IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.352-M of 2010 (O&M) Date of decision: 15.03.2011 Major Bhupinder Singh Malhi ....Appellant versus Harpreet Kaur ....Respondent CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Sanjay Gupta, Advocate, for the appellant. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? No. 3. Whether the judgment should be reported in the digest ? No. ---- K.Kannan, J. 1. The appeal is against the dismissal of the petition for divorce on the ground that the wife was guilty of cruelty and desertion. The marriage took place on 18.02.1990 and through the marriage, a male child was born on 21.11.1990. The complaint of the husband was that the respondent was short-tempered and used to fight for every small reason and that she used to humiliate him in the presence of his colleagues. He is an army personnel and had been posted in Kanpur in 1991 and then in Jammu and Kashmir in 1992 and later, he was posted at Suratgarh (Rajasthan). The wife had been left in her parents’ house because he could not shift to the place of his posting due to exigencies of service. Subsequently when he was allotted with accommodation, the FAO No.352-M of 2010 (O&M) - 2 - wife refused to join him despite repeated requests. She would not even allow the husband to visit his father when he was at Canada and when he was still ailing. His father had later expired in November 1993, but the wife did not visit him even to offer condolence. Later, he was posted at Kupwara (Jammu and Kashmir), but he could not take his wife to that place and, therefore, he had requested the wife to stay with his widowed mother alone. Even on occasions when he would return home to live, the wife could not come to live with him. She ultimately left the matrimonial home in December 1992 on the pretext that she had to look after her father and took away all dowry articles. She also insisted that he must transfer the registration of maruti car in her name and had also taken the car with her. She was giving several complaints against him with the army authorities and brought down his esteem in their eyes. The complaint of the appellant was that she had done several acts of cruelty and she had intentionally deserted the husband and he was, therefore, entitled to a decree of divorce. 2. The wife had denied all these allegations. She would, on the other hand, state that the husband never desired to keep his wife in his company. He had always petulant in his ways with her and liked to stay away from the house as long as possible. She had lived with him in Kanpur in 1991 and then later in Jammu and Kashmir in 1992. She would, however, deny that she never visited the appellant at the time of his father's death to express condolence and would state that she was actually living with him in the very same house where her father-in-law died at that time. As regards the allegations that the wife wanted the FAO No.352-M of 2010 (O&M) - 3 - registration of the maruti car to be transferred in her name, she would state that the car had been purchased by her father in the name of the appellant and she had never demanded the change of registration in her name. All her dowry articles were still lying in the house of the appellant. As regards the contention that she had prevented the husband from going to visit his father when he was in Canada, she would state that the appellant wanted to desert the army and immigrate to Canada. His attempt was to completely neglect the wife and child and shift to a foreign base. If she had approached the army higher officials, it was only to secure to her and to her child maintenance. 3. After the filing of the written statement, she had filed an amendment to the written statement to include the details of the fact that the appellant had married yet another woman by name Anju Puri and still later to a person by name Ginny Jindal. She had come to know about it subsequent to the filing of the statement. This application for amendment was originally refused and later permitted to be filed by an order of this Court in Civil Revision No.5233 of 2008. 4. Even without going into all the facts of the case, one thing which is clear from the order of the trial Court is that the appellant had committed matrimonial wrongs in taking two other persons as wife, one succeeding the other without dissolving the marriage. One of the women he had married subsequently had also given evidence in Court as a witness with documentary proof of his marriage to her and his subsequent abandonment. The trial Court, therefore, found that the appellant was not entitled to secure the decree of divorce. At the time of FAO No.352-M of 2010 (O&M) - 4 - admission, when I asked the appellant to give the details of his matrimonial status and how he had contracted marriage or developed relations with other women even during the subsistence of the marriage, the counsel was not prepared to argue the issue but kept insisting that an appeal under Section 28 of the Hindu Marriage Act is a statutory right and the High Court is a Court of appeal which was bound to issue notice and undertake an adjudication of the case after issue of notice to the respondent. Since the counsel defied the Court to open the case as regards the facts as found in the judgment of the court below, without issuing notice, I had, after reserving the case for orders to decide on whether to issue notice or make a summary dismissal as not worthy of notice, I had called the files of the trial Court. I have proceeded now to dispose of the case even without service of notice to the respondent, satisfied as I am that the trial Court was justified in its conclusion and a person such as the appellant is not entitled to any favourable relief in this matrimonial proceeding. 