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Mohinder Kaur Vs. Bhag Ram - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.O. Nos. 65-M and 66-M of 1976
Judge
Reported inAIR1979P& H71
ActsHindu Marriage Act - Sections 9 and 10
AppellantMohinder Kaur
RespondentBhag Ram
Cases Referred and Gurcharan Singh v. Waryam Kaur
Excerpt:
..... held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - the respondent made some attempts to bring her back but she failed to oblige him. on the other hand, she pleaded that as she was not good looking and had not brought dowry according to the satisfaction of the respondent, the latter had been beating her and had driven her out of the house..........court disposing of two connected petitions between the parties who are husband and wife. bhag ram (husband) filed a petition under s. 9 of the hindu marriage act (hereinafter referred to as the act) against the appellant mohinder kaur for the grant of a decree for restitution of conjugal rights with the allegation that the parties were married about sixteen years ago and lived together up-till oct., 1972. a female child was born to them who was about four years old (at the time of the filing of the petitions). it was alleged by the husband that in oct, 1972 the appellant went to see her parents along with the daughter with a promise to return within a month or so, but she did not come back. the respondent made some attempts to bring her back but she failed to oblige him. a specific.....
Judgment:

1. This judgment will dispose of F. A. Os. Nos. 65/M and 66/M of 1976 which are both inter-connected, there being a common order of the trial Court disposing of two connected petitions between the parties who are husband and wife. Bhag Ram (husband) filed a petition under S. 9 of the Hindu Marriage Act (hereinafter referred to as the Act) against the appellant Mohinder Kaur for the grant of a decree for restitution of conjugal rights with the allegation that the parties were married about sixteen years ago and lived together up-till Oct., 1972. A female child was born to them who was about four years old (at the time of the filing of the petitions). It was alleged by the husband that in Oct, 1972 the appellant went to see her parents along with the daughter with a promise to return within a month or so, but she did not come back. The respondent made some attempts to bring her back but she failed to oblige him. A specific allegation was also made in the plaint that on July 29, 1973, the appellant contracted a second marriage with one Bakshi of Village Kalewal and since then she had been living in adultery with the said Bakshi. These allegations were refuted by the appellant and she emphatically denied her alleged second marriage with Bakshi aforesaid. On the other hand, she pleaded that as she was not good looking and had not brought dowry according to the satisfaction of the respondent, the latter had been beating her and had driven her out of the house which had necessitated her living with her father since April 1971. The appellant further alleged that her father took a Panchayat to the respondent to prevail upon him to take her back but he refused point-blank.

2. The trial Court framed the necessary issues in the petition under S. 9 of the Act to cover the controversial points and after consideration thereof, granted a decree for restitution of conjugal rights in favour of the husband. However, it is noteworthy that after a detailed consideration of the evidence on the question of the alleged second marriage said to have been contracted by the appellant, the trial Court recorded a very clear finding that the allegation of second marriage was wrong. The only ground an which a decree for restitution of conjugal rights was granted in favour of the husband is that the wife had not been able to show sufficient cause for keeping away from the society of the husband.

3. In the connected petition out of which F. A. O. No. 66/M of 1976 arises, the wife had filed an application under S. 10 of the Act for judicial separation in which she had levelled allegations of cruelty, desertion etc. against the husband. A specific ground which was taken by her in the said petition was that the husband had made false allegations in his petition under S. 9 of the Act (referred to above) that she was living in adultery with one Bakshi of village Kalewal after having contracted a second marriage with him. She asserted that such allegations of marriage or adultery which were false, frivolous and scandalous had created a reasonable apprehension in her mind that it would be harmful or injurious for her to live with her husband. She also contended that these allegations had resulted in mental cruelty to her mind. This petition filed by the wife was contested by the husband. Both the matters were, however, consolidated and as a result thereof a common judgment was passed by the trial Court in which, as already noticed a decree for restitution of conjugal rights was granted in favour of the husband and the petition under S. 10 of the Act filed by the wife for judicial separation was dismissed.

4. The main and, in fact, the only ground which has been urged by the learned counsel for Mohinder Kaur (wife) is that the moment the trial Court recorded a clear and specific finding that the allegations of second marriage by the wife with Bakshi were not proved, these allegations per se should have been considered sufficient proof of mental cruelty on the part of the husband, entitling the wife to keep away from the. society of such a person. There is substance in the contention of the learned counsel and strangely enough the trial Court has not focussed its attention on this aspect of the matter at all. All that has been considered by the trial Court is that she had not been able to substantiate that she had been mal-treated and as a result thereof a decree for restitution of conjugal rights was passed against her. This is not a correct approach to the matter. The learned counsel for the husband is unable to point out any lacuna in the finding of the trial Court in regard to the alleged second marriage and the resultant allegation of living in adultery with Bakshi which were found to be wrong. There is ample authority on the point that the very act of levelling such like allegations tantamounts to Perpetrating mental cruelty on the other party. Reference may in this behalf be made to Madan Mohan Kohli v. Smt. Sarla Kohli, AIR 1967 Punj 397 which is a case directly on the point. The learned Single Judge also placed reliance on two earlier decisions of this Court in Iqbal Kaur v. Pritam Singh, AIR 1963 Punj 242 and Gurcharan Singh v. Waryam Kaur, AIR 1960 Punj 422. No authority to the contrary has been cited before me.

5. The net result is that the decision of the trial Court in its consolidated judgment recorded in the two petitions filed by both the parties is not sustainable. Both the F. A. Os. Nos. 65/M and 66-M of 1976 are allowed and the judgment of the trial Court is reversed. In consequence thereof the petition filed by Bhag Ram respondent under S. 9 of the Act stands dismissed, while the petition filed by the appellant Mohinder Kaur under S. 10 of the Act for judicial separation is decreed. In the circumstances of the case, the parties are left to bear their own costs in both the appeals.

6. Order accordingly.


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