Gurcharan Singh Vs. Mukhtiar Kaur

Gurcharan Singh vs Mukhtiar Kaur

Disposition Appeal dismissed Court Punjab and Haryana Decided Jul 18, 2001

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Citation: sooperkanoon.com/613073
Court: Punjab and Haryana High Court
Judge: Adarsh Kumar Goel, J.
Decided On: Jul 18, 2001
Case Number: First Appeal from Order No. 143-M of 1992
Subject: Family
Disposition: Appeal dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent Appeal Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., - Held, After introduction of Section ...

Key legal issue: Family
Outcome / disposition: Appeal dismissed
Acts & sections: Hindu Marriage Act, 1955 - Sections 13; Code of Civil Procedure (CPC) , 1908 - Order 9, Rule 9 - Order 23, Rule 1(4)

Parties & Advocates

Appellant / Petitioner

Gurcharan Singh

Advocate Ashok Jindal, Adv.

Respondent

Mukhtiar Kaur

Legal References

Acts: Hindu Marriage Act, 1955 - Sections 13; Code of Civil Procedure (CPC) , 1908 - Order 9, Rule 9 - Order 23, Rule 1(4)
Reported In: I(2002)DMC747

Excerpt

.....original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. .....the same as were made in the earlier petition, a fresh petition is barred under order xxiii rule 1 sub-rule (4) and under order ix rule 9 cpc. though the trial court under issue no. 1 held the allegation of cruelty to be proved on the ground that the respondent-wife had levelled false allegations against the husband, the trial court recorded finding of issue no. 2 in favour of the respondent-wife by holding that having regard to the facts of this case non compliance of decree of restitution of conjugal rights did not furnish a ground for divorce to the appellant-husband as he could take advantage of his own wrong. the plea of desertion was also rejected by the trial court.5. 1 am in agreement with the finding of the trial court on issues nos. 2,3,4 and 5 and also with the final conclusion that decree for divorce could not be granted in favour of the appellant-husband. i am however unable to agree with the trial court on issue no. i. though the result of this appeal is not affected by the finding of issue no. 1 being either way in view of the fact that the appeal is liable to be dismissed if the finding onissue no. 5 is upheld, i find that finding of the trial court on issue no. 1 is liable to be reversed. in the facts of this case, where there are allegations and counter allegations, wife's allegations could not be taken in isolation and she could not be held to be guilty of cruelty on that ground. there is much to be desired in the conduct of both spouses but on that ground wife could not be held to be guilty of cruelty. 1 am, therefore, constrained to reverse the finding of the trial court on issue no. i and i decide the said issue against the petitioner-appellant and in favour of the respondent-wife.6. this appeal accordingly fails and is dismissed with no order as to costs.

Full Judgment

Adarsh Kumar Goel, J.

1. This appeal has been preferred against the judgment of the District Judge, Bathinda, dismissing the petition for divorce filed by the appellant-husband.

2. Marriage between the parties took place in July, 1970, and one daughter named Sukhwinder Kaur was born out of the wedlock who is living with the respondent-wife. Though the respondent-wife gave birth to 3 other children i.e. 2 sons, and one daughter but they died soon after the birth. The appellant-husband filed a petition in question on 31.10.1990 alleging that the respondent-wife was a quarrelsome lady and was not adjusting in the matrimonial home and finally deserted the appellant-husband 6 years before the filing of the petition. The respondent-wife contested the petition and stated that she was turned out of the house after being treated with cruelty by the appellant-husband. The trial Court dismissed the petition. Aggrieved thereby, the appellant-husband has filed this appeal.

3. After admission of the appeal the matter was referred to Lok Adalat under Section 20 of the Legal Services Authorities Act, 1987 but finding that there was no possibility of compromise, the Lok Adalat had referred the matter back for decision on merits.

The trial Court framed the following issues:-

1. Whether the respondent is guilty of cruelty towards the petitioner as alleged in paras 4 and 5 of the petition? OPD

2. Whether the respondent has not complied with the decree under Section 9 of the Hindu Marriage Act for a continuous period of more than 1 year? if so, its effect? OPP

3. Whether the respondent has deserted the petitioner for a continuous period of 2 years without any reasonable excuse? OPP

4. Whether the petition is not maintainable and the petitioner has no cause of action and locus standi? OPR

5. Whether the petition is barred by the principle of res judicata etc. as alleged in preliminary objection No. 3? OPR

6. Relief.

4. Under issue No. 5, the trial Court held that the petition was barred under Order XXIII Rule 1 Sub-rule (4) CPC and under Order IX Rule 9 CPC Exhibit R-l showed that the appellant-husband had earlier filed a petition under Section 13 of the Hindu Marriage Act on 24.2.1990 which was dismissed in default on 24.10.1990. In view of that, the appellant-husband was debarred from filing a fresh petition under order XXIII Rule 1 Sub-rule (4) and under Order IX Rule 9 CPC. Since the allegations of cruelty and desertion are the same as were made in the earlier petition, a fresh petition is barred under Order XXIII Rule 1 Sub-rule (4) and under Order IX Rule 9 CPC. Though the trial Court under issue No. 1 held the allegation of cruelty to be proved on the ground that the respondent-wife had levelled false allegations against the husband, the trial Court recorded finding of issue No. 2 in favour of the respondent-wife by holding that having regard to the facts of this case non compliance of decree of restitution of conjugal rights did not furnish a ground for divorce to the appellant-husband as he could take advantage of his own wrong. The plea of desertion was also rejected by the trial Court.

5. 1 am in agreement with the finding of the trial Court on issues Nos. 2,3,4 and 5 and also with the final conclusion that decree for divorce could not be granted in favour of the appellant-husband. I am however unable to agree with the trial Court on issue No. I. Though the result of this appeal is not affected by the finding of issue No. 1 being either way in view of the fact that the appeal is liable to be dismissed if the finding onissue No. 5 is upheld, I find that finding of the trial Court on issue No. 1 is liable to be reversed. In the facts of this case, where there are allegations and counter allegations, wife's allegations could not be taken in isolation and she could not be held to be guilty of cruelty on that ground. There is much to be desired in the conduct of both spouses but on that ground wife could not be held to be guilty of cruelty. 1 am, therefore, constrained to reverse the finding of the trial Court on issue No. I and I decide the said issue against the petitioner-appellant and in favour of the respondent-wife.

6. This appeal accordingly fails and is dismissed with no order as to costs.

Same Court & Year Punjab and Haryana · 2001 Same Parties Gurcharan Singh vs Mukhtiar Kaur Same Subject Family Same Judge Adarsh Kumar Goel, J. Acts & Sections Hindu Marriage Act, 1955 - Sections 13; Code of Civil Procedu...

Family