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indira Kashyap Vs. K.N. Kashyap - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtSupreme Court of India
Decided On
Case NumberPetition for Special Leave to Appeal (Civil) No. 10058 of 1983
Judge
Reported inAIR1984SC1045; 1984(1)SCALE859; (1984)3SCC107; 1984(16)LC702(SC)
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rule 13 - Order 43, Rule 1; Constitution of India - Article 136; Limitation Act, 1963 - Sections 5
Appellantindira Kashyap
RespondentK.N. Kashyap
Excerpt:
- .....which militated against the plea of reconciliation. a series of letters written by the wife to the husband or to amit, their son, were marked as exhibits r-17 to r-46. the first group covering exhibits r-17 to r-26 was written from patiala circuit house to the husband or the son between february 17, 1978. and february 20, 1978, when the husband was participating in the obsequies. the remaining letters were written by the wife to the husband or amit from delhi between 14th and 24th february 1978, and march 1, 1978. the district judge relied upon their contents to negative the plea of reconciliation and the application was rejected on a finding that there was no sufficient cause for either condonation of delay or for the wife's absence from the court on the date fixed for.....
Judgment:
ORDER

1. This petition under Article 136 of the Constitution asking for special leave to appeal to this Court against the appellate judgment of the High Court of Himachal Pradesh at Simla is by the wife and challenge is to the appellate order upholding rejection of an application under Order 9, Rule 13 of the CPC in a divorce proceeding. This Court initially issued notice to the respondent-husband and later required the three children of the parties also to appear with a view to exploring the possibility of a reapproachment. Parties and their children appeared and counsel for both the parties were heard at length. Counsel suggested that the correspondence between the parties which had been exhibited and heavily relied upon by the High Court should be seen by us. We, therefore, called for the original documents and deferred pronouncing our order until now.

2. The respondent-husband is a senior member of the Indian Administrative Service and at the relevant time was Excise and Taxation Commissioner of Himachal Pradesh at Simla. The wife served as a senior lecturer in Hindi in the Mata Sundari College at New Delhi. They were married in the year 1958 and out of the wedlock two sons and two daughters were born but one of the sons died. The other son and the two daughters are at present grown up.

3. The husband applied to the District Judge at Simla for a decree of divorce in June, 1977. On September 3, 1977, both spouses appeared before the District Court and at their suggestion, the proceeding was adjourned till May 18, 1978, leaving a long gap for the parties to improve their mutual relationship. On the adjourned day, the wife did not appear and the case was set ex-parte and was adjourned to May 26, 1978 for trial. On that day the husband's evidence was recorded and an ex-parte decree for divorce was passed. On July 7, 1979, the wife applied under Order 9, Rule 13 of the Code along with an application under Section 5 of the Limitation Act contending that she obtained knowledge of the ex-parte decree on June 20, 1979, when one Asha Swarup informed her about it. The husband entered contest. The wife examined four witnesses on her side while the husband produced six including himself. Several documents were produced on either side. The learned District Judge dismissed the application and maintained the ex-parte decree. An appeal was carried to the High Court under Order 43, Rule 1 of the Code and that also was dismissed. This has led to the filing of the petition for special leave.

4. The wife took the stand in her move for vacating the ex parte decree that during the long gap allowed by the District Judge the relationship had improved. Between January 30, 1978, and February 3, 1978, the husband had come to New Delhi and was staying in the Himachal Pradesh Guest House where there were frequent meetings between the spouses and there was reconciliation. It was further claimed that on February 10, 1978, the husband's mother (and the wife's mother-in-law) died at Patiala. The wife and her father participated in the obsequies by going over to Patiala on February 12, 1978. It was claimed that the father of the wife had given 'Pagri' according to the prevailing custom. The husband had represented to the wife that on May 18, 1978, to which the proceeding had been adjourned in Court, she need not appear as the husband would not press the application because of improvement of relationship between them. Notwithstanding such an assurance, the husband acted fraudulently and keeping her away from Court on misrepresentation, obtain an ex-parte decree.

