Atul Sachdev vs Meenu Sachdev

J.R. Midha, J.—The appellant has filed this appeal against two judgments/decrees both dated 9th May, 2008 passed by the Learned Trial Court in two separate petitions, one on the ground of cruelty u/s 13(1)(ia) and the other on the ground of desertion u/s 13(1)(ib) of the Hindu Marriage Act, 1955. The Learned Trial Court decreed both the petitions by separate judgments.

The respondent has raised a preliminary objection as to maintainability of a single appeal against two decrees in two separate petitions. The counsel for the respondent submits that single appeal is not maintainable against two decrees in two petitions. The Learned Counsel refers to and relies upon the judgments of Darayas Bamanshah Medhora Vs. Nariman Bamansha Medhora, and In Re: R. Gunda Rao AIR 1960 Mad 57.

The appellant in reply, submits that single appeal is maintainable against two judgments/decrees. The Learned Counsel submits that two separate petitions for divorce were not maintainable and the respondent should have filed one petition. However, the appellant has not been able to cite any judgment in support of his submissions.

I find merit in the contention of the respondent. This case is squarely covered by the aforesaid judgments cited by the respondent. The single appeal is not maintainable against two decrees.

Even on merits, I do not find any substance in this appeal. The Learned Counsel for the appellant submits that the findings of the learned Tribunal on cruelty as well as desertion are not correct. The Learned Counsel submits that learned Trial Court did not afford him the opportunity of leading the evidence. The Learned Counsel further submits that his evidence by way of affidavit was ready but the learned Trial Court did not take the affidavit on record. It is further submitted that the parties are not governed by Hindu Marriage Act, 1955 as the marriage between the parties was solemnized according to the Nirankari customs and, therefore they are governed by Special Marriage Act, 1954.

I have perused the record of the Learned Trial Court. The appellant was proceeded ex-parte by the learned Trial Court on 2nd January, 2007 and the case was fixed for ex-parte evidence on 2nd March, 2007. On 2nd March, 2007, the respondent filed her ex-parte evidence by way of affidavit and the case was fixed for 22nd March, 2007. On 22nd March, 2007, the case was transferred by the learned Trial Court due to an unpleasant incident recorded in the order sheet. The case was taken up on 1st May, 2007 when the learned Trial Court fixed the case for cross-examination on 20th July, 2007. On 20th July, 2007, there was no appearance on behalf of the appellant and, therefore, the appellant''s right of cross-examination of the respondent was closed and the case was fixed for appellant''s evidence on 30th August, 2007. The case was taken up on 30th August, 2007 when it was fixed for 19th September, 2007 for appellant''s evidence. On 19th September, 2007, again there was no appearance on behalf of the appellant and, therefore, the appellant''s evidence was closed and the case was fixed for final arguments on 9th October, 2007. On 9th October, 2007, the appellant was represented by his father/attorney who argued the matter.

The respondent has made serious allegations of cruelty against the appellant which have been proved by un-rebutted testimony of the respondent who appeared as PW - 1. There was no cross-examination by the appellant. No evidence has been led by the appellant to rebut the evidence of the respondent. The appellant has also not challenged the order dated 20th July, 2007 by which his right of cross-examination of the respondent was closed and the order dated 29th September, 2007 by which his evidence was closed. As such, both the orders have become final.

Para 4 and 5 of the impugned judgment are relevant and are reproduced hereinunder.

Para - 4. It is seen from the record that vide her affidavit Ex.PW1/A in her evidence as PW1 in the instant petition on record as above said, the petitioner has reiterated her allegations against the respondent as leveled by her against him in the instant petition as above said, on record.

Para - 5. It is further seen from the record that the respondent has not cared to controvert or rebut the evidence of the petitioner by way of her affidavit Ex.PW1/A in the instant petition, on record, as above said, either by way of cross-examining the petitioner or by way of leading any evidence on his behalf/in his defence/in rebuttal to the same in the instant petition on record, despite due opportunities having been granted to the respondent in this regard in the same, as above said, on record.

The learned Trial Court has passed the decrees on the basis of un-rebutted testimony of the respondent. I do not find any infirmity in the order of the learned Trial Court especially when the appellant has neither cross-examined the respondent nor led any evidence in rebuttal.

For all the aforesaid reasons, the appeal is dismissed.

No costs.