CASE NO.:
Appeal (civil) 2997 of 2008
PETITIONER:
JAGDISH SINGH
RESPONDENT:
MADHURI DEVI
DATE OF JUDGMENT: 28/04/2008
BENCH:
C.K. THAKKER & D.K. JAIN
JUDGMENT:
J U D G M E N T
REPORTABLE
CIVIL APPEAL NO. 2997 OF 2008
ARISING OUT OF
SPECIAL LEAVE PETITION (C) No. 3358 OF 2005
C.K Thakker, J.
1. Leave granted.
2. This appeal is filed against the
judgment and order passed by the High Court of
Judicature at Allahabad on September 29, 2004
in First Appeal No. 1008 of 1999. By the said
judgment, the High Court reversed the decree
of divorce passed in favour of the appellant-
husband by the Family Court, Allahabad on
September 13, 1999 in Case No. 209 of 1992.
3. Short facts of the case are that 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 pressurising 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.
4. 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.
5. 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.
6. 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 Seemas
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.
7. 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.
8. 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.
9. We have heard the learned counsel for
the parties.
10. The learned counsel for the appellant
submitted that the High Court was wholly wrong
in allowing the appeal and in reversing the
well-considered judgment of the Family Court.
It was submitted that on the basis of evidence
adduced by the parties and considering it in
proper perspective in the light of surrounding
circumstances, the Family Court recorded a
finding that the plaintiff-husband was
entitled to a decree of divorce on both the
grounds, namely, desertion and cruelty. The
Family Court considered the evidence of the
parties and held that it was the wife who had
left matrimonial home without just or
reasonable cause and thus desertion was
proved. It also came to the conclusion that
the conduct and behaviour of the wife was
hostile towards the husband as well as his
family members. The husband was deprived of
conjugal rights which was a case of cruelty.
Her conduct of leaving minor daughter Seema
was also highly improper. On both the grounds,
therefore, the plaintiff-husband was entitled
to dissolution of marriage.
11. It was submitted by the learned
counsel that being aggrieved by the above
decree, the wife filed an appeal. The High
Court persuaded the parties to settle the
matter. The husband tried his best to arrive
at an amicable settlement, but because of
attitude of the wife, the dispute could not be
resolved. The husband was not responsible for
the situation and yet the High Court blamed
him. The High Court without considering the
evidence properly and ignoring the conclusions
of the Family Court and reasons recorded for
coming to such conclusions, interfered with
findings of fact and held that it was neither
a case of desertion nor a case of cruelty and
the Family Court was wrong in passing a decree
of divorce. The order of the High Court,
therefore, deserves to be set aside by
restoring the decree passed by the Family
Court.
12. The learned counsel for the wife, on
the other hand, supported the decree of the
High Court which set aside the decree of the
Family Court. The counsel submitted that an
appeal by the wife before the High Court was
first appeal and the High Court had
jurisdiction to enter into questions of fact
as well as questions of law. The High Court
held that the Family Court was wrong in
relying upon the evidence of the husband and
in granting a decree of divorce. According to
the High Court, there was neither desertion
nor cruelty on the part of the wife and the
Family Court was wrong in granting relief to
the husband. In the alternative, the learned
counsel submitted that if this Court is of the
view that the High Court has not recorded
reasons and the order is cryptic, it can
remit the case to the High Court for passing
an appropriate order in accordance with law.
13. Having heard the learned counsel for
the parties, in our considered opinion, the
order passed by the High Court deserves to be
set aside.
14. So far as the Family Court is
concerned, it considered the evidence in
detail of three witnesses; PW 1 Jagdish Singh,
husband, PW 2 Lal Pratap Singh, brother of PW
1 and PW 3 Nandlal. It also considered the
depositions of DW1-wife and her witnesses. It
observed that the parties married in 1974 and
Seema was born in 1980. Nothing was shown
which compelled or obliged the wife to leave
matrimonial home. On the contrary, the
evidence went to show that it was the wife who
was responsible for creation of unpleasant
situation which would amount to cruelty
towards the husband and his family members.
She insisted her husband to stay separately
from his parents and other family members, but
the plaintiff did not accept the demand as he
was the eldest member of the family and had to
look after old parents and other family
members. The Family Court noted that it was
the wife who left matrimonial home. The trial
Court also stated that at the time of leaving
matrimonial home, the wife was aware that she
had a minor child (Seema) who was about 4-5
years of age and yet she did not care to
consider as to what will happen to her in
absence of love and affection of mother. Even
thereafter she neither took care of her
husband nor of her daughter Seema. When she
was informed that Seema was to marry, her
motherhood and love and affection did not
attract her to attend the marriage of Seema
and the marriage was performed by the father
in absence of the mother.
