Chhinder Kaur vs Binder Singh and Others

Ajay Kumar Mittal, J.

This appeal has been filed by the appellant-wife against the judgment and decree dated 13.5.2013 passed by the trial court whereby the petition under Section 13 of the Hindu Marriage Act, 1955 (in short, "the Act") filed by respondent No. 1-husband for dissolution of marriage on the ground of cruelty, was allowed. The facts, in brief, relevant for the decision of the controversy involved as available on the record may be noticed. Marriage between the appellant and respondent No. 1 was solemnized 27 years ago by way of Anand Karaj ceremony at Dharamgarh. The appellant started living in the matrimonial home after seven years of marriage by way of Muklawa ceremony. At the time of marriage, 5 tolas of gold ornaments were given to the appellant but she sold that gold. Out of the said wedlock, two children, namely, Manpreet Kaur (daughter) and Jagdeep Singh (son) were born who are living with respondent No. 1. The appellant developed illicit relations with 3-4 persons and she used to remain outside the matrimonial house for many days. Respondent No. 1 tried to explain to her to amend her behaviour for the future of the children and family but she did not improve. On 31.8.2010 at about 11.45 PM, the daughter of respondent No. 1 who was sleeping woke up from the sleep as she heard some noise in the kitchen. When respondent No. 1 along with his daughter and other family members went in the kitchen, they found the appellant and respondent No. 2 in compromising position. Upon this, respondent No. 1 gave slaps to respondent No. 2 who ran away from his house. Respondent No. 1 requested the appellant not to repeat these acts as children have grown up but she did not respond and left the matrimonial home in the morning. Respondent No. 1 convened a panchayat where he requested the appellant to come back to his house by breaking relationship with respondent No. 2 but she refused and started making false allegations of demand of dowry. She also threatened respondent No. 1 to file false complaint against him and his family members. Accordingly, respondent No. 1 filed a petition under Section 13 of the Act for dissolution of marriage by a decree of divorce. The said petition was resisted by the appellant and respondent No. 2 by filing separate written statements. Besides raising various preliminary objections, it was pleaded by the appellant in her written statement that respondent No. 1 became arrogant and started demanding more dowry from the appellant. The sisters and mother-in-law of the appellant along with other family members started harassing and torturing the appellant. Respondent No. 1 had kept the children forcibly with him. After few days of the marriage, respondent No. 1 and his family members demanded Rs. 50,000/-. They turned the appellant out of her matrimonial house. The appellant and her parents convened a panchayat and requested respondent No. 1 and his family members to keep her in the matrimonial home but they did not agree. The other averments made in the petition were denied and a prayer for dismissal of the same was made. In his written statement, respondent No. 2 pleaded that he is mason by profession and respondent No. 1 got his services for construction of kitchen flooring and bathroom etc. He worked there for 38 days on daily wage basis at the rate of Rs. 400/- per day and respondent No. 1 had paid only Rs. 2000/- and he had to recover the remaining amount Rs. 13000/- from respondent No. 1. He used to demand the said amount from the appellant and respondent No. 1 and both of them after conniving with each other levelled false allegations of adultery against him. There is considerable difference in the age of the appellant and respondent No. 2. The appellant was a lady of more than 42 years whereas respondent. No. 2 was only 32 years old. Respondent No. 2 is married and having his own family and children. The other averments made in the petition were denied and a prayer for dismissal of the same qua him was made. From the pleadings of the parties, the trial court framed the following is-sues:-

"1. Whether the respondent has treated the petitioner with cruelty? OPA

Whether the respondent No. 2 is living in adultery with respondent No. 1 wife of petitioner? OPA

Whether the petition is not maintainable in the present form? OPR

Relief."

In support of his case, respondent No. 1 examined himself as AW1 and his daughter Manpreet Kaur as AW2. On the other hand, the appellant examined herself as RW1, Lal Singh as RW2 and Krishan Kumar, Ex-Panch as RW3.

Issue No. 1 was decided against respondent No. 1 being not pressed. The trial court on appreciation of evidence led by the parties, decided issue No. 2 in favour of respondent No. 1 holding that the appellant was living in adultery with respondent No. 2. Issue No. 3 was decided against the appellant being not pressed. Accordingly, the trial court vide judgment and decree dated 13.5.2013 allowed the divorce petition and dissolved the marriage between the appellant and respondent No. 1 by a decree of divorce. Hence, the present appeal by the wife.

