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Smt. Kaushalya W/O Wisakhi Ram Vs. Wisakhi Ram Mohan Lal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 3 (M) of 1959
Judge
Reported inAIR1961P& H521
ActsHindu Marriage Act, 1955 - Sections 5, 10(1), 14 and 28; Code of Civil Procedure (CPC) , 1908 - Sections 107
AppellantSmt. Kaushalya W/O Wisakhi Ram
RespondentWisakhi Ram Mohan Lal
Appellant Advocate B.P. Tuli, Adv.
Respondent Advocate Daljit Singh Keer and; G.S. Grewal, Advs.
DispositionAppeal allowed
Cases ReferredRadha Prasad Singh v. Gaja
Excerpt:
.....on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept..........to weigh and assess the evidence and to fairly consider the probability of the plaintiff's story. the conclusion of the court below in holding the testimony of the plaintiff's witnesses to be uncorroborated and unreliable being clearly erroneous deserves to be set aside which i hereby unhesitatingly do.8. in so far as the allegation of adultery is concerned, in my view, the evidence falls far short of the standard which is required for proving matrimonial offences with the result that this plea must be rejected.9. for the reasons given above, the appealsucceeds and is hereby allowed and setting aside thejudgment and the decree of the court below, igrant to the plaintiff-appellant a decree for judicialseparation as prayed. the appellant would be enti-tled to her costs in this court.....
Judgment:

I.D. Dua, J.

1. Kaushalya, the present appellant, filed an application in the Court below for judicial separation under Section 10 of the Hindu Marriage Act on the allegation that Wisakhi Ram, her husband, had treated her with such cruelty is created a reasonable apprehension in her mind that it would not be safe for her to live with him. A further allegation of adultery on the part of the respondent with one Salian was also made The petition was resisted by Wisakhi Ram and the al-legations denied. Two issues thus arose on the pleadings; one relating to the allegation of cruelty giving rise to an apprehension in the mind of the wife that it would be injurious for her to live with her husband and the second relating to adultery with Mst. Salian. Seven witnesses including the petitioner-appellant herself were examined in support of- the allegations and three witnesses on behalf of Wisakhi Ram in rebuttal.

The lower Court held the testimony of thepetitioner-appellant's witnesses to be lacking in cor-proboration and, therefore, concluded against the allegation of cruelty. In coming to this conclusion, the Court below also took into consideration and, as I read the judgment, was considerably influenced by the fact, that medical evidence in proof of the injuries said to have been caused to the wife was not forthcoming. Evidence of adultery was also held insufficient. On these findings, the Petition was dismissed with costs.

2. Feeling dissatisfied with the judgment anddecree of the Court below, Smt, Kaushalya has preferred this appeal and I have heard Mr. Tui in its support and Mr. G. S. Grewal against it. Before coming to the merits of the appeal, I must notice a preliminary objection raised on behalf of the respondent urging that the appeal is barred by time. In order to appreciate this objection, it may be helpful to give the various dates which are relevant for determining the question of limi-tation. The decree of the Court below is dated31st October, 1958. An appeal was filed in the Court of the District Judge on 14th November, 1958.

The note of the office of the District Judge on the Memorandum of Appeal is 'presented by counsel; the appeal is within time and properly stamped; for orders'. At the time of the hearing, it seems that a preliminary objection was raised with respect to the competency of the appeal in the Court of the District Judge and on 25th Feb-ruary, 1959, the learned District Judge on a fairly detailed discussion of the question Came to the conclusion that the appeal had been wrongly instituted in that Court. On the basis of this finding, the Memorandum of Appeal was returned to the appellant to be presented to the Court having jurisdiction in the matter.

