KAUSHALYA Vs. WISAKHI RAM MOHAN LAL

JUDGEMENT

(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 allegations 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 the petitioner-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 and decree 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 dated 31st 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 23-1959. 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.