Punjab-Haryana High Court
Joginder Kaur vs Jagtar Singh on 9 October, 2014
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
FAO-M-200 of 2005 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
FAO-M-200 of 2005 (O&M)
Date of Decision: 9.10.2014
Joginder Kaur
....Appellant.
Versus
Jagtar Singh
...Respondent.
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.
HON'BLE MRS. JUSTICE RAJ RAHUL GARG.
PRESENT: Mr. Vishal Goyal, Advocate for the appellant.
None for the respondent.
AJAY KUMAR MITTAL, J.
1. In the instant appeal, the appellant-wife has challenged the judgment and decree dated 22.11.2004 passed by the District Judge, Amritsar, Ambala, whereby the petition under Section 13 of the Hindu Marriage Act, 1955 (in short "the Act") for dissolution of marriage between the parties by a decree of divorce filed by her, was dismissed.
2. A few facts necessary for adjudication of the present appeal as narrated therein may be noticed. The appellant filed the divorce petition, inter alia, pleading that her marriage was solemnized with the respondent in the year 1987 in village Rajowal, Tehsil Phillaur, District Jalandhar according to Sikh rites by way of Anand Karaj; after the marriage, the parties lived as husband and wife and cohabited as such; out of the said wedlock, three children, namely, Sandeep Singh, GURBACHAN SINGH 2014.12.09 16:40 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-200 of 2005 (O&M) -2- Mandeep Singh and Kirandeep Kaur were born; the respondent along with his family members used to maltreat her on account of bringing less dowry; she was physically assaulted and caused injuries on a number of occasions and on 14.1.1995, she got registered FIR under Sections 323, 325, 5506, 498-A of the Indian Penal Code against the respondent and his family members; since the appellant was being treated with mental and physical cruelty and was also deserted by the respondent, she prayed for a decree of divorce by way of a petition under Section 13 of the Act. The said petition was contested by the respondent who filed a written statement raising various preliminary objections. Besides admitting the marriage having been solemnized with the appellant and the birth of three children from the said wedlock, the other averments made in the petition were denied. However, during the pendency of the petition, the respondent was proceeded against exparte vide order dated 2.6.2004. Besides examining herself as PW1, the appellant examined her father Prithi Singh as PW2 and Manmohan Singh as PW3. Their examination-in-chief was recorded by way of affidavits. The trial court on appreciation of evidence held that the appellant was treated with physical cruelty by the respondent and his family members. Further, it was held that although the appellant had produced evidence that she was deserted by the respondent a number of years back yet a perusal thereof shows that there was no intention on the part of the respondent to desert her. However, the ground of desertion was held to be not proved. Even, the petition was filed in the year 2002, i.e. after the expiry of seven years. Accordingly, the trial court vide judgment and decree dated 22.11.2004 dismissed the divorce petition holding that there was unnecessary and improper delay in instituting the said petition. Hence, GURBACHAN SINGH 2014.12.09 16:40 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-200 of 2005 (O&M) -3- the present appeal.
3. Learned counsel for the appellant submitted that the allegations with regard to the cruelty and desertion were proved by the appellant by leading cogent evidence. Further, the evidence led by the appellant was not rebutted by the respondent who was proceeded against exparte and the trial court had erred in dismissing the divorce petition.
4. After hearing learned counsel for the appellant, we do not find any merit in the appeal. It is not disputed that the appellant in her affidavit, Ex.P1 deposed that she was given beatings and caused injuries by the respondent and his family members for bringing less dowry and was forced to bring ` 50,000/- from her parents. Her statement was fully supported by PW2 Prithi Singh (father of the appellant) and PW3 Manmohan Singh who deposed by way of affidavit, Ex.P4. The trial court on appreciation of evidence led by the appellant came to the conclusion that the appellant was treated with physical cruelty by the respondent and his family members. Further, it was held that the evidence was led to the effect that the appellant was deserted by the respondent a number of years back but it could not be said that there was intention on the part of the respondent to desert her. Thus, the ground of desertion was not proved. In the present case, the occurrence took place on 7.1.1995 and the petition under Section 13 of the Act was filed in the year 2002, i.e. after a period of more than seven years. The said delay was held to be unnecessary and improper in instituting the divorce petition.
5. In view of the above, learned counsel for the appellant could not demonstrate that the findings recorded by the trial court are GURBACHAN SINGH 2014.12.09 16:40 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-200 of 2005 (O&M) -4- erroneous or perverse in any manner.
6. Further, the present appeal is barred by a period of 75 days. An application bearing CM No. 15511-CII of 2005 under Section 5 of the Limitation Act, 1963 (in short "the 1963 Act") has been moved for condonation of 75 days' delay in filing the appeal.
7. The explanation given in the application for condonation of delay of 75 days does not satisfy the test of sufficient cause within the meaning of Section 5 of the 1963 Act. Thus, no ground for condonation of delay of 75 days has been made out.
8. In view of the above, the appeal is dismissed on merits as well as being time barred.
(AJAY KUMAR MITTAL)
JUDGE
October 09, 2014 (RAJ RAHUL GARG)
gbs JUDGE
GURBACHAN SINGH
2014.12.09 16:40
I attest to the accuracy and
authenticity of this document
High Court Chandigarh