Amarjit Kaur Alias Karamjit Kaur Vs. Jagsir Singh - Court Judgment

Excerpt:
- hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. parties can fall back upon hindu law in case they fail to establish that rule of decision is custom. therefore, in haryana both under hindu law and the customary law, the alienation would be open to challenge. custom was given precedent over uncodified hindu law presumably for reason that custom has been consistently replacing the hindu law. however, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst jats of punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of 1920. hindu succession act,1956[c.a.no.30/1956] -- sections 6 & 30: [vijender jain, c.j., m.m.kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of coparcenary property - law laid down by full bench in joginder singh kundha singh v kehar singh dasaundha singh [air 1965 punjab 407] and pritam singh v assistant controller of estate duty, patiala [1976 punj lr 342] -whether there is any conflict? - held, the basic controversy in the full bench decision of joginder singhs case was regarding constitutional validity of section 14 of hindu succession act and as to whether it infringes article 14 of constitution. it was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. the full bench held that section 14 of hindu succession act postulates that estate held by a hindu female before enforcement of succession act either by inheritance or otherwise, was enlarged and on date of enforcement of succession act, she became a full owner. likewise, if she has inherited any estate after the commencement of the act, she was to be regarded as absolute owner rather than a limited owner. consequently, the limitations on power of alienation automatically vanished. this was the necessary result of the provisions made in section 14 of the act. the full bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. however, it noticed section 30 and observed that it only deals with power of his share in coparcenary property by will, which prior to enforcement of the act, he had no right to do. the only provision made in respect of male proprietor regarding alienation of property was his power of alienation by will. in so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the act. likewise, other restriction on alienation other than disposal by will also continued. the full bench, thus, recognized the superior right of hindu females by virtue of section 14 and upheld the provision as intra vires. the argument that reversioners have ceased to exist after enactment of provisions of section 14 of succession act, was rejected as there was no provision pointed out to that effect. the proposition laid down by the full bench in pritam singhs case was that the hindu succession act has not abolished joint hindu family with respect to rights of those who were members of mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the act, this statement should also imply, though it does not say so expressly, the succession act to this extent does not affect the rights of the members governed by dayabhaga coparcenary. the full bench in pritam singh;s case expressly noticed the judgment of earlier full bench in joginder singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by customary law and constitutional validity of section 14 of hindu succession act. thus there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - 4. appellant-respondent in that case filed her written statement alleging that the respondent husband was never willing to resume cohabitation with her through she tried her level best for the same. despite notice, the respondent failed to appear in that court. he further held that the appellant has failed to prove that there was a compromise on 10.3.1987. thereafter, on 13.3.1987 she resumed cohabitation with the respondent and she became pregnant from the loins of the husband-respondent. the husband was served but despite service, he failed to appear before the court and thus, even her this attempt was frustrated. 272 has held that the failure of husband to take wife back when approached is not a ground to attract section 23(1)(a) which is not attracted in proceedings under section 13(1a) of the act. 272 has held that the failure of husband to take wife back when approached is not a ground to attract section 23(1)(a) which is not attracted in proceedings under section 13(1a) of the act. the judgment is at annexure a-1. a plain perusal of this judgment reveals that at that stage the appellant stated that she is prepared to live with the husband only if bagga singh and buta singh (her witnesses) stand sureties for the good conduct of the husband. both these witnesses belong to her village and are not on good terms with the husband. from all these documents, it is evident that she is making hollow allegation against her husband to malign him, when opportunity was given to her to adduce evidence to that effect in the petition filed by the husband under section 9 of the act she failed to prove her plea. her witnesses have rightly been disbelieved by the trial court as they are not only interested witnesses but their evidence is inherently weak, contradictory, inconsistent and improbable. the husband has denied resumption of cohabitation after the said -decree, the wife failed to prove the allegation made to that effect by her.sarojnei saksena, j.1. appellant-wife has approached this court under section 28 of the hindu marriage act for setting aside a divorce decree passed under