5. The learned District Judge rightly enquired into the correctness of the plea advanced by the wife that there was reconciliation after September 3, 1979 which justified the wife's keeping away from the proceeding. The evidence in regard to reconciliation when the husband had come to Delhi between January 30, 1978, and February 3, 1978 was disbelieved; it was found that the wife had not been permitted to stay in the house of the brother of the husband at Patiala where the mother had died and the 'Pagri' money which had been given by the wife's father had been returned on May 2, 1978, under a covering letter-features which militated against the plea of reconciliation. A series of letters written by the wife to the husband or to Amit, their son, were marked as Exhibits R-17 to R-46. The first group covering Exhibits R-17 to R-26 was written from Patiala Circuit House to the husband or the son between February 17, 1978. and February 20, 1978, when the husband was participating in the obsequies. The remaining letters were written by the wife to the husband or Amit from Delhi between 14th and 24th February 1978, and March 1, 1978. The District Judge relied upon their contents to negative the plea of reconciliation and the application was rejected on a finding that there was no sufficient cause for either condonation of delay or for the wife's absence from the Court on the date fixed for trial. The Court drew adverse inference against the wife for not examining her informer, Asha Swarup.

6. The High Court in a carefully written judgment covered the same field again and mainly relied upon two letters being Exhibit R-31 dated February 27, 1978, and a photograph with writings thereon dated May 7, 1978, Exhibit R-8. Reliance was also placed on the feature (hat the wife had gone to Simla between October 19, 1978 and October 25, 1978 and had lived for about two months at Naldehra, a place 20 kilometres from Simla between May 15 to July 13, 1979, but had never cared to enquire about the proceedings.

7. The genuineness of the letters has not been disputed. In the letter marked Exhibit R-31 the wife had given a detailed calculation of the total period of separation between the spouses and the calculation seems to cover without any break the period between June 27, 1977 and the date of the letter, that is, February 2, 1978. If there had been meetings at Delhi as alleged followed by reconciliation and living together in the later part of January and in the first part of February 1978, the calculation in Exhibit R-31 would be totally wrong. From the photograph and the writings thereon (Exhibit R-8), the High Court in our view has rightly drawn the conclusion that the wife did not want the marriage to be sustained and was not anxious for the company of the husband.

8. The Courts below have rightly relied upon the documents in preference to oral evidence and their counsel had also suggested to us that the documents should be preferred to the oral evidence. It is on that basis that we had been requested to look into the documents before disposing of the application for special leave one way or the other.

9. Two further features in our opinion should be noticed to uphold the order of the High Court and dismiss the application for special leave. Firstly, the wife's father as also two of her brothers are advocates by profession. At one stage, the father was representing her in the proceeding. Keeping track of the proceeding in Court, therefore, was not at all difficult so far as the wife was concerned. Secondly, Amit who is doing intermediate law and the two daughters, one of whom has done her post-graduate course and the other is doing the same appeared before us and expressed natural indignation over the sufferings caused to their father and also to them by the mother. Since they are all grown up and capable of making reasonable assessment of events around them, they would have known about reconciliation if it had been effected. To affection hungry children restoration of relationship between the parents would have been an event of immense importance. They told us that there was no foundation for it in fact. One of the daughters when examined as a witness in the proceeding under Order 9, Rule 13, had deposed that way.

10. After looking into the documents and on giving our anxious consideration to the materials placed in the records, we have no doubt that the courts below have taken the correct view both on the question of limitation as also on merit. We endorse their finding that there was no reasonable cause for excusing the delay in applying to the Court for vacation of the decree nor any reasonable cause on the part of the wife to be absent from the Court on May 18, 1978, to which date the divorce proceeding had been adjourned. We have already indicated that the parties and the off-springs of the wedlock had appeared before us. When we heard them in order to explore the possibility of reconciliation, we gathered the impression that neither the husband nor the children of the marriage had any room in their lives for the petitioner. Ordinarily there would be no scope to entertain a petition for special leave in a matter arising out of an application under Order 9, Rule 13 of the Code. But as this matter was argued at length, we had agreed to explore the possibility of reconciliation and the documents were looked into. We thought it proper to give brief reasons for rejection of the application.

11. The petition for special leave to appeal is rejected.


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