HARPREET SINGH SEKHON Vs. RAJWANT KAUR

JUDGEMENT

(1.) The appellant Harpreet Singh Sekhon has filed this appeal through his father and General Power of Attorney Dilraj Singh Sekhon against the judgment and decree dated 25.08.2010 passed by the learned District Judge, family Court, Faridabad whereby the suit filed by the respondent-wife Rajwant Kaur Sekhon for declaring the ex parte judgment dated 23.05.2005 passed by the Circuit Court of Cook County, Illinois, United States of America (USA-for short) to be illegal has been decreed in her favour and the aforesaid divorce decree has been declared null and void and not binding on the rights of the plaintiff-respondent Rajwant Kaur Sekhon. The marriage between the plaintiff-respondent Smt. Rajwant Kaur Sekhon and the defendant-appellant-Harpreet Singh Sekhon was solemnized by way of Anand Karaj on 09.02.2000. The plaintiff alleged that her marriage was a decent marriage. Her parents, brothers and sisters spent about Rs. 30,00,000/- on the marriage. A list of expenses on the dowry articles and the other expenses including ring ceremony expenses has been attached. The defendant-appellant along with his parents had been permanently residing in USA. They are green card holders of United States of America. The father of the defendant-appellant namely Dilraj Singh Sekhon Ex Joint Director of Central Bureau of Investigation after leaving his job in India settled permanently in USA. He was working as a lecturer at Columbia College, Chicago, USA. However, for the last about three years, he was living at Mohali in Punjab in his own house. He is owner of more than 70 'killas' (acres) of agricultural land in village Issawal, Ludhiana (Punjab). The plaintiff-respondent was residing at House No. 645 Sector-16, Faridabad (Haryana). The said house is owned by the father of the defendant/appellant and is a Joint Hindu Family property. According to the plaintiff-respondent, the minor daughter of the parties namely Sirut (sic. Seerat) Sekhon through her mother and guardian Rajwant Kaur Sekhon (plaintiff respondent) filed a suit against her father Harpreet Singh Sekhon (defendant/appellant), her grand parents namely Dilraj Singh Sekhon and Smt. Tejinder Kaur, her father's brother namely Sarabjit Singh Sekhon and paternal aunt namely Smt. Satnam Kaur inter alia claiming that she is also co-owner in possession in equal share of the residential House No. 645 Sector-16, Faridabad; besides, co-owner in equal share of property in village Issawal, District Ludhiana (Punjab) and co-owner in residential House No. 722 Phase-IX, near Cricket Stadium, Mohali. The said suit was pending in the Court of Civil Judge (Junior Division), Faridabad at the time of filing of the present suit out of which the present appeal arises. On 24.02.2002, the plaintiff/respondent received a telephone message from Dilraj Singh Sekhon (father-in-law of the plaintiff), the husband of the plaintiff and her mother-in-law as also other family members namely Satnam Kaur and Pikky Aulakh. It is alleged that they were taunting her for bringing inadequate dowry. They were harassing her mentally and physically by beating her. First Information Report (FIR) for the offences under Sections 498-A and 406 read with Section 34 of the Indian Penal Code (IPC-for short) was got registered in this regard at Police Station Central, Faridabad. After marriage, the plaintiff and defendant resided at Mohali, Ludhiana and village Issawal. The defendant-appellant then went to USA leaving the plaintiff at her parental house at Faridabad. There she had a daughter on 04.12.2000. The in-laws of the plaintiff did not cook food for three days as they did not want a female child. On 30.12.2000, the defendant came back to India and took the plaintiff with him to Mohali. The defendant, it is alleged, came to India from USA on several occasions, however, despite promising to take the plaintiff to USA, he never took her and each time he would say that he would take her next time. The plaintiff in this way felt that she was being made a fool of. Thereafter on 23.05.2005, the defendant obtained a decree of divorce from the Circuit Court of Cook County, Illinios Department-Domestic Relations Division. In terms of the said decrepit is alleged that an ex parte and a fraudulent divorce decree was got passed in favour of the defendant. The said divorce decree being a foreign judgment it was prayed was liable to be set aside being not a valid decree in view of Section 13 of the Code of Civil Procedure (C. P.C.-for short) and on other grounds as well. It was submitted that under the provision of Hindu Marriage Act, 1955 only the District Courts within the local limits of whose ordinary civil jurisdiction (i) the marriage was solemnized, or (ii) the respondent, at the time of the presentation of the petition, resides, or (iii) the parties to the marriage last resided together, or (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive would have the jurisdiction to entertain and try the petition. Therefore, it was submitted that the Circuit Court of Cook County, Illinois had no jurisdiction to entertain the petition. According to the provisions of the Hindu Marriage Act under which the parties were admittedly married, irretrievable break down of marriage as a ground for dissolution of the marriage was not recognised. It was submitted that the defendant by way of filing the divorce petition in USA committed fraud and forged grounds, which were not available to him; besides, no valid ground mentioned in the divorce petition by the defendant was existing at the time of filing the divorce petition. The parties never resided in USA together and the plaintiff never refused to reside with the defendant in USA or in India. The defendant does not provide or send from USA any kind of maintenance to the plaintiff and her daughter in India. The defendant and her family had been avoiding services in all Court cases which were pending at Faridabad. The plaintiff and her minor daughter were fully dependent on her parents. The plaintiff had also filed a petition under Section 9 of the Hindu Marriage Act for seeking restitution of conjugal rights.

