F.A.O. No. 74-M of 2004 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 74-M of 2004 Date of decision: 14.05.2009 Ninder alias Neeta ...Appellant Versus Sukhdev Singh ...Respondent CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. P.S.Ahluwalia, Advocate for the appellant. Mr. Raman Mahajan, Advocate for the respondent. ***** S.D.ANAND, J. This is appellant-wife's appeal against the order dated 17.3.2004 vide which the learned Trial Court, while allowing a petition filed by the respondent-husband under Section 13 of the Hindu Marriage Act (hereinafter referred to as “the Act”), ordered the dissolution of their marriage inter-se. The allegations of the respondent-husband, in the course of the petition, may be indicated as under:- The marriage between the parties was solemnised on 22.8.1988, as per sikh custom. After the marriage, the parties cohabited at the matrimonial house and two male children were born out of their union. It came to the notice of the respondent-husband immediately after the marriage that the appellant-wife is a hot F.A.O. No. 74-M of 2004 -2- **** tampered lady who was in the habit of speaking at a loud pitch. She was further in the habit of exchanging hot words with the respondent-husband and members of his natal family. She always had a feeling that that her natal family was of an affluent level and that she had been married off in an economical poorer family which was not in a position to provide her that station in life which she was used to at her natal house. She was in habit of leaving the matrimonial house unannounced and whenever the respondent would require her to indicate where exactly she had been, she would pick up a quarrel with him and would go to the extent of holding a threat that she would commit suicide and implicate the whole family if she was prevented from making movements of her own choice. On 14.8.1997, the appellant-wife went over to UK without the consent of the respondent-husband and stayed over there for a period of about six months. She even made efforts to permanently settle in UK but since her efforts in that behalf did not bear fruit, she returned to India. The appellant also neglected her minor children which affected their health and also education. The respondent tolerated the above indicated highhandedness on the part of the appellant in the fond hope that she would adjust herself at the matrimonial house in due course of time but she proved him wrong and continued to treat the respondent-husband in a cruel manner. It was her habit to insult the respondent and members of his natal family whenever there were friends and relations visiting the family. On 30.12.1998, the respondent found the appellant F.A.O. No. 74-M of 2004 -3- **** packing her clothing in a bag. He got a feeling that the appellant was trying to leave for some place. When he called upon her to indicate where exactly she was bound, she told him that he was nobody to enquire that fact from her and that she was at liberty to go where ever she liked. When the respondent told her that that he is not enjoying good health and he would require her presence in the house to look after him, she announced that she is not a domestic help. She further held out a threat that if she was stopped from movement out of the house, she would commit suicide. When the respondent again tried to persuade her to refrain from leaving the house, the appellant-wife poured kerosene oil upon her and tried to set herself afire. It was with great difficulty that the respondent made that attempt of the appellant abortive. Even the intervention by the Panchayat failed to deter her from leaving the matrimonial house. It was on the above precise averments that the respondent-husband raised a plea that the appellant-wife had treated him (and the children of the parties ) with cruelty and that it is not possible from him to stay on with her. The further allegation was that both the children of the parties are putting up with the respondent-husband who has not condoned the acts complained-of. Besides challenging the maintainability of the petition in the present form and raising the plea of estoppel, the appellant-wife denied the attributions made by the respondents that she was a hot tampered lady, that she would leave the matrimonial house unannounced or that she had treated him with cruelty. She made F.A.O. No. 74-M of 2004 -4- **** averments which can be summarised as under:- Two brothers of the appellant are settled abroad; while sisters of the respondent-husband are also settled over there. The respondent-husband also wanted to settle abroad. He told the appellant that she should take the help of her brothers to sponsor their settlement abroad. She explained to him that though she would talk to her brothers but it was a fairly difficult job to obtain permanent settlement in the UK. In the year 1997, the respondent went over to UK on the pretext