BRIJ BALA Vs. MANEESH MITTAL

JUDGEMENT

(1.) The appellant -wife, challenges judgment and decree dated 30.10.2012, passed by the Additional District Judge, Chandigarh, dissolving the marriage and decreeing the petition for grant of a decree of divorce.

(2.) Counsel for the appellant submits that facts pleaded by the respondent even if proved, at best, reveal a normal wear and tear of matrimonial life, i.e. petty quarrels, recriminations that were resolved and nothing more. The cause of trouble between the parties, was the father of the respondent, who had been beating the appellant as is proved by the evidence adduced by the appellant. The finding that the husband has been able to prove the allegation of cruelty are based upon a misreading of the evidence. An examination of the judgment reveals that onus to "disprove" the allegations levelled by the respondent has been placed upon the appellant. The finding recorded by the trial court that the appellant branded the respondent as greedy as he belongs to the "Baniya" community, has been recorded by disregarding that no such pleading is available in the petition. This apart, a perusal of the deposition, in the affirmative by PW3, the respondent, reveals that he has not uttered a single word that referring to the appellant as greedy or that he belongs to the "Baniya" community is in any manner cruel. The allegations regarding branding the community of the husband as greedy or that birth of a female child was considered a curse in a "Baniya" family are general statements that have been misused by the trial court to infer cruelty against the appellant.

(3.) Counsel for the appellant further submits that the court below has ignored the fact that the husband has claimed nullity of marriage on the ground that the appellant concealed her first marriage and divorce with Narinder Sikka and that he only came to know this fact in November, 2007 when the appellant was being taken for brain surgery. The respondent, however, has not explained why he did not file a petition under Sec. 12(1)(c) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act"). The court below has ignored the fact that before their marriage, the appellant and the respondent had been seeing each other for four years. The respondent was all along aware of the earlier marriage and before the marriage, the decree was shown to the respondent and his signatures were obtained on a certified copy of the decree, Ex. R -1 and Ex. R -2. The document Ex. R -2 is signed by the respondent. The alleged concealment of the first marriage and the divorce are, therefore, false, particularly when the parties fell in love and their courtship lasted for four years. The plea of fraud is even otherwise not available to the respondent, as parties resided together upto 2009, though the marriage had taken placed on 17.01.2000. A marriage that cannot be annulled under Sec. 12 of the Act, cannot be dissolved under Sec. 13 of the Act by holding that a fraud has perpetuated by the offending spouse. Counsel for the appellant further submits that if there was any concealment, the husband only convened a panchayat on 10.06.2009 and the very fact that husband himself stated that he paid Rs. 71 lacs for resumption of co -habitation proves that the husband had condoned the alleged concealment of her first marriage. The respondent has not challenged his signatures on decree, Ex. R -2 at any stage much less in these proceedings. The trial court has failed to record any specific finding on the signatures appearing on the decree, Ex. R -2, but has discarded it by assigning reasons that are baseless. The finding based upon the report, Ex. R -13 and the deposition by RW2, an expert, has been wrongly discarded as has been the statement by RW6 -Pishora Singh.