Punjab-Haryana High Court
Amandeep Kaur vs Avtar Singh & Anr on 27 November, 2014
Equivalent citations: AIR 2015 (NOC) 378 (P. & H.)
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
FAO-M-397 of 2014 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
FAO-M-397 of 2014 (O&M)
Date of Decision: 27.11.2014
Amandeep Kaur
....Appellant.
Versus
Avtar Singh and another
...Respondents.
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.
HON'BLE MRS. JUSTICE SNEH PRASHAR.
PRESENT: Mr. Gopal Singh Nahel, Advocate for the appellant.
AJAY KUMAR MITTAL, J.
1. This appeal has been filed by the wife against the judgment and decree dated 5.8.2014 passed by the Additional District Judge, Sangrur whereby the petition filed by husband-respondent No.1 under Section 13 of the Act for dissolution of marriage by a decree divorce, was allowed.
2. Briefly stated, the facts necessary for adjudication of the instant appeal as narrated therein may be noticed. The marriage between the appellant and respondent No.1 was solemnized on 26.9.2003 at village Narike, Tehsil Malerkotla, District Sangrur according to Anand Karaj ceremonies. Out of the said wedlock, two daughters, namely, Khuspreet Kaur and Tarasveer Kaur were born. Khushpreet Kaur is in the custody of the appellant whereas Tarasveer Kaur is in custody of respondent No.1. As per the averments in the petition, after GURBACHAN SINGH 2015.01.14 11:29 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-397 of 2014 (O&M) -2- the solemnization of the marriage, the appellant had voluntarily sexual intercourse with respondent No.2 who is neighbourer of respondent No.1 at village Palasaur. The appellant and respondent No.2 have a joint account in Punjab National Bank, Dhuri. The appellant had also applied for her passport wherein she had written the spouse's name as Amandeep Sharma (respondent No.2) and also mentioned his mobile number. Respondent No.1 also saw the appellant and respondent No.2 giving objectionable signals to each other from the open kitchen to the roof of chaubara while respondent No.2 was standing on the roof of chaubara and the appellant was standing in the open kitchen and both of them have illicit relations. On 25.12.2011, respondent No.1 suddenly came to his house at about 12 noon and found his house locked from inside. On knocking the door, the same was opened by the appellant and respondent No.2 after a long time and both of them were not in their proper dresses and were feeling nervous. Respondent No.2 pushed respondent No.1 and ran away. Upon enquiry, the appellant could not give proper reply to respondent No.1. This confirmed the doubt of respondent No.1 that the appellant after the solemnization of marriage had sexual intercourse with respondent No.2, her paramour. The appellant never served meals to respondent No.1. She neither liked his parents nor served a glass of water to them. Thus, the appellant treated respondent No.1 with cruelty. On 26.12.2011, the appellant left the house of respondent No.1 along with minor daughter Khuspreet Kaur and gold articles etc. Respondent No.1 along with respectable and relatives went to the house of the appellant on 27.12.2011 where her parents and brother stated that they already knew about the relations of the appellant with respondent No.2 and they had no objection about their GURBACHAN SINGH 2015.01.14 11:29 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-397 of 2014 (O&M) -3- relations. They also stated that the appellant was living with respondent No.2 and she had applied passport disclosing that the name of her spouse was Amandeep Sharma (respondent No.2). Then respondent No.1 came to know that the appellant and respondent No.2 and their parents were in connivance with each other and this fact also caused mental cruelty to him. Accordingly, respondent No.1 filed a petition under Section 13 of the Act for dissolution of marriage by a decree of divorce. The said petition was resisted by the respondents by filing their separate written statements. Besides controverting the averments made in the petition, it was pleaded by the appellant that her parents had spent huge amount on their marriage but respondent No.1 and his family members were not happy with the dowry articles. They demanded a car from the appellant and on her refusal, she was harassed and maltreated by respondent No.1 and his family members. She also filed a complaint before the SSP, Sangrur regarding demand of dowry against respondent No.1 and his family members which was entrusted to SHO, Amargarh but no action was taken therein. The other averments made in the petition were also denied. Respondent No.2 in his written statement pleaded that the appellant and respondent No.1 were in connivance with each other to falsely implicate him because the relations of respondent No.1 and respondent No.2 were not cordial and both the families were quarrelling with each other on trifling issues. The other averments made in the petition were denied by respondent No.2 and a prayer for dismissal of the same was made. From the pleadings of the parties, the court below framed the following issues:-
1. Whether the respondent has treated the petitioner with cruelty as stated in the GURBACHAN SINGH 2015.01.14 11:29 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-397 of 2014 (O&M) -4-
petitioner? OPP 1A. Whether respondent No.1 is living in adultery with respondent No.2? OPA
2. Relief.
3. In support of his case, respondent No.1 besides examining himself as PW6, examined Jai Bir Singh Bhandari, LDC, Passport Office, Chandigarh as PW1, Harwinder Singh Clerk, Punjab National Bank, Dhuri as PW2, HC Manjit Singh as PW3, Bhagwant Singh, Panch as PW4 and Amrik Singh as PW5. On the other hand, the appellant in support of her case examined Karnail Singh as RW1, Nirmal Singh as RW2 and himself as RW3.
4. The trial court on appreciation of evidence led by the parties, decided issues No.1 and 1A together being interconnected in favour of respondent No.1 holding that the appellant after the solemnization of the marriage had treated respondent No.1 with cruelty. Further, evidence had come on record to the effect that there were adulterous relations between the appellant and respondent No.2. Accordingly, the trial court vide judgment and decree dated 5.8.2014 allowed the divorce petition filed under Section 13 of the Act by the husband by passing a decree of divorce. Hence, the present appeal by the wife.
