Atul Sachdev vs Meenu Sachdev
2009 Latest Caselaw 1087 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          MAT. APP. No.83/2008

                            Reserved on : 12th February, 2009
                           Date of decision: 31st March, 2009
%

       ATUL SACHDEV                         ..... Appellant
                Through : Mr. Surinder Anand, Adv.

                     versus


       MEENU SACHDEV                     ..... Respondent
                   Through : Mr. Madan Lal Sharma, Adv.


CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.       Whether Reporters of Local papers may
         be allowed to see the Judgment?

2.       To be referred to the Reporter or not?

3.       Whether the judgment should be
         reported in the Digest?

                              JUDGMENT

1. 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 under Section 13(1)(ia) and the other on the

ground of desertion under Section 13(1)(ib) of the Hindu

Marriage Act, 1955. The Learned Trial Court decreed both the

petitions by separate judgments.

2. 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 Bamanshah Medhora, AIR 2002 Gujarat 166

and In re R. Gunda Rao, AIR 1960 Madras 57.

3. 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.

4. 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.

5. 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.

6. 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 19 th

September, 2007 for appellant's evidence. On 19 th 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.

7. 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 29 th

September, 2007 by which his evidence was closed. As such,

both the orders have become final.

8. 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."

9. 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.

10. For all the aforesaid reasons, the appeal is dismissed.

No costs.

J.R. MIDHA, J

MARCH 31, 2009 mk