15. The Family Court observed that the
grievance of the wife was against her husband
and not against her daughter Seema. She was,
therefore, expected to behave properly with
Seema, but she failed to do so.
16. The Family Court also considered the
evidence of defence witnesses and held by
recording reasons that the evidence was not
reliable. So far as the evidence of DW 1
Madhuri Devi- wife is concerned, the Family
Court noted that what was deposed by her did
not inspire confidence. On the other hand, the
husband appeared to be simple and of gentle
nature and his evidence was natural. In the
light of the above facts and circumstances, the
Family Court did not rely upon the evidence of
the wife and believed the deposition of husband
and his witnesses. Regarding the allegation of
the wife that the husband wanted to perform
second marriage with one Poonam Singh and her
filing of suit and getting ad-interim relief
which was subsequently vacated, the Family
Court noted that from the circumstances in
their entirety, it was clear that the wife had
levelled false allegations against the husband
and a fake case was filed by her. The Family
Court referred to an effort of settlement
between the parties in Lok Adalat and noted
that it was the wife who refused to come and
live with the husband. According to the Family
Court, the fact had been clearly mentioned on
the Order-sheet on the file of the case. In
the light of all the facts and circumstances,
the Family Court recorded a finding that it was
the wife who continuously acted with cruelty
with the husband after marriage and in January,
1984, it was she who abandoned matrimonial home
without any cogent and justifiable reason and
the husband was entitled to divorce.
17. So far as High Court is concerned, it
noted in the judgment in first para that the
Family Court framed necessary issues and
recorded a finding that the wife was guilty of
cruelty as also desertion and accordingly a
decree of divorce was passed. In paragraph 2
of the judgment, the High Court stated that
attempts were made to get the matter settled,
but no settlement could be arrived at. The
High Court then noted that witnesses were
examined by the husband as also by the wife.
In the next para, submissions of the learned
counsel for the wife were recorded.
18. In para 5, the High Court said;
We have seen the plaint and
evidence adduced by the Respondent.
In the plaint no specific instance of
cruelty has been mentioned. Same is
the case in the evidence of the
respondent. No specific instance has
been narrated. The allegations as
well as evidence on behalf of the
respondent are vague and general in
nature.
19. In subsequent para, the High Court
opined that the statement of the wife was
natural. According to the High Court, the
husband did not like the wife because she
could not bear a male child. It, however,
noted that the parties were very young at the
time of marriage. It then speculated that the
husband was a teacher in an Intermediate
college and stated;
The appellant (wife) is not very
educated and has studied up to class
7th only. It is possible that the
respondent (husband) may not like
her as she is not highly educated.
(emphasis supplied)
20. The High Court also observed;
There is nothing in the evidence to
disbelieve the statement of the
appellant (wife) and her brother DW 3.
It is not disputed that Durga Singh,
DW 2 resident of the same village as
that of the respondent (husband) and
is his relation. He has also supported
the case of the appellant (wife). It
is correct that the respondent
(husband) had brought up only daughter
of the parties. However, this does not
mean that the appellant (wife) was
cruel or deserted the respondent
(husband).
21. In view of above, according to the
High Court, the Family Court was wrong in
holding that there was cruelty on the part of
the wife or that she deserted the matrimonial
home. The findings recorded by the Family
Court were not well-founded and the appeal was
required to be allowed. Accordingly, the
appeal was allowed and the decree passed by the
Family Court was set aside.
22. From what is stated above, it is clear
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.
In the light of all the facts, the Family
Court came to the conclusion that the case was
covered by Section 13 of the Act and the
petition was liable to be allowed and a decree
for divorce was passed.
23. The High Court, on the other hand, did
not consider the evidence at all. In fact,
the High Court was wrong in observing that
there were no specific instances of cruelty or
desertion. The High Court also relied upon
the defence evidence without considering the
fact that the Family Court recorded reasons
for not relying upon such evidence.
24. It is no doubt true that the High
Court was exercising power as first appellate
court and hence it was open to the Court to
enter into not only questions of law but
questions of fact as well. It is settled law
that an appeal is a continuation of suit. An
appeal thus is a re-hearing of the main matter
and the appellate court can re-appraise, re-
appreciate and review the entire evidence
oral as well as documentary and can come to
its own conclusion.
