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Smt. Gurbachan Kaur Vs. Sardar Swaran Singh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 8 of 1977
Judge
Reported inAIR1978All255
ActsHindu Marriage Act, 1955 - Sections 10, 13, 18 and 28; Code of Civil Procedure (CPC) , 1908 - Sections 2(2) and 100
AppellantSmt. Gurbachan Kaur
RespondentSardar Swaran Singh
Appellant AdvocateA.D. Prabhakar and ;Baldev Raj, Advs.
Respondent AdvocateKrishna Mohan Sinha, Adv.
DispositionAppeal allowed
Excerpt:
family - dissolution of marriage - sections 10, 13 and 28 of hindu marriage act, 1955 and sections 2 (2) and 100 of code of civil procedure, 1908 - word 'decrees and orders' contained in section 28 of act of 1955 include both original and appellate decree - section 28 is self contained provision and itself confers a right of appeal from decree passed in proceedings for judicial separation - allegations by wife in court that husband was having extra marital relationship and created conditions for her to commit suicide does not amount to mental cruelty ( dissolution of marriage cannot be granted on these grounds. - - , for it is stated therein that decrees under the hindu marriage act shall be enforced in the like manner as decrees of a court on its original civil jurisdiction. 151)..........some differences having arisen between them, the respondent filed a suit under section 12 of the hindu marriage act for a declaration that his marriage with the appellant was null and void. it was alleged in the plaint that on 14th of october, 1973, when the appellant was found profusely bleeding from her private part, she was shown to a lady doctor and it was then discovered that the appellant was already having pregnancy with a treat of miscarriage. on being questioned the appellant confessed that she was quick with child and had taken medicine to get rid of the pre-gancy. the respondent, it is alleged, therefore sent the appellant back to her father's house, but on 25th of march, 1974, the appellant was escorted back to his house by her mother and left there. it is further alleged.....
Judgment:

J.M.L. Sinha, J.

1. This is a defendant'ssecond appeal arising out of the judgment and decree dated 13th October, 1976 passed by the Additional District Judge, Dehra Dun.

2. The facts giving rise to this appeal can briefly be stated as under ;Smt. Gurbachan Kaur and Sardar Swaran Singh, 'hereinafter called the appellant and the respondent respectively, were married on 2nd of October, 1973. Some differences having arisen between them, the respondent filed a suit under Section 12 of the Hindu Marriage Act for a declaration that his marriage with the appellant was null and void. It was alleged in the plaint that on 14th of October, 1973, when the appellant was found profusely bleeding from her private part, she was shown to a lady doctor and it was then discovered that the appellant was already having pregnancy with a treat of miscarriage. On being questioned the appellant confessed that she was quick with child and had taken medicine to get rid of the pre-gancy. The respondent, it is alleged, therefore sent the appellant back to her father's house, but on 25th of March, 1974, the appellant was escorted back to his house by her mother and left there. It is further alleged that when the respondent insisted upon the appellant to go back to her father's house, as she had illicit intercourse with some person before the marriage, the appellant went to bath-room and swallowed Tik-20 saving that she was ending her life. She was again taken to hospital from where she was discharged on 28th of March, 1974 and was then sent back to her father's house along with her Istridhan property.

3. The suit was resisted by the appellant. In the written statement filed by her she denied all the allegations made against her. She, however, made a counter-allegation against the respondent to the effect that the respondent had adulterous relations with his sister-in-law and that the respondent, in collusion with his sister-in-law, intentionally administered some kind of slow poison to her. It was further alleged by her that on 29th of March, 1'974 the respondent beat her, snatched away all her jewellery, clothing etc. and turned her out of the house.

4. After the aforesaid written statement had been filed by the appellant, therespondent got the plaint amended to include a plea to the effect that false charge of adultery and that of administering poison to the appellant, levelled against him in the written statement amounted to repeated and persistent cruelty against him and he was on that ground entitled to a decree of dissolution of marriage against the appellant.

4-A. The trial court on the consideration of the evidence on record held that the allegations made against the appellant about her being pregnant since before her marriage was incorrect. The trial court, however, held that the counter-allegation made by the appellant that the respondent was living an adulterous life with his sister-in-law and that both of them administered slow poison to her amounted to an act of cruelty. In the result, the trial court granted a decree for dissolution of marriage.