According to the affidavit filed in this Court in support of the application under sections 5 and 14 of the Indian Limitation Act, it has been stated by Smt. Kaushalya that the Memorandum of Appeal was returned to her by the Court of the District Judge on 27-2-1959, and the same was re-filed in this Court on 2-3-1959. Mr. Tuli has explained that 28th of February and 1st of March, 1959, were holidays and this has not been controverted on behalf of the respondent. Mr. Tu'i prays that in view of the circumstances explained above, it is a fit case in which time should be extended undev Sections 5 and 14 of the Indian Limitation Act. Mr. Grewal has, however, contended that the Memorandum of Appeal filed in this Court on the 2nd of March was again returned to the counsel for the appellant because the affidavit filed along with the Memorandum of Appeal was in a language which the deponent did not understand and, therefore, was not entertainable.

The appeal was then re-filed on the 9th of March, 1959, accompanied by an affidavit of the appellant in Urdu. The respondent contends that the appeal should, therefore, be deemed to have been filed on the 9th of March, 1959, and, therefore, it should be considered to be barred by time. No other cogent ground was, however, shown as to why the prayer under sections 5 and 14 be not granted. It is true that section 14 of the Indian Limitation Act does not in terms apply to appeals. but it is well settled that in app'ying section 5 of the Indian Limitation Act the analogy of Section 14 is an argument of considerable weight and mis-taken advice by a legal practitioner may in a fit case give rise to sufficient cause within section 5 though there is no general doctrine which would save parties from the results of wrong advice.

The learned counsel for the respondent did not say anything on the question of the bona Rdes of the appellant in filing the appeal in the first instance in the Court of the District Judge on the basis of legal advice tendered to her. In this connection it may be pointed Out that the question of the forum of appeals from the orders passed under the Hindu Marriage Act has only recently been settled by a Division Bench of this Court in Kalyan Singh v. Smt. Tej Kaur, F.A.F.O. No. 11-M of 1959 : (AIR 1961 Punj 480). In that case the question was referred to a Division Bench because the point was not free from doubt and the Madras High Court had taken a different view. In-deed the divergence of views still persists and the Mysore High Court has taken a view different from our High Court in a very recent decision in Mal-Jappa v. Mallava, AIR 1960 Mys 292.

In so far as the question of the return of M-morandum of Appeal by the office in this Court on the 2nd of March, 1959, and its re-presentation on the 9th of March, 1959, with an affidavit of the appellant in Urdu is concerned, I ne-d only observe that the appeal was legally and properly filed in this Court and merely because there was some technical defect in the language of the affidavit did not invalidate the appeal or make its presentation in this Court incompetent. Such technical defects have never been construed to result in invalidating the presentation of appeals it they are otherwise flawless; it being well recognised by now that provisioas limiting the time lor bringing an appeal are liberally interpreted so that the party pursuing the remedy of appeal is not defeated on mere technicalities. The preliminary objection, therefore, is without merit and must be rejected.

3. Coming to the merits, the learned counsel For the appellant has vigorously assailed the view of the Court below that the evidence of Hans Raj (A. W. 2), Santokh Singh (A. W. 3) and Partap Chand (A. W. 6) is not corroborated. The counsel has submitted that the learned Subordinate Judge is wholly unjustified in observing that there is no Impartial evidence to prove bad treatment of the appellant at the hands of her husband. I have been taken through the entire evidence on the record and Mr. Tuli has argued that there is no such infirmity in the statements of the appellant's witnesses as the Court below has stated in its judgment and that the testimony of those witnesses has been rejected on wholly erroneous, imaginary and nonexistent or at least insufficient grounds.

4. Hans Raj (A. W. 2) is a resident of the same Mohalla as that of the plaintiff and actually resides about three or four houses away. He has deposed having himself witnessed Smt. Kaushalya being beaten some time in the month of October. According to him, several persons had gathered there and he too went to the spot after hearing the noise. The plaintiffs clothes were torn; her hands somewhat swollen; and she was bare-footed. The people there saved her and the witness took her to Bhag Dutt's house. In cross-examination, he was merely asked about the names of: other Persons who happened to be there. The witness named three or four out of ten or fifteen persons.

