Punjab-Haryana High Court
Raj Rani @ Rani Devi vs Karam Singh on 21 April, 2014
Author: S.S. Saron
Bench: S.S. Saron
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
FAO No. M-219 of 2010 (O&M)
Date of decision : 21.4.2014
Raj Rani @ Rani Devi
.... Appellant
Versus
Karam Singh
.... Respondent
CORAM: HON'BLE MR. JUSTICE S.S. SARON.
HON'BLE MS. JUSTICE NAVITA SINGH.
Present: Mr. R.S. Longia, Advocate for the appellant.
Mr. Sanjay Verma, Advocate for the respondent.
***
S.S. Saron, J.
The marriage between the parties was solemnized according to Sikh rites and ceremonies at village Shanti Nagar, District Kurukshetra on 3.5.2004. The marriage was consummated and from this marriage, the parties have two children namely Paras Saini and Manpreet Saini who were three years old and one and half years old at the time of filing the petition which was filed on 10.6.2008. Two brothers of the appellant namely Tek Chand and Ramesh Kumar also got married at the same time and on the same date with two cousin sisters of the respondent. Mother-in-law of the appellant died before the marriage between the parties. According to the appellant, her father-in-law on various occasions made attempts to develop undesirable relation with her. The appellant did not agree to this which became a source of tension for her. The appellant informed the respondent in this regard but he sided with his father. According to the appellant, the respondent Amit Khanchi 2014.04.28 14:13 I attest to the accuracy and integrity of this document High Court,Chandigarh FAO No. M-219 of 2010 (O&M) -2- was addicted to drinking and used to beat her mercilessly under the influence of liquor. Besides, the respondent did not provide her with food, clothes and medical expenses during the period she remained with him in her matrimonial home. Accordingly, the appellant filed the petition seeking divorce on the ground of cruelty.
The respondent-husband contested the petition. It is pleaded by him that after marriage he was subjected to mental and physical cruelty. According to the respondent, the appellant used to quarrel with him daily on petty matters. Besides, she did not perform her marital obligations. She even refused to prepare meals, serve tea etc. for him, his family members and guests. She used to quarrel with him and his family members in the presence of guests as well. The respondent was also threatened by the appellant by stating that she would involve him in a criminal cases. Besides, she threatened to commit suicide. The appellant had left her matrimonial home without any sufficient cause and with her valuable clothes on 4.3.2008. Thereafter, she has not returned to her matrimonial home. The fact of marriage between the parties and the birth of two children is admitted. It is also accepted that the marriage was by way of an exchange as two cousin sisters of the respondent got married with two brothers of the appellant namely Tek Chand and Ramesh Kumar. It is denied that the father of the respondent ever made efforts to develop undesirable relation with the appellant. It is also denied that the appellant was subjected to cruelty by the respondent. The allegations of not providing food, clothes and medical expenses etc. during the period, the appellant remained in the matrimonial home have also been denied. It is prayed that the petition for divorce be dismissed with Amit Khanchi 2014.04.28 14:13 I attest to the accuracy and integrity of this document High Court,Chandigarh FAO No. M-219 of 2010 (O&M) -3- costs. No replication was filed by the appellant. The learned District Judge, Kurukshetra on 11.11.2008 framed the following issues:-
1. Whether the petitioner (now appellant) was treated with cruelty? OPP
2. Whether the petition is not maintainable?
OPR
3. Whether the petitioner (now appellant) has concealed true and correct facts? OPR
4. Relief.
The learned trial Court after considering the evidence and material on record dismissed the petition of the appellant vide its judgment and decree dated 4.5.2010.