5. Aggrieved against the judgment of the trial court, Smt. Gurbachan Kaur filed an appeal in the court of the District Judge, Dehra Dun. The learned Additional District and Sessions Judge, who heard the appeal, took notice of the amendment of Section 13 of the Hindu Marriage Act as brought about by Act 68 of 1976 and observed that, after the amendment, cruelty simpliciter was a sufficient ground for divorce and it was not necessary that such an act should be repeated or persistent. Further on the learned Additional District Judge concurred with the finding of the trial court that the allegation made by the appellant against the respondent about his having adulterous relations with his sister-in-law and about the respondent and his sister-in-law having colluded to administer poison to her amounted to acts of cruelty. The learned Additional District Judge, accordingly, confirmed the decree passed by the trial court and dismissed the appeal.

6. Feeling dissatisfied with the judgment of the lower appellate court, Smt. Gurbachan Kaur has come up in appeal before this Court.

7. Learned counsel for the respondent raised a preliminary objection to the effect that a second appeal is not maintainable against the orders or decrees passed in proceedings under the Hindu Marriage Act. Learned counsel pointed out that the only provision contained in the Hindu Marriage Act in regard to appeals is that contained in Section 28 thereof which states that decrees and orders made in any proceeding under the Hindu Marriage Act may be appealed from under any law for the time being in force. Learned counsel further urged that, in view of the language used in Section 28 of the Hindu Marriage Act, it is necessary to refer to the provisions contained in the Civil P. C. in order to find the right and extent of appeal against the orders passed in proceedings under the Hindu Marriage Act. Reference was then made to Section 100, Civil P. C., which contains provision regarding second appeals, and it was pointed out that, according to the provision contained in that section, a second appeal can lie only from a decree. Learned counsel pointed out that, according to the definition of the expression 'decree' as contained in Sub-section (2) of Section 2 of the Act, it means formal expression of adjudication which conclusively determines the right of the parties with regard to all or any of the matters in controversy in a' suit. It was urged by the learned counsel that a cumulative reading of Section 2(2) and Section 100, Civil P. C. leads to the conclusion that a second appeal can lie to High Court only against decrees passed in a suit. According to the learned counsel for the respondent, proceedings under Section 13 of the Hindu Marriage Act not being a suit, the order passed in those proceedings cannot constitute a 'decree' within the meaning of Section 2(2) of the Civil P. C., and consequently, no second appeal can lie against an order passed in those proceedings. Elaborating his contention that proceedings under Section 13 of the Hindu Marriage Act, are not 'suit' learned counsel pointed out that a suit is always initiated by a plaint and, since an application under Section 13 cannot be termed to be a plaint, the proceedings starting with that application cannot be termed to be a 'suit'.

8. Having given my careful thought to the contention raised by the learned counsel for the respondent I regret my inability to accept it.

9. In Yudhisthir Singh v. Batauna Devi (1962 All LJ 432) a petition for divorce was filed before a Civil Judge, who allowed the petition. An appeal against that decision was filed before the District Judge, who dismissed it and then a second appeal was filed in this court. A contention was raised in that case that the District Judge had no jurisdiction to entertain the appeal. While deciding that point this court said :

'Under Section 21 of the Act all proceedings under it shall be regulated by the C. P. C. as far as may be; this meansthat a petition under 3. 13 is to toe treated as a plaint in a suit and the law as applicable to plaints will apply to petitions under Section 13 also.' and further on: 'His right of appeal is derived solely from the provision of Section 28 of the Act and if that provision confers upon him the right of appeal to the District Judge in certain circumstances, he cannot beheard to say that he is deprived of a right to appeal to the High Court.'. (Underlining is by me).

In case Sarla Devi v. Balwan Singh (1968 All LJ 676) : (AIR 1969 All 601) the question for consideration was whether an appeal could He against an order passed under Section 24 of the Hindu Marriage Act. While considering that question this Court observed :

'In our opinion, therefore, the second part of Section 28 of the Act makes every decree or order passed under the provisions of the Act appealable as of right, but the appeal would be regulated and governed by that particular local civil Act which rules in the State in which the appeal arises.'

10. In Bai Umiyabhan v. Ambalal Laxmidas (AIR 1966 Guj 139) the question whether a second appeal can lie against an order passed in a petition for judicial separation came up directly for consideration. Their Lordships of the Gujarat High Court accepted that a decree passed in proceedings for judicial separation under the Hindu Marriage Act is not a 'decree' within the meaning of Section 2(2) of the Civil P. C. and that the right of second appeal against an appellate decree made by a court in a petition for judicial separation does not flow from Section 100 of the Civil P. C. However, after making an elaborate discussion of Section 28, Section 22 and Section 24 of the Hindu Marriage Act it was held by their Lordships that the words 'decrees and orders' contained in Section 28 of the Hindu Marriage Act, according to their plain and natural sense, include not only original decrees and orders but also appellate decree and orders. The preliminary objection against the maintainability of the second appeal was, accordingly, rejected. The fact that Section 28 of the Hindu Marriage Act is self-contained and that it contains an independent provision conferring a right of appeal also finds support from a Division Bench decision of the High Court of Punjab. In case P. C. Jairath v. Mrs. Amrit Jairat (AIR 1967 Punj 148) it was observed (at p. 151) :

