IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO(HMA) No.279 of 2003. Judgment reserved on: 25.6.2008 Date of decision: 2.7.2008 Hari Singh …….Appellant Vs. Hiramani …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. Sanjeev Kuthiala, Advocate. For the Respondent : Mr. Rajpal Thakur, vice Mr. M.S. Guleria, Advocate. Kuldip Singh, Judge. 1. The husband has filed present appeal against the judgment, decree dated 2.5.2003 passed by learned District Judge, Mandi in Hindu Marriage Petition No.19 of 2001, whereby on the petition of respondent /wife the marriage between the parties was dissolved under Section 13(1-a) of the Hindu Marriage Act, 1955. 2. The brief facts, as per the pleaded case of respondent are that parties were married on 7.2.1997 at Hanogi temple. The appellant was a widower and had suppressed that fact and also that he was having four sons and one daughter from his first wife and out of them two sons and a daughter were already married. The appellant was working at B.S.L. Project Pandoh at the time of his Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… marriage. He got his retirement on 31.3.2001 after attaining the age of 58 years. The appellant was having a residence at Pandoh in B.S.L. colony. The respondent stayed with appellant at his residence in the colony. The appellant thereafter shifted to his native village in Punjab and respondent had also gone there and stayed with him, appellant started maltreating the respondent after ¾ months of the marriage and later on behaviour of the appellant became cruel who used to abuse and beat the respondent under the influence of liquor. After shifting to his native village even his son started ill-treating her for the reason that they never wanted the respondent to stay there . On 19.5.2001 appellant with the help of his sons gave beatings to the respondent and threw her out of the house. In these circumstances, it became difficult for the respondent to live with the appellant and therefore she filed divorce petition on the ground of cruelty. 3. The appellant contested the petition by filing the reply, he admitted his marriage with the respondent. He has also admitted his previous marriage and children born to him from first marriage. The case of the appellant is that respondent was aware of previous marriage of the appellant and that his three sons were living abroad. The allegations of beatings, maltreatment under the influence of liquor were denied. It has been submitted that appellant had paid Rs.30,000/- at the time of marriage of the sister of the respondent and another amount of Rs.25,000/- to clear the debt of father of respondent. It has been alleged that respondent of her own left the matrimonial home after taking ICCI Certificate amounting to Rs.10,000/-, one camera and other ornaments. She had refused to …3… join the company of the appellant and therefore, appellant prayed for dismissal of the petition. 4. The respondent filed a rejoinder, in which she reiterated her case. No issue of desertion was framed, however, issue of cruelty was framed on the basis of pleadings of the parties. The respondent had examined three witnesses and appellant five witnesses. The learned District Judge ultimately vide judgment, decree dated 2.5.2003 dissolved the marriage of the parties by a decree of divorce, which has been assailed in appeal by husband. 5. I have heard Mr. Sanjeev Kuthiala, learned counsel for the appellant and Mr. Raj Pal Thakur, Advocate appearing on behalf of Mr. M.S. Guleria, learned counsel for the respondent and gone through the record. On behalf of the appellant, it has been submitted that the learned Court below has misconstrued, misinterpreted the material on record and has erred in granting the decree of divorce on the ground of cruelty which has not been proved on record. On behalf of the respondent, it has been submitted that the view taken by learned District Judge is correct. The learned counsel appearing on behalf of the respondent has supported the impugned judgment, decree. 6. PW-1 Hiramani has stated that she was married to Hari Singh in the year 1997. She lived as wife of Hari Singh in his quarter at Pandoh. She had no issue from the marriage. The appellant used to take liquor and maltreat her. He used to lock her inside the room and himself used to go to his working place. He retired from his service on 21.3.2001. He took her to his village Thapal at Anandpur …4… Sahib. Three sons of her husband from previous wife were living abroad and one was at home. She stayed with him in his house for one and half month. He used to maltreat her after taking liquor, Bakshis Singh also started maltreating her. On 18.5.2001 her husband and son gave her beatings. Thereafter, she came to her parent’s house and is residing there. In cross-examination she has stated that she had reported the maltreatment of her husband to the Panchayat where he gave in writing that he will not maltreat her in future. Krishna Devi had seen her confined in the room. She has denied that Bakshis Singh son of her husband from previous marriage never maltreated her. She has denied that she quietly left the house of her husband and had taken away jewellary, one camera and ICI Certificate worth Rs.10,000/-. PW-2 Premi Devi is the mother of respondent. She has stated that appellant and respondent after marriage lived at Pandoh. The appellant used to beat the respondent and the respondent used to visit their house but they used to send her back. The cruel behaviour of the respondent was reported to the local Panchayat, Tandi. The respondent had told them that appellant after taking liquor gave beatings to her. In cross- examination she has denied that they were pressurizing the appellant so as to settle at Tandi. PW-3 Krishana has stated that appellant was having his quarter at Pandoh. The respondent used to tell her that appellant gives beatings to her. Once she noticed injuries on her face. In cross-examination she has stated that her house was at a distance of one K.M. from the colony. …5… 7. RW-1 Hari Singh has stated that his first wife died in the year 1989 and respondent is his second wife. No issue was born from the respondent. He has four sons and one daughter from his first wife. He retired on 31.3.2001. He