Tara Singh vs Jeoni Kaur

Ajay Kumar Mittal, J.—This appeal is directed against the judgment and decree passed on 2.5.2002 by the Additional District Judge, Mansa whereby a petition under Section 13 of the Hindu Marriage Act, 1955 (for short "the Act") filed by the respondentwife was accepted and marriage between the parties was dissolved by a decree of divorce.

The respondent was married to Bhag Singh about four decades back. Bhag Singh, however, died after about five years of the marriage. There was no issue from this wedlock. After the death of Bhag Singh, the parents of the respondent performed Chadar ceremony of the respondent with the present appellantTara Singh, the real brother of Bhag Singh. Ever since then, the respondent had been living with the appellant as his wife, but no issue was born from this wedlock as well. The parties adopted the niece of the respondent with their mutual consent.

The respondentwife filed petition for dissolution of marriage by a decree of divorce on the grounds that the appellanthusband was in the habit of giving beating to her daily under the influence of liquor. Somewhere during the year 1998, the respondentwife withdrew from the society of the appellanthusband as the latter had refused to support her. The respondent took Panchayat and other respectables to the appellant to persuade him to resume her society, but the appellant refused. On the basis of these instances, the respondent averred in her petition that the appellant had treated her with cruelty and deserted her without any reasonable cause as a result of which she had been writhing in mental agony as well as physical torture.

The petition was resisted by the appellanthusband by filing written statement, inter alia, pleading that he was 70 years of age and had spent all his resources and property on the respondentwife and she had left him in lurch in the evening of his life especially when there was none to support him. The appellant denied having adopted any child as alleged by the respondent. It was further stated that the respondent was employed in Government service and she had concocted a story of adoption of Kamlesh Kaur as the latter wanted to get the job in case of the death of the respondent and the deprive the appellant of all benefits which are payable to the spouse of the Government employee.

The parties went on trial on the following issues :

(i) Whether the respondent has treated the petitioner with cruelty ? OPA

(ii) Relief.

The trial Court after appraising the entire evidence led by the parties, accepted the petition and dissolved the marriage between the parties by a decree of divorce. This is how the appellanthusband has preferred this appeal.

I have heard learned counsel for the parties and have gone through the record.

Learned counsel for the appellant contended that the respondentwife has not alleged any specific instances on the basis of which it can be concluded that the appellant treated the respondent with cruelty or deserted her. The counsel submitted that simply pleading that the appellant used to give beating to the respondent under the influence of liquor is not sufficient to prove cruelty on the part of the appellant in the absence of any evidence substantiating the said allegations. The counsel drew my attention to the crossexamination of PW1 Jeoni Kaur (respondent) and submitted that she had stated in her evidence that the appellant started beating her from the very beginning of the marriage. But no specific instance, date or time has been mentioned by her when she was given beating by the appellant. Nor did she lead any evidence which may substantiate her allegations of cruelty being meted out to her by the appellant. Learned counsel for the appellant submitted as per respondent''s own version, she was being given beatings by the appellant from the very beginning of the marriage, but the petition for dissolution of marriage was filed after about 40 years of the marriage. The counsel contended that if there had been any truth in the allegations of the respondent, she would have filed petition much earlier. The counsel thus contended that keeping silent for more than 36 years over the matter of being given beating by the appellant, it deserves to be construed that the respondent had condoned the acts of appellant. In support of his contention, the counsel relied on a judgment of a Division Bench of Allahabad High Court in Smt. Abha Agarwal v. Sunil Agarwal, 2001(2) RCR(Civil) 294 (Allahabad) : 2001(1) Civil Court Cases 266.

