, PW8- Parvinderjit Singh, PW9- Gurdip Singh Dhillon, besides appearing himself as PW7. On the other hand, the appellant herself appeared as RW1. Both the parties also led documentary evidence.

6. The learned court below decided issues No. 1 and 1(a) in favour of the respondent-husband, whereas issue No. 2 regarding desertion was decided in favour of the appellant-wife and finally a decree of divorce was passed on 25.4.2006. The wife being aggrieved against the aforesaid judgment and decree is before this court.

7. Learned counsel for the appellant, while taking through the pleadings, submitted that the respondent-husband filed the divorce petition with the allegations against the appellant-wife regarding her behaviour, i.e., she was rude, impulsive, erratic and unreasonable. Immediately after the marriage, she stated that she will not live with his parents, even though she was explained that being in Army, the respondent may not be posted at family station all the times and under the circumstances, she will have to live with his parents only. She used to walk out of the matrimonial home occasionally and had to be brought back, even though she used to be at fault.

It was further alleged by the husband that the appellant did not perform social and family obligations towards the husband considering the fact that he was a senior officer in the Army. She always used to create a scene in front of senior or junior officers whenever they visited the respondent. In March, 1989, while the respondent was posted at Devlali (Maharashtra), the appellant refused to cook food for the guests. Her behaviour in the presence of the guests was grossly contemptuous which lowered the prestige and reputation of the respondent in the eyes of guests. In December, 1996 again, when the cousin sister of the respondent, namely, Baljit Kaur along with her husband visited the house of the respondent at Jalandhar, she refused to cook food for the guests. She even did not come out of her room and kept lying on the bed. The cousin of the husband had to prepare the food herself.

FAO No. 120-M of 2006 [ 4] Due to negligent, irresponsible, erratic and unreasonable behaviour of the appellant, the couple lost a male child, who was born on 21.8.1993 merely 45 days after his birth. It was on account of the fact that the respondent at that time was posted at Ajmer and the child having born at Jalandhar. The husband had come to Jalandhar at the time of delivery. While going to Pokhran for exercise, in spite of his insistence that the appellant should remain at Jalandhar as there would be none at Ajmer to take care of them, while the husband will be on exercise at a non-family station, but still the wife insisted and went along with the husband to Ajmer. Being alone there, she could not take care of the child during illness and ultimately he died.

After the death of the child, without the consent of the husband, the wife joined service at Central School, Kishtwar (Doda) in Jammu & Kashmir in spite of the fact that she was asked not to do so, the area being terrorists' effected and the husband being a senior officer in the Army, his family could be in danger.

By way of amendment, another plea was sought to be raised regarding the complaint filed by the appellant-wife to the Chief of the Army Staff in January, 2002 after receipt of notice in the divorce petition, levelling serious allegations including the character of the respondent-husband. The complaint having been down marked by the Chief of the Army Staff and handled by number of persons in the process, the image of the husband was tarnished, which amounted to cruelty.

8. Refuting the aforesaid alleged incidents of cruelty, learned counsel for the appellant submitted that the parties had been living together till 7.11.2001 and the divorce petition was filed on 22.11.2001. Once they were living together, all the alleged conducts of cruelty already stood condoned. Two children were born out of the wedlock during this period. To rake up these dead issues just for the purpose of getting rid off the appellant is not permissible in law. The conduct of the appellant-wife is evident from the fact that she had attended the retirement party of her mother-in-law on 3.11.2001. It shows that the appellant was performing her duties as a wife and joining the family of the husband whenever required. In FAO No. 120-M of 2006 [ 5] fact, the respondent-husband thereafter had left her at her parents' home and never looked back and filed the petition for divorce. In fact, all the incidents, which have been alleged by the respondent-husband in support of his plea of cruelty, are isolated instances, which had taken place in 12 years of marriage. It is nothing else but a normal wear and tear in marriage. On the basis of these allegations, a finding cannot be recorded that the wife was guilty of cruelty towards the husband.