It is true that those persons have not been produced by the plaintiff as her witnesses but in my view that by itself would not detract from the credibility of the testimony of Hans Raj who is not shown to have any motive to falsely depose about the incident. Santokh Singh (A. W. 3) has also deposed about the beating administered to the plaintiff sometime in the month of Sawan. He went to the spot after hearing some noise and there he saw Wisakhi Ram beating Kaushalya whose clothes were torn. When he remonstrated with Wisakhi Ram not to beat his wife, he replied that he was at full liberty to treat his wife the way he liked. According to this witness, the hands of Kaushalyawere placed under the charpoy and Wisakhi Ram was silting on it.

Nothing has been elicited in the cross-examination which would in any way discredit his evidence either. Kesro (A. W. 5) has a'so deposed about the beatings given to the plaintiff. She has stated that Wisakhi Ram used to beat his wife and turn her out of the house. The plaintiff then used to come to the house of the witness. The plaintiff according to the witness, had told her that Wisakhi Ram wanted to keep his own brother's wife in his house. In her cross-examination, again, nothing substantial has been elicited which should induce me to discredit her testimony. Par-tap Chand A. W. 6 has a'so deposed in support ot the plaintiff's version and his testimony also virtually remains unshaken. Kaushalya (A. W. 7) is the last witness who has apPeaved in her own favour. She has expressly deposed that her husband used to place her hands beneath the charpoy and used to beat her with sticks.

Once, according to her, he also attempted to set fire to her clothes. She has further stated about her having gone to the police with Hans Raj when the police Munsm' sent for her husband and advised him to reconcile himself wilh bis wife. In her cross-examination, all that has been elicited is that she did not get herself medically examined and that her report was not recorded at the police station by the officer. In her cross-examination, however, she has also stated that her husband almost daily treated her harshly, and that finally after beating her he had left her at Ludhiana and did not care to bring her back. Here it may be stated that Bhag Datt A. W. 1 police constable has also given evidence and has deposed about Kaushalya's visit for lodging a complaint but he did not record her complaint and instead advised her to reconcile herself with her husband.

His evidence does seem to suggest that Kau-shalya did at one stage feel so much disgusted with her lot that she was actually driven to think of making a report to the police. The respondent's evidence naturally consists of mere denial, but he has admitted that he has not cared to send any maintenance to his wife, and has also since filed a suit for restitution of conjugal rights because she has deliberately refused to come to his house. The evidence of Bua Days (R. W. 1) and Buta Ram (R. W. 2) is not of much assistance; the first witness merely expresses his ignorance about the maltreatment and the second witness states in a general way that the respondent has been treating the petitioner very well.

5. Positive evidence led by the appellant has, in my view, not been shown to be either unnatural or unbelievable. No reason has been assigned as to why these witnesses should deliberately tell lies. In so far as the absence of medical evidence is concerned, it has to be borne in mind that Wisakhi Ram is a railway porter and, therefore, it could hardly be expected of a woman in the position of his wife to be able to afford examination by a medical practitioner for securing a medical certificate. It appears that it is only when she was fed up with the constant maltreatment by her husband that she gathered up courage to go to the police station to lodge a report. But keeP-ing in view the position of woman in our society, this is perhaps the utmost that she found herself capable of doing, after having been constantly treated the way she has described in her evidence.

Women in such circumstances, as those of the appellant, in our society, normally submit themselves to their fate and bear ill-treatment at the hands of their husbands, and unless a climax is reached, they usually do not take the desparate step of going to a police station to lodge a report; the poor financial condition of such women and lack of proper understanding on their Part would also stand in their way of securing a proper medical certificate; mere absence of a medical certificate can thus hardly be considered to be a strong circumstance discrediting the testimony with respect to maltreatment of the appellant before me at the hands of her husband. Besides even if the injuries on the person of Smt. Kaushalya are considered not to be so serious as to call for their treatment by a medical practitioner, if the has actually been ill-treated, as deposed by her, that treatment must be held to amount to cruelty according to the standards of all civilised societies.

