Dismissed

Baljeet Singh v. Sunil Devi

Punjab & Haryana HC31 Jul 2012FAO/5166/2011

Case brief

AI extract

What is this about?

The High Court of Punjab and Haryana dismissed an appeal against the dismissal of a petition for divorce. Upholding the trial court, the bench held that evidence of cruelty and domestic violence by the appellant, culminating in a criminal conviction, negated the appellant's claim, while desertion allegations were rejected.

What did the court decide?

The appeal was dismissed; the trial court's judgment and decree dismissing the divorce petition were affirmed.

Baljeet Singh Vs Sunil Devi — Matrimonial and Divorce | Punjab & Haryana HC (2012)

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FAO NO.5166 of 2011

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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FAO NO.5166 of 2011 DECIDED ON: July 31,2012

Baljeet Singh

........Appellant

Versus

Sunil Devi

.........Respondent

CORAM HON'BLE MR. JUSTICE S.S.SARON HON'BLE MR. JUSTICE S.P.BANGARH

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Present Mr.Virender Singh Punia, Advocate, for the appellant.

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Mr.Ramesh Goyat, Advocate, for respondent.

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S.P.BANGARH, J

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Challenge, herein, appeal is to the judgment and decree dated 20.01.2011, rendered by the learned District Judge, Family Court, Bhiwani in HMA Petition No. 597 of 20.10.2009, whereby petition under Section 13(1)(ia) of Hindu Marriage Act, 1955 of the appellant, herein, for dissolution of his marriage with the respondent was dismissed with no order as to costs.

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Case of the appellant is that marriage between the parties was solemnized on 12.05.1999 at village Bishanpura, according to Hindu rites and out of this wedlock, one male child namely Jai Bhagwan and one female child namely Sheetal were born. It is the case of the appellant that the behavior of the respondent was very

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cruel and bad towards him and she deserted him on 12.10.2003 without any reasonable cause and she left the house of appellant with her brother Sajjan Kumar with the request that she would stay for 15 to 20 days, but she did not turn up. When the appellant went to bring her back, she fraudulently refused to accompany him. After the marriage, appellant alongwith respectable persons again went to Bishanpura to bring her back, but she refused to join him as his wife.

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Thereafter, the respondent lodged FIR No.59 of 19.03.2004 under Sections 498-A and 406 of the Indian Penal Code ('IPC' for short) in Police Station Pilani against the appellant, wherein, a compromise, a copy of which is Ex.PW1/C, was arrived at and she handed over an affidavit, (copy Ex.PW1/D), with regard to dissolution of marriage between the parties mutually and in this affidavit, she had admitted that she has taken all the household articles and `5,00,000/- as compensation in lump sum. An affidavit purporting to be divorce between the parties was also drawn by the appellant and all the expenses were paid by him. It is the case of the appellant that he went to Gurgaon for joining service in a company and when he came back, he learnt that respondent has again performed remarriage with Ram Phal and stayed with him for one week. This act and conduct of the respondent caused physical and mental cruelty to the appellant.

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On these facts, the appellant herein, instituted petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955 before the learned District Judge, Family Court, Bhiwani, for dissolution of his marriage with the respondent.

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Respondent, in the written statement, controverted pleas pleaded in the petition. It was averred that she is legally wedded wife of the appellant and their marriage was performed on 12.05.1999 at village Bishanpura and out of this wedlock, two children were born and sufficient dowry was given at the time of her marriage but the appellant and his family members were not satisfied, therewith. It was also averred that her brothers, who are drivers by profession, are drunkard person and are residing separately from her and she resides with her mother. She averred that she was physically, verbally, emotionally and economically abused by the appellant and his family members and she never got any love and affection and her life became miserable and inferno. It was also averred that on 12.10.2003, the appellant and his family members after giving her merciless beatings ousted her and her children from matrimonial house and thereafter, efforts for rehabilitation failed to yield any result and ultimately she had to get registered the FIR No. 59 of 19.03.2004 under Sections 498-A and 406 IPC in Police Station Pilani against the appellant and his family members.

