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Om Prakash Vs. Roshani - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 296 of 1981
Judge
Reported inAIR1985P& H364
ActsHindu Marriage Act, 1979 - Sections 13; Evidence Act - Sections 112
AppellantOm Prakash
RespondentRoshani
Cases ReferredKarapaya Servai v. Mayandi
Excerpt:
.....amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to..........adultery. though he initially succeeded in the trial court on both the grounds, yet the learned single judge has reversed the findings of the trial court after a minute scrutiny of the evidence on record. the appellant in this letters patent appeal seeks to persuade us to disagree with the conclusions of the learned single judge on a reappraisal of the evidence. though we are satisfied that that hardly is the scope of a letters patent appeal, yet we have scanned the evidence with the help of the learned counsel for the appellant, but do not feel persuaded to disagree with the learned single judge in any manner.4. to accept the ground of desertion by the wife, the trial court primarily relied on the statements of p.w. 5 devi ram and p.w. 7 kundan who have stated that as a result of.....
Judgment:

I.S. Tiwana, J.

1. One of the evils of an early marriage is well highlighted by the facts of this case.

2. The parties to the litigation were married at a very tender age in the year 1956. They started living as husband and wife about seven years thereafter and a girl was born to them in the year 1965 when the appellant husband was still an under-graduate and was studying at Jind. This child, however, died by the time she reached the age of ten / eleven years.

3. After passing the B. A. Examination, the appellant joined service as an Auditor in the office of the Accountant General at Simla and so continued there till the year 1971. As per his stand in the petition for divorce, the respondent wife had left his house in December, 1965. He claims to have continued his efforts to bring her back till the year 1971 when he learnt that she had given birth to an illegitimate male child. This was enough to put a complete stop to all conciliatory efforts on his part. He, however, filed the present petition under Section 13 of the Hindu Marriage Act (for short, the Act) in the year 1979 for a decree of divorce on the grounds of desertion and adultery. Though he initially succeeded in the trial Court on both the grounds, yet the learned single Judge has reversed the findings of the trial Court after a minute scrutiny of the evidence on record. The appellant in this letters patent appeal seeks to persuade us to disagree with the conclusions of the learned single Judge on a reappraisal of the evidence. Though we are satisfied that that hardly is the scope of a letters patent appeal, yet we have scanned the evidence with the help of the learned counsel for the appellant, but do not feel persuaded to disagree with the learned single Judge in any manner.

4. To accept the ground of desertion by the wife, the trial Court primarily relied on the statements of P.W. 5 Devi Ram and P.W. 7 Kundan who have stated that as a result of their efforts the wife, without any reasonable cause, refused to come back to her matrimonial home. The learned single Judge appears to be right in concluding that 'such like partisan witnesses can be easily procured and made to state whatever a party producing them desires'. No facts and circumstances have been brought on record to support or sustain the depositions of these two witnesses. This is more so when the statements of the respondent wife and her father completely contradict the version of these PWs.

5. The conclusion with regard to the illegitimacy of the child born in the year 1971 was rested by the trial Court on the evidence of P.W. 2 Prithi Singh Dhillon, P.W. 3. Zile Singh and P.W. 6 Randhir Singh. Deputy District Attorney, who generally stated that they never saw the respondent in the house of the appellant husband after the year 1965 when, as peer the version of the husband, she had left his house. This evidence besides being rebutted by the statements of the wife, her father and two neighbors, is otherwise also, as has been observed by the learned single Judge, so vague that it inspires no confidence. We are conscious of the fact that it is unreasonable to expect direct evidence of adultery, but at the same time the spouse who accuses the other of any such charge, has to establish such circumstances which lead to a fair inference that the spouse accused of the same may be held guilty of it. It has repeatedly been held that the proof required to prove adultery cannot necessarily be what at time is said 'proof beyond a shadow of doubt'. At the same time in the light off Section 112 of the Indian Evidence Act, the presumption of legitimacy is highly favoured by law and it is necessary that proof of non-access, must be clear and satisfactory. The Court has to examine the evidence with a lynx eye. Access and non-access, as pointed out by the Privy Council in Karapaya Servai v. Mayandi, AIR 1934 PC 49, connote the existence and non-existence of opportunities for material intercourse. The relevant facts can no doubt be established not merely by positive evidence of the parties, but by circumstantial evidence also. The established circumstances have essentially to be such as would lead the guarded judgment of a reasonable and just man to the conclusion that the parties had no opportunity of intercourse. We find no such circumstances in this case which can satisfactorily establish that the appellant husband had no access to the respondent wife during the period she is stated to have lived away from him. As a matter of fact, he never specifically stated that he had no access to his wife or that the child born in the year 1971 was not from his loms. We thus have no hesitation in affirming the conclusion of the learned single Judge that the appellant husband has completely failed to establish the two grounds pleaded for the relief prayed for. What appears to be the cause of the whole trouble is the disparity that grew in the status of the two spouses with the passage of time from the date they were tied in a marital bond. It is well established on record that the appellant joined the Haryana Civil Service (H.C.S.) in the year 1976 and despite a humble start in life, he having attained that status found it too difficult to go-round in society with the respondent wife who practically belonged to a family of labourers. This disparity in status appears to be the sole cause of discord in their marital relationship. Had there been a grain of truth in the belief or conviction of the appellant about the illegitimacy of the child born in 1971, he could not reasonably be expected to wait for eight long years to file the present petition under Section 13 of the Act. This unnecessary and improper delay in instituting the proceedings by itself appears to be enough of a ground under Section 23(1)(d) of the Act disentitle him to the relief prayed for.

6. In the light of the discussion above, we find no merit in this appeal and dismiss the same with costs which we determine at Rs. 250.

7. Appeal dismissed.


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