Daily Archives: March 20, 2016

An innocent man is spared by the dying declaration of his wife ! Acquittal even after wife’s death P&H HC

Just because a wife is dead, within seven years, due to unnatural causes, does NOT  mean conviction !! Even though the parents of the dead woman weave a false story of dowry demand and cruelty, register a case of dowry death, the husband is spared by the wife’s cogent and clear dying declaration, clarifying that it was an accident and that her husband only tried to save her

The court concludes it’s well reasoned judgement as follows ” ….Having evaluated the evidence independently the finding of the trial Court so far as the dying declaration is concerned is accepted as the same passes the test of credibility. Nisha had narrated sequence of events. The trial Court did not entertain any doubts about the statement. The medical officer had made an endorsement about the mental state, therefore, the dying declaration could not be excluded from consideration. It is found that it would be safe to act on the dying declaration. There is no inconsistency. The deceased had not blamed any one for the incident. She herself was not aware of the reason as to how her clothes caught fire. It appears that the parents out of utter frustration chose to file a complaint subsequently. Even otherwise the demand of money for construction of a house would not fall within the definition of dowry demand. There was no   complaint prior to the incident to the Panchayat. There was no complaint to  the Senior Officers under whom the accused was serving. People have become more aware. In cases where Government servant are involved, people do not hesitate and send written complaints to the senior officers. The incident was an accident. The dying declaration was natural. The maker of the same was in a fit mental condition, therefore, accepting the dying declaration the findings recorded on point No. 2 and 8 are set aside. The Appeal is accepted. All the accused are acquitted. Their bail bonds are discharged. ……..”


IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

Crl. Appeal No. S-2331-SB of 2008

Date of decision : 01.03.2016

Dilawar Singh and others  …… Appellants
versus
State of Punjab … Respondent

CORAM:- HON’BLE MRS. JUSTICE ANITA CHAUDHRY
1.Whether Reporters of local papers may be allowed to see the judgment?
2.To be referred to the Reporters or not? Yes
3.Whether the judgment should be reported in the digest?

Present:               Mr. Bipan Ghai, Sr. Advocate with Mr. Paras Talwar, Advocate for the appellants

Mr. K.S. Aulakh, AAG Punjab

ANITA CHAUDHRY, J.

The appellants were convicted and sentenced to undergo rigorous imprisonment for 10 years under Sections 304-B IPC by the Sessions Judge, Jalandhar on 01.10.2008.

Recapitulating the brief facts, Nisha was married to Dawinder Singh on 31.01.2001. An unfortunate incident took place on 13.11.2005. Nisha succumbed to the injuries on 16.11.2005. A dying declaration was made by the deceased giving clean chit to the family, therefore, no FIR was registered. A complaint was filed subsequently and the accused were summoned. The case was committed and the prosecution examined 10 witnesses.

In the statement recorded under Section 313 Cr.P.C. all the   accused denied the circumstances and pleaded innocent. Dawinder had stated that they were living happily and his father and mother had gone to attend a Satsang and he was feeding the pigeons on the roof. The deceased was preparing food on the Chulla using the waste of fire crackers and the fire took place and she was caught in the same and on hearing the cries he came down, tried to save his wife and during that process both his hands were burnt and with the help of the neighbours he took his wife to Puran Hospital Adampur. Six witnesses were examined in defence. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

The case set up by the prosecution was that there was a demand of Rs. 5 lacs for construction of the house which was not met and there was an extra judicial confession by the accused that they had caused death and the dying declaration was never made by the deceased nor it was voluntary and the police was helping the accused as the husband was a Constable working in the SPs office, therefore, all help was rendered and it was a case of murder.

The trial Court held the accused guilty under Section 304-B IPC. They were sentenced to the imprisonment mentioned herein before.

The submission on behalf of the appellant was that a dying declaration was made and the police did not register the FIR and subsequently a complaint was filed and the complainant came up with the story of oral dying declaration which was not accepted. It was urged that trial Court had given a finding that the deceased had caught fire accidently while cooking meals and in that case they could not have been convicted for her death. It was urged that there is a contradiction   as to who had poured the kerosene oil and the Court had wrongly  invoked the presumption and when a categorical finding had been given that the deceased had not made any dying declaration before the complainant or Surinder Singh, therefore, the conclusion that since the death was within seven years, therefore, the presumption under Section 113-B IPC was contradictory and there was no evidence that there was any demand or cruelty soon before the incident. It was urged that the husband had sustained burn injuries on both the arms and they had led evidence in defence to prove the injuries and had it been a case otherwise, the husband would not have made any efforts to save her. It was also submitted that the parents were not at home. It was also submitted that the Medical officer was present through out and a certificate was appended that the deceased remained fit and conscious through out the statement. It was urged that even the neighbours had come to support the accused and the relations between the couple were normal and the deceased was shifted to the hospital by the husband in the conveyance of a neighbour and Tarsem DW was in the same vehicle and the injured had disclosed what had happened. It was urged that there were old expired crackers which were in the grass which exploded and incident was an accident.

The submissions on the other hand were that the husband was a Constable working in the same District and oral dying declaration was made and the statement of the complainant was rightly accepted. It was urged that there was demand and cruelty soon before death and the witnesses have spoken about it and the accused had made a confession before Husan Lal PW-4.

Nisha was married to Dawinder Singh in January 2001. The  unfortunate incident took place on 13.11.2005 at about 8.30 a.m. The complainant had alleged that on 07.11.2005 he had received message from his daughter Nisha that she was apprehending death at the hands of all the accused and she be brought back. On 08.11.2015 he alongwith his wife, Gurmukh Singh and Paramjit Singh went to the house of the accused where they had repeated the demand of Rs. 5 lacs. On 13.11.2005, the complainant received information that his daughter had been burnt. On receipt of this information the complainant alongwith Surinder Singh went to village from where he came to know that his daughter has been shifted to Puran Hospital, Adampur from where he came to know that his daughter has been shifted to Johal Hospital, Rama Mandi, Jalandhar. They reached the hospital and spoke to the daughter who in the presence of his wife and Surinder Singh told them that she was beaten up in the morning by all the accused and Mohinder Kaur had poured kerosene oil upon her and when she tried to run away her husband Dawinder Singh and father-in- law Dilawar Singh prevented her from running and her husband put her on fire with a match stick. The complainant had alleged that Dawinder Singh pushed her with his hands and threw her on the ground and warned her that she should not make the statement against them otherwise she would be killed alongwith her parents. The complainant had also stated that his daughter had told him that she had made a wrong statement to save the accused and it was under fear and pressure. The complainant had deposed that the police had refused to take any action against Dawinder Singh as he was posted in the office   of Senior Superintendent of Police, Jalandhar. The complainant had  also alleged that all the three accused approached Husan Lal on 20.11.2005 and made a confession before him one by one that they had committed a mistake and they should be pardoned. A complaint was filed thereafter. The complainant led preliminary evidence and the accused were summoned.