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In the written statement, it was averred that panchayat was convened and she (respondent) undertook not to prosecute the appellant and his family members and a compromise was effected between the parties, whereby, appellant agreed to pay a sum of `1,50,000/- as price of her Istridhan and that amount was handed over to her brothers, who had not given the same to her, so she never received the said amount from the appellant in lump sum in lieu of permanent alimony for her as also for her children. It was

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averred that she is rural, rustic and illiterate lady and under the guise of the compromise, appellant procured false affidavit, and obtained her thumb impressions thereon, fraudulently and she was never ready to give divorce. She never agreed to get her marriage dissolved mutually with the appellant. Rest averments contained in the petition were controverted and prayer for dismissal, thereof, was, thus, made.

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Replication was not filed to the written statement of the respondent.

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On pleadings, following issues were framed by the learned trial Court:-

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1. Whether the marriage between the parties to the petition is liable to be dissolved by way of decree of divorce on the grounds as stated in the petition?OPP

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2. Whether the petitioner has no cause of action and locus standi to file the present petition?OPR

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

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4. Relief.

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Appellant examined himself as PW1, Ramphal as PW2 and Laxmi Devi as PW3 and closed evidence later.

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Respondent also examined herself as RW1, Ram Singh as RW2 and Rashpal Singh as RW3 and closed evidence later.

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After hearing both the sides, learned trial Court decided issues no.1 and 3 against the appellant and in favour of the respondent, issue no.2 in favour of the appellant and against the respondent and dismissed the petition vide impugned judgment and

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decree.

Aggrieved, therefrom, appellant, who was petitioner before learned trial Court, has come up in this appeal with prayer for acceptance, thereof, and for dissolution of his marriage with the respondent

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We have heard learned counsel for the parties and perused the record of the trial Court with their assistance.

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PW-1 Baljit Singh, appellant, while appearing, tendered his affidavit Ex.PW-1/A adjuring, therein, that marriage between the parties was solemnized on 12.05.1999 at village Bishanpura, according to hindu rites and out of this wedlock, one male child namely Jai Bhagwan and one female child namely Sheetal were born. He further adjured that the treatment of respondent towards him was very cruel and she deserted him on 12.10.2003 sans any reasonable cause and, thereafter, she did not join his company and when he went to her natal place to bring her back, she flatly refused to join him. He also adjured that after the marriage, he also took Panchayat to village Bishanpura to bring the respondent back to her matrimonial house, but she refused to join him and she also lodged FIR No. 59 dated 19.03.2004 under Sections 498-A and 406 IPC against him in Police Station Pilani (Rajasthan), wherein, she effected compromise, (copy Ex.PW1/C) and handed over him an affidavit, (copy Ex.PW1/D), regarding dissolution of marriage between the parties mutually and she also admitted that she has taken all her matrimonial household goods and `5,00,000/- as compensation in lump-sum and he (PW-1) also gave an affidavit

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regarding dissolution of marriage and he paid all the expenses incurred, thereon. He also adjured that after the year 2003, when the respondent refused to join him, he joined service in a company at Gurgaon and there, he learnt that respondent had performed remarriage with Ramphal son of Beg Raj and stayed there for a week.

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He also tendered copy of the order dated 29.07.2009 passed by the learned Judicial Magistrate, Pilani (Rajasthan) Ex.PW1/B, copy of compromise Ex.PW-1/C, copy of affidavit of respondent Ex.PW-1/D, copy of his own affidavit Ex.PW-1/E, copy of the order of Sub Divisional Judicial Magistrate, Charkhi Dadri Ex.P1 rendered in a complaint against respondent and others, whereby, the accused in the complaint filed by him (appellant) were discharged and copy of the order Ex.P2 in the aforementioned complaint.

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PW-2 Ramphal also tendered his affidavit Ex.PW-2/A adjuring, therein, the averments contained in the petition.

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PW-3 Laxmi Devi (mother of the appellant) also tendered her affidavit Ex.PW-3/A adjuring, therein, the averments contained in the petition.