section 13(1-a) of the hindu marriage act (in short the 'act').2. uncontroverted facts of the case are that the appellant was married to the respondent in the month of march, 1973 at village malla according to anand karaj ceremony. thereafter, they resided together in village bargari but were not blessed with any child. the husband respondent filed a petition under section 9 of the hindu marriage act for restitution of conjugal rights on 5.3.1984 which was decreed in his favour on 26.7.1.985 vide judgment annexure a-1.3. respondent filed a petition under section 13(1a) of the act, alleging that after passing of this decree dated 26.7.1985, there was no resumption of cohabitation between the parties. the respondent further alleged that he tried to bring her back in the matrimonial home but she declined. hence, there was no resumption of cohabitation between the parties for a continuous period of one year after the said decree. on this count, he claimed divorce.4. appellant-respondent in that case filed her written statement alleging that the respondent husband was never willing to resume cohabitation with her through she tried her level best for the same. she filed a petition in the executing court for execution of the said decree. despite notice, the respondent failed to appear in that court. thus, he cannot take advantage of his own wrong. she further pleaded that after the said decree on 103.1987 the parties arrived at a compromise on the intervention of certain respectables whereupon in pursuance of that agreement, she went to her matrimonial home on 13.3.1987. the appellant and the respondent resided together in village bargari and she became pregnant from the loins of the respondent. hence, she denied the respondent's claim of divorce on that count5. in the replication, the respondent reiterated the allegations made in the petition and denied the alleged compromise or thereupon the resumption of cohabitation between the parties.6. parties led evidence to support their contentions. learned lower court vide its judgment dated 10.5.1988 held that the petitioner has obtained a decree for restitution of conjugal rights on 26.7.1985 and thereafter, during the statutory period, there was no resumption of cohabitation between the parties. he further held that the appellant has failed to prove that there was a compromise on 10.3.1987. thereafter, on 13.3.1987 she resumed cohabitation with the respondent and she became pregnant from the loins of the husband-respondent. the lower court further held that it cannot be said that by non-complying with the said decree passed under section 9 of the act, the husband is guilty of any wrong on the basis of which under section 23(1)(a) of the act, he is not entitled to seek divorce on that count. hence, a decree for divorce was granted.7. appellant's learned counsel relying on chaman lal v. smt. mohinder devi, (1971)73 p.l.r. 104, contended that in this case a division bench of this high court has held that even when a party seeks relief under section 13(1a) of the act, the provisions of section 23(1)(a) are applicable and the party who has committed any wrong to that effect is not entitled to obtain such a decree. he pointed out that the appellant satisfactorily proved that after the said decree annexure a-1, parties arrived at a compromise on 10.3.1987 they resumed cohabitation and the appellant became pregnant from the loins of the respondent. she not only gave her statement to that effect but her testimony was corroborated by her own witnesses, amar singh rw-2, buta singh rw-3 and natha singh rw-4. the trial court has wrongly disbelieved these witnesses. he further pointed out that the appellant has not only adduced his oral evidence but has also produced before the court a document r-1, showing that although after that decree not only the appellant was willing to go back to her husband but she moved the court for execution of the said decree of restitution of conjugal rights. the husband was served but despite service, he failed to appear before the court and thus, even her this attempt was frustrated. he contended that after the said decree, the husband-respondent never made any effort to execute that decree or bring back the appellant to his house. earlier also, he turned her out of the matrimonial home. hence, he was guilty of constructive desertion before passing of the decree and later on, by not executing that decree and not bringing the appellant back to the matrimonial home, he has committed matrimonial wrong. under section 23(1)(a) of the act, he cannot be allowed to take advantage of that wrong.8. respondent's counsel contended that vide judgment annexure a-1, the trial court has held that the appellant-wife has deserted the respondent-husband and on that count alone, the decree was passed for restitution of conjugal rights, that decree has become final between the parties. hence, that ground is not now available to the appellant that she was not guilty of desertion rather the husband has committed acts of constructive desertion. about the second contention, he submitted that a full bench of this high court in bimla devi v. singh raj, 1977 h.l.r. 272 has held that the failure of husband to take wife back when approached is not a ground to attract section 23(1)(a) which is not attracted in proceedings under section 13(1a) of the act. this judgment was followed in jaswinder kaur v. kulwant singh, 1981(1) hlr 138. his last contention was that the trial court has rightly disbelieved the appellant and