AMITA JOSHI Vs. SANDEEP KUMAR

JUDGEMENT

(1.) This appeal has been preferred by wife aggrieved by order dated February 3, 2003 passed by District Judge, Jalandhar initially allowing the application under section 13 B of the Hindu Marriage Act, for short 'the Act' and also dismissing the application filed by the appellant for setting aside the decree passed under Section 13 B of the Act, on the ground that it had been obtained by fraud when she had already led her evidence before the District Judge, by merely entertaining the application under section 151 CPC holding that the appellant should file appeal before the High Court as per the dictum of Supreme Court in Balwinder Kaur v. Hardeep Singh, 1997(4) R.C.R.(Civil) 671 : AIR 1998 SC 764. In view of the said circumstances, the appellant is before this Court to challenge the decree of divorce under Section 13 B of the Act alleging the same to be vitiated being suffering from the vice of fraud. Besides this, the appellant is also challenging the order dated August 16, 2007 by virtue of which District Judge had, in the exercise of power under section 151 CPC, dismissed the application of the appellant for setting aside the order dated February 3, 2003. The validity of the order dated August 16, 2007 has also been challenged as the said order has caused serious prejudice to the appellant.

(2.) Brief facts relevant for the decision of the present appeal are that the marriage of the appellant and respondent was solemnized on December 2, 2001 at Goraya, Tehsil Phagwara, District Jalandhar, as per Hindu rites and rituals. As per applicant, the parties stayed together in the matrimonial home till March 21, 2003. The appellant having been treated adversely, she had also moved an application on March 31, 2003 before the SHO, Police Station Nur Mahal. A petition under Section 12 of the Act was moved by the respondent-husband against the appellant wife. The appellant-wife was proceeded against ex-parte on October 23, 2002 and the matter was fixed for ex-parte evidence of the respondent-husband on January 28, 2003. On the said date, an application was moved for conversion of the said petition into a petition under Section 13 B of the Act for dissolution of marriage by decree of divorce with the mutual consent of the parties, along with an application for waiving the statutory time period of six months for the final settlement of the parties in view of the prolonged matrimonial dispute existing between the parties. The said application was allowed by judgment and decree of divorce by mutual consent vide order dated February 3, 2003. Copy of the order passed in petition under Section 13 B of the Act has been appended with the appeal as annexure P-1, wherein a mention has been made to the effect that the parties have been living separately for a period of more than one year. The said fact is being disputed by the appellant claiming that she lived in the matrimonial home till March 21, 2003 i.e. even after the decree passed under Section 13 B of the Act.

(3.) The appellant moved an application dated March 10, 2004 seeking the setting aside of the order dated February 3, 2003 claiming that the decree had been procured by respondent by playing fraud and by way of misrepresentation, coercion, duress and against the wishes of the appellant. The appellant alleged that the decree dated February 3, 2003 had been obtained by getting the signatures of the appellant in a fraudulent manner. The appellant had been given opportunity to establish her claim of fraud by producing evidence. She appeared as AW2 and submitted her evidence in the shape of evidence. She was cross-examined by Mr. M.K Vijan, Advocate for the respondent on July 27, 2007. Her brother Rakesh Kumar had appeared as AW1. He had deposed in the shape of affidavit. He was cross examined by counsel for the respondent. PW3 Charanjit Singh was examined-in-chief by his affidavit dated May 28, 2004. He was cross examined on July 27, 2007. Mela Ram, Ex.-Sarpanch of the Village appeared as PW4 on May 31, 2004 and cross-examined on July 27, 2007. The appellant had been prosecuting her application for setting aside the judgment and decree obtained by fraud under Section 13-B of the Act.