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RW-1 Sunil Devi, respondent also tendered her affidavit Ex.RW-1/A adjuring, therein, the averments contained in her written statement to the effect that she was married with the appellant on 12.05.1999 at village Bishanpura, Tehsil Chirawa, District Jhunjhunu, Rajasthan, according to hindu rites and that out of this wedlock, two children namely Jai Bhagwan son and Sheetal daughter were born; her father had already died and sufficient dowry was given to her at the time of marriage between the parties, but the appellant and his

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family members were not satisfied, therewith. She further adjured in her affidavit that her brothers are drivers by profession and are drunken and greedy persons, who have been residing separately from her and she resides with her mother and her brothers are siding with the appellant. She, further adjured that on 12.10.2003, appellant and his family members after giving her merciless beatings, ousted her and her children from their house and later reconciliatory efforts were made by her, but did not yield any result and eventually, she had to lodge FIR No. 59 dated 19.03.2004 under Sections 498-A and 406 IPC against the appellant and his family members in Police Station Pilani (Rajasthan) and then panchayat intervened and she undertook not to prosecute the appellant and his family members in the said criminal case and compromise was effected between the parties, herein, whereby, the appellant agreed to pay her `1,50,000/in cash in lieu of istridhan and the said amount was handed over to her brothers who did not give the said amount to her and she is a rural, rustic and illiterate lady and under the garb of the compromise, the appellant procured her false affidavit fraudulently whose contents were never read and explained to her in her vernacular language and she bonafidely put her thumb impressions wherever she was asked to do so and it was not her intention to give divorce to appellant at any stage and compromise was effected only for criminal case.

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RW-1, further adjured that she filed petition under Section 125 of the Code of Criminal Procedure (for short -Cr.P.C.) against the appellant and, therein, by order dated 13.07.2005, the appellant

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was directed to pay `2000/- per month as maintenance for her and her children, but appellant has not been making payment of the maintenance. So, she adjured that she never agreed to get her marriage dissolved mutually and the father of the appellant filed a false complaint against her and her parental family members in a Court at Charkhi Dadri, under Sections 452, 427, 323 and 506 IPC and that was dismissed being false and baseless.

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RW-2 Ram Singh also tendered his affidavit Ex.RW-2/A adjuring, therein, the averments contained in the written statement.

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RW-3 Rash Pal also tendered his affidavit Ex.RW-3/A adjuring, therein, the averments contained in the written statement.

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On the basis of evidence of PWs examined in this case, learned counsel for the appellant, contended that the learned trial Court wrongly dismissed the petition of the appellant and he was wrongly denied the decree of divorce on the grounds of cruelty and desertion. He also contended that the respondent has been living in adultery with one Ramphal. He also contended that her treatment towards the appellant and his family members remained cruel and she left her matrimonial house on 12.10.2003 on her own volition and, therefore, she is also guilty of desertion. He also contended that she wrongly lodged FIR No. 59 dated 19.03.2004 under Sections 498-A and 406 IPC against the appellant and his family member in Police Station Pilani (Rajasthan), wherein, she effected compromise and the appellant was held guilty of the offences punishable under Sections 498-A and 406 IPC and the respondent after receiving

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`5,00,000/- snapped her relation with the appellant and during compromise, she submitted an affidavit to the effect that she has snapped all her matrimonial relations with the appellant after receiving permanent alimony in lump-sum and further consented that she has married someone else. So, he contended that the learned trial Court fell in grave error by not granting decree of divorce to the appellant on the grounds of cruelty and desertion.

