Evidence of a Tutored child witness in a matrimonial dispute: Punjab and Haryana High Court 2014

FAO No.9-M of 2003
Date of Decision:22.08.2014
Jai Gopal
Maya Rani
Present: Mr. Nipun Mittal, Advocate, for the appellant
with appellant-Jai Gopal in person.
Mr. Ajit Sihag, Advocate, for the respondent.
1. This appeal is preferred against the judgment and decree dated
31.10.2002 passed by the then District Judge, Jind, whereby the petition filed by
the appellant under Section 13 of the Hindu Marriage Act, (hereinafter called the
Act), was dismissed.
2. The facts of the case, put briefly, are that marriage between the
parties was solemnized on 1.5.1987 at Hansi according to Hindu rites and
ceremonies. The parties cohabited at Jind and one female child, Sweety, was
born on 10.8.1988. The respondent has always been under the influence of her
mother, who is a widow. The behaviour of the respondent towards appellant was
never cordial. She was B.A. B.Ed and employed as a teacher at Tosham at the
time of marriage. She refused to get herself transferred to Jind without any
explainable reason. The appellant took a house on rent at Tosham though he
was employed at District Courts in Jind. The interference of the mother of the
respondent did not cease and it became impossible for the appellant to live in
Tosham and he shifted back to Jind.
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3. On 1.7.1988, mother of the respondent took her to Hansi, who
carried her jewellery etc. and thereafter the respondent did not return. Even the
child was born at Hansi. She refused to join the company of the appellant
despite requests and he ultimately filed a petition under Section 9 of the Act on
12.9.1988, which was dismissed as withdrawn on 19.4.1990 on the basis of
compromise. The respondent returned to the matrimonial home, but just after
two days, she left again for Hansi and deserted the appellant. He then filed a
petition under Section 13 of the Act, which was compromised with the efforts of
the then District Judge, Jind on 22.8.1996 and the statements of the parties were
recorded. The appellant took a separate house in Jind, which was away from the
house of the parents of the appellant and requested the respondent to get herself
transferred to Jind but she did not do so. Learned District & Sessions Judge had
even written a letter to Financial Commissioner and Secretary to Government of
Haryana, Education Department, regarding transfer of the respondent to Jind but
the latter stalled the procedure in that regard. The appellant lived with the child
at Jind and attended to her and the household chores. During the brief stay of the
respondent in Jind after the compromise dated 22.8.1996, she became pregnant,
but she said that her pregnancy was hurdle in her freedom and did not give birth
to her child.
4. In January 1997, Sweety, daughter of the parties, told the appellant
that her mother along with her had gone to a Pandit in Jind asking for some
device to control her husband so that he would dance to her tune and the Pandit
asked her to pay an amount of Rs.150/- for that purpose.
5. The respondent used to insult the friends and relatives of the
appellant and the Mediator Sant Lal Dhamija went to the appellant in Jind on
17.2.1997 on the false calls of the respondent that she had been beaten by the
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appellant and he was shocked. Since the inception of marriage, the appellant
was being subjected to mental cruelty by the respondent.
6. The respondent contested the petition on the ground that she did not
make any endeavour to stop her transfer to Jind. She pleaded that all the
allegations levelled by the appellant against her were false and he intended to
defame her. She further pleaded that the appellant had never taken her and
Sweety to Jind. The daughter was studying at Hansi.
7. In the replication, the appellant reiterated his averments.
8. The following issues were settled by the trial Court:-
1. Whether the petitioner is entitled to a decree of divorce on the ground of
cruelty? OPP
2. Relief.
9. Learned counsel for the appellant argued that the court below
wrongly dismissed the petition by holding that he had not been treated with
cruelty. The court wrongly held that whatever happened between the parties was
normal wear and tear of married life. It was contended that the court also placed
reliance on the fact that the daughter of the parties entered the witness box as
RW3 and deposed against the appellant for coming to the conclusion that it was
the appellant, who was not discharging his duties as a good father and husband,
and thus the respondent was not at fault. He argued that since the daughter had
not got an opportunity to live with the father for some considerable period of time
and was always living with her mother, it was natural for her to depose in favour
of the mother and against the father. There can be no presumption that a child
would not speak against one of the parents while living with the other.
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10. The trial Court ignored the facts that Mediator Sant Lal had
appeared as PW4 and deposed that every time something happened between
the parties. The appellant used to complain about the conduct of his wife and
Sweety had confirmed in his presence that the respondent had gone to some
Pandit to get something for controlling her husband. He also spoke about the
efforts made by the appellant to bring the respondent but she did not come.