that he would arrange VISA for the entire family with the help of his sisters. He, therefore, informed her that former's sisters were in the process of taking steps to obtain VISA for his family. In August, 1997, the respondent again went abroad on the pretext that he was to visit his ailing sister. After sometime thereof, the appellant got a message from her UK-based brother that the respondent-husband was trying to settle abroad and to re-marry with the help of his sisters. In order to abort the mischief, the appellant- wife, along with the children, went over to UK. When she met the respondent over there, the latter told her that he was trying to obtain VISA for the whole family through his sisters. Thereafter, the parties and their children stayed over in UK. Brothers of the respondent and sisters of the appellant were otherwise residing in separate areas. During that period of stay, the appellant alongwith children went over to see her brother. The respondent-husband came over to India during her period of absence and without informing her. When the appellant called upon the sister of respondents-husband to tell her F.A.O. No. 74-M of 2004 -5- **** what it was all about, she was informed that respondent-husband had gone over because his father was not feeling well. The appellant-wife tried to obtain tickets for visiting India but she could not get tickets for the proposed dates. Thereafter, she stayed at the house of her brother. Two days prior to Christmas, sister of the respondent-husband came over there and requested for being allowed to take the children along to enable them to jointly celebrate Christmas. The applicant-wife agreed. However, Gurbax Kaur (one of the sister of the respondent-husband) brought the children to India without informing the appellant-wife. When this fact was brought to her notice by her India-based brother Sadhu Singh, she immediately left the UK for India and lodged a protest about Gurbax Kaur having brought the children to India without informing her. The respondent assuaged her feeling by informing that Gurbax Kaur had not been able to get tickets for her (appellant-wife) for the journey. The respondent-husband used to filthily abuse the appellant-wife on account of the inability of her brothers to arrange permanent VISA for the family. The respondent-husband, at one point of time, made an abortive attempt to obtain a VISA for self and children for going to UK but it was refused by the Embassy as children had earlier been to UK with the appellant-wife and they could not be allowed go over to UK without her consent. The appellant went over to UK in July, 2002 with the consent of the respondent-husband to visit her ailing sister- in-law. She returned to India after 2-3 months thereof. It was during F.A.O. No. 74-M of 2004 -6- **** her period of absence, that the respondent-husband filed the present divorce petition. The trial proceeded on the following issues:- “1. “Whether the respondent had treated the petitioner with cruelty? OPA 2. Whether the petition is not maintainable? 3. Relief” The respondent-husband examined himself as his own witness, as PW-1. He also examined PW-2 Avtar Singh (who was the go-between in the marriage of the parties), PW-3 Sodhi Singh and PW-4 Sarwan Singh ( who was a go-between in the marriage from the respondent side) was also examined by him. The appellant examined RW-2 Jasbir Singh and RW-3 Nirmal Singh, both Member Panchayats, village Chak Khurad, besides entering into the witness box, as her own witness, as RW-3. RW-4 Pawanjit, an official of the office of SSP, Jalandhar was also examined at the trial. Shri P.S. Ahluwalia, learned counsel appearing on behalf of the appellant-wife argued that the finding recorded by the learned Trial Judge under issue No.1 deserves outright invalidation in view of the fact that it (finding) is based upon irrelevant material and the material having relevant bearing had not, at all, been considered by the Court. It was also argued that the learned Trial Court attached undeserved importance to the fact that the appellant-wife had not been able to clarify whether she paid for the tickets (for the journey F.A.O. No. 74-M of 2004 -7- **** overseas) out of her personal savings or out of the funds sent to her by her brothers and also because of her inability to explain when exactly was she able to obtain her Passports from Gurbax Kaur who, as per her version, had retained it. Shri Raman Mahajan, learned counsel appearing on behalf of the respondent, argued that the learned Trial Court had recorded an appropriate finding by having noticing the deposition on oath of the respondent-husband and other witnesses produced by him. I find force in the plea on behalf of the appellant-wife. The reasons therefor are as under:- There can be no dispute with the proposition that the parties are bound by their pleadings and any evidence not relatable to pleadings