FAO No. M-59 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. M-59 of 2009 Date of decision: 18.11.2009 Aman Kaur Virdi ....Appellant Versus Shri Bhalinder Singh Bhullar ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. PJS Hundal, Advocate, for the appellant. Mr. K.S. Rekhi, Advocate, for the respondent. VINOD K. SHARMA, J.(ORAL) CM No. 26253-CII of 2009 Allowed. FAO No. M-59 of 2009 This is wife's appeal against the judgment and decree dated 10.11.2008 passed by the learned Additional District Judge, Amritsar, vide which the petition filed by the appellant under Section 13(1)(a) and 13(1)(b) of the Hindu Marriage Act, 1955, seeking decree of divorce, has been ordered to be dismissed. The appellant is a citizen and permanent resident of England. The parties were married with the intervention of Smt. Gulshanjit Kaur alias Goldi, the relative of the respondent. She represented the respondent to be B.Sc. And MBA with income of Rs.15,000/- to Rs.20,000/- per month. It was agreed between the parties, that the respondent after marriage would go to England and settle there with the FAO No. M-59 of 2009 -2- appellant-wife. It is the case of the appellant that on this representation and assurance marriage between the parties was solemnised on 8.12.2001 according to Sikh rites at Amritsar. It is also the case of the appellant that her parents spent huge amount on the marriage and gave dowry articles worth more than Rs.15,00,000/- (Rupees fifteen lac only), whereas, respondent's family gave no gift or gold ornament at the time of marriage. The honeymoon expenses were also incurred by the parents of the appellant. After marriage, the appellant flew back to England on 31.12.2001, to resume her duty. The respondent followed her on 23.2.2002, all the travelling expenses were met by the parents of the appellant. The parties lived and cohabited together as husband and wife in England. It is the case of the appellant, that the parents of the appellant, also got arranged job for the respondent at two places, but he left the job after short intervals without any reason. It is the case of the appellant, that later on it was revealed, that he was also not interested to work in India and was not earning his livelihood. It is also the allegation of the appellant, that during their stay together it was noticed that the respondent was an eccentric and ageist person, and did not listen to the advice of her parents or her suggestion about necessity of job. The appellant claimed, that the respondent wanted to live a life of parasite. It is also the case of the appellant, that though the respondent claimed that he was B.Sc. and MBA from an institute recognized by the US Secretary of Education, but on enquiry, it was revealed that the institution from which he did his MBA was not even FAO No. M-59 of 2009 -3- recognized by the US Secretary of Education. It is also the case of the appellant, that demands of dowry were raised, which could not be met, as huge amount had been spent on the marriage. It is the case of the appellant, that on refusal to accept his demand the respondent became furious and started misbehaving and maltreating the appellant with utmost cruelty. On 11.8.2002, the respondent suddenly returned to India without informing the appellant. The reason given by the respondent that his father was ill, which was found to be false. It is the case of the appellant that on 28.12.2002 a son was born out of this wedlock, but the respondent or his family members did not show any response to the happy news. Nobody came to see the child rather the respondent thereafter snapped all ties with the appellant. It is the case of the appellant, that respondent filed a petition under Section 9 of the Hindu Marriage Act at Amritsar. In response thereto, the father of the appellant came to India, when he was involved in a false case under Section 420 IPC at Police Station 'B' Division, Amritsar. The allegations levelled were, that a sum of Rs.2,00,000/- (Rupees two lac only) was taken by him from a close friend of the respondent named Inderjit Singh Brar to arrange for Brar's Visa for England. In the FIR, father of the appellant was arrested on 7.3.2003 and was confined in custody for 15 days. Thereafter, he was released on bail on 21.3.2003. The case was ultimately found to be false and he was discharged by the Court. FAO No. M-59 of 2009 -4- The order of discharge was challenged in revision. The prayer for release of passport was also declined by the learned Sessions Judge on 11.6.2003. It was only with the intervention of the High Court that the passport was released. This caused a great mental tension to the appellant, as her father had to stay in India for a period of six months to face criminal trial. The case of the appellant is that this was done to humiliate the appellant as well as her family members. It was also claimed that the respondent was giving threatening calls and messages to the appellant and was guilty of cruelty of high order, and