9. As far as filing of complaint to the Chief of the Army Staff is concerned, the explanation was that being head of the family in the Army, a complaint was made. The intention was not to cause cruelty or harassment to the husband. The allegations therein are correct. Though the Army authorities have given clean chit to the husband, but the appellant was never called to prove the facts stated in the complaint to the Chief of the Army Staff. Those allegations cannot be brushed aside as such or treated as false. After 1998, there is no act of cruelty mentioned by the husband till the filing of the petition. The primary reason therefor is that during this period, the husband was posted at Amritsar and he was enjoying the company of another lady. The wife is still ready and willing to live with the husband. There are grown up children, who have to be married. In case, the allegations pertaining to cruelty upto the date of filing of the petition are ignored, on the basis of something which has happened after the filing of the petition for divorce, cannot be made basis for passing the decree of divorce. All the witnesses produced by the husband were interested witnesses as they were cousin, friend and father of the respondent, besides official witnesses. PW6- Gunner Satya Veer Singh produced by the respondent-husband had subsequently filed affidavit in the court through proper channel stating therein that he was pressurised by the respondent to depose in his favour, otherwise what he stated before the court was not correct and the wife had been coming to Amritsar during the posting of the husband there and they were happily residing.

10. She further submitted that the appellant had taken job at Kishtwar in the Central School during the period the husband was also posted in Doda, the same district, hence, to state that it was without his consent is totally wrong.

FAO No. 120-M of 2006 [ 6]

11. Concluding her arguments, learned counsel for the appellant submitted that irretrievable break down of marriage even if claimed by the husband is not a ground of divorce, as the same is not one of the grounds available. In support of her arguments, learned counsel for the appellant relied upon Rupinder Kaur v. Gurjit Singh Sandhu, 1997(3) PLR 553; Naval Kishore Somani v. Poonam Somani, 1998(4) RCR (Civil) 689; Harjit Singh v. Gurdeep Kaur, 2001(1) RCR (Civil) 646; Ram Dass v. Smt. Kusam, 2001(3) RCR (Civil) 632; Hirachand Srinivas Managaonkar v. Sunanda, (2001) 4 SCC 125 Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591 Partap Singh v. Smt. Parkash Kaur, 2003(4) RCR (Civil) 120; Shyam Sunder Kohli v. Sushma Kohli @ Satya Devi, 2004(7) SCC 747; Smt. Mayadevi v. Jagdish Prasad, 2007(2) RCR (Civil) 309; Smt. Santosh v. Vinod, (2007-2) PLR 147; Usha Rani v. Sham Lal, 2009(1) Marriage Law Journal 440; Vishnu Dutt Sharma v. Manju Sharma, 2009(2) RCR (Civil) 506; Anil Kumar Jain v. Maya Jain, 2009(4) RCR (Civil) 309 and Mrs. Deeplakshmi Sachin Zingade v. Sachin Rameshrao Zingade, 2010(1) RCR (Civil) 20.

12. Refuting the arguments raised by learned counsel for the appellant, learned counsel for the respondent submitted that he is not seeking divorce on the ground of irretrievable break down of marriage. From the pleadings of the parties and also the evidence led before the learned court below, decree of divorce on the ground of cruelty has rightly been passed. From the very beginning, the husband tried his best to pull on the matrimonial life with the appellant in spite of her rude behaviour. The isolated incidents can be said to be the normal wear and tear of married life, but in the case in hand, the facts speak otherwise. There is instance where the appellant consumed Baygon Spray in an attempt to commit suicide. It was only because of timely care taken by the respondent that she could be saved. Had some untoward incident happened, the entire life of the respondent and his family would have been spoiled. The allegations regarding demand of dowry were made without there being any basis. The wife used to leave the matrimonial home when intermittently she joined the company of the husband without even informing him.