cannot be looked into by the Court. Insofar as the petition filed by the respondent-husband is concerned, the following averments can be culled out therefrom in support of the allegations of cruelty:- a) The wife is a hot tampered lady b) The wife used to “speak in loud and hot words with the petitioner and his family members.” c) The wife used to consider that economic status of her natal family was much higher and that she had been married into a poorer family which was not in a position to provide her that station in life to which she was used at her natal house. F.A.O. No. 74-M of 2004 -8- **** d) The wife used to leave the matrimonial house unannounced and whenever she was called upon to clarify, she would threaten to commit suicide and implicate the entire in-laws family in case any one tried to prevent her from going out of the matrimonial house. e) She went to UK on 14.8.1997 without the consent of respondent-husband, stayed over there for about six months and returned to India only when she had not been able to obtain permanent VISA in UK. f) On one particular day, when the respondent resisted her leaving the matrimonial house, she attempted to set herself afire and a Panchayat came to be convened in that context. It requires pertinent notice, at the very outset, that the respondent-husband did not examine any member of his natal family to own up the various averments viz-a-viz them. The respondent- husband being interested in the success of the case, the UK based members of his natal family (and also his India-based parents) were the best placed to buttress the allegations at the trial.. In the context, the respondent-husband testified at the trial that the appellant used to abuse him and his parents in a filthily manner, that his father suffered brain hemorrhage on account of that harassment and that his mother cannot walk properly because of “tension created by respondent on my mother.” F.A.O. No. 74-M of 2004 -9- **** As already noticed, the respondent-husband did not examine any member of his natal family including his parents. The respondent having made a precise averment that it was cruelty on the part of the appellant-wife which led to the averred health deterioration of his parents, was bound to adduce evidence which could be corroborative. He could very well do so by examining either the effected persons, any other member of the natal family or the neighbourers who may have been visiting his house in the ordinary course. No such evidence was adduced by the respondent. The deposition at the trial ( in the statement of PW-1) that the appellant-wife used to hurl filthy abuses ( “The respondent used to abuse my father with the words “KUTIYA” “KANJRA”. The respondent used to abuse my mother by uttering the words 'HARAMJADI”. She was also uttering the words 'KUTTI” “KANJRI” to my mother”) is not within the ambit of the pleadings at the trial. There is a precise averment made by the appellant-wife that the respondent-husband was through out inclined to obtain permanent residence in UK. It is otherwise in evidence that he is the only son of his parents and all the living members of his natal family are settled in UK itself. In order to cement the averment aforementioned, the appellant-wife made a precise request (at the trial) that the respondent-husband may be directed to produce his passport. The purpose thereof was that a perusal of the passport endorsements would have either proved falsified her averment that the respondent-husband had been repeatedly going over to UK (to F.A.O. No. 74-M of 2004 -10- **** obtain permanent residence over there). Infact, the learned Trial Court passed a specific order directing the respondent “to produce original passport on the next date failing which adverse inference will be drawn against him in favour of the respondent regarding her stand.” Inspite thereof, the respondent-husband is not proved to have produced his original passport. A very pertinent fact to be noticed, in the context, is the precise averment made by the appellant-wife in the pleadings that the respondent had once tried to obtain the VISA for self and children and to the exclusion of the appellant-wife. She had also made an allegation that the VISA for his children was refused because they had earlier been to UK in her company. The respondent-husband did tried to explain the phenomenon by averring as under:- “My nephew got married in July, 2000. I had received the invitation card for that marriage mark D. I could not attend the marriage because I could not furnish the VISA or passport of my wife as was asked by the British Embassy because the respondent was not living with me and I could not fetch her passport. The British Embassy had also told me that my wife had not returned from England. That was the cause was VISA was refused to me vide intimation mark E.” In the present case, the respondent-husband is proved by categorical