Manju Panwar vs V.P.S. Panwar
2018 Latest Caselaw 6587 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                      Reserved on: 25.09.2018
%                                     Pronounced on: 31.10.2018
+      REV.PET.544/2016, C.M. APPL.45942/2016 IN MAT.APP. (F.C.)
       90/2014
       MANJU PANWAR                                ..... Appellant
                   Through: : Dr. Manmohan Sharma, Advocate.

                            Versus
       V.P.S. PANWAR                                        ..... Respondent
                            Through: Sh. S.K. Sharma, Sh. Rahul Sharma and
                            Sh. Prayas Aneja, Advocates.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE A.K.CHAWLA
S.RAVINDRA BHAT, J.

1. The petitioner seeks review of the final judgment of this court, dismissing her appeal; in that, the findings and decree of dissolution of marriage between her and the respondent/husband were affirmed.

2. Various diverse grounds were urged on behalf of the petitioner during the hearing of the present review petition. Firstly, it is urged that the evidence of the parties' children (i.e. their daughter and son) ought to have been appreciated in their proper perspective. Secondly, it is urged that the review petitioner's claim for enhanced maintenance, to live with dignity consistent with the stature she was accustomed to, thereby directing the respondent husband to pay her maintenance @ ` 30,000 per month and also the right to have her share in the sales proceeds of Raj Nagar House purchased out of the sales proceeds of the Meerut property were ignored and overlooked, which amounted to errors apparent on the face of the record.

3. It was argued that it is a matter of record that the respondent fraudulently obtained power of attorney from the applicant/appellant for selling the joint property situated in Meerut and thereafter, from the sales deed of that property, respondent had fraudulently purchased the Raj Nagar, Ghaziabad House in his exclusive name, and by selling this house he purchased the present house of New Delhi, in which the appellant's wife had a 50% share. Further, she also had a share by 50% in the remaining sales proceeds. In fact the house was sold for `50 lacs, whereas to save the stamp duty fee, it was shown as `10.5 lacs. She is therefore entitled for her 50% share of `25 lacs. It is urged that the court ignored the demands of social and gender justice by failing to provide her with allowance to live with reasonable dignity. It is urged that without such directions, the right to residence with a meaningful efficacy as dictated by the needs of times, as required by the Supreme Court in its decisions, has been given a go bye.

4. It is argued that the vital evidence on record in respect of important questions of fact were not taken into consideration and further in reference to such evidence, the judgment of this court needs to be reviewed. Here, it is urged that the court relied upon the perverse findings of the District Court, contrary to the settled law by the courts, by ignoring the following evidence, which contradicted the findings that since the beginning of marriage, behavior of the respondent was cruel towards the petitioner. This allegation was denied by both son and daughter in their cross examination. The evidence of the daughter that her mother did not misbehave with her father is relied on in this regard. On the contrary, the learned counsel pointed to the evidence to say that her father and mother had a normal relationship with each other. The daughter even denied the suggestions to the contrary. It is submitted that similarly the suggestion that the mother threatened the father with suicide was denied. Likewise, the daughter denied that the husband (her father's) relatives were treated with cruelty.

5. It is argued that the court relied on perverse finding of the trial Court that the wife had written several complaints against the husband, which amounts to cruelty. In fact, four complaints were written in the 1999 by her to the DG-CRPF highlighting the following:

(i) Her poor financial condition, and that she cannot afford to take a house on rent if she has to vacate the official accommodation allotted to her husband;

(ii) She also made a request not to accept the application of the respondent for surrendering his official accommodation, and to

(iii)Transfer the husband to Delhi, so that the appellant and her son and daughter were not rendered homeless.

6. These requests could not be viewed as an act of cruelty against the respondent, by this court in view of the humanitarian nature of the wife's request which was reasonable and in consonance with the Central Civil Services (Classification, Control and Appeal) Rules, 1965 issued by the Govt. of India (MHA) OMNo.F.25/16/59, dated the 1st September 1959, which provide for action by the Department, in respect of neglect of family by the Government servant. It is urged that the respondent's claim was based on falsehood and misrepresentation. No allegation made by the petitioner, was proved by any witness or evidence, in accordance with the law. In view of this fact on record, the petition for divorce ought to have been dismissed at threshold.

7. The petitioner reiterates, in the pleadings, that her allegations with respect to an illicit relationship which her husband allegedly had with a married Kashmiri lady were justified and that the court's findings that they were vague and their persistence, without any proof, amounted to cruelty, are erroneous. It was also submitted that such lady was involved with a terrorist.