At the trial the prosecution examined Dr. Sanjeet Babuta as the first witness. He had stated that he was posted as Senior Medical Officer, Civil Hospital, Jalandhar. He had conducted the postmortem examination and had given the cause of death.

Paramjit PW-2 had deposed that Nisha was married to Dawinder Singh about 8/9 years ago and she had son and daughter. He had stated that Dilawar Singh had come to him and had told him on 08.11.2005 that his daughter had been maltreated and he should accompany him to the village so that they should speak to the parents and he alongwith Kamla Devi and Gurmukh Singh accompanied Dilawar Singh and they had given a piece of advise to Dawinder Singh and had requested him not to maltreat Nisha. He stated that it was being repeatedly told by their daughter that the accused were demanding Rs. 5 lacs and had threatened to kill her. He came to know about death of Nisha on 13.11.2005. He stated that he had not suggested to the complainant to make any application against the accused before the police or the panchayat. He stated that they did not call any respectable, Sarpanch or Panch of that village.

Gurmukh Singh PW-3 made a similar statement as made by Paramjit Singh. He stated that he had accompanied the complainant,   Paramjit Singh and Kamla Devi to the house of the accused and they  returned after giving them a piece of advise.

Husan Lal PW-4 stated that he was member Panchayat of village Panshta and Dilawar Singh was a resident of his village. He stated that on 20.11.2005 Dilawar Singh, Mohinder Kaur and Dawinder Singh came to him and confessed to the crime and had asked him to intervene and get a compromise effected. He stated that he had not give any written application to the police nor he had met the Panchayat of village Daroli and he had made statement before the Court for the first time. He stated that he did not know how the deceased had caught fire.

Dilawar Singh PW-5 gave details of the articles given in the marriage He stated that the marriage took place in January 2001. He stated that whenever his daughter came to meet him she had been telling him that Dawinder Singh used to return home under the influence of alcohol and acted like butcher and gave her beatings and there was demand of dowry and she had been turned out of the house but he had advised her to stay in the matrimonial home as she had married him. He stated that in 2004 his daughter told him that Dawinder had been threatening to give divorce to her. He stated that he paid Rs. 1,25,000/- to the accused for purchase of plot and Rs. 60,000/- was withdrawn by him and the remaining amount was taken from his brother-in-law. He deposed that the accused had been demanding Rs. 5 lacs for construction of the house. He deposed that a message had been received from his daughter on 07.11.2005 that they would kill her and that he should come and on the next day he alongwith his wife   Kamla Devi, Gurmukh Singh and Paramjit went to the house of the  accused and they met their daughter and the accused were demanding Rs. 5 lacs and all of them requested the accused and his family and after giving them a piece of advise they returned and their daughter was set on fire on 13.11.2005. He stated that they reached the hospital and their daughter had told them that she was beaten by the accused in the morning and that when she tried to run away, Mohinder Kaur poured kerosene oil on her and she was prevented from leaving the house by Dawinder and Dilawar Singh who were standing near the door and Dawinder Singh set her on fire. He had stated that his daughter had told them that she had made a false statement to the police under fear and pressure. He stated that at that time Dawinder Singh was working as Operator with the SSP. He stated that his daughter died on 16.11.2005 and they went to the village of accused and asked them to get the postmortem performed which they refused and they again approached the police but they were not heard and SSP gave an assurance to conduct an inquiry but no inquiry was conducted. He stated that Husan Lal told him on 20.11.2005 that the accused had come to him and had told him that they had burned the girl and they should try for compromise. He stated that they approached the police a number of time and also gave applications and telegrams to the higher police officers, then he filed a complaint against the accused. The complainant admitted that he had not made any complaint to the police or to the SSP about any demand nor he had given any application against Dawinder Singh that he used to remain under the influence of liquor. He denied that his daughter had made statement before the   Magistrate.

Dev Raj PW-6 brought the summoned record pertaining to the Fixed Deposit Receipts in the name of Kamla Devi which was for a sum of Rs. 1,25,000/- which was encashed on 05.02.2003.

Shaminder Singh PW-7 from the DC office brought copy of the sale deed in favour of Dawinder Singh.

Surinder Singh PW-8 had accompanied the complainant to the hospital. He stated that Nisha had told him that she was beaten up by her husband and in-laws and she was caught by her husband and he poured kerosene oil on her and when she tried to run away she was pushed by her husband. He stated that he did not make any statement to the police but he had gone to the SSP but was not heard.

Vijay Kumar PW-9 co-brother of Dilawar Singh had stated that whenever he had met Nisha, he was told that her in-laws were not happy with the dowry and were taunting her for insufficient dowry and had given a sum of Rs. 60,000/- to Dilawar Singh to meet the demand. He stated that he had not gone to the house of the accused nor had accompanied any Panchayat and he had withdrawn the amount from his account in November 2002.

Balbir Singh PW-10 from the Telegram Department stated that the record had been destroyed and receipt Ex. PE shown to him was issued by them.

In defence, the accused had examined Dr. Baljit Singh Johal who deposed that Nisha had died on 16.11.2005 and her husband was discharged on the same date in view of request made by him and he was having burn injuries on the right forearm and left hand, he stated   that injuries most likely could not be self suffered.  MHC Hardev Singh brought the summoned DDR dated 13.11.2005.