 FAO No. 120-M of 2006                                       [ 7]

13.                     He further referred to the complaint made by the
appellant to the Chief of the Army Staff          levelling serious allegations

against him about his character, alleging that he was having illicit relations with one Aruna. It was also stated therein that earlier also, the husband enjoyed a very bad reputation. The aforesaid allegations in the complaint tarnished the image of the husband. The reputation of any government servant travels before he is transferred to any other place. There was no basis with the appellant to have levelled those allegations. The action of filing complaint cannot be under any bonafides, as is sought to be claimed. Had the intention of the appellant been to live with the respondent, she would not have indulged in mud slinging. The grant of opportunity to the appellant by the Army authorities to substantiate the allegations made in the complaint has no bearing on the merits of the controversy. Considering the fact that even in the reply to the amended petition, she did not reiterate her allegations, rather, tried to claim that it was to a head of the family with a bonafide belief that with his good offices, the family will re-unite and husband has taken that in wrong sense. He further submitted that even in the evidence before the court below, the allegations regarding the character of the respondent could not be proved. The character assassination of the husband by the wife in the eyes of public cannot be said to be something which can be tolerated on the plea of normal wear and tear of the marriage, which could be limited to some small isolated fights or difference of opinion, but without any physical violence. The husband was living in the Cantonment. The Commanding Officer had vouchsafed about the conduct and character of the husband. Had there been anything, it cannot remain secret, especially if the allegations of the wife are considered that the husband had been indulging in these activities for about three years, when he remained posted in Amritsar.

14. The allegations regarding the character of the husband are still being pressed though without there being any material. The plea that the wife still wants to live with the husband is merely an eye-wash. The effort is only to prolong the agony of the husband. In fact, he is unable to understand why the appellant wants to live with a person about whom she is sure of the fact that he is having illicit relations with some other lady. That FAO No. 120-M of 2006 [ 8] will not increase the prestige of the wife, rather, it is a good ground even for the wife to seek divorce from the husband.

15. As far as the intention of the husband not to break the matrimonial home is concerned, it was submitted that at every stage, he made efforts for re-union. He had even purchased the house in the joint name. He had taken the insurance policies in the name of the wife for which he was paying the premium. He would not have done all this in case the intention from the very beginning was to separate. In fact, during the period of many of the postings of the husband at non-family stations, the wife had been living in the official accommodation provided to him at Jalandhar.

16. For the death of the son born on 21.8.1993, the wife is to be blamed. She very well knew that immediately after going back to Ajmer, within two days he was to leave for exercise at a non-family station. She was requested not to accompany him, but she insisted and the result was unfortunate. The allegations that it was with the consent of the husband that the appellant joined service at Kishtwar is incorrect and so are the facts that he was posted at Doda during that time. In fact, immediately after the death of the child, the appellant joined service at Kishtwar without the consent of the respondent, though at that time they were required to live together to share their sorrow. The husband was not posted in Doda at that time. It was further submitted that even during the pendency of proceedings before the court below, the matter was referred to the Lok Adalat. The husband stated that he is ready and willing to live with the wife in spite of his character assassination, however, the wife did not agree.

17. From the year 1993 till the filing of divorce petition in the year 2001, it was not matrimonial life that the parties were enjoying, rather, it was only vacational life, as admittedly during the period of about eight years, the wife lived with the husband only for a period of 2-1/2 months. This was so admitted by her in cross-examination. Depriving the husband pleasure of matrimonial relations is nothing else but cruelty. The conduct of the wife is such that she had even poisoned the minds of the children against the father. She had no faith in him. Though the second delivery had taken place at Jalandhar when the wife was living in the accommodation provided in the Cantonment, but still instead of going to FAO No. 120-M of 2006 [ 9] military hospital for delivery, she chose to get the same in a private nursing home.

18. Regarding the evidence of PW6-Gunner Satya Veer Singh, it was submitted that he had appeared before the court, filed affidavit in evidence and faced cross-examination. Subsequent, submission of an affidavit by post in court is totally irrelevant, as neither that affidavit was filed in the court in evidence in accordance with law nor he appeared to face his cross-examination on that. In fact, an application was filed by the appellant-wife seeking to produce additional evidence to that effect but the same was rejected by the learned court below and the order was upheld by this court, hence to place reliance thereupon is neither here nor there.