her witnesses because the conduct of appellant speaks in volumes against her own evidence. she not only filed a petition under section 125 of the code of criminal procedure against the respondent but also filed consecutively two criminal complaints under section 494 of the indian penal code alleging falsely that he has remarried. in both the complaints, the allegation was that he has married with sukhpal kaur daughter of manna singh. she obtained a stay order on 18.7.1988 also from the high court against the respondent with regard to remarriage alleging that he is going to marry sukhpal kaur. she filed a c.o.c.p. no. 995.9. respondent's counsel contended that vide judgment annexure a-1, the trial court has held that the appellant-wife has deserted the respondent-husband and on that count alone, the decree was passed for restitution of conjugal rights, that decree has become final between the parties. hence, that ground is not now available to the appellant that she was not guilty of desertion rather the husband has committed acts of constructive desertion. about the second contention, he submitted that a full bench of this high court in bimla devi v. singh raj,2 1977 h.l.r. 272 has held that the failure of husband to take wife back when approached is not a ground to attract section 23(1)(a) which is not attracted in proceedings under section 13(1a) of the act. this judgment was followed in jaswinder kaur v. kulwant singh, 1981(1) hlr 138. his last contention was that the trial court has rightly disbelieved the appellant and her witnesses because the conduct of appellant speaks in volumes against her own evidence. she not only filed a petition under section 125 of the code of criminal procedure against the respondent but also filed consequently two criminal complaints under section 494 of the indian penal code alleging falsely that he has remarried. in both the complaints, the allegation was that he has married with sukhpal kaur daughter of manna singh. she obtained a stay order on 18.7.1988 also from the high court against the respondent with regard to remarriage alleging that he is going to marry sukhpal kaur. she filed a c.o.c.p. no. 995 of 1993 wherein she alleged that he has married sukhpal kaur on 10.2.1989. the high court dismissed the petition and discharged the respondent vide its judgment dated 4.5.1994. he further pointed out that on that count again, she filed a petition in this court under order 41 rule 27 read with section 151 of civil procedure code and prayed that opportunity be given to lend evidence to that effect to both the parties but the court declined this prayer vide its order dated 6.10.1995.10. it is apparent that the husband filed a petition under section 9 of the act on the ground that the wife has deserted him. that petition was allowed. the judgment is at annexure a-1. a plain perusal of this judgment reveals that at that stage the appellant stated that she is prepared to live with the husband only if bagga singh and buta singh (her witnesses) stand sureties for the good conduct of the husband. both these witnesses belong to her village and are not on good terms with the husband. she further insisted that she is willing to live with the husband only if he transfers at least 3 killas of his land in her name. this shows that the appellant was always putting one or the other condition for coming back to the matrimonial home. she filed a petition under section 125 of the code of criminal procedure against the husband which is still not finally decided. she filed two criminal complaints against the respondent under sections 494/109 of the indian penal code alleging that he married sukhpal kaur daughter of manna singh. first complaint filed in 1984 was dismissed in default by order dated 5.10.1984. she filed another complaint on the same basis which was also dismissed on 1.3.1985 for non prosecution. in the husband's petition filed under section 9 of the act, the same allegation was again reiterated in the written statement which was controverted by the husband, that plea was also negated in the judgment annexure a-1. she also tiled a c.o.c.p. no. 995 of 1993 against the husband alleging the same ground that on 10.2.1989 the husband-respondent married with one sukhpal kaur daughter of manna singh. this c.o.c.p. was rejected on 4.5.1994.11. this conduct of the appellant reveals that right from 1984 till 1989, she is continuously alleging that the respondent-husband has married sukhpal kaur daughter of manna singh but she has fails to substantiate this plea. even in this court she moved a petition under order 41 rule 27 of the civil procedure code and prayed that opportunity be given to the parties to adduce evidence of this plea. this prayer was declined. from all these documents, it is evident that she is making hollow allegation against her husband to malign him, when opportunity was given to her to adduce evidence to that effect in the petition filed by the husband under section 9 of the act she failed to prove her plea. hence, on this count, her petition filed under order 41 rule 27, civil procedure code, is hereby dismissed as it is not necessary to consider this plea for the just decision of this appeal.12. keeping this previous conduct of the appellant in view, if her evidence is weighed, the conclusion is inevitable that the trial court has rightly decreed the husband's petition. when continuously she was trying to prosecute her husband in criminal courts, it is not at all believable that after the decree, annexure