213 1 FAO No242eM of 2002 1 0 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No242M of 2002 Dateofdecision233092009 SalonaSharma alias Komal Sharma lppellant 0 Versus C I Rajesh Sharma 7espondent C5 I CORAM1 HONBLE MRe JUSTICE VINOD K SHARMA Z Present MlHarinder SharmaAdvocate I for thc 08 MrlKGupta Advocate fol the respondett W2 1 WhctherReporters ofLocal may beallowed to see 2 To bereferredto theReporters or not2 3e Whether thejudgmenl should be reportcd 111 Digcst2 VINOD K SHARMAJe This appcalby the fe 1S directed againslthe judgmentand decree dated l 102002 passedby the learned Additional District JudgePatiala allowingthepetitionSled bythe for dissolution of marriageunder section 13 0f the Hindu MarriageAct . uma 2012.08.31 16: 40 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 214 P J FAO Noe242M of 2002 2 1 for shorttheActl Il Brief factsof the case are thatthe betweentheparties was solemnizedon 6121990 at Patiala to the Hindu ritesand ceremonies Out ofthe wed4ocktwo malelssues were born The due to ill41abitsand cruelacts ofthe filed a petitionundersection 1 13 of the Act but on the basis of written apologythe said petitionwas 0 withdrawn on 271998 It was thecase ofthe thatthe C I was in the habitof theftsie jewellery and cashand whenever C she was confrontedshe used filthy OnlA1991 she 1 red handedwhile stealing goldornamentsfrom the almirah of motherof the Z When confrontedshe left the matrimonialhousein the t evenlng with his friendwent to the houseof the and I lodged protest but insteadof feelingsorrysheand her parentsinsultedthe 08 After about 2 months he againwent to the house of the 7 and brought herbackby her to mend her behaviourbut Z she failed to change her habits It was alsothe case of the that W she neithercareforthe childrenItwas alsoalleged that sheagainstole Rs40001 Rupees fourteenthousandonlyfrom thehouse and handedover the amount to her brotherVinod Kumar but to her bad luck currency notes fell on the groundWhen her brotherwas confronted with this he gave beating to the at the lnstance of the appcllant It was the case of the that the appellantconfcssedthat her brotherwas badlyin need ofmoneythat is whythe amountwas takenThc appellant further pleadedthat on the askingof his parentsthe . uma 2012.08.31 16: 40 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 215 FAO No242M of 2002 0 started 1iving from his parentsln Arorian Mohalla in March 199buleven therehe had to preparebreak fasl for the childrenand to makc them readyfor school H also arrangedlunch box Whcnever children asked for meals theyused to be beatenbythe It was furtherthe case of the that she continued vlsitingher parents 1 C and did not leaveher habit of committing thefts in spiteof by O the C I On 115998 the did not go to his work being C5 unwell At aboutl30 AM fatherand brotherofthe cameto the matrimonialhouse thinking thathe was away When was raised to their visit he was givenbeating It was thecase of the thatby r that time theappellant hadtaken whoIe On 461998 Vinod I Kumar came to hishouse and took away appellantalongwith costlyclothes a5 and cashofRs60001 Rupees twentysix thousandonly His youngerson e also them It was thecase ofthe that thehousewas left unlockedbythem In the evening the went to thehouseof theappellant with but insteadof feelingsorry theyinsulted all of them and also extendedthreatto life The appellant refusedto joinhis company lill a housc was in her name and her brotherwas adjustcdby the 111 his business On 1961998 a wntten compromlsetook placebetweenthe partiesand in pursuancethereto the appellantjoinedhis company After livingln a proper manner for two months she againstarted Her fatherand brotherdid not stop visitinghis housein his absence It was the case of the respondcnlthat the . uma 2012.08.31 16: 40 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 216 t FAO No242 of 2002 4 appellant never lunch and dinner to his taste used filthy and cWen slapped him Shealso startedvisitinghis to humiliate him On she threatenedthat she would commit suicide On 1012000 Vinod Kumar and maternaluncleofthe dropped Palkit Sharmayounger son of the partiesoutside his house where he was found m r bitterlyweepingSince the child beingyoung could nol staywith the O he andhis sister SumanSharmawent to the parental houseof 0 the in orderto hand over thechild When theyrcachedthere C5 brother and fatherof the startedbeating him His brotherlaw I Sharma also reached there as theyhad not returned for a Z considerabletime He was also givenbeating