Sh. Deepak Kumar Chaudhary, Judicial Magistrate Ist Class, Tarn Tarn, District Amritsar DW-3 had recorded the dying declaration. His statement reads as under:-

“On 13.11.2005, I was posted as JMIC, Jalandhar. On that day, Balwinder Singh ASI presented before me written application for recording the statement of Nisha wife of Davidner Singh r/o village, Daroli Khurd, who was admitted in Puran Hospital, Adampur. Then I went to that hospital. I obtained the opinion of the doctor about fitness of Nisha to make her statement. Doctor declared her fit to make the statement vide his endorsement Ex. DC. Mother, mother-in- law and father-in-law of Nisha were present by her side and they were asked by me to move out. Thereafter, I recorded her statement. I had read out the contents thereof to her and regarding the correctness thereof I obtained her thumb impression. Her thumb was under dressing and for obtaining the impression thereof dressing was got removed.

That statement is Ex. DB and the same also bears my signatures. The doctor remained present during recording of her statement and he appended his certificate to the effect that during recording of her statement, she remained fit and conscious to make her statement. That certificate of the doctor is Ex. DD. Thereafter, I gave my own certificate   which is Ex. DE which is in my hand and bears my signature.  I had correctly recorded the statement of Nisha as per her version without any addition or omission from my State. I had not make an endorsement in the beginning of said statement that there was no threat, promise or inducement to Nisha. Volunteered I had satisfied myself by making inquiries from her. It is incorrect that accused tutored Nisha to make her statement and that it was under the influence of accused, the said statement was made by her.” ASI Balwinder Singh DW-4 had received information from the hospital regarding Nisha’s admission and had gone to the hospital and had taken the opinion and had contacted the Duty Magistrate. He had also recorded the statement of Rattan Lal, Gurmukh Singh and Surinder Singh. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Tarsem Singh DW-5 a neighbour of the accused came in support of the accused. He stated that Dawinder Singh was on the roof feeding the pigeons and he also heard shrieks of ladies and Dawinder went down running and he (DW) also went to the house of Dawinder and Dawinder was putting off the fire and his clothes also caught fire and he also helped in putting the fire out and they shifted Nisha in the vehicle of shopkeeper and on the way he had asked Nisha as to what had happened. He stated that he found one chapati on the Tawa and there was one piece of kneaded flour and dry grass and a bottle and there was a cracker wrapper in the dry grass.

Dr. Karnail Singh DW-6 had declared Nisha fit to make a   statement. He stated that Magistrate had recorded the statement in his  presence and through out the statement Nisha was fit and he had given a certificate at the end of her statement. He had also disclosed that patient was suffering from 70% burns. He stated that the Magistrate had arrived in the hospital after about one or two hours of the admission.

Reading of the judgment of the trial Court brings out contradictory findings. It would be relevant to refer to the findings. The following points were set out for determination and are contained in para 11 of the judgment which reads as under:-

  1. Whether there is delay in filing the complaint? If so, to what effect?
  2. Whether the accused had the motive to cause the death of the deceased?

  3. Whether the deceased voluntarily made dying declaration before Sh. Deepak Kumar Chaudhary, JMIC, DW3? If so, to what effect?

  4. Whether the deceased made dying declaration before Dilawar Singh complainant and Surinder Singh PW8? If so, to what effect?

  5. Whether all the accused made extra judicial confession before Hussan Lal PW4? If so, to what effect?

  6. Whether all the accused intentionally caused the death of the deceased?

  7. Whether the deceased died, otherwise than under normal circumstances?

  8. Whether the deceased was being harassed, treated  with cruelty by all the accused soon before her death on the ground of demand of dowry?

On point No. 1 the trial Court had observed that there was a delay but it was not fatal and had merely put the Court on guard.

On point No. 2 it held that the accused had a motive to cause the death.

On point No. 3 it held that the deceased had died accidently and she was not set on fire by any of the accused.

On point No. 4 the Court rejected the testimony of the prosecution witnesses that any oral dying declaration was made before Dilawar Singh and Surinder Singh. It concluded that the deceased was not set on fire by the accused and she received injuries otherwise.

On point No. 5 the Court had held that no extra judicial confession was made before Hussan Lal and his statement was not admissible in evidence.

On point No. 6 the Court observed that it can not be held that “all the accused intentionally caused the death”.

On point No. 7 it was observed that since the death was on account of burn injuries, therefore, she had died otherwise than under normal circumstances.

On point No. 8 relying upon the statement of all the witnesses held that girl was being harassed and she was subjected to cruelty by all the accused for dowry.

The above would show that the Court had believed the dying   declaration. It rejected the extra judicial confession said to have been  made by the accused. It had held that the death was accidental but at the same time it held that since the death was unnatural and the family had deposed above acts of cruelty, there was a dowry demand, therefore, it recorded their conviction. The findings are contradictory. It would be necessary to refer to the findings recorded on point No. 6 contained in para 35 of the judgment which read as under:-

“35. It has already been held, while deciding point No. 3, that the deceased voluntarily made dying declaration before the Magistrate that the she caught fire accidentally. It has also been decided while deciding point No. 4 that the deceased had not made any dying declaration before the complainant or Surinder Singh PW8 that she was set on fire by the accused. It has also been held above that at the time when she received burn injuries none of the accused was present inside the house. Therefore, it cannot be held that all the accused intentionally caused her death. In the result, this point is decided against the persecution and in favour of the accused.”

In the light of the above, it is necessary to first see whether the dying declaration made by the deceased could be considered as the last statement and whether it was admissible in evidence. There is no eye witness to the manner in which the occurrence took place. The entire case hinges upon the dying declaration and it has to be seen whether the incident was accidental or homicidal. The incident took   place in the morning on 13.11.2005. Nisha was shifted to the hospital  at about 9.45 a.m. This appears in the statement made by Dr. Karnail Singh DW-6. According to him the patient was suffering from 70% burns. Ruqa was sent to the police who called the Magistrate. The Magistrate had received information at 1.00 p.m. He had recorded the time when he started for the hospital. Another note was made by him at 1.35 when he reached the hospital. He met the doctor and took the opinion regarding her fitness and they proceeded to record the statement. A note was also given that the mother, mother-in-law and father-in-law of the patient were present near the girl and they had been asked to leave the room.

