Paramjit Kaur @ Mandeep Kaur vs Tej Singh

Rekha Mittal, J.—The present appeal has been directed against the judgment and decree dated 20.1.2011 passed by the Court of District Judge, Mansa, whereby the petition filed by Tej Singh-husband (respondent herein) for dissolution of marriage of the parties by a decree of divorce has been allowed. The respondent-husband averred that marriage of the parties was performed in 1995 by way of Anand Karaj ceremony at village Sandhoha, Police Station Mour, District Bathinda and a daughter was born out of this wedlock. His wife is a lady of obstinate nature and she would do the things as per her wish. She has deserted him on 13.2.2006 and refused to come back to the matrimonial home. After four years of marriage, she started treating the respondent with cruelty. She had been proclaiming that she is not dependent upon any body as she has sufficient land. She always uses abusive language. She remains irritated. She has treated him with cruelty and deserted him without any reason.

In reply, the appellant (respondent in the original petition) has denied averments of the petition. She has challenged the maintainability of the petition on the plea that the petitioner has concealed material facts from the Court. It has been pleaded that the petitioner-husband had been forcing her to bring land of her share but when she explained that she is not willing to take the land during the life time of her mother, the same was not to the liking of the petitioner.

The respondent-husband preferred a replication, reiterated his stand as taken up in the petition while denying averments of the written statement.

The controversy between the parties led to the framing of following issues by the learned trail Court:-

Whether the respondent has deserted the petitioner without any reasonable cause and excuse? OPP

Whether the respondent has treated the petitioner with cruelty? OPP

Whether the petition is not maintainable? OPR

Relief.

The trial Court permitted the parties to lead evidence. However, when the case was still pending for evidence of the petitioner-husband, the respondent (appellant-wife) absented from the proceedings on 17.12.2010 and as a consequence, was proceeded against ex parte and ultimately an ex parte decree was passed vide judgment and decree, impugned in the appeal.

Counsel for the appellant has contended that the respondent-husband did not raise any specific allegation from which it can be construed that the appellant is guilty of subjecting him to cruelty. It is submitted that the plea of the respondent husband in respect of cruelty was not accepted by the trial court which shows that the respondent-husband raised false allegations against the appellant in an anxiety to get a decree of divorce. It has been further argued that the learned trial court initiated ex parte proceedings against the appellant on 17.12.2010, the date on which the Advocates were on strike and her counsel did not appear before the trial Court, causing serious prejudice to her rights to contest the claim of her husband. It is further submitted that the trial Court did not adjourn the case to await appearance of the appellant or her counsel, rather proceeded to record evidence of Gurmail Singh PW-3 and allowed the respondent to close his evidence. It has been argued with vehemence that the appellant has been condemned unheard and serious prejudice would be caused to her in case ex parte decision of the trial Court is not set aside by granting liberty to the appellant to cross examine PW-3 and to lead evidence in affirmative to rebut the allegations of the husband.

Counsel for the respondent, on the other hand, contends that as neither the appellant nor her counsel appeared before the trial Court on the date fixed for recording evidence of the respondent-husband, there was no alternate with the trial Court but to initiate ex parte proceedings against her. It has been further argued that after 17.12.2010, the case was adjourned on two occasions i.e. 6.1.2011 and 20.1.2011 but neither the appellant nor her counsel bothered to attend the proceedings before the trial Court. It is submitted that as the appellant has no material to rebut the allegations of the petition with regard to her being the guilty spouse, the appellant intentionally absented from the proceedings and allowed an ex parte decree to be passed but she has preferred the appeal to prolong the adjudication of the dispute.

We have heard counsel for the parties and perused the records of the trial Court.

Indisputably, the plea of the respondent-husband that he was treated with cruelty by his wife could not be established and was rejected by the learned trial Court. Otherwise also, the allegations of the husband do not constitute cruelty of the nature much less magnitude to become a ground for divorce. The learned trial Court has ordered dissolution of marriage of the parties on the ground of desertion. The appellant appeared before the trial Court in response to the notice of the proceedings, initiated by her husband and she submitted her written statement. She also filed an application for grant of maintenance pendente lite and litigation expenses which was allowed. The respondent husband appeared in the witness box and also examined one of his witnesses on 19.11.2010. Both these witnesses were cross examined by counsel for the appellant. On the next date i.e. 17.12.2010, the respondent-husband appeared in person along with one witness (PW3) but as neither the appellant nor her counsel put in appearance, the trial Court initiated ex parte proceedings and examined the witness in her absence and adjourned the case for hearing arguments. There is no challenge to the contention of the appellant that on 17.12.2010, lawyers were abstaining from work and for that reason her advocate did not put in appearance before the trial Court. This fact is apparent on record as advocate for the respondent-husband also did not appear before the trial Court. In our considered opinion, the trial Court should have adjourned the case to await appearance of the appellant and/or her counsel for the next date or issued notice to the appellant that her counsel is not putting in appearance. The learned trial Court should have been conscious of the fact that it was dealing with a matrimonial dispute and not an ordinary civil suit. The learned trail Court failed to appreciate that the appellant who has been contesting the claim of her husband tooth and nail, should not be allowed to suffer as her lawyer abstained from the proceedings. The trial Court finally disposed of the petition almost within one month from the date on which ex parte proceedings were initiated. The appellant did not get an opportunity to cross examine PW-3, lead evidence to rebut the case of her husband and substantiate her plea taken in the reply as well as to submit arguments to counter the case of the husband. A great prejudice would be caused to the appellant in case such an ex parte decree is allowed to stand. As per the settled law, no body should be condemned unheard. There is nothing on record to suggest that the absence of the appellant from the proceedings was mala fide or due to any ulterior reasons In this view of the matter, without going into the merits of the case, in our considered opinion, the ex parte judgment and decree passed by the trial Court is liable to be set aside. In view of what has been discussed hereinabove, the appeal filed by the appellant is allowed. The judgment and decree passed by the trial Court is set aside and the matter is remitted to the Court of District Judge, Mansa, for adjudication afresh from the stage, ex parte proceedings were initiated against the appellant-wife. Parties through their counsel are directed to appear before the Court of District Judge, Mansa, on 14.12.2012.

Trial Court record be sent back forthwith.