FIR N034 dated1312000 was lodgedin Police Station KotwaIi Patialaunder sections3251323134 I IPC and the trial was pending in that case at the time of fllingof the c6 petition 3 On 252000 some letterswritten by were thrown Z lll COUrtyardof hishouseby and aftergoingthrough theletters Om he came to know the reason as to whythe was not takinginterest lll her matrimonialife A slipwas also thrownshowing that otherletters and diarieswritten bythe could besupplied The petitionwas contestedbyraisinga preliminary objection that thepetition was barredbyprinciples of res judicataand that it was not maintainablein the presentform On merits ofthe partiesand birth of childrcn was not disputedThe stand taken by the appellantwas that sufficient dowry . uma 2012.08.31 16: 40 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 217 4 FAO Noe242M of 2002 5 was givenat thetime of her The case set up was thatdemandof was maln reasonfor the sore betweentheparties of cruelty were denied lt was pleaded that the petition under section 13 of the Act was filed earlier on wrong facts which was withdrawn as the was aware thatit was likelyto 1 C be dismissedAfter withdrawalof the previouspetition agalIl 0 startedraisingdemandof more dowrywhich could not be fulfllled She 0 I deniedthe of not cooking food and illreatingthe children She C5 I alsodenied havingcommittedtheftin matrimonialhome of usc of fllthy were alsodenied Shealso denied thatshewas caught Z red handedon 1A 991 while stealing a goldnecklaceof her mothern4aw r It was pleaded that she was turnedout ofthe matrimonialhouseaftergiving I her beating It was alsothecase set up that when secondissuewas bornshe a5 rcmainedin her parental housefor about6 months but the did not 7 care or provideany maintenance to her It was alleged that that at the tlme of the birthof the child handsomegiftswere givenAllegation of theft of Clm Rs 40001 fourteenthousandonly was also denied It was also denicd thalcurrcncy noles hadfallen on theground or thatherbrotherwas confrontedwith the incident It was pleaded case of theappellant that in the of March 1995 the and his parentsgave beating to her and the panchayat was convenedbyher fatherwhere the was requcslcdto keepher in a nice manner lt was then setlied that the partieswould live The incidentofl151998 00givingbcating to therespondent was also denied Shealso dcnied takingaway ofjewellery . uma 2012.08.31 16: 40 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 218 Ol IAO No242eM of 2002 6 J and amount She also denied that any was enteredinto lhe partieson 196 1998 It was pleaded that some blank papers WerC gotsignedfrom her by the in goodfaith which were misuscd Shealso deniedthe of leavingPalkit Sharmaoutside the house The stand was that it was the who camc to her housein order lo quarrel with them alongwith his brothernelaw O Sharma and his brothelNhere he started the 0 and her relations FIR was said to be false She also C dcnied havingwritten any Ietteras alleged I In the replicationaverments made in the petitionWerc Z rciteratedwhereasaverments madein the written statement were denied On the of the parties the following issues were I framedbv the learnedMatrimonial Court 08 1 Whether the treated the with 7 cruelty2 OPP 2 Whether the has deserted the petitioner tl withoulany sufftcient cause2OPP 3 If issuesNoland 2 are the 1S entitledto a decrce of divorce on the grounds of cruelty and desertion20PP 4 Whether the petitioner is barredunder section 11 Order 23 and Order 2 CPC2 OPR 4 Relief In order to prove his casc the appeared in thc . uma 2012.08.31 16: 40 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 219 P FAO Noe242M of 2002 7 Hlitness box as AW 1 and examined ConstableBaldev Singhas AW 2 KrisN46a Sharmahis motheras AW 3 Sharmahis brother4naw as AW 4 ConstableRanjitSingh as AW 5 ConstableRakesh Kumar as AW 6 SohanLal Thakur as AW 7 Jarnail Singhas AW 8 DrlnderjilSingh and FingerPrinls Expertas AW 9 1 tr The appellant on the other hand as RW 1 and 0 examined her father Krishan Kumar Sharma as RW 2 NavdcepGupta Cso I Handwriting and FingerPrint Expertas RW 3 and SanjivSharmaas RW 4 C5 and closcd her evidence I Learned matrimonialcourt took up issues No 1 and 4 Z The while appearing in the Witness box C thc averments madcin the petitionwhich were bySmKrishana I SharmaAW 3 mother of lhe Pardeep Sharmawhile appeanng 08 as PW 4 deposed that he had visited le house of the in4aws of the mWo wherehe foundparties with each other He also said Z thal the was beingbeatenup by