# Smt. Tejendra Kaur v. Jogendra Singh

- **Citation:** (2001) 1 ILRA 99
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-tejendra-kaur-v-jogendra-singh-39636
- **Pages:** 4

## Text

1All] Smt. Tejendra Kaur V. Jogendra Singh
99
 appropriate bench on 18.10.,2000. It
is made clear that any observation made
in this order is only for the purpose of
deciding the special appeal and shall not
be construed as an expression of opinion
regarding the merits of the claim made by
the parties.

$33(//$7( -85,6',&7,21
$33(//$7( -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7('
'$7('
%()25(
%()25(
7+( +21
%/( 68'+,5 1$5$,1 -
7+( +21
%/( 68'+,5 1$5$,1 -
7+( +21
%/( 21.$5(6+:$5 %+$77 -
7+( +21
%/( 21.$5(6+:$5 %+$77 -

)LUVW $SSHDO 1R RI

6PW 7HMHQGUD .DXU
«$SSHOODQWV
9HUVXV
-RJHQGUD 6LQJK
«5HVSRQGHQW

&RXQVHO IRU WKH $SSHOODQW «
6UL )DXMGDU 5DL
6UL &KDQGUD .XPDU 5DL
6UL 5&6ULYDVWDYD
&RXQVHO IRU WKH 5HVSRQGHQW
6UL 3UDNDVK .ULVKQD

+LQGX 0DUULDJH $FW 6HFWLRQ
'LYRUFH
SDVVHG
E\
PLVUHDGLQJ
WKH
FRQWHQWV
RI
ZULWWHQ
VWDWHPHQW
DERXW
DVNLQJ IRU DOLPRQ\ LQ FDVH GHFUHH IRU
GLYRUFH SDVVHG SDUWLHV DSSHDUHG EHIRUH
WKH &RXUW ZLIH
V ZLOOLQJQHVV WR MRLQ WKH
FRPSDQ\ RI +XVEDQG EXW UHIXVDO E\ WKH
+XVEDQG FDQ QRW EH VDLG WKDW WKH ZLIH
KDG WUHDWHG WKH KXVEDQG ZLWK FUXHOW\
+HOG
7KH DSSHOODQW KDG DVNHG IRU DOLPRQ\ WKDW
LQ FDVH GHFUHH IRU GLYRUFH LV SDVVHG VKH
PD\ EH JLYHQ PDLQWHQDQFH EXW LW GRHV
QRW PHDQ WKDW VKH KDG DGPLWWHG WKH
YHUVLRQ DV SXW IRUZDUG E\ WKH UHVSRQGHQW
LQ KLV GLYRUFH SHWLWLRQ
:H KDG DVNHG WKH SDUWLHV WR DSSHDU LQ
SHUVRQ LQ WKLV &RXUW IRU WKH SXUSRVH RI
UHFRQFLOLDWLRQ 7KH UHVSRQGHQW PDGH D
FDWHJRULFDO
VWDWHPHQW
WKDW
KH LV QRW
SUHSDUHG WR WDNH KLV ZLIH ZKLOH WKH
DSSHOODQW PDGH D FDWHJRULFDO VWDWHPHQW
WKDW VKH LV SUHSDUHG WR JR DQG OLYH ZLWK
KHU KXVEDQG
2Q FRQVLGHULQJ WKH HQWLUH HYLGHQFH ZH
GR
QRW
ILQG
WKHUH
LV
DQ\
PDWHULDO
HYLGHQFH WR FRPH WR WKH FRQFOXVLRQ WKDW
WKH ZLIH KDG WUHDWHG WKH KXVEDQG ZLWK
FUXHOW\ SDUDV
&DVH ODZ GLVFXVVHG
$,5 $OOG
 $/5
$,5 'HOKL

By the Court

1. This appeal is directed against the
judgement
of
the
Family
Court,
Moradabad
whereby
the
suit
under
section 13 of the Hindu Marriage Act
filed by the plaintiff-respondent for
divorce has been decreed.

2. The allegation of the husband
plaintiff was that he married the appellant
on 8.12.1994. She lived with him for
about two months, and thereafter she left
the matrimonial house and went to live
with her parents. He doubted that his wife
had relationship with some other persons.
She did not permit him to have the sexual
relationship. She gave birth to a son in
July 1996 who was not born out of their
wedlock. The relations became strained
but the relative of both the parties got
compromise written on 2.12.1995 wherein
it was agreed that the appellant will come
and reside with him. The wife after the
compromise came to reside with him but
after some time she left and started living
with her parents.
100 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
3. The appellant contested the suit
and
she
denied
the
allegations
of
desertion, adultery and cruelty. The
Family court found that the respondent
failed to prove by cogent evidence that his
wife had any unfair relationship with any
other person and was not guilty of
adultery. The suit was however decreed
on the ground of cruelty.