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On the other hand, learned counsel for the respondent contended that the learned trial Court rightly refused decree of divorce on the grounds of cruelty and desertion, as the appellant himself was cruel towards the respondent and his cruelty towards the respondent is revealed from registration of FIR No. 59 dated 19.03.2004 under Sections 498-A and 406 IPC against him (appellant) and even in that case the appellant was held guilty, but out of compassion and in order to save her matrimony, she showed compassion towards the appellant and saved him from sending him to jail when he was heard on question of sentence and the learned Judicial Magistrate instead of sending him to jail released him on probation. Learned counsel for the respondent further contended that the latter never consented for divorce and she never signed any petition under Section 13-B of Hindu Marriage Act and no such petition was ever filed in any Court and therefore, the allegation of the appellant that the marriage was got mutually dissolved by the respondent is false, which is required to be repelled.

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There is force in the contentions of the learned counsel for the respondent, while the contentions raised by the learned

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counsel for the appellant are devoid of merit as the appellant himself remained cruel towards the respondent. The allegations contained in the FIR No.59 dated 19.03.2004 under Sections 498-A and 406 IPC, Police Station Pilani, which was registered on the basis of the complaint/statement of the respondent, were investigated by the police and during investigation, these allegations were found to be correct one and that resulted into institution of police report under Section 173 Cr.P.C. by the police before Illaqa Magistrate to the effect that it appears that the appellant and his accomplices have committed offences punishable under Sections 498-A and 406 IPC. The Illaqa Magistrate also found the allegations contained in the police report and the accompanying documents to be true and framed charge under Sections 498-A and 406 IPC against the appellant and his accomplices and the prosecution was asked to lead evidence and the same was led.

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The oral evidence about cruelty provided by the appellant is perfunctory in nature, which is not supported by any documentary evidence. On the contrary, it is the case of the respondent that she was turned out of her matrimonial home by the appellant on 12.10.2003 and, thereafter, all her efforts for her rehabilitation in her matrimonial home failed to yield any result. If the respondent had herself left the company of the appellant, the latter would have instituted a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. Such silence on the part of the appellant, whereon, he should have acted with alacrity, is indeed, intriguing and shall lead to conclusion that he himself was not

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interested to bring the respondent back to his house.

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It is well settled that no married woman shall leave the house of her in-laws unless she is compelled to do so. So, it follows that the respondent, under compulsion, had to leave her matrimonial house on 12.10.2003 and when the respondent was not rehabilitated in her matrimonial home by the appellant, she had to get registered FIR No.59 dated 19.3.2004 under Sections 498-A, 406, IPC in Police Station Pilani (Rajasthan). The allegations set out in this FIR were that the respondent was treated with cruelty by the appellant on demand of dowry. The police, after registration of the case, investigated the same and found the allegations mentioned, therein, to be veritable. If these allegations would not have been veritable, the police would have cancelled the case and submitted the cancellation report before the learned Illaqa Magistrate for approval.

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The allegations set out in FIR No.59 ibid were found to be veritable and the appellant was convicted for commission of offences punishable under Sections 406 and 498-A, IPC. Strange enough, he did not challenge the judgment of conviction, copy Exhibit PW-1/B, and remained complacent in this matter. So, if the allegations of cruelty and demand of dowry, which is also cruelty, were false, then, it was required of the appellant to take this judgment of conviction to the logical conclusion by filing an appeal before the appellate court and his stand could be said to have been vindicated, if he had earned acquittal from the appellate court. On the contrary, on the basis of judgment of conviction dated 29.07.2009, copy Exhibit PW1/B, the stand of the respondent has been vindicated and the

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appellant has been found to be guilty of cruelty towards the respondent as also for demand of dowry, which is also cruelty.

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The respondent, even after the judgment of conviction, compromised the matter with the appellant simply to save her matrimony. She remained affectionate and compassionate towards the appellant and if she had not entered into compromise, the appellant would have been sentenced to imprisonment and fine instead of his release on probation under the Probation of Offenders Act. So, the judgment of conviction, copy Exhibit PW-1/B and the resultant release of the appellant on probation candidly indicate the cruelty of the appellant against the respondent and it was not other way round.