25. At the same time, however, the
appellate court is expected, nay bound, to
bear in mind a finding recorded by the trial
court on oral evidence. It should not forget
that the trial court had an advantage and
opportunity of seeing the demeanour of
witnesses and, hence, the trial courts
conclusions should not normally be disturbed.
No doubt, the appellate court possesses the
same powers as that of the original court, but
they have to be exercised with proper care,
caution and circumspection. 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.
26. Before more than a century, in Coghlan
v. Cumberland, (1898) 1 Ch 704, Lindley, M.R.
pronounced the principle thus;
Even where the appeal turns on a
question of fact, the Court of appeal
has to bear in mind that its duty is
to rehear the case, and the Court must
reconsider the materials before the
Judge with such other materials as it
may have decided to admit. The Court
must then make up its own mind, not
disregarding the judgment appealed
from, but carefully weighing and
considering it; and not shrinking from
overruling it if on full consideration
the Court comes to the conclusion that
the judgment is wrong. When, as often
happens, much turns on the relative
credibility of witnesses who have been
examined and cross-examined before the
Judge, the Court is sensible of the
great advantage he has had in seeing
and hearing them. It is often very
difficult to estimate correctly the
relative credibility of witnesses from
written depositions and when the
question arises which witness is to be
believed rather than another; and that
question turns on manner and
demeanour, the Court of Appeal always
is, and must be, guided by the
impression made on the Judge who saw
the witnesses. But there may obviously
be other circumstances, quite apart
from manner and demeanour, which may
shew whether a statement is credible
or not; and these circumstances may
warrant the Court in differing from
the Judge, even on a question of fact
turning on the credibility of
witnesses whom the Court has not
seen.
[see also observations of Lord
Thankerton in Watt v. Thomas, (1947) 1
All ER 582]
27. In Sara Veeraswami v. Talluri Narayya,
AIR 1949 PC 32 : 75 IA 252, the Judicial
Committee of the Privy Council, after referring
to relevant decisions on the point, stated;
But if the evidence as a whole can
reasonably be regarded as justifying
the conclusion arrived at the trial,
and especially if that conclusion has
been arrived at on conflicting
testimony by a tribunal which saw and
heard the witnesses, the appellate
court will bear in mind that it has
not enjoyed this opportunity and that
the view of the trial Judge as to
where credibility lies is entitled to
great weight. This is not to say that
the Judge of first instance can be
treated as infallible in determining
which side is telling the truth or is
refraining from exaggeration. Like
other tribunals, he may go wrong on a
question of fact, but it is a cogent
circumstance that a Judge of first
instance, when estimating the value of
verbal testimony, has the advantage
(which is denied to Courts of appeal)
of having the witnesses before him and
observing the manner in which their
evidence is given.
28. This Court also, before more than half
a century in Sarju Pershad v. Jwaleshwari,
1950 SCR 781, stated;
The question for our consideration is
undoubtedly one of fact, the decision
of which depends upon the appreciation
of oral evidence adduced in the case.
In such cases, the appellate court has
got to bear in mind that it has not
the advantage which the trial Judge
had in having the witnesses before him
and of observing the manner in which
they deposed in court. This certainly
does not mean that when an appeal lies
on facts, the appellate court is not
competent to reverse a finding of fact
arrived at by the trial Judge. The
rule is and it is nothing more than
a rule of practice that when there
is conflict of oral evidence of the
parties on any matter in issue and the
decision hinges upon the credibility
of the witnesses, then unless there is
some special feature about the
evidence of a particular witness which
has escaped the trial Judges notice
or there is a sufficient balance of
improbability to displace his opinion
as to where the credibility lies, the
appellate court should not interfere
with the finding of the trial Judge on
a question of fact.
29. Referring to several cases on the
point, the Court concluded;
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.
(emphasis supplied)
30. After about a decade, in Radha Prasad
v. Gajadhar Singh, (1960) 1 SCR 663, this
Court reiterated;
The position in law, in our opinion,
is that when an appeal lies on facts
it is the right and the duty of the
Appeal Court to consider what its
decision on the question of facts
should be; but in coming to its own
decision it should bear in mind that
it is looking at the printed record
and has not the opportunity of seeing
the witnesses and that it should not
lightly reject the Trial Judges
conclusion that the evidence of a
particular witness should be believed
or should not be believed particularly
when such conclusion is based on the
observation of the demeanour of the
witness in Court. But, this does not
mean that merely because an appeal
court has not heard or seen the
witness it will in no case reverse the
findings of a Trial Judge even on the
question of credibility, if such
question depends on a fair
consideration of matters on record.