5. Section 28 of the Hindu Marriage Act no doubt gives a right of first appeal to any person who is aggrieved by the decision of the court within a period of 90 days. The court exercising the matrimonial jurisdiction is bound to examine, even if the petitioner establishes the facts alleged and even if the respondent appears or not whether the party is entitled to a decree. The language of Section 23 of the Act is: “(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that— (a) any of the grounds for granting relief exists and FAO No.352-M of 2010 (O&M) - 5 - the petitioner except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of Section 5 is not in anyway taking advantage of his or her own wrong or disability for the purpose of such relief, and (b) ...... (bb) ..... (c) ...... (d)...... (e)...... (2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties : ........ (3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions FAO No.352-M of 2010 (O&M) - 6 - to report to the court, as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding have due regard to the report. (4) ..........” 6. It can be noticed by the reading of the entire provision that they are hedged with several limitations before it can grant a decree. First of all, it is irrelevant that a case is defended or not. Secondly, if the grounds exist, the court must satisfy itself that the petitioner is not taking advantage of his own wrong. The next stage is a directive to the court to endeavour to see that a conciliation is brought about between the parties and adjourn the case to another date to secure the presence of parties. The civil procedure code also contains a distinct provision through Order 32A for court’s meaningful interventions in matters relating to family. If the trial court exercises its jurisdiction and renders a finding and in a particular case made scathing remarks about the conduct of the party, it is imperative that the party who is aggrieved and who assails the judgment first clears himself of the innuendoes and proceed to show that the judgment is faulty in reasoning and would hence a fresh appraisal. The right of notice even in a first appeal is not automatic. The court that entertains a first appeal could adopt the procedure which the provision in CPC lays down: Order 41 Rule 11. Power to dismiss appeal without sending notice to Lower Court 11. Power to dismiss appeal without sending notice to Lower Court. (1) The Appellate Court after fixing a day for FAO No.352-M of 2010 (O&M) - 7 - hearing the appellant or his pleader and hearing him accordingly if he appears on that day may dismiss the appeal. (2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. (3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred. (4) Where an Appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment. Dealing with the provision, the Supreme Court held in Bolin Chetia v. Jogadish Bhuyan,(2005) 6 SCC 81, at page 88 : “A first appeal is generally open for hearing on questions of law and fact, both, and the appellate court possesses power to make all such orders as the original court could have made. The discretion conferred on the appellate court to dismiss the appeal at its threshold is a judicial discretion and cannot be exercised arbitrarily or by whim or fancy. The appellate courts exercise the discretion in favour of summary dismissal sparingly and only by way of exception. However, that does not tantamount to saying that the FAO No.352-M of 2010 (O&M) - 8 - appellate court does not possess the power to dismiss an appeal summarily and at the threshold. Such power to summarily dismiss can be exercised, depending on the facts and circumstances of a given case, before issuing notice to the respondent and even before sending for the record of the inferior forum.” The Court however cautioned in the same judgment: An appellate court summarily dismissing an appeal, is duty- bound to exercise an independent judgment on the facts of the case and to express (howsoever brief it may be) the result of its investigation in its judgment. It proceeded to say, “16. It is thus clear that the appellate courts including the High Court do have power to dismiss an appeal summarily. Such power is inherent in appellate jurisdiction. The power to dismiss summarily is available to be exercised in regard to first appeals subject to the caution that such power will be exercised by way of exception and if only the first appellate court is convinced that the appeal is so worthless, raising no arguable question of fact or of law, as it would be a sheer wastage of time and money for the respondent being called upon to appear, and would also be an exercise in futility for the court. The first appellate court exercising power to dismiss the appeals summarily ought to pass a speaking order making it precise that it did go into the pleas FAO No.352-M of 2010 (O&M) - 9 - — of fact and/or law — sought to be urged before it and upon deliberating upon them found them to be devoid of any merit or substance and giving brief reasons. This is necessary to satisfy any superior jurisdiction whom the aggrieved appellant may approach, that the power to summarily dismiss the appeal was exercised judicially and consciously by way of an exception.” 