In an appeal against a trial court decree, when the appellate court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony
|Case name:||Jagdish Singh V/S Madhuri Devi|
|Case number:||Appeal (civil) 2997 of 2008|
|Court:||SUPREME COURT OF INDIA|
|Bench:||C.K. THAKKER J. D.K. JAIN J.|
|Relevant Act/Sections:||The Hindu Marriage Act, 1955|
BRIEF FACTS AND PROCEDURAL HISTORY:
- The marriage between appellant and respondent was solemnized on May 27, 1974 as per Hindu rites and ceremonies. For some time the relations between the parties went on well. A female child Seema was born from the said wedlock in 1980. It is the allegation of the husband that the wife did not co-operate with him and his family members. She started pressurizing the husband to live separately from his parents, brothers and sisters.
- According to the husband, however, he was the eldest son of his parents and was not in a position to oblige the wife by living with her. He had to support his old parents and also to look after future of his brothers and sisters who were dependent on him. Since the husband did not accede to the demand of the wife, her behaviour towards the husband and his family
members became rude. She started threatening the husband that if he would not concede to her demand of living only with her, he had to suffer consequences.
- The husband, however, was hopeful that in course of time, the wife will get settled and there would be no problem. Unfortunately, however, with the passage of time, the situation turned from bad to worse and she started deliberately mis-behaving not only with the husband but also with his old parents. She was violent on petty issues and small matters. She used to insult them on one pretext or the other and made the situation intolerable.
- The appellant-husband, is a teacher and belongs to a respectable family. The above acts of the respondent-wife lowered down and tarnished the image of the appellant and his family in the society. It had also caused mental and physical agony to him. The respondent did not mend her ways. In or about January, 1984, she left matrimonial home with her brother in absence of the appellant without just or reasonable cause leaving her minor daughter Seema and taking all ornaments and jewelleries.
- The appellant and his family members made several efforts to bring respondent to the matrimonial home, but she did not return. The appellant persuaded her that she should at least consider the interest and well-being of Seema who needed love and affection of the mother, but it had no effect whatsoever on the respondent.
- The appellant was deprived of conjugal rights. Her conduct and behaviour towards appellant, his family members and a minor daughter resulted in physical and mental cruelty to the appellant. The matter did not end there.
- With a view to harass and humiliate the appellant in the society, the respondent-wife filed a civil suit on April 17, 1992 (Smt. Madhuri Devi v. Jagdish Singh) in the Court of learned Munsif Sadar, Pratapgarh for permanent injunction alleging therein that the appellant- husband was likely to enter into second marriage and since the first marriage with the plaintiff (wife) was subsisting, the defendant (husband) had no right to perform second marriage. She also prayed for interim injunction.
- Ex parte injunction was granted by the Court, but after hearing the parties, the application was dismissed and injunction was vacated. Against the said order, the respondent had preferred an appeal which is pending.
- In spite of all this, the appellant tried to persuade the respondent to come back to matrimonial home. But the respondent refused to stay with the appellant. So much so that when the
appellant arranged Seema’s marriage and informed her, she did not attend it.
- In view of all the circumstances, the appellant filed a divorce petition being Case No. 209 of 1992 in the Family Court, Allahabad under Section 13 of the Hindu Marriage Act, 1955
(hereinafter referred to as ’the Act’) on two grounds, (i) Desertion; and (ii) Cruelty. The Family Court, after considering the evidence led by the parties, decided both the issues in favour of the appellant and passed a decree of divorce granting dissolution of marriage.
- Being aggrieved by the decree passed by the trial Court, the respondent-wife preferred an appeal in the High Court of Judicature at Allahabad which was allowed. It reversed the decree of the Family Court and dismissed the divorce petition instituted by the appellant- husband. It is this order which is challenged in the present appeal by the husband.
- Notice was issued by this Court pursuant to which the parties appeared. After hearing the counsel, an order was passed on November 10, 2006 that if possible, the matter be settled through mediation. The learned counsel for the parties stated to the Court that they would try for settlement with an open mind. The parties were, therefore, directed to approach Mediation Centre, Tis Hazari Court at Delhi. Parties then approached the Mediation Centre. All attempts of settlement, however, failed. It was stated by the counsel that it was not possible to arrive at a settlement and requested the Court to decide the case on merits.
- In view of the nature of dispute, the Registry was directed to place the matter for final disposal on a non-miscellaneous day and that is how the matter has been placed before us.
ISSUE BEFORE THE COURT:
1. Whether the order of the High Court in reversing the judgement of the family court correct in its approach?
RATIO OF THE COURT
- Court was of the view that the order passed by the High Court is ’cryptic’ in nature. The Family Court considered the evidence in detail. It also considered the circumstances why the case of the husband was believed that there was desertion on the part of the wife and that her conduct and behaviour towards the husband, his family members and daughter Seema was cruel. It was a case of physical and mental cruelty.
- In the pleadings as well as in the evidence, the appellant-husband has given details how the wife behaved with him and his family members; how she deserted him and deprived him of conjugal rights; how ’fake’ case was filed against him alleging that he wanted to perform second marriage during the subsistence of first marriage; how she left matrimonial home leaving not only the husband and his family members, but her own daughter who was of a tender age of 4-5 years and never took care thereafter; how she did not attend the marriage of
Seema, why the evidence of plaintiff was believed and evidence of defendant and her witnesses was not reliable. When a finding of fact has been recorded by the trial court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in appraisal of evidence is erroneous, contrary to well established principles of law or unreasonable.
- The same has been reiterated in the case of Sarju Pershad v. Jwaleshwari: “The duty of the appellate court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial court arrived at or whether there is an element of improbability arising from proved circumstances which, in the opinion of the court, outweighs such finding.”
- Three requisites should normally be present before an appellate court reverses a finding of the trial court; (i) it applies its mind to reasons given by the trial court; (ii) it has no advantage of seeing and hearing the witnesses; and (iii) it records cogent and convincing reasons for disagreeing with the trial court. If the above principles are kept in mind, in our judgment, the decision of the High Court falls short of the grounds which would allow the first appellate court to reverse a finding of fact recorded by the trial court.
DECISION HELD BY COURT:
- The court held that the conclusions reached by the High Court, therefore, cannot be endorsed and the decree passed in favour of the wife setting aside the decree of divorce in favour of the husband cannot be upheld.
- The order, therefore, deserves to be quashed and set aside and is hereby set aside. Since, there is non-consideration of the principles laid down by this Court in various cases, some of them have been referred to hereinabove, the only course available to this Court is to remit the matter to the High Court so as to enable it to pass an appropriate order afresh.
- The appeal is allowed, the judgment and decree passed by the High Court in First Appeal No. 1008 of 1999 is set aside and the matter is remanded to the said Court for fresh disposal in accordance with law. The High Court will decide it as expeditiously as possible. On the facts and in the circumstances of the case, the parties shall bear their own costs.