The appellant aggrieved against the same has filed the present appeal in which notice motion was issued on 1.7.2010. On 31.1.2014, this Court fixed maintenance pendente lite payable by the respondent to the appellant. The respondent was ordered to pay a sum of `5000/- per month as maintenance to the appellant from 1.6.2011 onwards as the application was filed on 30.5.2011; besides, he was ordered to pay `11,000/- to the appellant as litigation expenses. The case was adjourned on 31.1.2014 to 26.2.2014. Learned counsel for the respondent put in appearance on the said date and prayed for time to seek instructions from the respondent regarding payment of arrears of maintenance fixed by this Court vide order dated 31.1.2014. On his request, the case was adjourned to 5.3.2014. On the said date, learned counsel for the respondent prayed for time to seek specific instructions as to Amit Khanchi whether the respondent was willing to pay the maintenance as had 2014.04.28 14:13 I attest to the accuracy and integrity of this document High Court,Chandigarh FAO No. M-219 of 2010 (O&M) -4- been fixed by this Court vide order dated 31.1.2014. The case was adjourned to 4.4.2014. On 4.4.2014, learned counsel for the respondent submitted that he may be granted one final opportunity to seek instructions from the respondent as to whether he was willing to pay maintenance as fixed by this Court vide order dated 31.1.2014. Today, when the case was taken up, learned counsel for the respondent has submitted that the respondent is unable to pay the maintenance.
We have given our thoughtful consideration to the matter. As has already been noticed, the appellant filed the petition for divorce on the allegations that her father-in-law made attempts to develop undesirable relation with her. In this regard, she had informed the respondent but according to her, he paid no heed to the same. The learned trial Court disbelieved the said stand of the appellant. It was observed that the said allegation was not believable due to the reason that the age of father-in-law of the appellant was more than 90 years. Besides, no witness was examined to corroborate the statement of the appellant who appeared as PW-1.
It may be noticed that during the pendency of the appeal, the appellant placed on record joint petition (Annexure A1) that was filed between the parties in terms of Section 13-B of the Hindu Marriage Act, 1955 ('Act' - for short). In the said petition which was filed on 2.4.2012, the parties had prayed for dissolution of the marriage between them by a decree of divorce by mutual consent. Joint statement of the parties (Annexure A2) was recorded by the learned District Judge, Kurukshetra on 2.4.2012. In the said joint statement, both the parties inter alia stated the all Amit Khanchi 2014.04.28 14:13 I attest to the accuracy and integrity of this document High Court,Chandigarh FAO No. M-219 of 2010 (O&M) -5- the claims between them had been fully and finally settled and none of them would raise any claim against each other in future. Besides, they had not cohabited since the date of separation. Therefore, they prayed that their marriage be dissolved by a decree of divorce by mutual consent. At the time of second motion on 25.10.2012, the appellant was present but the respondent did not appear in the Court of the learned District Judge, Kurukshetra for recording his statement at the second motion. A request for adjournment was made by his counsel and the case was adjourned to 10.11.2012 for recording joint statement of both the parties at the second motion. On 10.11.2012 none of the parties to the joint petition had put in appearance in the Court for recording their joint statement at the second motion. For appearance of the parties, again an adjournment had been sought by the learned counsel. Accordingly, the case was adjourned to 8.12.2012. On 8.12.2012, the appellant was present. However, the statements at the second motion could not be recorded as the respondent did not appear. For appearance of the respondent, an adjournment was sought. Accordingly, the case was adjourned to 20.12.2012 and both the parties were asked to be present in Court on the adjourned date. The case was then taken up on 23.1.2013 on which date, again the appellant was present but the respondent was not present. Accordingly, the case was adjourned to 16.2.2013. Thereafter, the case was taken up on 28.2.2013 on which date neither the respondent nor his counsel appeared for getting his statement recorded. The appellant and her counsel though were present. The learned District Judge, Kurukshetra observed that it appeared that Karam Singh (respondent) did not want to proceed further with the Amit Khanchi 2014.04.28 14:13 I attest to the accuracy and integrity of this document High Court,Chandigarh FAO No. M-219 of 2010 (O&M) -6- petition. The statement of the appellant was recorded in which she stated that despite several adjournments, the respondent was not willing to appear at the second motion. She (appellant) prayed for withdrawal of the petition under Section 13-B of the Act. Keeping in view the statement of the appellant, the joint petition under Section 13-B of the Hindu Marriage Act, 1955 was dismissed as withdrawn.