We have heard Sri Faujdar Rai,
learned counsel for the appellant and Sri
Prakash Krishna learned counsel for the
respondent.

4.
The
core
question
for
consideration before us is as to whether
under the facts and circumstances, the
plaintiff-respondent has been able to
prove the cruelty against him by the
appellant.

5. The basic allegation of the
plaintiff-respondent against the appellant
was that she left her matrimonial house at
her own will without his consent and
without any reasonable cause and she
avoided having any sexual relationship
with him. The husband also appeared as a
witness in support of his allegations. He
did not adduce any other evidence in
support of his version.

6. In Smt. Deepila alias Baby Vs.
Naresh Chandra Singhania (AIR 2000
Alld 148) the allegation of the husband
was that the wife had treated him with
cruelty but the Court did not rely upon his
solitary testimony in absence of testimony
of his parents, brother, sister, friends and
relatives and held that they were material
witnesses to prove the allegations made
by the husband in his pleadings. In Smt.
Beena Vs. Suresh Vir Tomer (1995(25)
ALR 277) similar view was taken that
accusation by the husband against wife
should be proved by producing other
members of the family. In the present case
the appellant in her statement before the
family court denied the allegations made
by the respondent. There was no other
congent
evidence
except
the
oral
statement made by the parties before the
Family Court.

7. It is admitted to the appellant that
the matter was settled between the parties
and they had entered into a compromise
duly signed by the parties and 'their
relatives and friends on 2.12.1995. In the
compromise it was accepted by the
respondent that the appellant shall reside
with the respondent. If there was any
wrong by any of the parties, that shall be
deemed to have been condoned.

8. The version of the respondent is
that the appellant came to reside with him
after 2.12.1995 but she left the house
without
any
intimation
to
him
on
20,3,1996. It was further stated that after
two days the parties agreed that they shall
seek divorce by consent but later on she
resiled from such an agreement.

9. The appellant appeared as a
witness and made a statement before the
Court that in fact on 20.3.1996 the
respondent beat her and forced her to
leave his house. Admittedly, the appellant
started residing with the respondent after
they
entered
into
compromise
on
2.12.1995 and it is also admitted to both
the parties that the appellant left her
matrimonial house on 20.3.1996. The
question
is
whether
she
left
the
matrimonial
house
voluntarily
or
respondent forced her to leave the house.
There does not seem to be any reason why
the appellant, who was residing with the
1All] Smt. Tejendra Kaur V. Jogendra Singh
101
respondent, would leave the matrimonial
house. The appellant has given the reason
that the respondent again talked about
dowry. As her parents did not satisfy his
demands, he forced her to leave his house.
The version of the appellant appears to be
correct. There was no other reason that
the appellant would leave the matrimonial
house of her husband.

10. The Family Court has taken a
view that the appellant had filed an
application claiming maintenance against
the respondent under section 125 Cr.P.C.
during the pendency of the suit, that
discloses her intention not to reside with
the respondent husband and that would
amount to cruelty. The appellant was
entitled for the maintenance in case her
husband had forced her to leave the
matrimonial house and there was nothing
wrong in claiming such maintenance. The
respondent had filed the suit for divorce
in July 1996. He was not paying any
amount of maintenance to the appellant
and in these circumstances, she was
justified in claiming the amount of
maintenance.

11. The next reason given by the
Family court is that the respondent had
given a notice to the appellant on
23.3.1996 asking her to live with him but
the appellant did not give any reply to the
said notice, that shows that she was not
inclined to live with the husband. The
respondent appeared as witness before the
Family Court but he did not prove the
alleged notice dated 23/3.1996. On the
other hand, in para 10 of the plaint, the
respondent had stated that both the parties
had entered into the agreement that they
would seek divorce by consent. If
according to the respondent the agreement
had taken place to seek divorce by
consent, then there was no question of
having sent any notice to the appellant by
the respondent to live with him.

12. The third reason given by the
Family Court is that in para 36 of the
written statement filed by the appellant
she had stated that in case divorce decree
is passed, she may be granted alimony,
and such claim shows her intention was
that the decree for divorce may be passed.
This view of the Family Court is
manifestly illegal. The appellant had
asked for alimony that in case decree for
divorce is passed, she may be given
maintenance but it does not mean that she
had admitted the version as put forward
by the respondent in his divorce petition.

