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2017 Supreme(P&H) 2823
IN THE HIGH COURT OF PUNJAB AND HARYANA
[DIVISION BENCH]
Before
Hon’ble Mr. Justice M.M.S.Bedi
Hon’ble Mr. Justice Augustine George Masih
FAO M-145 of 2015 (O&M)
Smt. Kulwinder Kaur
v.
Surinder Singh
{Decided on 08/12/2017}
For the Appellant:Ms. Alka Chatrath, Advocate.
Respondent ex parte.
Divorce – By Mutual Consent – Decree and consent obtained by fraud – Liable to be set aside
Headnote:Hindu Marriage Act, 1955, S.13-B & S.23 – Divorce – By Mutual Consent – Decree and consent obtained by fraud – Liable to be set aside – Court should determine that parties should have actually been residing separately and have not been co-habiting from last one year – Established that on the day when petition was presented and statements for first motion were recorded, one year had not elapsed since they were living separately – On second motion stage parties were still residing together in matrimonial home – Mandate of S.13-B of Act not fulfilled – Consent of divorce was a result of coercion, undue influence and threat – Judgment and Decree granting divorce set aside.
The allegations, therefore, as made in the petition with regard to the torture, snatching away of the minor child and not even permitting her to breastfeed her infant child leading to the ill health of the appellant putting her under shock, mental stress and strain leading to depression and complete loss of self-confidence with the apprehension of losing her son and she herself being eliminated because of the threats of the husband, cannot be ruled out especially with three hostile people around her in the house i.e. the respondent-husband, his mother and widowed sister as against a young girl who was a matriculate only. She, under these circumstances, had no option but to follow the dictates of her husband-respondent, who made her sign on certain papers and power of attorney. In these circumstances and the situation in which she was, there is every possibility that she would not have spoken out before the Court except for what she was made to speak because of fear of losing her child and even her own life. This apprehension of the appellant-wife culminated into truth as is apparent from the whole episode which followed i.e. she was thrown at the gate of her parental house on the night intervening 26/27.04.2011 after snatching her son. The statements, therefore, given by her in the Court in the proceedings under Section 13-B of the H.M. Act, cannot be said to be voluntary and thus, in these circumstances, the judgment and decree dated 21.03.2011 cannot hold good.
Mr. Augustine George Masih, J.:- Challenge in this appeal is to the order dated 21.03.2011 passed by the District Judge, Amritsar, whereby a petition under Section 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘H.M. Act’), was allowed dissolving the marriage between appellant-Kulwinder Kaur (wife) with the respondent-Surinder Singh (husband) and the order dated 11.12.2014 dismissing an application filed by the appellant-wife for recall of the judgment and decree dated 21.03.2011 on the ground that it has been obtained by the respondent-husband by playing fraud upon the appellant-wife and that the consent for divorce and statements in Court had been obtained from her under duress and threat to eliminate her and their nine months’ old son.
2. The admitted facts between the parties are that the appellant-wife belongs to village Aliwal, Tehsil Batala, District Gurdaspur was married to respondent-husband, resident of village Bhoma, Tehsil and District Amritsar, as per Sikh rites at Batala, on 02.03.2008. Dowry articles along with jewellery and clothes were given to the respondent and his relatives. The appellant along with respondent, his mother and widowed sister resided in Guru Arjan Dev Nagar, Putlighar, Amritsar, in a rented accommodation. Out of the wedlock, a son namely Sartaj Singh was born on 10.12.2009 at Beri Hospital, Amritsar. It is thereafter, that a petition for divorce by mutual consent was filed under Section 13-B of the H.M. Act on 17.09.2010. Statement of the parties was recorded in first motion on 18.09.2010. It was stated in the petition that the parties have been residing separately since June 2009, i.e. for a period of more than one year preceding the institution of the petition. Parties again appeared before the Court on 21.03.2011 when their respective statement was recorded in second motion leading to the passing of the judgment and decree dated 21.03.2011 of divorce.
3. An application under Section 151 CPC for setting aside and recall the judgment and decree dated 21.03.2011 was filed by the appellant-wife, who was petitioner No.2 before the trial Court, with the pleadings that the petition under Section 13-B of the H.M. Act had been filed with the averments which were well calculated fraud of respondent-husband, his mother-Sukhjit Kaur and widowed sister-Babli played upon her. As a matter of fact, she was never interested in seeking divorce and was put under threat and was mercilessly beaten, tortured, humiliated and insulted by the respondent, mother-in-law and sister-in-law, even her minor son was snatched and a threat was extended to eliminate him in case the appellant uttered anything before the Court in Amritsar. She was not even permitted to breastfeed him. She was directed to remain quite and simply affix her signatures wherever directed, failing which dire consequences were to follow. She was living a life under constant fear and threat. This situation had led to the appellant losing her self-confidence, especially when she and her minor son were at the mercy of the respondent, his mother and widowed sister and living a life of a destitute.
4. She, under these circumstances, followed the dictates of the respondent. She was made to sign on vakalatnama and her signatures were also taken on 2/3 papers wherever pointed. On 18.09.2010, she was taken to the District Court, Amritsar, but prior thereto, her minor son Sartaj Singh was snatched from her and after she had given her statement and put her signatures as and when and where pointed out, the minor son was restored to her on reaching home. She was thereafter taken on 21.03.2011 to the Court where once again she was made to go through the earlier process, exercise and ritual as carried out on 18.09.2010. On reaching back home, the minor child was again given back to her. She continued to stay in the matrimonial house at Guru Arjan Dev Nagar, Putligarh, Amritsar, with the respondent and her above-mentioned two in-laws.
5. O