11. At that time when the appellant used to talk to the witness about the
behaviour of his wife, he did not do it for creating evidence because at that time
there was no litigation. Rather it sounds very natural that the aggrieved person
would complain to the person who had arranged the marriage. Sant Lal was
known to both the parties and, therefore, he had no reason to favour one of them
12. The respondent appeared as her own witness as RW1 and admitted
that the appellant had got admission of their child Sweety in a school at Jind and
that the appellant had opened two bank accounts of Rs.1000/- each in her name
and in the name of her daughter. The money in the name of Sweety was being
saved for her marriage and the account for the respondent was for saving money
for her future use. All this rather shows that the appellant was concerned about
the welfare of his family. She denied a letter produced in the earlier divorce
petition as Ex.PW2/A, which was an application written by her, copy of which was
produced as Mark AX in the present case. Since the letter was exhibited in the
other case, it must have been proved as per law. She had written to the Director,
Secondary School Education, Haryana for cancelling her transfer order to Jind.
She went on to say that she had levelled allegations against her husband that he
was residing with other woman and had filed a complaint against him in the
family counselling centre in Jind. She said that she did not know whether
levelling of such scandalous allegations against her husband could harm his
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reputation or not. It is not believable that she did not know that the allegations of
adultery would damage the reputation of her husband. She, however, did not
plead any such ground and further stated that she could not tell the name of the
woman nor she could tell since when her husband was living in adultery. Some
person from the neighbourhood of the appellant informed her but she failed to
produce any of them as witness.
13. It came in the statement of the respondent and Sweety (RW3) that
both of them lived with the appellant at Jind from 16.6.1996 to 14.4.1997.
Nothing could be shown as to why the respondent was not living in the
matrimonial home before or after the said period. Sweety, daughter of the
parties, stepped into the witness box on 4.10.2002 and her age at that time was
little above 14 years. The pregnancy of the respondent for the second time came
to light in the first week of September 1996 at which time the child was 8 years
old. However, appearing in the witness box, the child said that her mother was
taken by her father to PGIMS Rohtak for delivery. She also gave the exact dates
of not attending her school, the months in which her mother was allegedly beaten
by her father and the date on which the appellant had allegedly asked her mother
to withdraw the entire amount from the bank account. She gave specific dates
when the appellant asked the respondent to bring all the money lying deposited
at Jind and Hansi. How a child who was only 9 years old at that time could give
the exact dates is beyond comprehension. Rather this goes to show that Sweety
was thoroughly tutored by her mother before she appeared as a witness. In the
cross examination she showed ignorance about her parents having lived
separately from her grand-parents. Interestingly, she was able to give dates
which she was not supposed to remember but she could not tell whether they
were residing separately in Jind from the parents of the appellant or not. It is not
believable that she did not know that her grand parents were living in the same
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city i.e. Jind where she was liviig for some time with her parents in a separate
house. She, further down in the cross examination, stated that she used to be in
the house of her grand-father or paternal aunt, till her mother returned to Jind
from her duty and also stated that it took less than 10 minutes on two-wheeler to
reach their rented house from the house of her grand-parents. She therefore
knew that they were living separately from the grand-parents but earlier in the
cross examination she said that she did not know about it. The statement of the
girl, therefore, cannot be given much credence. She said that she did not know
that her birthday was celebrated on 10.7.1996 and photographs were clicked.
Surprisingly, she remembers the dates on which her father asked her mother to
withdraw money from the bank and all the dates when her mother was allegedly
beaten but she does not remember the celebration of her birthday. Nothing more
is required to prove that she was a tutored witness. She being intelligent, could
manage some of the answers in the cross examination but at other places she
made it obvious that the entire statement was not voluntarily made and she was
tutored by her mother in that regard.
14. The conduct of the respondent is also clear from the fact that despite
the appellant having lived separately from his parents, the respondent did not live
in the matrimonial home and to avoid litigation, she entered into compromise with
the appellant in the earlier petitions under Section 9 and Section 13 of the Act.
After withdrawal of the first petition, she lived only for two days with the appellant
and after compromise in the divorce petition, for a few months. She requested
her department that she should not be transferred to Jind showing her intention
not to live with her husband. Such conduct can surely be termed as `mental
cruelty’. The appellant was deprived of the company of his child and wife though
he made all efforts to keep them with him.
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15. The appellant was therefore entitled to divorce on the ground of
cruelty and the trial Court erred in declining the relief to him. The appeal is
allowed. The judgment and decree under challenge are reversed. The marriage
between the parties is dissolved by a decree of divorce. No costs.
Whether to be referred to reporter: Yes
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