F.A.O No.M-182 of 2009 (O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O No.M-182 of 2009 (O & M) Decided on 15.11.2010 Kamaljit Singh Nagi ......Appellant Versus Parveen Kaur Maan .....Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Onkar Singh Batalavi, Advocate for the appellant. RAJESH BINDAL, J. 1. The present appeal has been preferred by Kamaljit Singh Nagi, the appellant-husband against the judgment and decree dated 04.04.2009 passed by learned Additional District Judge, Amritsar vide which his petition under Section 12 of Hindu Marriage Act, 1955 (for short, the Act) for declaring the marriage as null and void, was dismissed. 2. The facts in brief are that the marriage of the appellant was solemnised with the respondent on 11.09.2005 at Amritsar, according to Hindu rites and ceremonies i.e. Anand Karaj. It was registered with Registrar of Marriages under Special Marriage Act on 2.11.2005 at Gurdaspur. The marriage between the parties remained unconsummated as the respondent did not allow the appellant to consummate the same. It is further averred that earlier the respondent had obtained divorce from her previous husband namely Amir Mujhaid S/o Mujhaid Hussain R/o Shahdara Lahore on 24.2.2004 and this fact came to the knowledge of appellant only when papers were being prepared to file an application for registeration of marriage at Gurdaspur. On 9.11.2005 the respondent had gone back to F.A.O No.M-182 of 2009 (O & M) 2 London and the appellant also reached London on 10.6.2007 and lived in the house of the respondent only for one month as he had to come back to India on 1.7.2007 as his father had expired. Thereafter, the appellant returned to England on 14.7.2007. As the respondent used to behave abnormally with the appellant, he somehow managed to return to India on 17.8.2007. During his stay with the respondent, the appellant found that her mind was not fully developed. The behaviour of the mother-in-law and father-in-law of the appellant was also very indifferent and they used to force the appellant to convert into Muslim religion. When the appellant resisted, he was subjected to maltreatment. This forced him to leave England and now it is not possible for him to live with the respondent and since 17.8.2007 he is residing in India. 3. Notice of the petition was given to respondent, who did not appear despite service through publication and was proceeded against ex- parte. In ex-parte evidence Kamaljit Singh Nagi, the appellant besides examining himself as PW-1, also examined Manpreet Singh his brother as PW-2 and Amartjit Singh Nagi as PW-3. After considering the ex parte evidence and hearing learned counsel for the appellant, the Ld. Lower Court dismissed the petition. Aggrieved with the judgment and decree of Ld. Lower Court, the appellant has filed the present appeal. 4. Ld. Counsel for the appellant has argued that the Ld. Lower Court had failed to appreciate the evidence of the appellant in its right perspective and the judgment is based on surmises and conjectures. He has further argued that the respondent and her family members had concealed the material fact of her earlier marriage and divorce, from the appellant and in this way the respondent had committed a fraud upon the appellant. F.A.O No.M-182 of 2009 (O & M) 3 He has further, argued that respondent never allowed the appellant to consummate the marriage and thus it caused mental pain and agony to the appellant. He has further argued that the Ld. Lower Court had fell in error, while holding that the appellant had failed to substantiate the allegations that the respondent is having childish brain as he has not produced any medical evidence in this regard. 5. I have heard the learned counsel for the appellant and perused the relevant record. 6. Before I proceed to consider the appeal on merits, I deem it appropriate to record facts about the service of the respondent and her non-appearance. The notice of appeal was sent to the respondent and the same was received by Smt. A.K. Mann, the mother of respondent, as is evident from a certificate of the courier company, "Blue Dart Express Limited." Thus when despite service the respondent did not appear, she was proceeded against ex-parte vide order dated 8.10.2010. 7. In the present case, the marriage of the appellant with the respondent was solemnised on 11.9.2005 at Amritsar as per Hindu rites and ceremonies i.e. Anand Karaz. As per the allegations of the appellant, after the marriage the respondent-wife never allowed the appellant to consummate the marriage and used to behave abnormally. The appellant has further alleged that the respondent had also concealed the material fact of her earlier marriage and divorce, from the appellant at the time of their marriage. To support these allegations, the appellant besides examining himself as PW-1 has also examined his brother Manpreet Singh as PW-2 and Amarjit Singh Nagi as PW-3. All the appellant's witnesses while appearing in the witness-box have fully supported the version of the appellant. F.A.O No.M-182 of 2009 (O & M) 4 8. The evidence led by the appellant has remained unchalleged and unrebutted as the respondent had failed to put in her appearance and contest the appeal despite her service. Moreover, the conduct of the respondent-wife also shows that she is not interested to live with the husband. Keeping in view, aforementioned facts, I find merit in the appeal; consequently the appeal is accepted. The impugned judgment and decree passed by learned Addional District Judge, Amritsar is set aside. The petition filed by the appellant under Section 12 of the Act is allowed. The marriage of the appellant and the respondent is annulled. Decree sheet be prepared accordingly. ` 50,000/- deposited by the appellant be refunded to him. 15.11.2010 (RAJESH BINDAL) Jyoti 1 JUDGE