We have heard learned counsel for the parties and perused the record.

Learned counsel for the appellant submitted that respondent No. 1 and his family members used to harass the appellant on account of demand of dowry and levelled false allegations. It was further submitted that the parents and sister of respondent No. 1 were the witnesses of the alleged occurrence of 31.8.2010 but none of them was examined. It was urged that the Manpreet Kaur was a child witness and her evidence did not inspire confidence as she was residing with respondent No. 1 and possibility of her being tutored could not be ruled out. Additionally, drawing support from Single Bench judgment of Himachal Pradesh High Court in Smt. Sarvo Devi Vs. Lashkari, , claim for maintenance pendente lite and litigation expenses was maintained.

On the other hand, learned counsel for respondent No. 1 besides supporting the judgment and decree passed by the trial court, submitted that the allegations of adultery stand proved on record as no daughter would level false allegations of adultery against her own mother. It was further contended that the appellant was also not entitled to any maintenance as she was living in adultery with respondent No. 2. In support of this contention, learned counsel placed reliance upon various judgments reported in Sandeep @ Sonu v. Asha, Civil Revision No. 1465 of 2009 decided on 6.7.2009, Jit Singh v. Smt. Surjit Kaur and others, 1986(2) R.C.R. (Criminal) 384, Chander Kumar Sharma v. Samriti Sharma, 1998(3) R.C.R. (Criminal) 135 , Angoori Vs. Phool Kumar, and Shiv Kumar Vs. Baby Sonam, .

Examining the factual matrix herein, specific allegations of adultery have been levelled against the appellant. The appellant was caught red handed in objectionable position with respondent No. 2 by respondent No. 1 along with his daughter Manpreet Kaur and other family members. Respondent No. 1 by examining himself as AW1 and the daughter Manpreet Kaur as AW2 had proved on record the allegations of adultery. AW2 Manpreet Kaur was none else but the daughter of the appellant and respondent No. 1 and she could not be said to be an interested witness. Before recording the statement of Manpreet Kaur, the trial court checked the competency of this child witness by putting some questions to her. Vide order dated 13.8.2012, the trial court was satisfied that the said witness was competent to depose in the court. AW2 was subjected to lengthy cross-examination by the appellant but no major discrepancy was pointed out in the statement except for pointing out that she was not able to tell correctly as to which crop was sown in those days when the occurrence took place. Merely because the child witness was not able to tell about the crop sown in that period was not sufficient to hold that the said witness was not truthful and that no such occurrence took place on 31.8.2010. The trial court on appreciation of evidence led by the parties on record concluded that the appellant and respondent No. 2 were found in an objectionable position by respondent No. 1 and his daughter Manpreet Kaur which was sufficient to prove that the appellant had sexual intercourse with respondent No. 2 and she lived in adultery with him. The trial court had, thus, rightly held that the present case fell under Section 13(1)(i) of the Act and respondent No. 1 was entitled to a decree of divorce on that ground.

The findings have been recorded by the trial court after appreciating the entire evidence on record. Learned counsel for the appellant was unable to demonstrate that the findings recorded by the trial court are erroneous or perverse being based on misreading or mis-appreciation of evidence on record which may warrant interference by this Court. Consequently, finding no merit in the appeal, the same is hereby dismissed.

Another issue that arises for consideration relates to payment of maintenance pendente lite under Section 24 of the Act in appeal where the findings of adultery recorded by the trial court are sustained. No doubt, Section 24 of the Act entitles the wife or the husband to maintenance pendente lite and expenses of the proceedings and the conduct of the appellant would not act as a bar for awarding of the same. However, the act of adultery is considered by the Legislature as an offence against the sanctity of the matrimonial home. Those who defile that sanctity are liable for adverse consequences as the infidelity or defection from the normal rectitude in character is not only immoral but is not acceptable as it destroys the basic conjugal set up in the society. Therefore, in our opinion, the ground of adultery proved before the trial court and the said finding being maintained by the High Court on appeal, would be on different pedestal and material factor for denying the right available under Section 24 of the Act to the erring spouse in the appeal filed under Section 28 of the Act. Accordingly, we are unable to subscribe to the view expressed in Sarvo Devi''s case (supra). Since the trial court held that the appellant was living in adultery with respondent No. 2 and the said finding has been affirmed by this Court, CMM No. 118 of 2013 is also dismissed.