7. This case presents a situation that empowers the court to enter a summary dismissal for an utterly undeserving party, who figures as the appellant. 8. One Anju Puri was examined as RW1. She had stated that she had met the appellant Bhupinder Singh Malhi for the first time in the year 1988-89 at Ambala Cantt. and at that time, he was Captain and posted in 70 Armed Regt. It was her further contention that he had proposed to her for marriage, but she had declined the same. Later, the appellant was married to the respondent Harpreet Kaur and about that time, she had picked up a job and shifted to Delhi. She would state that she met with Bhupinder Singh Malhi in the market by share coincidence at Jammu and renewed her acquaintance. Again she met him in December 1992 at Chandigarh at the time of marriage of her brother and at that time the appellant told her that there was a dispute between him and his wife and that he was going to file a petition for divorce. The appellant had started frequently visiting her at her house at Delhi and later at Faridabad. When he was posted at Suratgarh (Rajasthan) and later at Jammu and Kashmir, whenever he was on leave, he used to visit her FAO No.352-M of 2010 (O&M) - 10 - frequently at her house and sometimes outside. The appellant proposed to her for marriage again and he asked the matrimonial status. He gave to her a copy of the register maintained by the Deputy Assistant Adjutant General and that recorded the alleged fact of a divorce decree granted in favour of the husband on 31.07.2000. It was only after this that she agreed to marry him. It was then she got married to him and also produced a photograph taken alongside him and that was produced as Ex.DC1. She had then availed for loan facility from ICICI bank where they had described themselves as husband and wife. The loan sanctioned to her was produced as RW1/C. She stated that they began living as husband and wife at Kanishka Residency, Sector 35, Faridabad. She alleged that at that time, he picked up an illicit relation with their neighbour Ms.Ginny Jindal and on that account, there erupted frequent fights. She alleged that both of them started threatening her and, therefore, she had given a criminal complaint against the appellant at the Police Station Sarai Khawaja, Faridabad for offences under Sections 493, 495, 375, 376 read with Sections 420 IPC. Copy of the complaint was also filed. The Executive Magistrate, Faridabad had issued a process, after examining Ms. Anju Puri, to the appellant to answer the charges for offences under Section 493, 495, 420 IPC, but the complaint under Section 376 was, however, dismissed. 9. Even apart from the evidence of the woman, who claimed that she had been married and duped by the appellant's false plea that he had already obtained a divorce to secure a marriage, there was further evidence placed by the wife herself that he had married yet another FAO No.352-M of 2010 (O&M) - 11 - woman by name Ginny Jindal and produced through a person working with Arya Samaj, Greater Kailash-II, New Delhi, that he had married the said Ginny Jindal by giving an affidavit that he was a divorcee and he had no other living spouse at present. The affidavit filed before the Arya Samaj was produced by RW5 Priya Brat where he had stated that he wished to marry Ginny Jindal and that he was not in any way related to her. The said witness also produced the affidavit of the girl Ginny Jindal with her photographs affixed. The bulk of documents that had been produced showed that he had also produced a copy of the passport for his identity and a copy of the ISC pass certificate of Ms. Ginny Jindal. A marriage had been celebrated subsequently as per the Arya Samaji mode of the celebration and a certificate had also been issued. Marriage certificate was RW5/J. 10. The records further revealed that the wife had given a complaint to the higher officials about plural marriages that the appellant had engaged himself in and seeking for necessary action. The documents filed before the Court clearly showed that the appellant has committed matrimonial wrongs which were too formidable to deny. All his grounds urged in the appeal that he had not known a woman that Ginny Jindal or he had never any relations with another person called Anju Puri are brazenly false. The appellant has no regard for truth and uses the Courts' process for dishing out tissues of lies. The appeal is frivolous and it is liable to be dismissed. 11. The original institution of the case was by an undeserving petitioner who was guilty of matrimonial wrong. When he was in appeal, FAO No.352-M of 2010 (O&M) - 12 - he was trying to reiterate the falsity of his case and insisted through his counsel that he had a right to notice to the other side and that the appeal could not be summarily disposed off. The appellant’s attempt was to browbeat the court and torment the spouse through a long drawn litigation. The trial court's judgment is well reasoned and brings out the unrepentant and shameless conduct of the appellant. I have no reason to take a different view in this case and since it is being dismissed at the stage of admission, I direct that the appeal is dismissed with cost of Rs.25,000/- to be paid to the Chandigarh, Legal Services Authority, attached to the Court. The copy of the order is directed to be sent to the Legal Services Authority for claiming the costs and apply to the Court if the amount is not paid within 30 days from the date of the receipt of the copy of the order. (K.KANNAN) JUDGE 15.03.2011 sanjeev