Therefore, in the facts and circumstances it is quite apparent that there has been an un-cooperative attitude and behaviour on the respondent so as to linger on with the matter. Today when the case was taken up, learned counsel for the respondent submitted that the respondent has informed that he was unable to pay the maintenance amount that had been assessed.
In the circumstances, it is to be considered, whether the appeal filed by the appellant-wife is liable to be allowed. This Court in the case of Shanti Devi v. Sham Lal, 1994 (1) H.L.R. 205, held that in the event of non-payment of maintenance pendente-lite by the husband, his defence can be struck down and resultantly, appeal of the wife has to be accepted. In the said case, reliance was placed on the case of Smt. Swarno Devi v. Piara Ram, 1975 H.L.R. 15, wherein it was held that on the failure of the husband to make payment of maintenance, his defence could be struck down. In the aforesaid case, the appeal of the wife was accepted solely on the ground that the husband had not paid her the maintenance allowance. Reliance was also placed on the case of Smt. Parkasho v. Lachhman Singh, 1977 H.L.R. 334, wherein it was held that on the failure of the husband to pay the maintenance, wife's appeal was to Amit Khanchi 2014.04.28 14:13 I attest to the accuracy and integrity of this document High Court,Chandigarh FAO No. M-219 of 2010 (O&M) -7- be accepted after striking down the defence of the husband. In Smt. Bala Devi v. Ram Kumar, 1997 (2) P.L.R. 316 (P&H), an appeal was filed by the wife against dismissal of her petition for divorce on the ground of cruelty. During the pendency of the appeal, an application under Section 24 of the Act was filed for grant of interim maintenance, which was fixed ex parte at `750/- per month. The arrears were ordered to be paid within two months. On the failure of the respondent-husband to pay the maintenance, it was held that the defence of the husband is to be struck down and allegations levelled against him regarding the cruelty meted out to the wife, are to be taken as correct and established. In Gurjeet Kaur alias Guddi v. Amar Singh, 1997 (3) P.L.R. 515 (P&H), a petition was filed by the wife for grant of divorce on the ground of cruelty. It was alleged by the wife that she was given a beating and was turned out of the house. The husband denied the allegation and the prayer for grant of decree of divorce was declined by the learned trial Court. In appeal, interim maintenance was fixed, but it was not paid by the husband. It was held that maintenance having not been paid, the Court had no option but to strike off the defence of the respondent. It was so ordered. Accordingly, the allegations of the appellant having gone unrebutted, the same were held to be accepted. In view of the averments of the appellant that she had been ill-treated by the respondent and there being no rebuttal to the said allegations, it was held to be proved and that the respondent treated the appellant with cruelty. Accordingly, the appellant was held entitled to a decree of divorce. Similar views have been taken in Santosh Kaur v. Jagtar Singh, 1995 (3) R.R.R. 709 (P&H), Santosh v. Balwinder Kumar, 1997 (3) P.L.R. 516 Amit Khanchi 2014.04.28 14:13 I attest to the accuracy and integrity of this document High Court,Chandigarh FAO No. M-219 of 2010 (O&M) -8- (P&H), Asha Rani v. Yash Pal, 1993 (Suppl.) Civil Court Cases 277 (P&H), Rani v. Parkash Singh, 1996 (2) P.L.R. 219 (P&H) and Usha Rani v. Prem Singh, 2005 (2) P.L.R. 292 (P&H).
In view of the aforesaid facts and circumstances, the defence of the respondent-husband is liable to be struck down. The allegations of the appellant regarding cruelty are to be accepted and accordingly, she is liable to be held entitled to a decree of divorce.
Accordingly, the appeal of the appellant-wife is allowed and judgment and decree dated 4.5.2010 passed by the learned District Judge, Kurukshetra are set aside and resultantly the petition filed by the appellant-wife for grant of divorce under Section 13 of the Act is allowed and the marriage between the parties stands dissolved by a decree of divorce. No costs.
(S.S. Saron) Judge (Navita Singh) Judge 21.4.2014 amit Note: Whether to be referred to reporter : Yes/No Amit Khanchi 2014.04.28 14:13 I attest to the accuracy and integrity of this document High Court,Chandigarh