FAO No.M-87 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.M-87 of 2011 Date of decision:09.12.2011 Balwinder Kaur ...Appellant Versus Avtar Singh ...Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE G.S.SANDHAWALIA Present: Mr.Pawan Kumar, Sr.Advocate with Mr.Saqib Ali Khan, Advocate, for the appellant, Mr.O.P.Kamboj, Advocate, for the respondent. G.S.SANDHAWALIA J. The present appeal, filed by the appellant-wife is against the judgment and decree dated 09.02.2011 whereby the Addl.District Judge, Ferozepur has dismissed the petition of the appellant-wife filed on 15.03.2009 under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage by decree of divorce on the ground of cruelty. The appellant-wife alleged that she was married with the respondent-husband on 21.11.1997 by way of Anand Karaj at Village Sarhali. Her father had given all household articles as Istridhan to the respondent-husband and his family members. After marriage, both the parties had cohabited and lived together as husband and wife at Village Manochahal, District Ferozepur and one male child, viz., Tajinder Singh was born who is at FAO No.M-87 of 2011 2 present residing with the appellant-wife. Further, the allegation is that the respondent-husband and his family members are very greedy type of persons and they were not happy with the dowry articles brought by the appellant-wife and they always used to taunt and maltreat the appellant-wife on account of bringing less dowry as per their status. The respondent-husband, being a habitual drunkard, also used to maltreat and beat her and insisted the appellant-wife for bringing more dowry in the shape of cash of Rs.50,000/- and she was turned out of the matrimonial home, but with the intervention of the local Panchayat, the appellant-wife was re-habilitated. This cruel behaviour of the respondent-husband was tolerated for matrimonial life of the appellant-wife and for respect of her father. The respondent- husband also pressurized the appellant-wife to take the share from the property of her father, which she refused to fulfill and eventually she was turned-out of the matrimonial home on 07.12.2008 and was thereafter residing with her parents. A Panchayat was convened who approached the respondent- husband and his family members on 18.12.2008 and a compromise was arrived at between the parties in the presence of Jaswant Singh, father of the appellant-wife, Iqbal Singh, Balkar Singh, father of the respondent-husband and other respectables whereby the parties agreed for divorce by mutual consent and the custody of the child was to be given to the respondent-husband. However, eventually, this mutual divorce never took place which led to the filing of the present petition. FAO No.M-87 of 2011 3 The said petition was contested by the respondent- husband to the extent of denying that no dowry articles were given and it was only a simple marriage from which, a male child, Tajinder Singh was born. The allegations of taunting and maltreating for bringing less dowry and being a drunkard was also denied, with a further denial that any demand of Rs.50,000/- was raised for which the appellant-wife was turned-out, and re- habilitated by the Panchayat. In fact, it was alleged that the appellant-wife had been cruel towards the respondent-husband and she had been pressurising the respondent-husband to live separately from his family members to which the respondent- husband was not willing to do. The allegation of turning out the appellant-wife on 07.12.2008 was also denied and compromise dated 18.12.2008 was denied by taking the plea that the signatures of the respondent-husband was obtained by an assurance that a compromise was to be effected but no compromise was effected and rather the alleged writing was made of which the respondent had not given any consent. It was alleged that the respondent-husband did not want divorce by mutual consent and he wanted to keep the appellant as his wife as she had left him without any reasonable and sufficient cause. Rather it was alleged that the reason for withdrawing from the society of the respondent-husband was that on the asking of the father of the appellant-wife, the respondent-husband had advanced a loan of Rs.3,00,000/- to the son-in-law of sister of father of the appellant-wife who was running a commission FAO No.M-87 of 2011 4 agency shop in the name of Nirmal Trading Company, Makhu. This loan which was given 7-8 years back, had not been returned and the said son-in-law had agreed to execute a sale deed qua land measuring 2 kanals in favour of the respondent-husband. But the father of the appellant-wife had got executed the sale deed in his favour due to which, the dispute had arisen between the family of the respondent-husband and the appellant-wife. It was also alleged that the respondent-husband was beaten by the parents of the appellant-wife and he as well as his father were got detained in police station Mallanwala illegally. Cruelty was attributed to the appellant-wife and the fact that she had no respect for the respondent-husband and his family members and she used to create fuss in the family on trifles and she was reluctant for preparing meals for the respondent-husband and his family members. The said written statement was controverted by filing a replication and the said allegations were denied. Regarding the advancing of the loan at the behest of the father of the appellant- wife to the tune