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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

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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 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. 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

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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

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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

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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

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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

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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 \026 oral as well as documentary\026 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 court’s  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

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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

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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 \026 and it is nothing more than  a rule of practice \026 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 Judge’s 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 Judge’s  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

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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

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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

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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.