5. Learned counsel for the appellant submitted that respondent No.1 had thrown out the appellant from her matrimonial home by levelling false allegations regarding her character. Learned counsel further submitted that respondent No.1 had tried to take undue advantage of his own wrong as he failed to prove that he was treated with cruelty and desertion by the appellant.
GURBACHAN SINGH2015.01.14 11:29 I attest to the accuracy and authenticity of this document High Court Chandigarh
FAO-M-397 of 2014 (O&M) -5-
6. After hearing learned counsel for the appellant, we do not find any merit in aforesaid submissions.
7. The court below while rejecting the aforesaid contentions of the appellant had recorded as under:-
"29. In the case in hand, what to talk of circumstantial evidence, the petitioner has been able to bring on record that in certain documents the respondents No.1 and 2 has shown themselves to be husband and wife.
30. Pass-port application form of Amandeep Kaur has been proved on record Ex. PW1/A wherein she has mentioned the name of her spouse as Amandeep Sharma. Said Amandeep Sharma is the respondent no.2 in this case. Ex. PW1/3 is the photocopy of account bearing no.0140000103148893 which is jointly in the name of the respondents. Further, Ex. PW2/A is the relevant form of the said account wherein signatures of both the respondents alongwith their photographs are there. May be, it has been shown by the learned counsel for the respondent that originally the said account was not joint but the court is not concerned with that. Suffice it to observe that now the account is joint of the respondents. Though, there is statement of denial regarding said facts on behalf of the respondents but it has been brought on record that there was verification also on the pass- port office on the said form for issuance of pass port GURBACHAN SINGH 2015.01.14 11:29 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-397 of 2014 (O&M) -6- to respondent no.1. Rather she has shown smartness by moving application which is part of PW3/A that said mentioning of her name on the pass port application alongwith respondent no.2 as well as on the bank papers, was under compulsion at the behest of her husband. Said, explanation is not tenable. Why would it be so when as per case of respondents the family of respondent no.2 was not having good relation with the petitioner's family. Thus, documentary evidence is a clear pointer that both respondents were acting as husband and wife. In this back drop the instance of adultery of the respondent no.1 with respondent no.2 which has been witnessed by Bhagwant Singh is also believable; when it has been deposed by Avtar Singh as well as Bhagwant Singh that on 25.12.2011 the petitioner suddenly came to his house to find his house locked from inside. On being knocked and opened to find that the respondents were not in their proper forms. They were nervous and condition of the bed was also not proper and same improper condition was of the bed room. This oral evidence has been believed, keeping in view the above referred documentary evidence and dare devilness of the respondents to highlight themselves as husband and wife before pass port authorities as well as bank authorities . Otherwise it is not dispute that houses of the petitioner and that of respondent no.2 are near by GURBACHAN SINGH 2015.01.14 11:29 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-397 of 2014 (O&M) -7- and having easy approach. The evidence brought on record in the form of documentary and circumstantial evidence is such from which a fair conclusion/ inference regarding the adulteration relation of the respondent No.1 and 2 can be believed."
8. Further, the Apex Court in Vishwanath vs. Sau.Sarla Vishwanath Agrawal, 2012(7) SCC 288 while examining cruelty had observed as under:-
"17. The expression cruelty has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status. In Sirajmohamedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan and another, (1981) 4 SCC 250, a two-Judge Bench approved the concept of legal cruelty as expounded in Smt. Pancho v. Ram Prasad, AIR 1956 Allahabad 41, wherein it was stated thus: -
Conception of legal cruelty undergoes changes according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions, this feature has obtained legislative recognition that a second marriage is a sufficient ground for separate residence and separate maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence GURBACHAN SINGH 2015.01.14 11:29 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-397 of 2014 (O&M) -8- should be used.
Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which may undermine the health of a wife. It is apt to note here that the said observations were made while dealing with the Hindu Married Women Right to Separate Residence and Maintenance Act (19 of 1946). This Court, after reproducing the passage, has observed that the learned Judge has put his finger on the correct aspect and object of mental cruelty.
18. In Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105, while dealing with cruelty under Section 13(1)(ia) of the Act, this Court observed that the said provision does not define cruelty and the same could not be defined.
The cruelty may be mental or physical, intentional or unintentional. If it is physical, the court will have no problem to determine it. It is a question of fact and degree. If it is mental, the problem presents difficulty. Thereafter, the Bench proceeded to state as follows: -
First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other.
Ultimately, it is a matter of inference to be drawn by GURBACHAN SINGH 2015.01.14 11:29 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-397 of 2014 (O&M) -9- taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted."
9. In the present case, the trial court on appreciation of evidence on record had concluded that the evidence by way of documents was brought on record to the effect that the appellant and respondent No.2 had shown themselves to be husband and wife. The appellant in her passport application, Ex.PW1/A had mentioned the name of her spouse as Amandeep Sharma (respondent No.2) and bank account, Ex.PW1/3 was also jointly in their names. Since they were acting as husband and wife, the adulterous relation between the appellant and respondent No.2 were proved especially when PW4 Bhagwant Singh, Ex-Panch had witnessed the same. Learned counsel for the appellant was unable to demonstrate that there was any error or perversity in the findings recorded by the trial court which may warrant interference by this Court. Accordingly, finding no merit in the appeal, the same is hereby dismissed.
(AJAY KUMAR MITTAL)
JUDGE
November 27, 2014 (SNEH PRASHAR)
gbs JUDGE
GURBACHAN SINGH
2015.01.14 11:29
I attest to the accuracy and
authenticity of this document
High Court Chandigarh