The statement given by Nisha reads as under:- “I was going to prepare meal. I was ill for 2/3 days and feeling giddy for 2/3 days. I did not know as to how my clothes caught fire. I was preparing the meal alone. My husband was feeding the pigeons on the roof. There was no other person at home. My mother-in-law, father-in-law and my daughter were away for satsang and my youngest child was at home. I was lighting the fire in the chulha and, therefore, I used kerosene oil. I was also using straw and waste material of the crackers of Diwali. Suddenly the fire broke out. I started crying. My husband got down and started putting out the fire. His hands got burnt. The people of our vicinity and my husband brought me to hospital in the vehicle.

The philosophy in law underlying admittance in evidence of dying declaration is that dying declaration made by person on the verge of his/her   death has a special sanctity as at that solemn moment, a person is most  unlikely to make any untrue statement therefore a dying declaration enjoys a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration and that is the statement of law summed up by this Court in Kundula Bala Subrahmanyam Vs. State of A.P., (1993) 2 SCC 684.

The law is settled that a dying declaration is admissible in evidence, therefore, it has now to be seen whether the dying declaration made by the accused could be accepted. The statement is not a statement on oath and the maker thereof can not be subjected to cross examination, therefore, if the dying declaration suffers from any infirmity during the course of the trial from other evidence then the same can be refused to be accepted. In the present case there is only one dying declaration.

Nisha had been married for almost 5 years. The incident took place in the morning. She is succumbed to the burn injuries three days later. Nisha was shifted to the hospital by her husband and some neighbours. A ruqa was sent and the police arrived in the hospital and message was sent to the Magistrate who arrived in the hospital at 1.35 p.m. He contacted the doctor for his opinion. The pateint was declared fit to make the statement and the Magistrate found that the mother, mother-in-law and father-in-law were present in the room who were asked to leave the room. Thereafter the statement was recorded. Nisha in her detailed statement mentioned about the incident. She had stated that her child had gone with her in-laws to the   Satsang and her husband was on the roof feeding the pigeons and she was  lighting the hearth for which she had used kerosene oil and some waste of the crackers and she did not know how she had got fire. She had also stated that on hearing her cries her husband came to save her and in the process his hands were also burnt. Nisha succumbed to the injuries on 16.11.2005. The postmortem was conducted and she was cremated. The police on the basis of dying declaration and other statements which came came before it did not register the FIR. The father was not satisfied and he filed a complaint on 24.12.2005 . The prosecution had examined 10 witnesses. The trial Court rejected the statement of Husan Lal before whom the extra judicial confession was said to have been made. It also rejected the prosecution story that an oral dying declaration was made before Dilawar Singh and Surinder Singh and believing the dying declaration, a finding was given that the dying declaration could be accepted but in the end on mis-reading of evidence made unwarranted finding that it was a case of dowry death. On point No. 6 it had observed that the accused had not intentionally caused the death. On point No. 7 the finding was that since the cause of death was due to burn injuries leading to Septicemia and it was the direct cause of death, therefore, Nisha had died otherwise than under normal circumstances. On point No. 8 the finding was that since there was demand of Rs. 5 lacs for construction of the house and the deceased was telling her family, therefore, the girl was being subjected to cruelty by all the accused and invoking the presumption under Section 113-B of the Evidence Act the accused were held guilty.

On one hand a finding was recorded that the death was accidental. The trial Court had also held that the accused had not set her on fire, it had believed the dying declaration and had rejected the extra judicial confession, therefore, there was no reason how the presumption under   Section 113-B of the Evidence Act could be invoked.  A reading of the dying declaration coupled with the statement of the Magistrate who had recorded the statement and the statement of the doctor makes it clear that the dying declaration had been made by the injured. There was no occasion for tutoring as the parents of the deceased were also in the hospital. There is no evidence that parents had made any complaint or had lodged the FIR earlier. They accepted the statement of their daughter and immediately did not make a report. Both the family had participated in the cremation. Had there been a demand of dowry or evidence the parents would not have allowed the in-laws to participate in the last rites. One of the neighbour had accompanied the injured and the husband to the hospital. The doctor had given an endorsement that the patient was fit to make a statement and that endorsement had been proved before the Court though in defence. The prosecution did not choose to examine the Magistrate or the treating doctor. The Medical Officer had noted that the hands of the husband were burnt.

Having evaluated the evidence independently the finding of the trial Court so far as the dying declaration is concerned is accepted as the same passes the test of credibility. Nisha had narrated sequence of events. The trial Court did not entertain any doubts about the statement. The medical officer had made an endorsement about the mental state, therefore, the dying declaration could not be excluded from consideration. It is found that it would be safe to act on the dying declaration. There is no inconsistency. The deceased had not blamed any one for the incident. She herself was not aware of the reason as to how her clothes caught fire. It appears that the parents out of utter frustration chose to file a complaint subsequently. Even otherwise the demand of money for construction of a house would not fall within the definition of dowry demand. There was no   complaint prior to the incident to the Panchayat. There was no complaint to  the Senior Officers under whom the accused was serving. People have become more aware. In cases where Government servant are involved, people do not hesitate and send written complaints to the senior officers. The incident was an accident. The dying declaration was natural. The maker of the same was in a fit mental condition, therefore, accepting the dying declaration the findings recorded on point No. 2 and 8 are set aside.

The Appeal is accepted. All the accused are acquitted. Their bail bonds are discharged.

March 01, 2016                                          (ANITA CHAUDHRY)
                                                        JUDGE

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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


I CAN’T live with a low paid Inspector says wife. Husband gets divorce, wife gets 10K p.m. ! P&H HC

A wife leaves her husband and files false cases on him. She files complaints with his superiors etc. The Husband says that the wife deserted him because he was just an Assistant Sub Inspector (ASI) Even the couple’s son who is taken away by the mother, joins the father and testifies in favor of the father. Wife makes various allegations against the husband but the court observes that there is NOT an iota of evidence supporting these allegations. So, the decree of divorce granted in favor of the husband by the learned Additional District Judge, Panchkula, is confirmed by the Hon HC. However considering the salary of the husband and the cost of living, wife gets 10 K maintenance per month !!