evidence to have attempted to falsely insinuate the appellant-wife. While noticing that the pleadings are silent about any F.A.O. No. 74-M of 2004 -11- **** character assassination, it requires pertinent notice that the respondent-husband did testify on oath that she lived with one Gurmit Singh in England and did not stay with her brothers. He made that statement in the context of one of the visits she made to UK allegedly without his consent. (“She lived with one Gurmit Singh at England and had not stayed with her brothers”). Apart therefrom, the fact that there is no evidence, corroborative in character, to support the allegation. It is apparent therefrom that the respondent-husband was inclined to go to any extent to insinuate her. The respondent-husband made a precise allegation that the appellant-wife once made an attempt to immolate herself but that he was able to avert it by obtaining the matchstick from her. It is also in his testimony that a panchayat was convened in that context which (Panchayat) was attended by Avtar Singh, Sodhi Singh, Chhinder Singh and Amarjit Singh, the last named being the maternal uncle of the appellant-wife. Out of them, only Sodhi Singh was examined as PW-3. He is a member panchayat of the village. It is in his testimony that “in that panchayat respondent had admitted her faults that she had attempted to commit suicide which wrongly act and she assured that she will not do it again. The respondent had also given her admission and assurance in writing.” That 'panchayati' writing is not forthcoming on record. Ex. P1 is an affidavit purporting to be that of the appellant-wife which reads as under:- F.A.O. No. 74-M of 2004 -12- **** “1. That I under take and declare that it was my own fault for suicide and I am feeling sorry. It was my own intend to suicide and there is no dispute with me raised by any body or member of my family. 2. That in future if I will do any act of suicide, it will be entire responsibility of mine and my husband will not accused at all in any act relating to mine. 3. That I will live peacefully with my husband and in case any act of suicide will be took place in future, I shall be responsible.” Apart from the fact that it is an unattested document, it would require pertinent notice that it is not an admitted document. The scribe thereof or the identifier thereupon were not examined at the trial which (affidavit) was proved in the course of evidence adduced on behalf of only the respondent. In view of the fact that the appellant-wife did not concede having sworn that affidavit, it was for the respondent-husband to obtain her specimen signatures and to get the same compared with her disputed signatures. Insofar as the agreement Marck C is concerned, it too was not proved at the trial. It purports to have been executed on 17.7.2001. The following facts are, thus, evident from the above discussion:- 1) The respondent-husband has not been able to prove any precise act on the part of the appellant- wife which could be grave character enough to be F.A.O. No. 74-M of 2004 -13- **** termed as an act of cruelty in the context of a plea for divorce. 2) The respondent-husband withheld his original passport from the Court inspite of a precise direction (by the learned Trial Court) to that effect. That direction came about in view of the persistent plea by the wife that a perusal thereof (i.e. passport) would enable to proof or disproof of her averment that the respondent-husband had been repeatedly going over to UK in order to obtain permanent settlement and to have a matrimonial settlement over there as well. 3) The respondent-husband is proved to have made an abortive attempt to insinuate the appellant-wife by alleging, and that too in the absence of pleadings to that effect, that she had been staying at the house of one Gurmit Singh during her stay at UK. The deposition (at the trial) of the respondent was to the effect that she stayed with that individual instead of staying with her brother. 4) The respondent-husband has not been able to adduce any convincing evidence to prove that the appellant-wife had attempted to commit suicide or that any panchayat was held in that context or that the appellant-wife had conceded her fault before the F.A.O. No. 74-M of 2004 -14- **** panchayat and that proceedings to the above effect were reduced into writing. In the light of the foregoing discussion, it is held that the view obtained by the learned Trial Court cannot be upheld. The material obtaining on the file, on the other hand, proves that the respondent-husband had not been able to prove the allegation that the appellant-wife had treated him with cruelty. The appeal shall stand allowed. The judgment and decree 17.3.2004 shall stand set aside. The petition filed by the respondent-husband for a decree of divorce shall stand dismissed. May 14, 2009 (S.D.Anand) Pka Judge F.A.O. No. 74-M of 2004 -15- ****