(106) FAO No.M-70 of 2014 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIARH FAO No.M-70 of 2014 (O&M) Date of decision: 04.03.2014.
Gurjinder Kaur ……Appellant.
Versus Pritpal Singh and another …..Respondents.
CORAM: HON’BLE Mr.JUSTICE S.S.SARON HON’BLE Ms.JUSTICE NAVITA SINGH Present: Mr.B.S.Thind, Advocate, for the appellant.
NAVITA SINGH, J.
The present respondent No.1 filed a petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter mentioned as the 'Act') seeking divorce on the ground of cruelty and desertion.
The marriage between the parties was solemnized in April, 1996, according to Sikh rites at village Bahona.
A male child, Manpreet Singh, was born out of the wedlock in 1997, who was living with respondent No.1-husband.
In 2006, respondent No.1 had gone to Kuwait to earn livelihood and returned in September, 2008.
Again, he went in November, 2008, and came back in April, 2010 and then he went in August, 2011, and returned in September, 2012.
The parties had a joint savings bank account in the State Bank of India at Kotkapura in which respondent No.1 used to send money from Kuwait.
However, when he returned in April, 2010, and wanted to withdraw some amount from the joint account, he found that the balance was only Rs.10,000/-.
On enquiry, it was revealed that all the Malik Ramesh 2014.03.20 11:50 I attest to the accuracy and integrity of this document High Court Chandigarh (106) FAO No.M-70 of 2014 -2- amount had been withdrawn by the appellant.
Respondent No.1 questioned the appellant-wife, but she could not give any satisfactory reply.
Respondent No.1 made further enquiries and found from the residents of village Matta, village of the appellant, that she was maintaining illicit relations with respondent No.2-Sukhchain Singh (who was also respondent No.2 in the petition for divorce).This fact was also established from the call details relating to the mobile phone of Sukhchain Singh from which numerous calls were made to the landline number of the house of respondent No.1.
A panchayat was convened where the appellant admitted that she had relations with respondent No.2 and that she had also withdrawn money from the joint account that she had with her husband, as mentioned above.
She stated that she would not repeat the mistake in future, but she did not desist and left the matrimonial house in May, 2010, in the absence of respondent No.1.
In July, 2010, the appellant made a complaint in Police Station Jaitu, which was found to be false and no action was taken by the police.
However, it caused mental cruelty to the husband and his family.
She withdrew herself from the company of respondent No.1 without reasonable cause.
The appellant, who was respondent No.1 in the petition in the trial Court, contested the petition on the ground that the allegations of cruelty and desertion made against her were false.
Regarding the money, she admitted that she had made the withdrawals but tried to explain by saying that the money was being sent by other known persons also in that account and she had withdrawn the same and handed over the same to the families of those persons.
Regarding allegations of adultery, there was Malik Ramesh 2014.03.20 11:50 I attest to the accuracy and integrity of this document High Court Chandigarh (106) FAO No.M-70 of 2014 -3- categorical denial.
Her relationship with respondent No.2 was denied and so was the holding of panchayat and admission of guilt.
Insofar as the phone calls were concerned, the appellant pleaded that her son Manpreet Singh was to take middle class examinations at Kotkapura and respondent No.1 had made a call from Kuwait to respondent No.2 asking the latter to take care of the child during the examination time and the telephone calls were made by respondent No.2 in that regard, which were mostly attended by the father-in-law of the appellant or by the child Manpreet Singh himself.
Besides replying to the allegations of respondent No.1, the appellant pleaded that her husband and his family members were not satisfied with the dowry and her husband used to beat her and he was a drunkard.
She was pressurized to bring Rs.3,50,000/- from her parents on the ground that respondent No.1 and his family had borrowed the said amount from somewhere and the same was to be returned.
She showed her inability to fulfill the illegal demand of her in-laws, upon which she was physically maltreated and turned out of the matrimonial home.
Respondent No.2 filed a separate written reply denying his relationship with the appellant and giving the same reason regarding phone calls as was given by the appellant in her written statement.
He showed ignorance about holding and convening of any panchayat because he had not been called in any panchayat and that there was no relations between him and the present appellant.
Respondent No.1 filed replication reaffirming the averments made in his petition and denying those made by the appellant and respondent No.2 in their separate written statements.
Malik Ramesh 2014.03.20 11:50 I attest to the accuracy and integrity of this document High Court Chandigarh (106) FAO No.M-70 of 2014 -4- The learned trial Court framed the following issues:- 1.
Whether respondent No.1 (now appellant) subjected the petitioner (now respondent No.1) to cruelty, after their marriage?.
OPP2 Whether respondent No.1 (now appellant) has deserted the petitioner (now respondent No.1) for a period of more than two years immediately preceding the filing of the present petition?.
OPP3 Whether respondent No.1 (now appellant) is leading adulterous life with respondent No.2 Sukhchain Singh, after her marriage with the petitioner (now respondent No.1)?.
OPP4 Whether the petition is not maintainable in the present form?.
OPR5 Relief.