This maintenance is in spite of the Hon court clearly stating the fact of desertion by the wife as follows “….Appellant-Kavita RW1 in her cross-examination has specifically deposed that she does not want to live with her husband. This statement coupled with the admitted fact that the appellant had left her matrimonial home on 31.7.2002, clearly proves the animus of desertion on her part…..”

The Husband argues that “…There is no justification for enhancement of the maintenance/alimony to 10,000/- per month. The appellant has to maintain himself, his aged mother and an unmarried son. He also has to provide financial support to his younger sister, who is a widow, along with her three minor children. ….” But the court refuses to accept that argument and dismisses his petition against enhancement of maintenance


FAO Nos. M-66 of 2008 (O&M) and M-361 of 2013

IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH

FAO No. M- 66 of 2008 (O&M)
Date of Decision: Feb. 26,2016
Kavita ……………………………………… Appellant
Versus
Krishan Kumar ……………………….. Respondent

AND

FAO No. M-361 of 2013
Krishan Kumar ………………………….. Appellant
Versus
Kavita ……………………………………. Respondent

Coram:
HON’BLE MR. JUSTICE RAJIVE BHALLA
HON’BLE MRS. JUSTICE LISA GILL

Present: Mr. G.C.Shahpuri, Advocate
for the appellant (in FAO No. M-66 of 2008)
for the respondent (in FAO No. M-361 of 2013)

Mr. D.K.Singla, Advocate
for the respondent (in FAO No. M-66 of 2008)
for the appellant (in FAO No.M-361 of 2013)


LISA GILL, J.

This judgment shall dispose of FAO No.M-66 of 2008 (Kavita v. Krishan Kumar) and FAO No.M-361 of 2013 (Krishan Kumar v. Kavita), which arise out of a matrimonial dispute between the parties.

FAO No.M-66 of 2008 has been preferred by Kavita being aggrieved of the judgment and decree dated 17.12.2007 passed by the learned Additional District Judge, Panchkula, whereby the petition filed by the respondent-husband Krishan Kumar under Section 13-A of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’) has been allowed thereby dissolving the marriage between the parties.

FAO No.M-361 of 2013 has been preferred by Krishan Kumar challenging the order dated 18.9.2013 passed by the learned Additional District Judge, Panchkula, whereby maintenance under Section 25 of the Act has been enhanced from 3,000/- per month to 10,000/- per month.

The facts as revealed in the petition filed by Krishan Kumar under Section 13-A of the Act for dissolution of marriage are that marriage between the parties was solemnized on 13.9.1984 at Yamuna Nagar according to Hindu rites and ceremonies. Two children were born out of this wedlock. It was averred in the petition that his wife Kavita started taunting and harassing him some time after their marriage on account of his perceived poverty while asserting that she belongs to a rich family. She did not treat his old parents with due respect, refused to cook food and at times would serve half baked food or deliberately put extra chillies in it. It was further alleged that Kavita deserted the matrimonial home on 31.7.2002 without informing him or any other family member. She did not return home despite repeated requests and on the contrary made false allegations that Krishan was having extra marital relations. The appellant Kavita allegedly lodged false and frivolous complaints against Krishan Kumar. In this situation, a petition for divorce on the ground of cruelty and desertion was preferred by Krishan Kumar.

The appellant-wife, Kavita, while admitting the factum of marriage between the parties and birth of two sons denied all allegations of cruelty and desertion. It was asserted that the petition for divorce was filed by the husband as a counter-blast to an application filed by the appellant under Section 125 Cr.P.C. for maintenance, which was allowed. The husband was stated to be a haughty policeman who was cruel and indifferent towards her because of his illegitimate relations with other women. While denying that she left the matrimonial home on 31.7.2002 it is averred that it was the husband who deserted her as well as their two minor sons to fend for themselves without any rhyme or reason. Therefore, the husband should not be permitted to derive any benefit on account of his own wrong and the petition seeking divorce should be dismissed.

The following issues were framed by the trial Court on the basis of pleadings of the parties:-

1.Whether the petitioner is entitled to dissolution of marriage and decree of divorce on the ground that he has been treated with cruelty as alleged? OPP

2.Whether the petitioner is entitled to a decree of divorce on the ground that he had been deserted by the respondent? OPR

3.Whether the petitioner has no cause of action to file the present petition and is not maintainable in the present form? OPP

4.Whether the petitioner is estopped from filing the present petition by his own act and conduct? OPP

5.Relief.

Evidence was adduced by the parties. The respondent-husband deposed as PW1 and examined Deepak Kumar PW2, his son, and Brahm Pal, his brother, and produced documentary evidence. The appellant appeared as RW1 and adduced her evidence. Learned trial Court on the basis of evidence on record directed dissolution of marriage between the parties on the ground of cruelty and desertion on the part of the wife.

Learned counsel for the appellant vehemently argued that the learned trial Court has grossly erred while passing the impugned judgment and decree, especially keeping in view the fact that since the marriage of the parties in the year 1984 there was no trouble upto the year 2002. It is submitted that it is opposed to all probability that the couple would have continued living together without any evidence of discord during all these years and suddenly parted ways in the year 2002 on the ground of cruelty meted out by the appellant since the inception of their marriage. It is urged that the appellant was forced to leave her matrimonial home because of illicit relations developed by the respondent-husband with one Sarabjit Kaur. It is, thus, apparent that the appellant was forced to leave her matrimonial home on account of the acts of the respondent-husband. There is nothing on record to prove cruelty or desertion on the part of the appellant, therefore, the impugned judgment and decree should be set aside.

Per contra learned counsel for the respondent with reference to the evidence on record supports the impugned judgment and decree and prays for upholding the same. It is submitted that desertion on the part of the appellant is apparent on record. She has categorically stated that she does not want to live with her husband who is working as an Assistant Sub Inspector with the Haryana Police. The appellant had withdrawn from her husband’s society without any reasonable or sufficient cause. She had been giving frivolous and false complaints to the police authorities against the respondent. The appellant wife miserably failed to prove adulterous relations of the husband as alleged. therefore, cruelty and desertion is clearly proved on the appellant’s part. He, thus, prays for upholding the impugned judgment and decree.