(2.) The defendant/appellant filed written statement through his father and General Power of Attorney (GPA) Dilraj Singh Sekhon. Preliminary objections were raised to the effect that the petition was time barred. The divorce judgment by the Court of Cook County Illinois, it is stated, was passed on 23.05.2005 and the petition to set aside the divorce judgment was filed on 15.04.2008. The case did not fall within the territorial jurisdiction of faridabad Court. The marriage was solemnized at Jalandhar in Punjab. The plaintiff and defendant had lived together as husband and wife in H. No. 722, Phase-9, Mohali. They had never lived in House No. 645 Sector-16, Faridabad. The said house was occupied by a tenant. The divorce granted by the Circuit Court of Cook County, Illinios was a valid divorce. On receipt of notice from the said Court, it is stated that the plaintiff had filed her appearance voluntarily through her attorney. By filing her appearance, she had submitted to the jurisdiction of the said Court. By filing reply to the same she had contested the case in the Circuit Court of Cook County, Illinios. It is stated that the defendant Harpreet Singh Sekhon could not file divorce petition in India because he was not a domicile of India. He has been a domicile and permanent resident of USA. A reference was made to the case of Dr. David Chakravarthy Arunmainayagan versus Geetha Chakravarthy Arunmainayagan,2002 1 MarriLJ 354, (Madras) wherein in the context of the Divorce Act, 1869, it is stated that the parties to marriage should be domiciled in India which is a condition precedent under Section 2 of the Divorce Act to file a petition. It is further stated that the list relating to expenditure on dowry articles was false and baseless. It was a simple and dowry less marriage. The dowry articles such as furniture, TV, Refrigerator and other such items were not required to be taken to USA where nonresident Indians (NRIs) live. On 11.06.2002, the plaintiff and her father Sarwan Singh Nijjar got the marriage registered with the Registrar of Marriages, Jalandhar-I, Punjab when Harpreet Singh Sekhon defendant was living in USA. This fraudulent registration of marriage was being investigated by the Deputy Commissioner, Jalandhar and the Punjab Police, Jalandhar. The plaintiff it is stated is not residing in House No. 645 Sector-16, Faridabad. The said house was in forcible possession of her brother Jagjit Singh who had taken its possession after breaking open the lock of the house with the help of his relative. On 06.07.2005, case FIR No. 252 had been registered at Central Police Station, Faridabad for the offence under Section 448 of the IPC. The plaintiff had never lived in the said house. She lived in her parental house i.e. H. No. 2382 Sector-9, Faridabad. She reaches that house whenever Investigating Officer goes there. The said house is a self-acquired property of Harpreet Singh Sekhon who had constructed the house to live in it after retirement from the Central Government. Baby Sirut (sic. Seerat) Sekhon minor it is stated was being misused by the plaintiff and her relative to grab the property. No Court had declared the plaintiff as her guardian. Harpreet Singh Sekhon defendant had filed a case for custody of Baby Sirut (Seerat) Sekhon. On 30.11.2005, the Additional District Judge, Faridabad had vacated the stay granted by the lower Court. Thereafter the High Court had granted interim stay in this case. On 24.02.2002, it is stated that no telephone call was made from USA to the husband of plaintiff and her mother-in-law in India because during that period they were living in USA. A false dowry complaint was got registered under Section 498-A and 406 IPC. A complaint under Section 498-A IPC was not maintainable at the behest of a divorcee. Besides, Section 34 IPC was not incorporated in the FIR as had been alleged by the plaintiff in this para. Out of five accused, three had been discharged as the police had found them innocent. Regarding the remaining two accused, the allegations of ill-treatment, physical assaults and dowry demand pertain to the periods they were living in USA. The letters written by the plaintiff to her mother-in-law at an address in USA during the said periods it is stated contradict the allegations in the FIR. Dowry articles cannot be entrusted to NRIs who live in USA and NRIs living in USA cannot misuse dowry articles in India. It is alleged that the father of Harpreet Singh Sekhon defendant had arranged admission of plaintiff in an institute in USA where he was teaching. He had also sent sponsorship for her but she did not get a visa from the American Embassy. Brother of Harpreet Singh Sekhon-defendant had also sent sponsorship for the plaintiff from Canada but the plaintiff did not go to the Canadian Embassy for an interview. Thereafter Harpreet Singh Sekhon had sent Immigration Forms to the plaintiff to be filled up for immigration to USA, which she