19. He further submitted that the wife did not take care of the respondent-husband even when he was hospitalised. The height of the matter is that she even did not know for how long he remained in the hospital, rather, she had the guts to state that the appellant used to take leave or get himself admitted in the hospital on flimsy grounds. In fact, that is a misconduct in the Army. On account of the complaint made by the appellant to the Army authorities, the husband was not promoted. He was Lieutenant Colonel when the divorce petition was filed and he has only been given time scale as Colonel and not selected for the same. In fact, the complaint of the appellant-wife has spoiled the entire career of the respondent. In addition to this, she had levelled other allegations in her complaint, which resulted in tarnishing the image of the respondent-husband. This cannot be said to be in the course of normal wear and tear of married life. Praying for dismissal of the appeal, reliance was placed upon V. Bhagat v. D. Bhagat, 1994(1) PLR 603; Manjit Kaur v. Avtar Singh, 2001(2) RCR (Civil) 323 (P&H); Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, 2003(1) Apex Court Judgments 677 (SC); Saroj v. Vinod Kumar Tanwar, 2003(3) RCR (Civil) 586 (P&H); A. Jayachandra v. Anee Kaur, AIR 2005 SCW 163; FAO No. 64-M of 1999 -Balwinder Kaur v. Surjeet Singh, decided on 20.1.2009; FAO No. 52-M of 1999--Naranjan Singh v. Harjit Kaur, decided on 28.1.2009; FAO No. 99-M of 2008-- Usha Rani v. Rajinder Kumar, decided on 16.2.2009.

FAO No. 120-M of 2006 [ 10]

20. Heard learned counsel for the parties and perused the relevant referred record.

21. The learned court below vide impugned judgment and decree had dissolved the marriage between the parties on the ground of cruelty. The ground of desertion taken by the husband was not proved. The wife is in appeal praying for setting aside of the judgment and decree raising the contention that cruelty as such is not proved from the pleadings or the evidence produced on record. The husband is happy with rejection of his ground of desertion.

22. Now the issue for consideration before the court is as to whether in the facts and circumstances of the case, the judgment and decree of the court below granting divorce to the husband on the ground of cruelty is in conformity with the material on record or the same deserves to be set aside, being perverse.

23. Before I proceed to deal with the issues on merits, it would be appropriate to notice here that applications were filed by the husband for amendment of the petition and production of documents. Application for amendment dated 29.5.2002 seeking insertion of para no. 18 (a) in the petition was allowed by the learned court below vide order dated 26.8.2002. Applications filed by the husband dated 5.5.2003 and 24.7.2003 for production of documents were dismissed as the documents were already exhibited vide order dated 9.8.2003.

24. To prove the issue of cruelty, the husband had pleaded a series of events from the very beginning after the marriage had taken place, which included general allegations such as non-cooking of food, not taking care of the guests etc. There is one allegation of consumption of Baygon spray by the wife to commit suicide and further regarding demand of dowry. As far as the aforesaid allegations are concerned, most of them are pertaining to the period prior to the birth of second child on 24.12.1997. From the aforesaid fact, it can very well be presumed that the earlier conduct or allegations of cruelty by the wife could be ignored to some extent.

25. Beyond that, the primary allegation regarding cruelty is a letter written by the wife to the Chief of the Army Staff after filing of the FAO No. 120-M of 2006 [ 11] divorce petition levelling certain allegations about the character and conduct of the husband and also in the pleadings before the court below. The question is as to whether these allegations can be considered as a cruelty towards the husband, sufficient to pass a decree of divorce in his favour.