We have heard learned counsel for the parties and have gone through the pleadings and evidence on record.

It is admitted that marriage between the parties was solemnized on 13.9.1984 and two children were born out of this wedlock. One of the sons of the parties i.e. Deepak Kumar PW2 is residing with the respondent-husband.

A perusal of the record reveals that leaving of the matrimonial home on 31.7.2002 is admitted by the appellant though it is sought to be explained on the ground that it is due to the conduct of the respondent, namely, his illicit relations with one Sarabjit Kaur, that the appellant was forced to leave the matrimonial home. The name, parentage or address of said Sarabjit Kaur was not mentioned in the written statement though her name is mentioned in the cross-examination of the appellant RW1. The appellant has failed to lead any evidence to prove illicit relations of the respondent with the said Sarabjit Kaur or any other woman. All allegations of illicit relations made by the respondent remained unsubstantiated.

PW2 Deepak Kumar, the elder son of the parties, has deposed in favour of his father. Prior to the year 2004 he was living with his mother and younger brother. He has denied allegations of ill-treatment or physical abuse of the appellant at the hands of his father. Deepak Kumar affirms that the parties had separated in the year 2002. He denied that his parents were having normal relations. Averment of the appellant that her elder son Deepak Kumar had left her and joined his father due to greed of a motor-bike or mobile or that he was involved in a theft case in which the respondent helped Deepak Kumar is not substantiated by any evidence on record. Deepak Kumar PW2 has specifically denied that he was involved in a theft case. There is no evidence to show his involvement in such a case.

It is categorically asserted by the respondent- husband that the appellant had left the matrimonial house along with his two sons on 31.7.2002 and they could be located after about a period of one and a half month thereto. The appellant had reported his wife and children to be missing as is apparent from Ex.P2. Various complaints were submitted by the appellant against him. Filing of such complaints is admitted by the appellant. The appellant has admitted that she filed various complaints against the respondent before his superior officers also. The allegations of demand of dowry by the respondent or his family members are not supported by an iota of evidence on record. The appellant’s own testimony to the effect that there was no one in her parental family, thus the demand for dowry raised by her husband and in-laws could not be fulfilled, falsifies her stand for the simple reason that the question of demand of dowry does not arise in such a situation. Furthermore, the appellant categorically states that she was never beaten by the respondent on account of non fulfillment of demand of dowry. The argument on behalf of the appellant that no effort was made by the husband to resettle her along with the children or that there was a reasonable and sufficient cause for withdrawing from the matrimonial home is not borne out from the record. Appellant-Kavita RW1 in her cross-examination has specifically deposed that she does not want to live with her husband. This statement coupled with the admitted fact that the appellant had left her matrimonial home on 31.7.2002, clearly proves the animus of desertion on her part. There is nothing on record to prove that she was turned out of her matrimonial home. The parties have been living separately since the year 2002. The appellant has failed to prove any reason or cause much less sufficient or a reasonable cause to have withdrawn from the company of the respondent husband. Thus, the respondent-husband is entitled to a decree of divorce and we find no illegality or infirmity in the impugned judgment dated 17.12.2007 passed by the learned Additional District Judge, Panchkula.

Krishan Kumar-appellant in FAO No.M-361 of 2013 is aggrieved by the enhancement of maintenance from 3,000/- to 10,000/- awarded to the respondent- wife vide order dated 18.9.2013 passed by the Additional District Judge, Panchkula. Maintenance at the rate of 3,000/- per month was awarded to Smt. Kavita under Section 25 of the Act vide order dated 15.4.2008 after marriage between the parties was dissolved on 17.12.2007. An application was moved by Kavita for enhancement of this amount to 15,000/- as Krishan Kumar’s salary had increased to 24,782/- per month from 13,668/- per month. Furthermore, expenses incurred by her had also increased. Learned Additional District Judge, Panchkula, while taking into account the fact that the gross salary of the husband was 36,475/- per month as per the salary slip placed on record, awarded a sum of 10,000/- per month from the date of filing of the application.

Learned counsel for the appellant-Krishan Kumar submits that the maintenance pendente-lite under Section 24 of the Act was fixed at 4,000/- per month in FAO No. M-66 of 2008. There is no justification for enhancement of the maintenance/alimony to 10,000/- per month. The appellant has to maintain himself, his aged mother and an unmarried son. He also has to provide financial support to his younger sister, who is a widow, along with her three minor children. Such an enhancement could not have been made once permanent alimony and maintenance was fixed vide order dated 15.4.2008.

Learned counsel for the respondent-wife, on the other hand, submits that keeping in view the salary drawn by the appellant and the expenses which are incurred by the respondent-wife, the amount of 10,000/- is not a princely amount which calls for any reduction in the facts and circumstances of the case.

Having heard learned counsel for the parties and going through the file, we do not find any infirmity in the grant of 10,000/- per month to the respondent- wife under Section 25 of the Act. Section 25(2) of the Act specifically provides that, “If the Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub- section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.” Therefore, the argument in respect to maintainability of the petition is rejected being untenable. It is apparent that the husband was getting a salary of 13,668/- per month when maintenance at the rate of Rs.3000/- per month was fixed. Admittedly the gross salary of the husband was 36,475/- in August 2013 and cost of living has increased as well, thus the learned trial Court has committed no error in increasing the amount to be paid to the wife to 10,000/-. Learned counsel for the appellant-husband is unable to point out any illegality, infirmity or perversity in the impugned judgment and decree calling for a reduction in the amount awarded.

In view of the aforesaid discussion, both the FAO Nos. M-66 of 2008 (O&M) and M-361 of 2013 [ 13 ] appeals i.e. FAO No. M-66 of 2008 and FAO No. M-361 of 2013 are dismissed with no order as to costs.

