NARESH ARORA v. JYOTSNA ARORA

CORAM :- THE HON’BLE MR. JUSTICE J.R. MIDHA

3. Whether Reporters of Local papers may YES be allowed to see the Judgment? To be referred to the Reporter or not? YES Whether the judgment should be reported in the Digest? YES JUDGMENT (Oral)

The appellant has challenged the judgment of the learned Trial Court whereby the learned Trial Court has dismissed the appellant’s petition under Section 13(1)(ia) of the Hindu Marriage Act for dissolution of marriage on the ground of cruelty.

The parties got married on 30th August, 1999. It was the second marriage of the appellant. The appellant’s first wife expired on 20th May, 1998 leaving behind a son about one year old at that time. The appellant decided to remarry considering that one year old child would need the care of the mother. The parties came in contact with each other after the appellant gave advertisement in the national newspaper where it was specifically mentioned that the appellant was looking for a woman who can given motherly treatment to the child.

According to the appellant, soon after the marriage, the respondent had an indifferent and hostile attitude towards the appellant, the child as well as the parents of the appellant. The appellant averred three specific incidents in the petition and also led evidence with respect to the same.

The first incident is of around 12/13 October, 1999 when the respondent abused the appellant’s mother saying “yeh kutia marti kuin nehi” and hurled a shoe at her. The second incident is of 16/17 June, 2000 when the appellant had gone to his friend’s place along with his son where the respondent abused the child by saying “kute ka bacha” and also beat the child mercilessly. The third incident is of 10th August, 2000 when the respondent refused to feed and bath the child and gouged his genitals, which caused pain to the child and upon the appellant’s protest, the respondent threatened to commit suicide.

The respondent did not appear and contest the petition and was proceeded ex-parte by the learned Trial Court on 30th March, 2001. The respondent has chosen not to appear and contest this appeal as well. The appellant produced two witnesses before the

learned Trial Court. The appellant himself appeared as PW1 and his friend Ramesh Malhotra appeared as PW2. PW1 deposed as to the aforesaid three incidents. However, PW2 deposed with respect to the incidents of 12/13 October, 1999 and 16/17 June, 2000.

The learned Trial Court held that there is contradiction in the statement of PW1 and PW2 with respect to the aforesaid incidents of 12/13 October, 1999 and 16/17 June, 2000 and, therefore, both these incidents cannot be said to have occurred at all and the testimony of the appellant was not trustworthy.

I have perused the statement of PW1 and PW2. The incident of 12/13 October, 1999 occurred at the residence of the appellant where PW2 had visited and the appellant was not present at that time. PW2 informed the appellant on telephone about the incident which is recorded in the statement of PW2. The statement of PW1 relating to the incident of 12/13 October, 1999 is based on the telephonic call made by PW2 to PW1 relating to the incident. There is no contradiction in the statement of PW1 and PW2.

With respect to the incident of 16/17 June, 2000, the appellant along with the respondent and the child had visited PW2 at his residence and both PW1 and PW2 were present at the time of the said incident.

With respect to the incident of 10th October, 2000, the learned Trial Court has not given any finding whatsoever.

The appellant has successfully proved the three incidents of cruelty stated above. There is no rebuttal or contest by the respondent. The findings of the learned Tribunal are erroneous and, therefore, liable to be set aside.

The parties are living separately since 19th December,

2000. The appellant has not condoned the acts of cruelty.

The appeal is accordingly allowed. The impugned judgment of the learned Trial Court is set aside. The petition of the appellant under Section 13(1)(ia) of the Hindu Marriage Act, 1955 is allowed and the decree of divorce on the ground of cruelty under Section 13(1)(ia) is passed in favour of the appellant and against the respondent. The marriage is dissolved by a decree of divorce.

No costs. J.R. MIDHA, J MAY 13, 2009