Learned counsel for the appellant argued that the learned Court below did not appreciate the evidence properly and erred in holding that it was the appellant who had treated respondent No.1 with cruelty and had deserted him.
He contended that the said respondent had failed to prove that there was any relationship between the appellant and respondent No.2 and that the appellant had admitted before the panchayat about any such thing.
Respondent No.2 was not called in the panchayat and the details of phone calls did not prove anything.
It was contended that the same rather proves the case of the appellant that the telephone calls were made during the examination days of Manpreet Singh, the period being between 01.03.2010 and 31.03.2010.
This contention, however, does not find favour with us because if respondent No.2 had been calling at the landline number of the appellant's matrimonial house with regard to tuition being imparted by him to the minor-Manpreet Singh, the frequency and duration of the calls would not have been as is depicted in Ex.
PW6/B.
The calls lasted between less than 1 minute to more than Malik Ramesh 2014.03.20 11:50 I attest to the accuracy and integrity of this document High Court Chandigarh (106) FAO No.M-70 of 2014 -5- 50 minutes.
Also many calls were given on each date.
It is not the case of the appellant that respondent No.2 was imparting tuition to the child on telephone, besides, this also cannot be an actual fact.
Ex.
PW1/B is the document written in the panchayat where the appellant admitted that her husband had doubted her character and she had made a mistake regarding which she apologized.
She undertook not to repeat any such mistake in future.
She admitted her signatures on the document, but tried to set up a defence that those were obtained under pressure.
In her examination-in-chief, which was by way of affidavit Ex.
RW1/A and was a reproduction of her written statement, she stated that the compromise was a fabricated one and was being used against her with a mala fide intention.
However, in her cross-examination, she simply stated that Ex.
PW1/B bore her signatures and did not say anything further.
Regarding the money, she stated that she had withdrawn the entire amount from the bank account, which was in her name and in the name of respondent No.1, but again nothing was stated that the amount was withdrawn and given to the families of other persons who were known to her and her husband.
Even otherwise, had there been any element of truth in her averment about the reason for which she had withdrawn the money, she would have certainly named the persons whose money was received in that account and the families to whom she had paid the same.
Her defence regarding withdrawal of money is nothing but a concoction.
Paramjit Singh PW-5 categorically stated that he had told respondent No.1 that his wife was having illicit relations with respondent No.2.
His deposition could not be discredited in cross-examination.
Nothing could be elicited from his cross examination that he was not Malik Ramesh 2014.03.20 11:50 I attest to the accuracy and integrity of this document High Court Chandigarh (106) FAO No.M-70 of 2014 -6- telling the truth.
Rather he stated that he was associated in the panchayat where the compromise, mentioned above, was reduced into writing.
Nothing was even suggested to him that he had wrongly informed respondent No.1 about the relationship of the appellant and respondent No.2.
Similar is the deposition of Surjit Singh PW-4 whose cross- examination is also the same as that of Paramjit Singh.
In fact, exactly the same questions were put to him.
It was not suggested to this witness in cross-examination that there was no relation between the appellant and respondent No.2 and that he had not informed anything of that sort to respondent No.1.
Respondent No.1 appeared as PW3 and stated that he had been sending money in the joint account with his wife and the same was withdrawn by her as was his case in the petition.
It was suggested to him that Balkaran Singh, nephew of the appellant, was also in Kuwait with him and that said Balkaran Singh had sent Rs.Two lacs in the joint account of the appellant and respondent No.1, but this suggestion was denied by the witness.
It is also important to note that the name of Balkaran Singh appeared for the fiRs.time in the cross-examination of respondent No.1 because no person of the said name was named in the written statement of the appellant nor she named him in her own deposition as to who was, according to her, sending money in the joint account.
She simply stated that some known persons were sending the money.
Had it been her own nephew, she would not have forgotten his name.
This part of the defence which the appellant tried to put forth for fiRs.time in the cross- examination of respondent No.1, thus, has to be discarded.
The appellant had also filed complaint against her husband- Malik Ramesh 2014.03.20 11:50 I attest to the accuracy and integrity of this document High Court Chandigarh (106) FAO No.M-70 of 2014 -7- respondent No.1 under Section 12 of the Protection of Women from Domestic Violence Act, 2005, and had also taken proceedings for claiming maintenance under Section 125 of the Code of Criminal Procedure.
The appellant subjected respondent No.1 to cruelty by dragging him into litigations, by maintaining illicit relations with respondent No.2 and by squandering the hard earned money of her husband.
It is clear from the discussion made above that respondent No.1 was able to establish his case and that the appellant could not set up any valid defence.
The learned trial Court rightly dissolved the marriage between the parties by granting a decree of divorce in favour of respondent No.1.
The appeal must, therefore, fail and is accordingly dismissed.
(S.S.SARON) (NAVITA SINGH) JUDGE JUDGE0403.2014 Ramesh-M Whether to be referred to reporter: Yes/No Malik Ramesh 2014.03.20 11:50 I attest to the accuracy and integrity of this document High Court Chandigarh