( RAJIVE BHALLA ) ( LISA GILL )
JUDGE JUDGE

Feb. 26, 2016

rupi

Wife with blind vagina, unable to consummate, also makes wild allegations. Marriage Null & void. All HC

Husband gets married after his first divorce to this woman who does NOT disclose her physical infirmities before the marriage. After marriage the husband understands that wife is unable to consummate the marriage (i.e. have physical intercourse) as she has a blind vagina. In spite of the husband making various efforts to consummate the marriage, there is no success. Wife also goes on to make wild allegations on the husband (claims that husband tried to have sex with her sister !!). Parties live apart for many years.Husband wins the case for NULLITY of marriage both at the first appellate court and also at Allahabad HC

the crux of the matter is … “…. opposite party was not able to have intercourse as her vaginal passage was closed and she was not able consummate marriage and discharge her duties of a wife. In spite of many efforts, physical relationship could not be established between the parties. Before her marriage with petitioner, opposite-party had also married earlier but she had never informed the petitioner about her physical problems and concealed true facts. Therefore, petitioner had filed petition for declaration of their marriage void under Sections 12 (1)(a) and 12 (1)(c) of Hindu Marriage Act….”

In addition to her infirmities, “…during proceedings of the trial court, appellant-wife had refused for getting herself medically examined; then the fact of her impotency and inability in sexual acts could be proved by medical certificates and other evidences, as has been proved…”

However the woman contends “…Learned counsel for the appellant contended that since petitioner-respondent (husband) had already three children from his earlier marriage, so he had re-married only for taking care of his children and not for sexual satisfaction. He also contended that this finding of lower appellate court is incorrect that appellant-wife was not fit for co-habitation because there was no such medical report…”

Still on appreciation of facts, and the actions of the wife, the lower appellate court and the Allhabad HC rule that the marriage is NULL and void !!

The HC also highlights that the wife has NOT specifically denied her physical disabilities and her evasive denial is not sufficient to support her stand (i.e.) husband’s stand remains un rebutted

It is pertinent to note that the Trial court , i.e. Additional Civil Judge (Senior Division)[/ Judge Small Cause], Ghaziabad, had originally dismissed the husband’s petition, but has successfully fought his way to success


Allahabad High Court

Smt. Sulekha vs Ashok Kumar on 14 March, 2016

Bench: Pramod Kumar Srivastava

HIGH COURT OF JUDICATURE AT ALLAHABAD

Case :-     SECOND APPEAL No. – 239 of 2016

Appellant     :-     Smt. Sulekha
Respondent     :-     Ashok Kumar
Counsel for Appellant :- Santosh Tripathi
Counsel for Respondent :- Ram Krishna Koli

Hon’ble Pramod Kumar Srivastava,.