The Court below, in my view, has approached the consideration of the question from an improper and erroneous point of view; the approach of the Court below appears to me to be inconsistent with the public policy dearly discernible in the recent legislative measures whereby attempts have been made to raise the social status of women in this Republic. New rules of social behaviour and conduct in respect of the status of women in the Indian Society of today must, in my view, be recognised and kept in the forefront while determining what would really amount to cruelty under the Hindu Marriage Act. In my opinion, the testimony of the witnesses produced on behalf of the lady, and particularly her own evidence, simply establish cruelty on the part of Wisakhi Ram justifying a decree for judicial separation.

6. I may here deal with the contention thai the finding of the Court below arrived at on a consideration and assessment of the oral conflicting testimony should not be lightly set aside. It is no doubt true that in every appeal it is incumbent upon the appellant to show some reason why the judgment appealed from should be disturbed, and some balance in his favour must be shown to justify alteration in the impugned judgment, when all the circumstances are considered. This burden is not discharged merely by showing some nicely balanced calculations which lead to the equal possibility of the judgment either way being correct.

But there is also another rule which is equally well established. Appellate jurisdiction is statutory and when no limitation is placed by the statute on the scope of the appeal, the Court of appeal would be failing in its duty to refuse to interfere with an erroneous finding of fact merely because the Court of first instance has come to its conclusion On appraisal of conflicting oral testimony of witnesses. This matter has been considered by the Supreme Court more than once, but in a very recent decision the entire position has again been reviewed by K. C. Das Gupta J., in Radha Prasad Singh v. Gaja-dhar Singh, AIR 1960 SC 115. Speaking on behalf of the Court, his Lordship summed up the position thus:-

'The position in law, in our opinion, is that when an appeal lies on facts it is the right and the duty of the Appeal Court to consider what its decision on the question of facts should be; but in coming to its own decision it should bear in mind that it is looking at the printed record and has not the opportunity of seeing the witnesses and that it should not lightly reject the trial Judge's conclusion that the evidence of a particular witness should be believed or should not be believed particularly when such conclusion is based on the observation of the demeanour of the witness in Court. But, this does not mean that merely because an Appeal Court has not heard or seen the witness it will in no case reverse the findings of a trial Judge even on the question of credibility, if such question depends, On a fair consideration of matters on record. When it appears to the Appeal Court that important considerations bearing on the question of Credibility have not been taken into account or properly weighed by the trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the trial Judge is wrong, the Appeal Court should have no hesitation in reversing the findings of the trial Judge on such questions. Where the question is not of Credibility based entirely on the demeanour of witnesses ob- served in Court but a question of inference of one fact from proved Primary facts the Court of Appeal is in as good a position as the trial Judge and is free to reverse the findings if it thinks that the in-ference made by the trial Judge is not justified.'

7. Scrutinizing the evidence led in the instant case in the light of the observations of the Sup-reme Court, I feel that the plaintiff has fully established her case and no serious infirmity in her testimony or in that of her witnesses has been shown, by the respondent which can justify its rejection and the Court below has in my opinion failed properly to weigh and assess the evidence and to fairly consider the probability of the plaintiff's story. The conclusion of the Court below in holding the testimony of the plaintiff's witnesses to be uncorroborated and unreliable being clearly erroneous deserves to be set aside which I hereby unhesitatingly do.

8. In so far as the allegation of adultery is concerned, in my view, the evidence falls far short of the standard which is required for proving matrimonial offences with the result that this plea must be rejected.

9. For the reasons given above, the appealsucceeds and is hereby allowed and setting aside thejudgment and the decree of the Court below, Igrant to the plaintiff-appellant a decree for judicialseparation as prayed. The appellant would be enti-tled to her costs in this Court and in the Courtbelow.


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