'The language of Section 28 also makes it clear that decrees under the Hindu Marriage Act are not decrees under the CivilP. C., for it is stated therein that decrees under the Hindu Marriage Act shall be enforced in the like manner as decrees of a court on its original civil jurisdiction. This necessarily implies that though the decrees under the Act are by a statutory fiction treated for the purposes of enforcement as decrees under the Code, they in fact are not such decrees. It was also not the intention of the Legislature in my view while giving a right oil appeal under Section 28 of the Hindu Marriage Act, to make that right indefinite and more or less illusory by providing that the appeal under that section would be competent only if a provision for that purpose exists in some other law in force far the time being and not otherwise. Section 28 should be reggarded as self-contained so far as appeals against decrees and orders under the different provisions of the Hindu Marriage Act are concerned and for this purpose it should not be necessary to look to other laws. The words in Section 28 'and may be appealed from under any law for the time being in force', as I read that section, have reference only to the forum of appeal and the procedure to govern such appeals', (underlining is by me)

The fact that, in view of the provisions of Section 28 of the Hindu Marriage Act, an appeal would also lie against the appellate decree or order, also finds support from some observations made in Patel Dharamshi Premji v. Bai Sakar Kanji (AIR 1968 Guj 150) and Dr. H. T. Vira Reddi v. Kistamma (AIR 1969 Mad 235). In the former case it was observed (at p. 151) :

'But, it is now well settled by a decision of this court in Bai Umiyaben v. Ambalal (AIR 1966 Guj 139) that the right of second appeal conferred by Section 28 is limited to the grounds set out in Section 100 of the Civil P.C. and can, therefore, be exercised only on questions of law and not on questions of fact.' The relevant observation in the latter case is as follows : 'That Act does not contain any prohibition or restriction as to a further appeal like Section 39(2) of the Arbitration Act, covered by the decision of the Supreme Court in Union of India v. Mohindra Supply Co. (AIR 1962 SC 256) : (1962 All LJ 1) with the result, that the appellanthas got a further right of appeal to this Court under Clause 15 of the Letters Patent.'

I am, therefore, unhesitatingly of the view that the present appeal is maintainable. The preliminary objection raised by the learned counsel for the respondent is, accordingly, rejected.

11. I may, however, clarify at this very place that in reaching my conclusion recorded above, I have not taken into account the amendment of Section 28 of Act No. 68 of 1956 because the application under Section 13 was filed in this case before the Amending Act came into force and the amendment of Section 28 has not been given retrospective effect.

12. Now, coming to the merits of the case, the courts below have granted the decree for judicial separation in favour of the respondent mainly on the following two grounds :

(i) That the appellant made a false allegation in her written statement to the effect that the respondent was having adulterous relations with his sister-in-law which amounted to an act of cruelty, and

(ii) that the appellant made a false allegation against the respondent of having administered poison to her which too amounted to an act of cruelty. Now, accepting that the appellant made a false allegation in her written statement to the effect that the respondent was having adulterous relations with his sister-in-law, as held by the Courts below, I do not think, in the particular circumstances of this case, such an allegation on the part of the appellant could be construed to be an act of cruelty. The trial court as well as the lower appellate court have taken that allegation into consideration without taking into account the antecedent circumstances. It may be noted that when the appellant went to the house of the respondent after her marriage, she was accused of carrying an illicit pregnancy. On the own showing of the respondent, he turned the appellant out of the house alleging un-chastity to her. The respondent reiterated that allegation in the application filed by him under Section 13 of the Hindu Marriage Act and even pleaded that when she was taken to a lady doctor, it was discovered that the appellant was pregnant. The trial court has recorded a categorical finding to the effect that, on the evidence adduced in the case, that allegation was proved to be false. The lower appellate court has not disagreed with that finding and, on a perusal ofthe record, I find that the finding recorded by the trial court in that connection is well supported by the evidence on record. It would, therefore, follow that the respondent made a false allegation against his newly wedded wife that she was pregnant and even turned her out of his house alleging that she was unchaste. There cannot be a worse allegation against a newly married woman than an allegation of unchastity by her husband. The respondent persisted in making that allegation against the appellant inasmuch as he repeated the same even in the application under Section 13. Now, if by this grossly improper and undesirable conduct of the respondent, the petitioner felt provoked and made a counter-allegation of unchastity against her husband, it cannot be said that the counter-allegation amounted to an act of cruelty to warrant a decree for dissolution of marriage ' being granted against her. The appellant was after all a human being and any person in her position, on being accused of unchastitv could feel provoked and made a counter allegation. In fact the respondent himself invited that counter allegation by making a false allegation of unchasity against his wife after her marriage, by turning her out of the house on that accusation and by reiterating that allegation in the application under Section 13 of the Hindu Marriage Act. Therefore, disagreeing with the courts below, I hold that the allegation made by the appellant in the written statement that the respondent was having adulterous relations with his sister-in-law could not, in the circumstances of the case, constitute an act of cruelty to warrant a decree for dissolution of marriage being passed against her.