Vinod Kumar brotherof the Om appellant and when he tried tO lntervene he was also beatenanda reportin this regardwas lodgedwith thepoliceHe deposed the injuries sufferedbyhim and the ConstableRanjitSinghwhileappearing as AW 5 deposed that the madebythe was invcsted byDSP who submittedhis report Reportwas provedas ExlOC PW 70i11y deposedregarding the marriagebeingsimpleHe also regarding r made to reach settlement between the partieswhere hc was insulted He also deposedregarding visit of father and brother of lhe . uma 2012.08.31 16: 40 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 220 1 f f FAO Noe2421 of 2002 8 0 appellantand beatinggivento the on his objcction to their VlSit Ie also provedthe compromiseExPA AW 8 Jarnail Singha friend of lhe also misbehaviourof the and hcr familymemberson his visit for DrlnderjitSinghAW9 Experlprovedthewritingofthe on the letterswritten 1 r byher 0 On the otherhand the appellantsupported her case ln the C written statement which was corroboratedby her father RW 2 Sanjiv C5 Sharma while appearing as RW 4 dowrygivenat lhe time of He deposed that fatherand brotherof the had Z told him that theywere beatenup He also C lakcn for effecting compromise betweenthe partiesHe stated that there was no talk about the characterof the In his 08 statement he also statedthatduringhis visit to thehouseof thcparties 111 7 Arorian Mohalla hefoundthatthe was not happy and living was Z lll her parental housefor the last 34 years Expertproducedby Il theappellantopinedthat the lettersplaced on record were not written by hei In vielv of the reportsof Experts the Iearncdmatrimonial court compared thc and foundthat the lettersplacedon record were wntten bythe appellantshowing that she was havingcxtra rnarital affair with some other person 1 Rishi Tandan Lcarned malrimonial court also found that earlier petjtionflled was withdrawn Learned matrimonial court found that lll the prcvious . uma 2012.08.31 16: 40 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 221 P6 FAO No242I of 2002 9 matrimonialdispute thefollowing terms were settledbetwcentheparties Y il That partyNol shall behavenicelywith partyNo2 and shall scrve partyNo2 withfull respectand honour io That partyNo furtheragree not to allow her brothers and parentstO VlSit the house of partyNo2 and likewiscparty 1 r Nol shall herselfnotto visit herparental home 0 Iiil That partyNol shall do her marital dutieswith respect C3 I and honour and shall furtherdo all the obligationstowards C5 partyNo2 I ivl That partyNo2 as usual shall maintain the familyby Z making all the towards the household towards partyNol and towardsthechildren I v9 That in case partyNltook any or C45 commit suicide in any form it shall bethesole of IV2 parlyno herself PartyNo2 or his parentsshall not be liabie Z for herillegalacts 0m v That whateverthe amount for shall begiven to partyNol bypartyNo she shall maintam the complctc accounts Learned matrimonial court found that from the ExlA it appeared that the behaviourofthe appellant was not nice towards lhe respondentll also showedthat brotherandparentsofthe appellant used to visit the house of the respondentwhich was not liked by him The appellant had also admittedthewritingof Settlementshowed . uma 2012.08.31 16: 40 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 222 r r FAO No242M of 2002 10 that the had admittedthe levelled lll the divorce petitiln On the other hand stand taken by the lS that no compromisetook placebut her were obtainedon blankpapers Learnedmatrimonialcourt did not accept thisversion in view of thefact m 0 that in thc crossexamination the appellantadmittedthat earlier divorce O petitionwas withdrawnon account of compromiseLearnedmatrimonial 0 I court fUrtherheldthat theappellant had admittedthe factumof compromise C and thatthepartieshadstartedliving thereafter I Learnedmatrimonialcourl alsofoundthatthe relied upon bythe Z appellant 111the case of Janak Raj Vs SmteNirmlaDevi 200181PLR 404 was not to thefactsof the presentcase as the partieshad I 08 started 1ivingtogetherafter withdrawalof prcviouspetition Lcarned matrimonialcourt alsofoundthatthe in thecase ofHardev Kaur 7 Vs Gurmeet Singh1978 All India Hindu Law Reporter509 was also Il not applicable to the factsofthe case Learnedmatrimonialcourt came to the conclusion that the allcgations of bcatinggivento the and her brotheriw were proved on record thus learnedcourt came to theconclusion thatcven i f the of crueltybefore271998 levelled in the petitionare not takcn inlo