of Rs.3,00,000/-, it was mentioned that a sum of Rs.3,00,000/- was received by the appellant-wife and his father as Istridhan when the compromise had been signed and both the parties put their signatures on the said compromise. Regarding the purchase of land, it was alleged that the father of the appellant-wife had purchased the said 2 kanals of land after paying the sale consideration in the presence of marginal witnesses. FAO No.M-87 of 2011 5 On the basis of the said pleadings, the trial Court framed the issue as to whether the respondent-husband had treated the appellant-wife with cruelty and after discussing the evidence on record, came to the conclusion that there were no specific allegations of mal-treatment of the appellant-wife at the hands of the respondent-husband apart from the demand of Rs.50,000/- and the appellant-wife could not tell the exact date and month when the respondent-husband had demanded Rs.50,000/-. The absence of the medico legal evidence regarding any injury caused by the respondent-husband and the fact that the appellant-wife never approached the police or any other higher officers also prevailed with the trial Court. The trial Court also noticed that the father of the appellant-wife could not properly respond to the specific date and month of demand and that there was no treatment got from any Doctor. The factum that the marriage was performed in the year 1997 and the parties had lived together for 11 years prevailed upon the trial Court, keeping in view the fact that no demand of the respondent-husband had been fulfilled. Since, in the cross- examination, the appellant-wife had said that she was not ready to co-habitate with the respondent-husband and she had no love and affection for her father-in-law and mother-in-law also were major factors which led to the dismissal of the petition. The trial Court was of the opinion that there was dispute between the parties regarding payment of Rs.3,00,000/- which was to be paid to Kashmir Singh by the respondent-husband and it led to the FAO No.M-87 of 2011 6 leaving of the matrimonial home by the appellant-wife and eventually, an agreement was executed with the intervention of the respectables but the Court came to the conclusion that the respondent-husband could not be compelled to give divorce on the basis of the said agreement as it did not prove that the respondent-husband treated the appellant-wife with cruelty, and accordingly, did not grant appropriate relief to the appellant-wife. Dissatisfied with the judgment and decree, the present appeal has been preferred. The parties also came present and an effort was made for re-conciliation but the same did not find favour with both the parties and thus, the present petition is being decided on merits after examining the trial Court records. The whole issue between the parties in the present case seems to have arisen due to financial differences regarding some transaction of money which was advanced to one Kashmir Singh, son-in-law of the sister of the father of the appellant-wife. The said advance is supposedly to have been taken 7-8 years back which has led to the bad-blood between the parties and a compromise dated 18.12.2008, Exhibit P1 was also executed, though the manner of execution is denied by the respondent- husband and his father since they alleged that it was got signed by them for other purpose of compromise but there was no issue of divorce which had been settled. In our opinion, the declining of relief to the appellant-wife on the ground of cruelty by the learned Addl.District Judge is not justified as the trial Court failed to take into consideration the reasons due to which the FAO No.M-87 of 2011 7 relationship worsened between the parties. A perusal of the compromise dated 18.12.2008, annexed as Exhibit P1 and signed by both husband and wife apart from the other respectables including the father of the respondent-husband, go on to show that the parties had agreed to separate due to the financial differences and misunderstanding arising between them. This agreement, apart from being signed by the said persons, was also signed by Avtar Singh, Jaswant Singh, Surjit Singh, Pritam Singh, Buta Singh, Iqbal Singh and Bikkar Singh. In the said agreement, it was also mentioned that the expenses of the marriage had also been settled and the appellants' father had been compensated by payment from Kashmir Singh, proprietor of Nirmal Trading Company, Makhu. The specific case of the appellant-wife was that she was turned out from the matrimonial home in three wearing clothes on 07.12.2008 and was residing with her parents thereafter and the written compromise was effected on 18.12.2008 after the Panchayat had assembled where the terms and conditions of the compromise were put down. As per the terms and conditions of the compromise, the parties were to separate by way of mutual consent divorce since the appellant-wife had received her expenses of the marriage from M/s Nirmal Trading Company, Makhu on behalf of the respondent-husband and the minor son of the parties was to go to the respondent-husband. This compromise was typed down at the instance of the Panchayat convened at Mallanwala between 4-5 p.m. on 18.12.2008 and FAO No.M-87 of 2011 8 prior to this, the parties had also collected at Police Station Mallanwala and as per the version of the appellant-wife herself, the respondent-husband had been verbally warned for his bad