When it appears to the Appeal Court
that important considerations bearing
on the question of credibility have
not been taken into account or
properly weighed by the Trial Judge
and such considerations including the
question of probability of the story
given by the witnesses clearly
indicate that the view taken by the
Trial Judge is wrong, the Appeal Court
should have no hesitation in reversing
the findings of the Trial Judge on
such questions. Where the question is
not of credibility based entirely on
the demeanour of witnesses observed in
Court but a question of inference of
one fact from proved primary facts the
Court of Appeal is in as good a
position as the Trial Judge and is
free to reverse the findings if it
thinks that the inference made by the
Trial Judge is not justified.
31. In T.D. Gopalan v. Commissioner of
Hindu Religious & Charitable Endowments,
Madras, (1973) 1 SCR 584, this Court said;
The High Court next proceeded to
reproduce a summary of the statement
of each of the witnesses produced by
the defendants. No attempt whatsoever
was made to discuss the reasons which
the learned District Judge had given
for not accepting their evidence
except for a general observation here
and there that nothing had been
suggested in the cross-examination of
a particular witness as to why he
should have made a false statement. We
apprehend that the uniform practice in
the matter of appreciation of evidence
has been that if the trial court has
given cogent and detailed reasons for
not accepting the testimony of a
witness the appellate court in all
fairness to it ought to deal with
those reasons before proceeding to
form a contrary opinion about
accepting the testimony which has been
rejected by the trial court. We are,
therefore, not in a position to know
on what grounds the High Court
disagreed with the reasons which
prevailed with the learned District
Judge for not relying on the evidence
of the witnesses produced by the
defendants.
32. Yet in another decision in Madhusudan
Das v. Narayanibai, (1983) 1 SCR 851, this
Court said;
At this stage, it would be right to
refer to the general principle that,
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. When there is a conflict of
oral evidence on any matter in issue
and its resolution turns upon the
credibility of the witnesses, the
general rule is that the appellate
court should permit the findings of
fact rendered by the trial court to
prevail unless it clearly appears that
some special feature about the
evidence of a particular witness has
escaped the notice of the trial court
or there is a sufficient balance of
improbability to displace its opinion
as to where the credibility lies. . .
The principle is one of practice and
governs the weight to be given to a
finding of fact by the trial court.
There is, of course, no doubt that as
a matter of law if the appraisal of
the evidence by the trial court
suffers from a material irregularity
or is based on inadmissible evidence
or on a misreading of the evidence or
on conjectures and surmises the
appellate court is entitled to
interfere with the finding of fact.
(emphasis supplied)
33. 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.
34. 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. As already adverted earlier, the
High Court has virtually reached a
conclusion without recording reasons in
support of such conclusion. When the Court of
original jurisdiction has considered oral
evidence and recorded findings after seeing
the demeanour of witnesses and having applied
its mind, the appellate court is enjoined to
keep that fact in mind. It has to deal with
the reasons recorded and conclusions arrived
at by the trial court. Thereafter, it is
certainly open to the appellate court to come
to its own conclusion if it finds that the
reasons which weighed with the trial Court or
conclusions arrived at were not in consonance
with law.
35. Unfortunately, in the instant case,
the said exercise has not been undertaken by
the High Court. So-called 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.
36. 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.
37. We may observe at this stage that the
learned counsel for the husband submitted that
this is a matrimonial matter and the parties
[husband and wife] are staying separately
since more than two decades. Hence, instead of
remitting the matter to the High Court, this
Court may on the basis of the evidence led by
the parties, come to a conclusion one way or
the other. In our considered opinion,
however, when the law has conferred the power
of re-appreciation of evidence on facts and on
law on the first appellate court [in the
instant case on the High Court], it would not
be appropriate for this Court to undertake
that task. It would be better if we allow the
appellate court to exercise the power,
discharge the duty and perform the function
under the Code. We are, however, conscious
and mindful that since about a quarter
century, the parties are staying separately.
We, therefore, request the High Court to give
priority to the case and decide it as
expeditiously as possible.
38. For the foregoing reasons, 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.
39. Before parting with the matter, we may
clarify that all the observations made by us
in this judgment are only for the limited
purpose to show that the High Court was not
right in setting aside finding of facts
recorded by the Family Court without recording
reasons for such reversal and without keeping
in view the scope of powers of first appellate
Court. But we may not be understood to have
expressed any opinion finally one way or the
other on the merits of the matter. As and when
the matter will be placed before the High
Court it will be decided on its own merits
without being influenced by any observations
made by us.
40. On the facts and in the circumstances
of the case, the parties shall bear their own
costs.