On the other hand, learned counsel for the respondent contended that the finding recorded by the trial Court on the question of cruelty is a finding of fact, which is based of correct appreciation of evidence and the same, therefore, does not deserve to be upset. The counsel referred to the statements of PW2 Charna Singh and PW3 Balwan Singh to contend that it has been stated by PW2 in clear terms that the appellant used to give beating to the respondent in his presence. PW3 Balwan Singh, however, stated that the appellant did not give beating to the respondent in his presence but he came to know about this as the respondent used to come to him and narrate this version. The counsel further drew my attention to para 3 of the judgment of the trial Court and urged that the factum of adoption of Kamlesh Kaur was neither pleaded in the petition nor was raised at the time of arguments before the trial Court. Nor was even any issue framed in that regard.

After hearing the counsel for the parties, I am of the opinion that this appeal does not deserve to succeed. The learned trial Court after considering the evidence on record had recorded a finding in para 12 of its judgment as under :

"Tara Singh, respondent (RW1), under the stress of cross examination, evolved a new theory by stating that he has two children born from the womb of Jasmel Kaur with whom, he had contracted marriage earlier to his marriage with the petitioner and that Jeoni Kaur was the wife of his brother, after whose death, he contracted Kareva marriage with her. Amarjit Singh (RW2), examined by the respondent when crossexamined, testified that Tara Singh respondent is issueless and he did not contract marriage with Jasmel Kaur. Thus, palpably, the theory propounded by Tara Singh, respondent in his crossexamination is negated or done away with by his own witness, Amarjit Singh RW2. Even otherwise, if it is assumed that Tara Singh, respondent had contracted marriage with Jasmel Kaur earlier to his marriage with the petitioner, none theless, as per law, he could not have contracted second marriage with the petitioner during the subsistence of his first marriage with Jasmel Kaur. Tara Singh, respondent has nowhere stated that Jasmel Kaur had died and it was after her death that he had contracted second marriage with the petitioner. On the other hand, Charna Singh (PW2), Member Panchayat and Balwan Singh, Sarpanch (PW3) are in agreement on the point that Tara Singh, their co villager, is addicted to vices and used to maltreat the petitioner and to give her beatings and she was turned out of her bridal house by the respondent about three and half years ago. They are further in unison on the point that thereafter, the petitioner convened a Panchayat, of which they were also members and the respondent was requested to rehabilitate the petitioner with him as wife, but he made a point blank refusal and that there are no chances of their living together as husband and wife as the respondent used to beat the petitioner mercilessly. Obviously, both these witnesses are respectables of the village, being Member and Sarpanch of the village Panchayat. When crossexamined, no material militating against their veracity could be elicited. Therefore, in my view, their evidence is acceptables as no contra evidence is forthcoming to belie their statements. The respondent has not adduced nay cogent, convincing and clear evidence nullifying the evidence trickled from the respective mouths of petitioner Jeoni (PW1), Charna Singh (PW2) and Balwan Singh (PW3). Their positive evidence is conclusive of the fact that the respondent had been dealing with the respondent with cruelty."

Learned counsel for the appellant while reappraising the evidence on record could not point out any error or misreading of the same by the trial Court. He, however, maintained that the judgment and decree passed by the trial Court was liable to be set aside. The trial Court after appraising the entire evidence had come to the conclusion that the appellant treated the respondent with cruelty. Moreover, the Sarpanch Balwan Singh PW3 in his statement stated that there are no chances of reconciliation between the parties and then living together as husband and wife. The statement of the Sarpanch Balwan Singh PW3 cannot be brushed aside as no reason has been given as to why the said witness would depose falsely. Further, PW2 Charna Singh had also deposed to the effect that the appellanthusband used to beat the respondentwife in his presence and that she was turned out of the house by him and even the marks of injuries were shown to him by the wife. Equally no reason has been shown for disbelieving the statement of the said witness.

Adverting to the arguments regarding condonation of the acts of the appellanthusband by the respondentwife, it needs to be noticed that neither there was any plea in the written statement in this behalf nor any issue was framed on this point. Moreover, the said point was never agitated before the learned trial Court. Consequently, the appellant cannot be allowed to raise this issue for the first time in appeal as this is a mixed question of law and fact.

In the totality of the circumstances, finding no merit in this appeal, the same is hereby dismissed. There shall, however, be no order as to costs.