a-1, on 10.3.1987, she will arrive at a compromise with the husband and thereafter start living with him. her witnesses have rightly been disbelieved by the trial court as they are not only interested witnesses but their evidence is inherently weak, contradictory, inconsistent and improbable. amarjeet kaur appellant stated that she went to her husband's house on 143.1987 she remained with him for 16/17-days, then she came back to her parental home and went back again to him on 13.4.1987 and at that time, she lived with him for 4/5 months and became pregnant from the loins of the respondent. in the trial court, they could not adduce evidence about her pregnancy. during arguments, the appellant's learned counsel made a statement at the bar that her pregnancy came to an end as she aborted after receiving an electric shock. even that fact was not alleged in the trial court nor it was proved. she was examined in the trial court on 25.11.1987 and at that tune, she stated that her pregnancy is 7 months old. the trial court's judgment is dated 10.5.1988. if before delivery of the judgment, her alleged pregnancy would have come to an end in the way in which it is stated at the bar, she would have definitely filed a petition before the lower court to that effect. against her statement, her witnesses, amar singh has deposed that in the months of last chet, the husband brought the appellant back to his house and she remained with him for about two months. according to buta singh, jagsir singh brought amarjeet kaur from her parental home and thereafter, she resided with jagsir singh for about three months. natha singh rw-4 tried to state that after compromise on 10.3.1987, jagsir singh brought back the appellant and she remained with her husband for two months. even the appellant herself has not stated so. hence, in my considered view, the trial court has rightly rejected the appellant's plea of resumption of cohabitation after the said decree. the legal proposition is obvious that the decree having remained un-complied with, gave a lever to the husband to move the first matrimonial court in a petition under section 13(1a) of the act. the husband has denied resumption of cohabitation after the said -decree, the wife failed to prove the allegation made to that effect by her. thus, it is obvious that there was no resumption of cohabitation so as to whittle down the effect of the decree of restitution of conjugal rights, disentitling the husband to obtain a decree for dissolution of marriage.13. so far as the provisions of section 23(1)(a) of the act are concerned, o. chinnappy redddy, j. in bimla devi's case (supra), has observed that:'before 1964 the whole of the scheme of the act in relation to decree for restitution of conjugal rights, judicial separation and divorce, was based on the concept of wrong and disability. the court was not to concern itself with the fact of breaking down of the marriage, but with who had committed wrong or who was suffering from disability. it was in the context of the concept of wrong-disability that section 23(1)(a) provided that the court shall decree relief under the act only if any of the grounds for grating relief existed and the petitioner was not in any way taking advantage of his or her own wrong or disability for the purpose of such relief. the concept of wrong-disability which has hitherto the sole basis of the relief under the act has now, in part, given way to the concept of a broken-down marriage respective of wrong or -disability.14. after the decree the respondent has not taken any step to execute that decree or to resume cohabitation or has not appeared in the court when the wife filed a petition for execution of that decree, this conduct of the husband cannot be branded as a wrong under section 23(1)(a) of the act. it does not fall within the ambit of this wrong or disability under this provision of law. the appellant has neither pleaded nor proved that after passing of the decree, the respondent has committed any such wrong which would disentitle him to obtain a decree of divorce under section 13(1a) of the act. the subsequent conduct of the parties can of course be taken into consideration while granting relief but the refusal to let compliance of the decree of restitution of conjugal rights is not a consideration which can weigh against a party claiming relief of dissolution of marriage under section 13(1a) of the act. hence, i find that the trial court has not fallen into an error in granting the impugned decree in favour of the respondent. hence, the appeal is dismissed.15. appellant's learned counsel made the last contention that some case amount be given or some property be transferred in the name of the appellant under section 25 of the act as permanent alimony for her remaining life. the respondent's counsel declined that prayer and submitted that by her conduct, she has disentitled herself to obtain anything from the husband. time and again, she is making false allegations against her husband, dragging him in the criminal courts and when she finally lost in the matrimonial court, she is asking for some monetary advantage from the husband which he is not willing to give. he further contends that since the appellant has not filed such a petition before the trial court at the time of passing of the decree, no such prayer can be made in the high court.16. considering the conduct of the appellant and this fact that she never filed any such petition under section 25 of the act, her this prayer is declined.