13. The version of the respondent
was that the appellant had given birth to a
son who was not born out of their
wedlock but this fact was not proved by
any
cogent
evidence
by
him.
The
marriage had admittedly taken place
between the parties on 8.12.1994. The son
was born, as alleged by respondent, in
July 1996. The respondent did not lead
any evidence to prove that his wife had no
access with him and there was no other
cogent evidence to prove either adultery
or she gave birth to an illegitimate child.
Secondly the parties had entered into
compromise with the respondent on
2.12.1995 and if there were any difference
or wrong done by any of the parties that
shall be deemed to have been condoned.

14. We had asked the parties to
appear in person in this Court for the
purpose of reconciliation. The respondent
made a categorical statement that he is not
prepared to take his wife while the
appellant made a categorical statement
102 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
that she is prepared to go and live with
her husband.

15.
On
considering
the
entire
evidence, we do not find there is any
material
evidence
to
come
to
the
conclusion that the wife had treated the
husband with cruelty.

16.

Learned counsel for the
respondent has placed reliance on the
decision in the case of Parag Mittal Vs.
Smt. Vikita Mittal (AIR 2000 Delhi 304)
wherein the court has held that when the
wife remained absent in the proceedings
before trial court and signed petition for
divorce by mutual consent, the allegation
of husband of cruelty by wife against him
should be accepted. In the case of
Angalla Padmalatha Vs. A. Sudershan
Rao (AIR Andhra Pradesh 353) it was
found that when the parties lived together
for short time and thereafter the wife left
her matrimonial house of her own without
his consent and the husband made efforts
to bring her back but she did not return,
and more so wife filed petition under
section 498-A IPC and Section 125
Cr.P.C., indicated that the wife had
decided to abandon matrimonial house
permanently.
These
cases
have
no
application to the facts of the present case
as discussed above, in the present case the
appellant has not left the matrimonial
house voluntarily. She was forced to leave
the house by her husband and she always
expressed her willingness to reside with
her husband.

17. In view of above discussion, the
appeal is allowed with cost and the decree
of the Family Court dated 27.10.1997
passed in O.S. No. 410 of 1996/Family
Court Case No. 621 of 1997 is set aside.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' 6(37(0%(51'
'$7(' 6(37(0%(51'

%()25(
%()25(
7+( +21
%/( 65 $/$0 -
7+( +21
%/( 65 $/$0 -
7+( +21
%/( 5. $*$5:$/ -
7+( +21
%/( 5. $*$5:$/ -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

0V +LUD /DO $\RGK\D 3UDVDG
«3HWLWLRQHU
9HUVXV
7KH 6WDWH RI 8WWDU 3UDGHVK DQG DQRWKHU
«2SSRVLWH SDUWLHV

&RXQVHO IRU WKH 3HWLWLRQHU
6UL .0/ +DMHOD
&RXQVHO IRU WKH 2SSRVLWH SDUWLHV
6UL +DLGDU +XVVDLQ

83 7UDGH 7D[ $FW 6V $ JJ
$ 3HWLWLRQHUV GHSRVLWHG H[FHVV DPRXQW
DV 7D[ DV 6WDWH *RYHUQPHQW KDG UHGXFHG
UDWH RI WD[ RQ GXW\ SDLG .KDQGVDUL 6XJDU
IURP WR UHWURVSHFWLYHO\ ZHI

3HWLWLRQHU
DSSOLHG
IRU
DGMXVWPHQW ([FHVV DPRXQW IRUIHLWHG E\
UHVSRQGHQW QR DV VDLG DPRXQW KDG
EHHQ UHDOLVHG E\ WKH SHWLWLRQHUV IURP
FXVWRPHUV
:ULW
SHWLWLRQ
DJDLQVW
IRUIHLWXUH
GLVPLVVHG
&LUFXODU
GDWHG

LVVXHG
E\
&RPPLVVLRQHU
RI
6DOHV
7D[
PDNLQJ
UHIXQGDGMXVWPHQW
REOLJDWRU\ IRU UHVSRQGHQW QR KHOG QRW
DSSOLFDEOH
+HOG
7KH OHDUQHG FRXQVHO IRU WKH SHWLWLRQHU
GLG
QRW
GLVSXWH
WKDW
LWV
HDUOLHU
ZULW
SHWLWLRQ QR 7D[ RI LQ ZKLFK
WKH RUGHU GDWHG LPSRVLQJ
SHQDOW\ XQGHU 6HFWLRQ $ TT RI
WKH $FW KDG EHHQ FKDOOHQJHG KDG EHHQ
GLVPLVVHG E\ WKLV &RXUW YLGH MXGJHPHQW
DQG RUGHU GDWHG 7KXV WLOO VXFK
WLPH
WKH
RUGHU
GDWHG

IRUIHLWLQJ WKH DPRXQW RI H[FHVV WD[ LV QRW
VHW DVLGH WKHUH LV QR TXHVWLRQ RI DQ\