behaviour. The respondent-wife, in her cross-examination, also clarified that she had been beaten with iron rod and suffered multiple injuries but she had never got her medico legal examination. This absence of a medico legal report and the non- approaching of the police or higher officers which swayed the trial Court, cannot be a valid reason since in rural areas, efforts are initially made to keep the things under the carpet and it is only when things go beyond the hands and as a last resort, the police is approached. In the present case, within 10 days of being turned out of the matrimonial home, there was a meeting at the police station and a compromise was reduced in writing entered into between the parties which goes on to show that the respondent-husband had mal-treated his wife, the present appellant. This compromise has been proved by the appellant- wife by examining AW3, Iqbal Singh and AW4, Bikkar Singh. Iqbal Singh belongs to the same village as of the appellant-wife whereas Bikkar Singh belongs to an adjacent village. Though the respondent has his own version of the writing but admittedly he has not examined any other witness in support of the said compromise which he alleged was got signed by him under different circumstances as mentioned above. Apart from the parties and their parents, Surjit Singh, Pritam Singh, Buta Singh had also signed the said agreement but none of the said FAO No.M-87 of 2011 9 witnesses have been examined by the respondent-husband that under what circumstances the compromise was arrived at and to prove the fact that the signatures of the respondent and his father were taken on such agreement for some other purpose. Though in cross-examination, RW1, Avtar Singh has tried to justify that he was not present at the time of compromise and the same was written later on and not in their presence. If this was the position, then the said witnesses who were independent witnesses could have been examined to show under what circumstances the compromise was arrived at. The respondent- husband, in his affidavit, has admitted that they were detained in the police station, Mallanwala prior to the agreement dated 18.12.2008 and in his cross-examination, has alleged that they had sold 4 acres of land in the year 1999 to advance a sum of Rs.3,00,000/- to Nirmal Trading Company, Makhu for payment of interest on the said amount half-yearly raised and which was never paid and neither returned though several requests were made but the matter was kept lingering on, on one pretext or the other. Thus it would be clear that there was a good ground for the respondent-husband to treat his wife with cruelty and harass her and beat her which eventually led to the situation going out of hand on 07.12.2008 when the appellant-wife was turned out from her matrimonial home. Another factor which the trial Court did not take into consideration is that the said amount was due from Nirmal Trading Company, Makhu and had not been returned to FAO No.M-87 of 2011 10 respondent-husband and which was the ground of his maltreating the appellant-wife. Also the execution of the sale deed of 2 kanals 18 marlas of land in favour of the appellant's father, Jaswant Singh on 03.09.2007, Exhibit P2 by Kashmir Singh of Nirmal Trading Company, Makhu of which the respondent- husband had a eye on would have further led to the relationship between the parties getting worse and this is the case which emerges from the record as noticed above that the bad-blood between the parties arose which is on the account of monetary differences. Even the alleged independent witness, RW3, Paramjit Kaur who is Member of the Panchayat of the village of the respondent-husband admitted that the respondent-husband and his father were got detained in the police station Mallanwala and were got released by the respectables and that the dispute had to be sorted out between the parties regarding the transaction of money and the parties were asked to get separated in her presence. These facts have themselves been spelt out from the witnesses of the respondent-husband which have escaped the notice of the trial Court who has dismissed the petition on the ground that there are no specific allegation of maltreatment and the compromise cannot be enforced upon the parties which, in our view, the trial Court was in error once the parties had arrived at logger heads on account of financial differences and were dragging each other to the police station and there are allegations of the respondent-husband and his father of being beaten up in the police station at the instance of FAO No.M-87 of 2011 11 the appellant-wife which were denied by her. This situation would have only ensued once the respondent-husband had exceeded the limit and treated the appellant-wife with extreme cruelty, in an effort to get back his money which he had advanced to her relatives and she was in no position to accede to his request and neither pressurize her relatives to return the money but had to bear the cruel behaviour of the respondent- husband. Accordingly, we reverse the findings of the learned Addl.District Judge, Ferozepur and hold that the appellant-wife had been treated with cruelty and grant a decree of divorce by setting aside the judgment and decree dated 09.02.2011 by allowing the petition under Section 13 of the Hindu Marriage Act, 1955 without any order as to costs. (G.S.SANDHAWALIA) JUDGE (HEMANT GUPTA) JUDGE 09.12.2011 sailesh