was living at Pandoh during his service. On 5.4.2001 he went to his native village along with respondent. He had kept the respondent nicely at his house in Punjab. The respondent insisted him to construct a house at village Tandi but he refused to settle in that village. The respondent quietly left his house on 20.5.2001 when he was taking bath. He searched for her in the area but later on came to know that she had gone to her mother’s house. The respondent had taken ICCI Certificate worth Rs.10,000/-, one camera and ornaments when she left the house. Immediately he went to her parents house when she left his house but she had not reached there. He again went there after 4/5 days but mother of the respondent did not allow her to go with him. She was not maltreated by him or his son. In cross-examination he has stated that at the time of marriage he was 54-55 years and respondent was 20 years. He has stated that at Pandoh, he used to take liquor occasionally. He denied that his son Bakshis and his wife maltreated the respondent. RW-2 Nirbhey Singh son of appellant has stated that the respondent was maintained nicely by his father at Thapal after retirement. They never maltreated her. In cross-examination he has stated that appellant used to take liquor almost daily. RW-3 Kirpal Singh has stated that he knew the parties. The appellant before retirement was serving in BBMB at Pandoh. The quarter of the appellant was adjacent to his quarter. The …6… respondent was kept nicely by appellant at Pandoh. In cross- examination he has stated that he does not know that appellant used to lock the respondent in his room when he used to go at his work. RW-4 Ravinder Nath has stated that Hari Singh was working as Crane operator in BBMB Pandoh. The appellant was residing in Jaral colony Pandoh with respondent. The appellant had kept the respondent nicely during his stay at Pandoh. RW-5 Gopal Krishan has stated that he knew the parties. Hari Singh was working as Crane operator. The quarter of the appellant as well as his quarter were in one row in Jaral colony. The respondent was nicely kept by appellant at Pandoh. In cross-examination he has stated that he never saw appellant drinking liquor but he knew that appellant drinks. 8. It is clear from the evidence that respondent was about 20 years of age and appellant was about 54-55 years at the time of marriage which took place on 7.2.1997. It means now the appellant is about 66 years of age as against respondent who is about 31 years. The case of the respondent is that she was treated with cruelty by appellant who used to beat her after taking liquor and also used to lock her while going to work. After retirement of the appellant she went to his village Thapal in Punjab. The appellant has denied the cruelty, maltreatment of respondent during their stay at Pandoh. He has also denied cruelty and maltreatment of the respondent after his retirement and during their stay at village Thapal. It appears from the stand of the appellant that respondent wanted that the appellant should settle at Tandi parental village of respondent and this was not agreeable to appellant and for this reason the respondent left the …7… house of the appellant at village Thapal. The defence of the appellant on this point appears to be childish. The respondent is grown up woman. It is admitted case of the appellant that she stayed with him at Pandoh and even at village Thapal. In case, she wanted that the appellant should settle at village Tandi and not at village Thapal then respondent would not have gone to village Thapal after the retirement of appellant. The appellant solemnized marriage with respondent at the age of 55 years but, it appears, later on he could not adjusted with the respondent and started ill treating her. RW-2 Nirbhey Singh son of the appellant has categorically stated that appellant takes liquor almost daily. The respondent has stated that at village Thapal, appellant and his son Bakshis Singh gave beatings to her. In cross- examination it was suggested to her that Bakshis Singh never maltreated her. Bakshis Singh was not examined, rather in later part of the trial RW-1 Hari Singh has stated that Bakshis Singh at the relevant time was in America. This part of the stand of the appellant appears to be after thought in much as this was never put to respondent that at the relevant time Bakshis Singh was in America. There is no allegation against the respondent regarding her character. In fact, except for putting the defence that respondent wanted the appellant to settle at village Tandi which he did not agree, no other legal defence has been put forward by the appellant except for denying the case of the respondent. It does not appear to logic that in these circumstances why the respondent should level false allegations against the appellant. The cumulative effect of the evidence on record is that respondent has proved that appellant has …8… treated the respondent with cruelty. There is big age difference between the parties which can be other cause for mal adjustment from the side of the appellant. There is no issue from the marriage, the parties are living separately for the last more than seven years. It has come on record that at one point of time even joint application for mutual divorce was filed by the parties in the appeal, but that application was dismissed as withdrawn on 18.8.2003 The learned District Judge has appreciated the material on record properly and has recorded a finding that the appellant has treated the respondent with cruelty. The finding recorded by the learned District Judge emerges from the evidence on record. It appears, there is irretrievable brake down of the marriage and the marriage between the parties is dead and now it is not in the interest of both the parties to live together as husband and wife. To be fair to learned counsel for the appellant, he has cited some judgments in support of his submissions but, the appeal has been decided on the facts of the case and therefore, those judgments have not been discussed in the present appeal. No case for interference has been made out. 9. No other point was urged. 10. The result of above discussion, appeal fails and is dismissed. ( Kuldip Singh ) Judge. July 2, 2008 (sks)