NARESH CHAUDHARY Vs. SMT. KAUSHALYA CHAUDHARY

JUDGEMENT

(1.) THIS application has been filed by the applicant/respondent seeking review of the judgment and order dated 20th June, 2005 passed by this Court in first appeal No. 71 of 2004 whereby the appeal preferred by the wife/appellant was allowed and the judgment and order dated 17th September, 2004 passed by the Judge, Family Court, Udham Singh Nagar was set -aside. By the very judgment this Court allowed the petition for divorce filed by the appellant and the marriage between the parties was dissolved.

(2.) SRI Siddhartha Sah, the learned Counsel for the review applicant contended that the final order in the first appeal has been passed in absence of the counsel for the applicant (respondent in the first appeal No. 71 of 2004). He further submitted that the final order passed in the first appeal may be reviewed and the case may be decided.

(3.) THE first appeal No. 71 of 2004 was directed against the judgment and order dated 17th September, 2004 passed by the learned Judge, Family Court, Udham Singh Nagar whereby the petition for divorce filed by the appellant was dismissed. On the date of hearing in the first appeal, despite opportunity, the counsel for the applicant did not respond in the Court and this Court has no other option except to hear the learned Counsel for the appellant and, therefore, after hearing the learned Counsel for the appellant and perusing the entire material available on record, this Court passed the judgment and order dated 20th June, 2005 which is the order under review. This application has been filed by the respondent -husband on 19th July, 2005 seeking review of the Judgment and order dated 20th June, 2005. The Appellate Court has to see as to whether there exists any illegality, infirmity or perversity in the order impugned or not. We find that while passing the judgment and order dated 20th June, 2005 in the first appeal this Court has comprehensively evaluated the evidence of the parties produced before the trial court which clearly proved the factum of cruelty. Perusal of the judgment further reveals that no suggestion in the cross -examination was given to the appellant denying the specific allegations of demand of dowry and cruelty made in the divorce petition. This Court further held that there is no reason to disbelieve the statement of the appellant recorded before the trial court whereby she proved the allegations of cruelty against her husband/review applicant. Apart from that this Court further held that it is not expected of a wife, particularly when she was living with her husband, to lodge complaints to police when he made demand of dowry and giving beating of and on. While passing the judgment and order in the appeal this Court further held that in the matrimonial house, it is not generally seen that for every incident of beating the F.I.R. is lodged, but the trial court rejected evidence of the appellant solely on this ground. Thus, after reassessment of the evidence on record, this Court set -aside the judgment and order of the trial court and the appeal filed by the appellant/wife was allowed.