26. To appreciate the arguments raised by both the parties on this issue, it would be appropriate to refer to the letter written by the wife to the Chief of the Army Staff after filing of the divorce petition by the husband. Besides narrating the story of ups and downs in the matrimonial life from the very beginning, there were allegations about the character of the husband in paragraph 11 of the letter, which is extracted below:

"11. In October, 2000, during autumn break, I went to Amritsar along with my kids. To my utter shock and dismay I found that my husband was having illicit relations with one lady called "Aruna" who was working as Receptionist with Swami Motors, Amritsar. The lady visited our house even during my presence. I ignored this since I did not want my husband going into trouble. In case I had reported this matter to his CO my husband would have faced disciplinary action and the same would have further deteriorated our matrimonial relation. Pertinent to mention here that my husband commanded a very bad reputation in the Unit of having extra marital relations even though married."

27. Paragraph 18(a), which was added by the husband in the divorce petition by way of amendment incorporating the factum regarding complaint to the Chief of the Army Staff is extracted below:

"18(a) That the behaviour of the respondent qua the petitioner have become bad to worst after filing the present petition. The respondent have acted and behaved in such a cruel manner, which hurt the petitioner mentally and physically. The respondent has filed a false, frivolous and concocted representation/complaint against the petitioner to the Chief of the Army Staff in Jan 2002. The copy of the complaint was received by the petitioner through proper channel. The contents FAO No. 120-M of 2006 [ 12] of the complaint in which she has levelled false, wrong, frivolous, incorrect allegations has lowered and injured the reputation of the petitioner in the eyes of superiors and colleagues, friends and relatives in particular and in the eyes of the public in general."

28. Reply to the aforesaid pleading of the husband by the wife is extracted below:

"18(a) The corresponding para of the petition is wrong and incorrect as alleged hence denied. In the Army, the Chief of the Army Staff is just like a head of the family and anything said to him in a bonafide manner cannot be termed in a manner the petitioner took it. It is wrong and incorrect that the petitioner ever acted and behaved in a cruel manner as alleged in the corresponding para. Behind the curtains, there is something suspicious which is the main axis of this divorce petition. The respondent for the sake of her children tolerated all the atrocities and it is the firm belief of respondent that in case of divorce, the children will be the ultimate sufferers. The respondent for the sake of her children inspite of all the things do not want the divorce. Respondent is optimist about the good day in future. The letter communicated to the Chief of the Army Staff contained nothing which had lowered and injured the reputation of the petitioner. In fact, that letter was a confidential letter written to head of a family as all the army is a one family. The petitioner is not entitled to divorce on the foundation of his own wrongs, misdeeds and misconduct."

29. The comments of the husband were sought on the complaint filed by the wife to the Chief of the Army Staff. After considering the same and recording that nothing adverse against the behaviour or moral character had come to the notice of the Commanding Officer during the period of 10 months the officer remained posted in the Unit, it was recommended that the claim regarding grant of maintenance to the wife and the children only needs to be considered.

FAO No. 120-M of 2006 [ 13]

30. From the pleadings and the evidence, as referred to above, it is clear that though the wife had levelled serious allegations regarding the character of the husband in a complaint to the Chief of the Army Staff, but those allegations were specifically not there in the written statement filed to the amended petition. No evidence was led to prove that there was anything wrong about the character of the husband. Meaning thereby that the aforesaid allegations were levelled by the wife only in the complaint filed to the Chief of the Army Staff against the husband. To submit that such a complaint was confidential and was a bonafide effort to resolve the dispute, cannot be accepted as such on its face value.

31. A perusal of the record further shows that the matter in dispute was compromised before the Lok Adalat on 2.8.2003 when the parties agreed to live together for a period of six months. However, as is evident from the order passed by the learned court below, thereafter the settlement arrived at between the parties did not materialize, as the parties did not live together and the case continued as such.

32. In his cross-examination, the respondent had categorically denied his having any relation with Aruna, a receptionist, allegedly working with Swami Motors Limited. No evidence as such was brought on record by the appellant to substantiate her plea in that regard.