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Even Sher Singh, father of the appellant, lodged a complaint against the respondent and others for alleged commission of offences punishable under Sections 341, 342, 363, 382, 323,427, 452, 458 and 506, IPC, but that complaint was dismissed by the Sub Divisional Judicial Magistrate, Charkhi Dadri, vide order dated 18.7.2009, copy Exhibit P1. If this complaint would have contained substance therein, the respondent and her alleged accomplices would have been convicted and sentenced. So, the possibility cannot be ruled out that the father of the appellant lodged the aforementioned false complaint against the respondent and others simply to implicate them falsely to put pressure so that the respondent may suffer decree of divorce in favour of the appellant. This also constitutes an act of cruelty.

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Even the appellant levelled allegation of adultery against

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the respondent by testifying that on 12.10.2003, when the respondent did not join him as his wife, he went to Gurgaon and joined service in a private company and came to know that the respondent had performed remarriage with Ramphal and stayed there for one week. This allegation is again baseless, as he has not made Ramphal as a respondent and kept his identity almost secret. In order to prove the second marriage of the respondent with Ramphal, the appellant was required to prove as to with which ceremony, this marriage was performed, how many people were present in the marriage, at which place, this marriage was performed and to which village, the alleged Ramphal belonged. The appellant, in this case, has endeavored to condemn Ramphal unheard. His identity, as already mentioned, has not been disclosed, as also, he has not been impleaded as a respondent in the petition and due to non-impleadment of Ramphal as respondent, the latter cannot be said to have performed her second marriage with Ramphal. Apart from that, the appellant has not taken necessary steps to get the respondent and her second husband punished for this alleged bigamous marriage. Even the learned trial Court rightly held that it is not established on the file that the respondent had carnal intercourse with the alleged Ramphal.

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It is the case of the appellant that the respondent deserted him on 12.10.2003 without any reasonable cause. On the other hand, it is rightly the case of the respondent that on 12.10.2003, the appellant and his family members had given her merciless beatings and turned her out of the house along with her

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children, as they were not satisfied with the dowry given in the marriage. As already held, it is well settled that no married woman shall leave the house of her in-laws and the merciless beatings given to the respondent compelled her to leave her matrimonial house and when she was not rehabilitated, she had to get the case under FIR No.59 ibid registered and in the judgment, Exhibit PW-1/B, it finds mention that she was turned out of her matrimonial house by giving severe beatings by the appellant and his family members.

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So, the evidence of RWs examined in this case inspires

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confidence, as the same has been corroborated by the judgment, Exhibit PW-1/B and the learned trial Court rightly repelled affidavit of respondent dated 22.7.2009, Exhibit PW-1/D, wherein, she had allegedly written that it is not possible for them to live together, hence by mutual consent, they have agreed to live separately and they have severed their relations. This affidavit is dated 22.7.2009 while the petition was filed by the appellant before the learned trial Court on 22.10.2009. So, the learned trial Court rightly observed that it cannot be said that the respondent had deserted the appellant for continuous period of not less than 2 years preceding the presentation of the petition. So, the respondent was rightly not held guilty of desertion of the appellant for a continuous period of not less than 2 years preceding the presentation of the petition.

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So, it follows that the respondent was never cruel to the appellant. On the contrary, she was treated with cruelty and she was compelled to bring more dowry and for demand of dowry, she was turned out of her matrimonial home and when all her efforts for her

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rehabilitation in her matrimonial home failed to yield any result, she was compelled to lodge FIR No.59 ibid under Sections 406 and 498A, IPC, against the appellant, wherein, the latter was convicted and released on probation only on the basis of compassionate attitude of the respondent and, in these circumstances, the marriage was rightly not dissolved by the learned trial Court. So, the appellant should make efforts for reconciliation and rehabilitation of the respondent in his house.

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There is, thus, no illegality or impropriety in the findings of the learned trial Court on all the issues, which are, hereby, upheld and affirmed.

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Resultantly, the petition fails and is, hereby, dismissed

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with costs.

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( S.P.BANGARH ) ( S.S.SARON) JUDGE JUDGE

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July 31, 2012 mamta/sham

Baljeet Singh v. Sunil Devi

Case brief

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Baljeet Singh v. Sunil Devi

Case brief

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