  1. Heard learned counsel for the parties on admission of second appeal and perused the records.
  2. Matrimonial Petition No. 3077/2010, Ashok Kumar v. Smt. Sulekha was filed by husband against his wife for declaring their marriage void. In said petition, it was pleaded that it was arranged marriage when petitioner Ashok Kumar had entered into second matrimony after divorce with his first wife. He married with opposite party Sulekha on 7.1.2010 and thereafter started living with her. But opposite party was not able to have intercourse as her vaginal passage was closed and she was not able consummate marriage and discharge her duties of a wife. In spite of many efforts, physical relationship could not be established between the parties. Before her marriage with petitioner, opposite-party had also married earlier but she had never informed the petitioner about her physical problems and concealed true facts. Therefore, petitioner had filed petition for declaration of their marriage void under Sections 12 (1)(a) and 12 (1)(c) of Hindu Marriage Act.
  3. Opposite-party had filed written-statement in original case, in which she pleaded that petitioner is aged about 45 years and had three children from his first wife, he wanted to marry the opposite-party for taking care of his children and for managing house hold affairs. Petitioner had no importance of physical disabilities of opposite-party and of her being able to be mother. Sometimes after marriage, petitioner had started treating her with cruelty. His petition is liable to be dismissed.
  4. Trial court had framed issues, accepted evidences of the parties and then court of Additional Civil Judge (Senior Division)[/ Judge Small Cause], Ghaziabad had passed judgment dated 22.5.2013, by which petition for dissolution of marriage was dismissed. Trial court had discussed the fact as to whether opposite-party/wife was able to have physical relationship with petitioner and was able for sexual intercourse. Learned Civil Judge had held that only medical expert opinion can prove as to whether opposite party-wife is able to have physical intercourse or not, and since applicant had not arranged medical examination of opposite party, therefore his statement in that regard cannot be accepted to be true. In absence of such medical examination, his case is not proved that his petition is dismissed.
  5. Against the judgment of trial court, petitioner had preferred Civil Appeal No. 129/2013, which was heard and allowed by the judgment dated 23.1.2016 of Additional District Judge, Court No. 7, Ghaziabad. By this judgment, judgment of trial court dated 22.5.2013 was set aside and marriage of parties was annulled. In this judgment, lower appellate court had independently appreciated evidences of the parties and considered this fact that petitioner-husband had made application for medical examination of opposite-party/wife in Gynecology Department of Medical College for examination for ascertaining as to whether she is able to have sexual intercourse in physical relationship or not, but it was the opposite party-wife who had not co-operated and declined such test; so her medical examination could not be performed. Lower appellate court had also appreciated the fact that in written-statement and her statement, the opposite-party/wife had stated that she had informed that before this marriage that she was not able to give birth to children and become mother, but she had not specifically denied that she was unable to have physical sexual relationship. After appreciating the evidences, lower appellate court had held that opposite-party/wife had a blind vagina and was not able to consummate and have physical relationship. It was also held by lower appellate court that although petitioner had knowledge that opposite party was not able to become mother, but he had married for physical comfort, and he had no knowledge of the impotency of his wife. The court had held that being not able to have physical relationship and intercourse, and having blind vagina comes within category of impotence. With these findings, lower appellate court had set aside the findings of trial court, allowed the appeal and annulled the marriage of the parties.
  6. Against the judgment of lower appellate court, present second appeal has been preferred by opposite party-wife of the original petition.
  7. Learned counsel for the appellant contended that since petitioner-respondent (husband) had already three children from his earlier marriage, so he had re-married only for taking care of his children and not for sexual satisfaction. He also contended that this finding of lower appellate court is incorrect that appellant-wife was not fit for co-habitation because there was no such medical report. He contended that judgment of first appeal is based on presumption and not on facts; therefore appeal should be admitted for being allowed.
  8. Learned counsel for the respondent refuted the contentions of the appellant side and contended that the document 27-C of original record is medical certificate which proves that appellant-wife was unable to have physical or sexual relation with her husband-respondent. He also contended that appellant-wife was not sexually fit to perform his duties of a wife, and it is not denied that she had not informed this fact to petitioner-respondent before the marriage. He also argued that during proceedings of the trial court, appellant-wife had refused for getting herself medically examined; then the fact of her impotency and inability in sexual acts could be proved by medical certificates and other evidences, as has been proved. His contention was that there is no error or illegality in judgment of lower appellate court. The finding of fact given by lower appellate court is not infirm or erroneous. Therefore, appeal should be dismissed.
  9. A perusal of records reveal that parties are living separately for about several years and there appears no chances of reconciliation and their reunion. In her written-statement, appellant had levelled charges of cruel animal bahaviour as well as of unnatural sexual acts against her husband. Then she had also levelled allegation that during her illness her husband-respondent used to have physical relationship with her sister by using force. Thus, it appears that parties are living separately for more than several years, and after their several wild allegations were inflicted by appellant-wife against her husband-respondent that had worsen the situation and made the possibility of matrimonial relationship impossible. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  10. Apart from it, appellant had been trying to prove that her husband-respondent had married with her for taking care of his children and not for physical relationship, and he had not importance for physical inability of appellant to have sexual relations; but these facts could not be proved by her. Even this fact was not specifically pleaded in written-statement of appellant that she was not impotent or had informed the petitioner about her physical disability to consummate.
  11. Rules 3, 4 and 5 of Order VIII CPC reads as under:
    • 3. Denial to be specific-– It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
    • 4. Evasive denial-Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance, Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.
    • 5. Specific denial-(1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability :”
  12. So far the allegation of impotency of appellant-wife and her inability to have physical and sexual relationship is concerned, this fact is specifically mentioned in petition/plaint but were not specifically denied in written-statement filed by opposite party/appellant. In her statement, opposite-party/appellant had vaguely end evasively denied the facts of petition/plaint on this point, but had nowhere specifically pleaded that she is physically and sexually fit and has been able to makes consummation of the marriage possible, or have sexual relationship with husband. Such non-specific denial technically amounts to admission on part of opposite party-defendant on these points. Rule-3 of Order VIII CPC provides it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff. Under Rule-4 such evasive denial shall not be sufficient to be taken up as denial. On this ground alone, main allegation of alleged impotency and inability of appellant to have physical relationship should have been taken to be admitted by the lower court. Absence of specific denial of such facts should be treated as their non-denial and admission. Since there is no pleading of defendant-appellant that she was not impotent or was able to have physical relationship with her husband. There is no averment in her written statement that she had informed petitioner about her physical inability to consummate; therefore, in absence of such pleading her oral evidence could not be accepted on these points.
  13. Apart from it, the lower appellate court had considered those points also, which were ignored by trial court. The learned Additional District Judge had considered the facts that request of petitioner-husband for medico legal examination of defendant-wife could not be materialized because of non-cooperation of wife-appellant herself who had declined to undergo such examination. Respondent-husband had given other evidences, which were appreciated by the lower appellate court in light of other circumstances, and on the basis of which finding was given by first appellate court that appellant-wife was not able to have physical relationship with husband, and she is impotent.
  14. While the appellant filed the application on the ground that the respondent was impotent and material facts relating to marriage were concealed. The concerning provision of the Act under which the application was filed by the appellant is Section 12(1)(a) and (c) of Hindu Marriage Act which is as follows:
    • 12 (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely: 
    • (a) that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding; ; or
    • (b) * * *; or 
    • (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978) the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent;
    • * * *”
  15. In Yuvraj Digvijay Sinhji v. Yuvrani Pratap Kumari, (1969) 2 SCC 279 Hon’ble Apex Court had held as under:  “A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings. In order to entitle the appellant to obtain a decree of nullity, as prayed for by him, he will have to establish that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings.”
  16. There is the evidence of the respondent that he went on making attempts on several occasions for consummation of the marriage but had never been successful due to repugnance to the sexual act by appellant due to her physical condition that made consummation impossible. It was never specifically denied in pleading (written-statement) of appellant that the husband was potent and that he had made frequent attempts to consummate the marriage; but could not succeed owing to the physical inability of the wife. Under those circumstances the conclusion to be drawn from the evidence was that the wife’s refusal was due to physical inability of consummation and, as such, the husband was entitled to a decree of nullity. It is evident that the marriage had not been consummated and parties could not cohabit in future also. Therefore the marriage should be annulled for the reason that these people cannot consummate the marriage. The two people should not be tied up together for the rest of their lives in a state of misery.
  17. In these circumstances, and also the fact that there has been long separation between the parties, during which appellant had been levelling wild allegations of infidelity on her husband, there appears no possibility of compromise. Such allegations and acts of appellant after their separation amounts to cruelty, which may be a ground of divorce but these grounds surfaced after separation of the parties, but cannot be out rightly ignored at the time of consideration of circumstances. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  18. The only question to be determined in this matter was as to whether petitioner-respondent is entitled for relief of annulment of his marriage with respondent on ground of impotency and that his consent for marriage was obtained by fraud as to any material fact or circumstance concerning the respondent. This was not a question of law, but has been a question of fact that can be decided on basis of pleadings evidences, as has been done by lower court. The findings of lower appellate court in this regard are not infirm or perverse. So the same cannot be interfered in second appeal by re-appreciation of evidences.
  19. On examination of reasonings recorded by the learned first appellate court in first appeal, I am of the view that its judgment is well reasoned and based upon proper appreciation of entire evidences on record. No perversity or infirmity is found in the finding of fact recorded by the first appellate court to warrant interference through this appeal. No question of law, much less a substantial question of law, is involved in the case before this Court. None of the contentions of learned counsel for the defendant-appellant can be sustained.
  20. In view of the above this second appeal is dismissed.
    Order Date :-
    14.03.2016

    SR

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