that it was impossible for her to live with the respondent except at the risk of her life. The ground of desertion was also pleaded. The respondent appeared and filed written statement, but his defence was struck of due to non-payment of maintenance pendente lite fixed under Section 24 of the Hindu Marriage Act. In order to prove the case, the appellant examined PW1 Vikram Devgan, Ahlmad, PW2 Gurdip Singh Virdi, PW3 Aman Kaur, PW4 Rajinder Singh, PW5 Manpreet Kaur, PW6 Amarjit Singh and PW7 MHC Virsa Singh. The respondent in defence examined RW1 Tejinderpal Singh (partly), besides his own statement as RW2 (partly). The evidence led by the respondent was not read into evidence for the reason that the statement of the witnesses remained incomplete, and furthermore, the defence of the respondent had been struck off. The learned Matrimonial Court did not accept the ex parte evidence on the ground, that the allegations were of general nature, therefore, could not be believed to hold that the appellant was treated FAO No. M-59 of 2009 -5- with cruelty. The learned Court also found, that evidence of some of the witnesses was hear-say and could not be relied upon. The allegation of involvement in a criminal case by Inderjit Singh Brar was not accepted for the reason, that there was no evidence to establish the connection between respodnent and Inderjit Singh Brar. The plea of desertion was not accepted for want of evidence to show as to whether the respondent was in a position to go back to England. The petition was ordered to be dismissed. With the consent of the parties, the matter was referred for conciliation, wherein the parties agreed to withdraw the cases filed against each other. Mr. PJS Hundal, learned counsel, appearing on behalf of the appellant, has challenged the impugned judgment and decree on the plea, that once the defence of the respondent was struck off for non-payment of maintenance and litigation expenses, the defence raised could not be taken into consideration. The learned Court below committed an error in dismissing the petition, though the desertion as well as cruelty stood proved. It is not in dispute, that appellant had specifically pleaded, that respondent had treated her with cruelty for want of dowry and her statement went unrebutted, as the defence of the respondent had been struck off. There was no rebuttal to the allegations that the educational qualification and the income of disclosed at the time of marriage was not found to be correct. It was also proved that the respondent was not willing to take up a job for livelihood, and wanted to be a parasite on the appellant. It was also proved that the respondent took no interest in the FAO No. M-59 of 2009 -6- child, who was born out of the wedlock as in spite of information in this regard there was no response by the respondent. The cumulative effect of all this constitute cruelty to the wife, who had come all the way from England to get married to the respondent. The learned Matrimonial Court was, therefore, not justified in rejecting the plea of mental cruelty on account of registration of false case, merely for the reason that there was no evidence to connect the complainant and the respondent. This finding of the learned Matrimonial Court is contrary to the evidence on record, as the statement of the witnesses attributing the relationship between the complainant and respondent went unrebutted. It is well settled law, that unrebutted evidence can be accepted in proof of a fact alleged in pleading. The conduct of the respondent shows that he left England with an object to bring to an end the matrimonial alliance. The fact of separation for more than two years prior to filing of the petition and animus deserendi, therefore, stood proved. The learned Matrimonial Court, therefore, was not justified in holding, that the plea of desertion was not proved for want of evidence that it was or not it was possible for the respondent to go back. Once it was proved that respondent had come back from England by leaving matrimonial home, it was for him to show that though he was willing to resume the matrimonial alliance, it was for the reasons beyond his control that he could not go back to England. In absence of any evidence by the respondent, in this regard the presumption was required to be drawn against him instead of drawing it in his favour. It was for him to prove that there was no animus FAO No. M-59 of 2009 -7- deserendi, and separation was for the reasons beyond his control. For the reasons stated, it is held that the appellant had proved the ground of mental and physical cruelty, as also desertion. Consequently, this appeal is allowed, the judgment and decree passed by the learned Additional District Judge, Amritsar, is set aside and the marriage between the parties is ordered to be dissolved by decree of divorce by accepting the petition filed by the appellant under Section 13 of the Hindu Marriage Act. No costs. (Vinod K. Sharma) Judge November 18, 2009 R.S.