Punjab-Haryana High Court
(O&M;) Sham Sunder vs Loveleen on 12 September, 2014
FAO No. M-286 of 2009
1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO No. M-286 of 2009
DATE OF DECISION : September 12, 2014
Sham Sunder ...Appellant
Versus
Lovleen ...Respondent
CORAM: HON'BLE MR.JUSTICE M.JEYAPAUL
HON'BLE MR. JUSTICE DR. BHARAT BHUSHAN PARSOON
Present:- Mr. S.P. Garg, Advocate for the appellant.
Mr. Sukhdeep Parmar, Advocate for the respondent.
M.JEYAPAUL, J.
1. The appellant-husband challenges the decree of divorce granted in favour of the respondent herein on the grounds of cruelty.
2. The respondent-wife has contended in the petition that the marriage of the appellant with the respondent was solemnized as per Hindu rites on 12.3.1999. No child was born out of the wedlock. The appellant had no love and affection towards the respondent. He has physical incapacity to consummate the marriage by natural intercourse. PARVINDER SINGH 2014.09.22 10:28 I attest to the accuracy and authenticity of this document Chandigarh FAO No. M-286 of 2009 2 The appellant always taunted the respondent that she was not able to give birth to a child. The appellant started demanding `50,000/- for the purchase of household articles which could not be met and, therefore, the appellant started giving beatings to the respondent. The appellant and his mother were of greedy nature. They were not satisfied with the dowry articles brought by the respondent to the matrimonial house. The appellant treated the respondent with utmost cruelty. The respondent had been residing with her parents for the last two years but the appellant had not approached the respondent.
3. In the written statement, the appellant had contended that he cohabited with the respondent and lived with her as husband and wife. He denied that he had no love and affection for the respondent and that he was incapable of performing sexual intercourse with the respondent. He also denied that he taunted the respondent that she could not give birth to any child. He had filed a petition under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. The wild allegation that the appellant treated her cruelly was denied.
4. On the side of the respondent, she was examined as PW1 and his father Yashpal was examined as PW2. Her relative one Kamlesh Verma was examined as PW3. On the side of the appellant herein, he was examined as RW1. Two other independent witnesses namely Suman Verma and Vidya Devi were examined as RW2 and RW3.
5. The trial Court held that the allegation of impotency attributed to the appellant was not established. But finding that there PARVINDER SINGH 2014.09.22 10:28 I attest to the accuracy and authenticity of this document Chandigarh FAO No. M-286 of 2009 3 was no issue out of the wedlock for about ten long years and the parties had started living separately for more than three years the trial Court held that the marriage was emotionally and practically dead and there was no chance of its retrievable. With the above observations, the trial Court also affirmatively held that the appellant had treated the respondent cruelly.
6. To say the least, the trial Court had not properly adverted to the evidence on record before ever rendering a finding that cruelty was established by the respondent. In our view, the trial Court failed to have a grip of the facts pleaded and the evidence adduced by the respective parties before determining the issues involved in the case.
7. The respondent had alleged that the appellant was impotent unable to perform sexual intercourse with her. To establish such a wild allegation the respondent should have taken steps to subject the appellant to medical test. To top it all she had stated during the course of cross examination that it was correct that she had normal sexual relationship with the appellant during the whole period of her stay with the appellant as his wife.
8. It is a case where there is no medical evidence to establish such a wild allegation of impotency attributed to the appellant. Further, there is also an unambiguous admission by the respondent that she had normal sexual relationship with the appellant during her stay with him in the matrimonial house. Under such circumstances, the main ground that the appellant was impotent is found not established by the respondent.
PARVINDER SINGH 2014.09.22 10:28 I attest to the accuracy and authenticity of this document Chandigarh FAO No. M-286 of 2009 4
9. The learned counsel appearing for the appellant would submit that the cross-examination portion of the evidence of the respondent would completely disentitle her from getting a relief of divorce on the ground alleged in the petition. In our considered view, the above submission made by the learned counsel appearing for the appellant is perfectly right.