did not fill up. This showed that the plaintiff did not want to join her husband in USA. When the defendant came to India, he was subjected to mental cruelty which was unendurable. She had inflicted immeasurable mental agony and torture. During his short stay in India, she had made his life miserable and they had lived separate and apart in India. It is alleged that she did not cook food in the house and was getting food from a hotel. She had stated that she had not dined in less than five star hotels. It is alleged that her father and mother were illiterate. Her father had worked as a tempo driver in Faridabad and the marriage was a fraud. It is further alleged by the defendant that the character and loyalty of the plaintiff were found doubtful. Unknown men were coming to meet her. Those men did not know that her husband had come from USA and was sitting inside the house. The defendant did not know where his wife was going in a car. Her whereabouts were not known. Attitude and behaviour of his wife showed total disrespect towards him. She had used filthy and abusive language against him. When her husband had raised objections about her undesirable activities then she had threatened him that she would get him put behind bars by lodging a dowry complaint which she later did in the year 2005. There was no temperamental compatibility She was hot headed and quarrelsome. On 11.09.2007, she had misbehaved with the father of the defendant Harpreet Singh Sekhon in the District Courts, Faridabad. On this the father of the defendant had lodged a written complaint with the SSP, Faridabad seeking protection and to restrain her not to come near him during the period he remains in the District Courts, Faridabad. About half a dozen cases filed by plaintiff against the defendant were pending in the District Courts, Faridabad. On 23.05.2005, it is stated that the Circuit Court of Cook County had passed a decree for dissolution of the marriage between the parties after the plaintiff had filed her appearance through her attorney and had contested the case on receipt of notice from the said Court. The parties were married under Hindu Law but the said law did not allow the defendant Harpreet Singh Sekhon to file a divorce petition in India because he was not a domicile of India. The plaintiff had stated that she had not submitted to the jurisdiction of that Court but by filing her appearance she had in fact submitted to the jurisdiction of the said Court. The Circuit Court of Cook County was a Court of competent jurisdiction. The said Court had gone through the reply to the claims submitted by the plaintiff and had taken a decision. This confirmed that the decision of the Court was based on contest between the parties. As per the judgment for dissolution of marriage passed by the Circuit Court of Cook County, the Court at Faridabad, it is submitted, expressly retains jurisdiction of this case for the purpose of enforcing all the terms of the said judgment for dissolution of marriage. The defendant Harpreet Singh Sekhon was a domicile of that country. It is submitted that there was no fraud with relation to merits of the case and the jurisdictional facts. The said Court had the jurisdiction because the defendant in this case was a domicile of that country. The custody of Baby Sirut (sic. Seerat) Sekhon had been reserved in the judgment passed by Circuit Court of Cook County. The objection of plaintiff that divorce petition was not maintainable in USA was dismissed on the ground that the petitioner (now defendant) satisfied all the conditions laid down by that Court. Baby Sirut (sic. Seerat) Sekhon, it is submitted, was being misused by the plaintiff and her relatives to grab the property. The defendant-Harpreet Singh Sekhon wants to take her to USA to give her education there. The conjugal rights cannot be restored to a divorcee who had filed a criminal complaint under Sections 498-A and 406 IPC, besides, about half a dozen cases against the defendant in District Courts, Faridabad. The divorce judgment passed by the Circuit Court of Cook County, it is submitted is a valid divorce judgment and the Court had jurisdiction over the subject matter. On the pleadings of the parties, the following issues were framed by the learned Civil Judge (Junior Division) Faridabad on 13.05.2009:-

(3.) After the said issues were framed by the learned Civil Judge (Junior Division), Faridabad on 13.05.2009, the case on the establishment of the Family Court, was transferred and received by the District Judge, Faridabad on 27.05.2009. On 04.11.2009, the learned District Judge, Family Court observed that it had been brought to the notice of the said Family Court that the issues settled on 13.05.2009 were not specific. Therefore, it was expedient to reframe the issues. The parties had not led any evidence till the said date i.e. 04.11.2009. Accordingly, the following issues were settled for adjudication by re-framing them:-