consideration cven then it 1S provedthat the respondent was trcaledwith cruclty Learnedrnatrimonialcourt also held that the incident of 1012000 was provedA criminal case was pending in this regardal Patiala Learncd matrimonialcourt tOOk note of the letters which werc . uma 2012.08.31 16: 40 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 223 r rl J1 FAO Noe242eMof 2002 11 l thrownin thecourt yardof the on 2512000 showing that lY6eappellant was havingaffair with Learnedinatrimonial court alsofoundthat theevidenceled bythe was dulysupported by his brothern4aw SohanLal Thakur and JarnailSinghwhereasthe besides herself had onlyexamined her father The lcarned m matrimonial court held that of crueltyStood provedand O petition was allowed C MrHarinderSharmalearnedcounsel appeanngOll behalf oO C5 I theappellant contendedthat the and decreepassedbythe learned matrimonial court 1S liable to be set aside as it was proved that earlier Z petitionflled by the on the same grounds dismissed was as r withdrawn second petitionwas not competent The contention of lhc a5 lcarnedcounsel for the appellant was thatthe prcsentdivorcepetition was filed merelybyadding one incident to the withdrawalof the vm previouspetitionIt was also contended by the learnedcounsel for thc Z appellantlhat all the r tn the divorcepetitiondiscussedby lhe learnedmatrimonialcourt are the one which were covered bytheprevious judgmenh was also the contentionofthe learnedcounsel for theappellant that the of crueltylevelled were generalin nature and only lntcresledwitnesseswere cxamined in supportofthe It was also the contention of the learnedcounscl for the appellant that it was the respondent who was guiltyof treating theappellant with crucltyand thereforetherespondentcould not take of his Own wrongs . uma 2012.08.31 16: 40 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 224 r FAO No2424 of 2002 0 12 On considerationof matter I 8nd no fOrcein thecontentions raise2lbythe learnedcounsel for theappellantLearnedmatrimonial court rightlyheld thateven if the of crueltypriorto the withdrawalof pctilion arc not takenintoconsiderationthc proved lhat he was treated to cruelty to such an extent thatit was not reasonablefor C the to live with theappellant 0 The Honble RajastahanHigh 0 Court in the case of SmtLeela DCviVse Suresh Kumar AIR 1994 Rajasthan 128 was pleasedto lay C5 I downthateven if first petitionseeking divorceis withdrawnbythe husband on theassurance ofwife and ifthe is broken thereafterit gives Z 2 a resh cause ofaction lo 8le the petitionwhich will not bc barredunderOrder23 Rule 1 49ofthe CodeofCivil Procedure a5 Even otherwise as alreadyobservedabove the incident of of and his brother4nelaw was dulyprovedon record m This act itself is sufflcienl Z to constitutecrueltyIt may be noticedherethat tl in the FIR lhe brotherand fatherof theappellant were convicted by the learnedJudicial Fist Class Patialavide dated 8 2005 the appealfiled againstthe convlctlon Was also dismissedbylhe learnedAddilionalSessionsJudgeFast TraCkCourt Patiala on 155oo9 It is wcll settledlaw thatreliefofdivorce can be grantedon the basisof events lhat takc place to the fllingofthe petitionEven thc appellate court can take into account the facts which come into cxislcncc afterpaSSlngof the dccree Reliancefor this proposilioncan be placedon the judgmentof Honble Rajasthan HighCourt in the case of . uma 2012.08.31 16: 40 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 225 n P 0 FAO Nol42W of 2002 1 13 1 Parihar Pritil VseParihar Kailash SinghlAIR 1978Rajasthan 140 Y The act of thc appellantprovedOIl record bycogentcvidence and lhc fact of given lo the at the instanceof thc appcllantfor whichthe fatherand brotherof the standconvicted lSan act of such crueltywhich causes an of injury 1 to bodymind and healthofthe 0 The contentionofthe learnedcounsel for the appellantlhatlhc C wcre general ln nature cannot bc accepted as speciOclnstanccs C5 of I leading evidcnce The contenlion of thelearnedcounsel for the appellant thal Z it 2 was lhc who treatedtheappellant with crueltyalso could nol be Ct accepted for Want of evidencein thisregard were levelledby I way of defenceand therefore were nothing but an to covcr up 08 hcr own lapsesThe ofthe learnedmatrimonialcourl therefore on 7 1SSUCNol arc afllrmed Z finding no merit in thisappealit is orderedto bc dismissedbut with no order as to costs Vinod 23092009 Judge rp 5 CD 4 1l111 Gl tP4 . uma 2012.08.31 16: 40 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document