10. It was alleged that the appellant demanded a sum of `50,000/- from the respondent, as the appellant and his mother were not satisfied with the dowry brought by the respondent. The respondent has admitted in her evidence that it was correct that there was a compromise entered into between the parties. As per the compromise she received a sum of `25,000/- from the appellant and the same was retained by her. The respondent has further admitted that after marriage she pursued her studies only at the expense of the appellant. The above admissions made by the respondent would go to show that the respondent had come out with a false allegation that there was demand of dowry made by the appellant.
11. The respondent has also stated that during the whole period of her stay in the matrimonial house, the appellant kept her comfortably showering love and affection on her. Such a version of the respondent demolishes her case that she was treated cruelly without any semblance of love and affection shown by the appellant.
12. The respondent had admitted that the appellant took efforts to reconcile the dispute with her. In fact the appellant had moved the competent Court for restitution of conjugal rights invoking the provision PARVINDER SINGH 2014.09.22 10:28 I attest to the accuracy and authenticity of this document Chandigarh FAO No. M-286 of 2009 5 under Section 9 of the Hindu Marriage Act, 1955. Under such circumstances, in our considered view, there was no basis to allege that the appellant cruelly treated the respondent.
13. The respondent would contend that the appellant had suppressed his age at the time of marriage. There may be age difference between the appellant and the respondent at the time of solemnisation of marriage. But it is the admission of the respondent during the course of cross-examination that she was aware of the actual age of the appellant at the time of marriage.
14. Coming to the relief of divorce granted by the trial Court on the ground that the marriage had emotionally and practically dead, we find that the trial Court had gone beyond the scope of Section 13 of the Hindu Marriage Act, 1955. Only on the grounds set out in Section 13 or under Section 13-B of the Act, the Court can grant the relief of divorce.
15. It is to be noted that "irretrievable break down of marriage"
was not one of the grounds adumbrated under Section 13 of the Hindu Marriage Act. It is only the Hon'ble Supreme Court which can, in exercise of its extra ordinary powers under Article 142 of the Constitution of India, grant divorce on the ground that the marriage had broken down irretrievably.
16. It is beneficial in the above context, to refer to the decision of the Hon'ble Supreme Court in Anil Kumar Jain v. Maya Jain 2009 (4) R.C.R. (Civil) 309 wherein it has been categorically held by the Hon'ble Supreme Court as follows:-
" In the ultimate analysis the aforesaid discussion throws PARVINDER SINGH 2014.09.22 10:28 I attest to the accuracy and authenticity of this document Chandigarh FAO No. M-286 of 2009 6 up two propositions. The first proposition is that although irretrievable break down of marriage is not one of the grounds indicated whether under Sections 13 or 13-B of the Hindu Marriage Act, 1955, for grant of divorce, the said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court. In exercise of its extraordinary powers under Article 142 of the Constitution the Supreme Court can grant relief to the parties without even waiting of the statutory period of six months stipulated in Section 13-B of the aforesaid Act. This doctrine of irretrievable break-down of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. Neither the civil Courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on grounds not provided for in Section 13 and 13-B of the Hindu Marriage Act, 1955."
17. The above dictum would make it clear that neither the trial Court nor the High Court has any authority to travel beyond the grounds adumbrated under Section 13 of the Hindu Marriage Act, 1955 to grant the relief of divorce on the ground of irretrievable break down of marriage.
18. The respondent had failed to establish the allegation of PARVINDER SINGH 2014.09.22 10:28 I attest to the accuracy and authenticity of this document Chandigarh FAO No. M-286 of 2009 7 impotency and cruelty attributed to the appellant. Therefore, she is not entitled to a decree of divorce. Therefore, setting aside the judgment passed by the trial Court, the appeal is allowed. There is no order as to costs.
(M. JEYAPAUL) JUDGE (DR. BHARAT BHUSHAN PARSOON) JUDGE September 12, 2014 p.singh PARVINDER SINGH 2014.09.22 10:28 I attest to the accuracy and authenticity of this document Chandigarh