13. Coming to the second ground, the finding recorded by the trial court is that the appellant swallowed Tik-20 to kill herself and, in her written statement made a false allegation against the respondent of having administered the poison to her. The lower appellate court, recorded its finding on that point in the following words:--

'The case of the husband that the applicant-wife had attempted to commit suicide, because the 'husband was not prepared to keep her, appears to be true and convincing. When she was sent out by the husband, on the ground of he pregnancy from somebody else, and when she was brought back to the husband's house, certainly ocean of her restraintmust have flooded and that circumstance, if she had attempted to commit the suicide or threatened her husband to commit the suicide, it is neither surprising nor astonishing. If the allegation that she was administered poison by the husband and his Bhabhi are false, certainly the situation is very dangerous for the husband and the entire family, if she was forced to live with the husband and commits the same mischief again. Obviously, the husband will fall in enormous trouble and agony if she falsely states that the poison was administered by the husband. I, therefore, hold that the cruelty on the part of the wife has been proved and it is a sufficient ground for granting the decree.'

A perusal of the above would show that the finding recorded by the lower appellate court is not firm. The trial court as well as the lower appellate court have for their conclusion mainly relied on the bed-head ticket and the medical certificate. Both the courts however conceded that, according to the doctor's report, poisoning had been caused by taking some cough syrup the nature of which could not be known. The medical evidence thus did not prove that the appellant was administered poison or that she swallowed any poison herself in order to commit suicide. The only other evidence in support of that fact consists of the statement made by the petitioner respondent (P. W. 4) and one Inder Singh (P. W. 3), who stated that the appellant threw an empty phial of Tik-20 shouting that she had swallowed the contents. In view of the relationship between the appellant and the respondent, the statement made by the respondent could not be given much credence. So far as Inder Singh is concerned, it should not have been ignored that he also deposed about the appellant being pregnant when she came to the respondent's house soon after her marriage, which allegation was proved to be false.

14. There was thus no sufficient evidence to warrant a conclusion that the appellant swallowed Tik-20 in order to commit suicide.

15. But, even accepting the finding of the courts below, that the respondent swallowed the contents of the phial of Tik-20 in desperation, that act in the context of the other circumstances of the case could not constitute an act of cruelty on the part of the appellant to warrant a decree for dissolution of marriage being granted against her. It is theown case of the respondent that when the appellant came to his house after the marriage, she was accused of having illicit pregnancy and was turned out of the house on that ground. It is also the own case of the appellant that the appellant's mother escorted the appellant back to the respondent's house and left her there and the respondent then insisted upon the appellant that he would not keep her in his house. Now on one side the parents of the appellant wanted the appellant to go and live with her husband and on the other side the respondent was adamant that he would not keep her with him in his house and persistently accused her of unchastity. Sandwiched in such circumstances any girl could try to end her life. It is not the respondent's case that after the appellant was taken to the hospital, she made any allegation that she had been administered poison 'bv the respondent or any member of his family. That allegation was made by the appellant for the first time in her written statement when she found that the respondent not only falsely charged her with unchastity and maltreated her, but also wanted to get the marriage dissolved on that preposterously false allegation. In my opinion, this circumstance cannot be ignored while coming to the conclusion whether the aforesaid allegations made by the appellant in the written statement does or does not constitute an act of cruelty. The allegation considered in the context or that circumstances, in my opinion, cannot constitute an act of cruelty and I hold accordingly.

16. In the result, therefore, this appeal is allowed, the judgment and decree passed by the courts below are set aside and the application filed by the respondent under Section 13 of the Hindu Marriage Act stands dismissed with costs throughout.


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