33. In her cross-examination, the appellant categorically admitted that she remained with the husband only for a period of 2-2½ months from 1993 to 2001 at different places.

34. She further stated that the respondent used to get himself admitted in the hospital to avoid his posting/ training. The leave used to be taken on flimsy and false grounds. However, she did not remember the exact period. She did not know as to for how long he remained admitted in hospital. She stated that she used to stay at Amritsar on weekends when her husband was admitted in hospital.

35. From the facts and the evidence produced on record by the parties, it is evident that the allegations made by the appellant were in the nature of character assassination of the husband. She stated so specifically in her complaint to the Chief of the Army Staff, which was marked down for the comments of the husband and ultimately no truth was FAO No. 120-M of 2006 [ 14] found in the allegations. Even if the stand of the wife of the appellant is accepted that she was not offered any opportunity before the Army authorities to substantiate her allegations raised in the complaint made to the Chief of the Army Staff, but still this fact cannot be denied by her that in the written statement filed even after the complaint had been made to the Chief of the Army Staff, these allegations were not specifically there. She had enough opportunity to substantiate the allegations before the court but nothing was proved. Meaning thereby that the appellant levelled false allegations regarding character of the husband. This certainly amounts to cruelty.

36. The fact cannot be denied that the respondent is a senior officer in the Army. He must be having substantial number of troops to command under this control. The allegations on the character will certainly effect the carrier and reputation of the person in the society, especially if these are coming from the mouth of the wife, which always carry extra weight.

37. If to settle score, the wife levelled such types of allegations against the husband, mere plea that for the sake of the children the marriage should not be dissolved, cannot be accepted.

38. One is unable to understand as to why firstly the parties level reckless allegations against each other and/or indulge them in criminal litigation knowing the same to be false and then once a decree of divorce is granted by the trial court, challenge the same with the plea that they still want to live with the other party. As to why indulge in all these uncalled for and unavoidable mud slinging litigation even if there is a little bit intention to live together. One should think thousand times before indulging in any kind of litigation whether civil or criminal in the courts specially in matrimonial and family disputes. Many a times, once the family disputes are brought out of the four corner of the house in the public, specially levelling allegations against the character of either of the party, it leads the parties to a point of no return and claiming bonafides later on or that those were made without any ill intention cannot be accepted as such.

39. The allegations regarding the character of a person cannot be permitted to be levelled only for the sake of fun. It is the wife only who had levelled those reckless allegations against the husband. As to why she wants FAO No. 120-M of 2006 [ 15] to live with a person who in her eyes is a characterless man after indulging in long drawn litigation, is the question for which the appellant has no answer. We all know the phrase "If wealth is lost, nothing is lost. If health is lost, something is lost. If character is lost, everything is lost." Here the wife has indulged in character assassination of the husband without there being any basis.

40. Before parting with the judgment this court would like to put on record that the Members of the Bar have to perform a very vital role in the cases of matrimonial and other family disputes. In case of any dispute, after consultation with the family members, husband/wife always consult an advocate to chalk out future course of action. The complaint/application are got drafted from the advocates. At this stage, they have to discharge a very onerous duty by firstly taking the recourse of mediation and conciliation before bringing the matter to the court. It should not be a court referred mediation rather it should be pre litigation mediation. The endeavour should not be to win the cases by levelling unfounded allegations against each other in the pleadings. Many a times, it is experienced in the court that the parties do not even know as to what is exactly stated by them in the application or the complaint what to talk of proving those allegations. Many a times, the family members/ the relatives who may not have even attended the marriage or may be living at a far off place, are also involved in criminal cases. The endeavour of counsel in these types of cases should always be to unite the family, may be at the cost of loosing a case. The true success is if the family is united and not the result of the case. It would be a real service to the society as a professional.

41. For the reasons mentioned above, I do not find any merit in the present appeal. The same is accordingly dismissed.

(Rajesh Bindal) Judge March 03, 2011 mk FAO No. 120-M of 2006 [ 16]

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