8. In the main judgment, the review of which is sought, this court had held, inter alia, as follows:

"6. In support of his case the petitioner/husband had examined himself and the appellant had examined herself (PW1) son (PW2) and daughter (PW3).

7. The learned trial judge concluded that the husband had established cruelty on the part of the wife. For holding so, the court took into account copies of letters written to the husband's employer and the press, including copies letter dated 06.04.1999 to the Crime Branch, photocopy of letters dated 12.06.1999, 05.03.1999 and 15.01.1999 to the Director General, CRPF copy of complaint dated 09.08.1999 filed before Smt. Mamta Sehgal, Member Secretary, Legal Aid Cell, Patiala House, Delhi. The documents, a copy of the FIR No.224/1996, PS Naraina dated 10.07.1996 against wife and their son under Sections 366/511 IPC; copy of another FIR No.380/1996, PS Naraina dated 13.10.1996 under Sections 448/504/506/34 IPC against wife showing her an accused. Likewise, a notice under Sections 107/111 Cr.PC received by him from the Executive Magistrate, South West, Delhi wherein he was asked to furnish bail bond was also produced. The summons received from the said court for appearance on 26.06.1989 and his reply in the said court on 06.07.1989. The crime against women (CAW) cell of Delhi Police notices, undertaking by the wife before that body whereby she promised not to quarrel with him in future, too, was produced. The CAW investigation cell report, which found that the complaint was false was considered. The petitioner had placed reliance a letter written by him to SHO, PS Vinay Nagar informing him that his wife had been threatening to commit suicide and his letter written to Director General, CRPF in March, 1999 explaining the problem he had been facing because of the false complaints repeatedly made by his wife. Several letters written by the husband and his mother in law were produced.

8. The trial court considered the line of questioning on behalf of the wife, including a suggestion given to the petitioner/husband in

his cross-examination that the wife did not like the presence of the family members of the respondent, and his answer. The trial court held that these materials showed that the wife did not like the husband's relatives and resented if they went to the matrimonial home. The learned judge also observed that the suggestions in the cross-examination to the effect "whether he had illicit relationship with the Kashmiri girl", was contrary to the pleadings of the respondent as she had not set up the case that the respondent was having an illicit relationship with any such lady. The court was of the view that the only plea urged in the written statement was that the petitioner/husband husband was having an inclination towards a Kashmiri family and there was no allegation of him having an illicit relationship with a Kashmiri lady and thus held that leveling such allegations amounted to mental cruelty specially when she had failed to produce any evidence to substantiate this plea. The learned Judge noted that in the cross examination, the wife did not dispute the husband's statement that whenever he visited Delhi he was not allowed to enter in his official flat allotted to him, where the rest of the family used to reside. The court further noted that the wife had admitted her fault and promised to change, before CAW cell. That she did not dispute the husband's statement about a compromise in the proceedings under Section 107/111 Cr.PC and that in that compromise she had admitted her fault was also noticed.

9. The Trial Judge held that the husband being a senior official CRPF was bound to feel humiliated due to the false proceedings initiated by his wife before the Executive Magistrate and that it had lowered his reputation in the eyes of not only his seniors but also his juniors. The document KA-1 dated 25.05.1989 records the appellant's undertaking before the police that "she will not fight". The registration of the FIR against the wife and the son for kidnapping a minor girl and wide publicity in the newspaper was considered by the learned Judge who then held that this had subjected the husband to ridicule. The Learned Judge has also noted that the letters written by husband to his wife, son and daughter showing his sufferings, were not disputed either by wife or the

children in their testimonies. The impugned judgment also considered the fact that in the marriage of the son, the wife did not invite the husband at all and it was only the son who had sent the card and made a telephone call. Furthermore, the wife's false deposition that no invitation card was printed, though her witness deposed to the contrary, was noticed. The learned Judge has also relied on the letter as Ex.RW2/P1 addressed to the Director General, CRPF written by son and daughter who in their testimonies had admitted their signatures on it. In this letter they had stated that the various complaints and allegations made by their mother to the Director General, CRPF; National Human Rights Commission, Member Secretary; Legal Aid Cell and Crime Branch etc. were false and contained no truth. The court rejected the argument that the letter was written at the instance of the father for seeking his posting out of Assam. Taking into account the cumulative effect of the evidences on record the Ld Judge held that the appellant/wife treated the petitioner/husband with cruelty and that MAT.APP.(F.C) 90/2014 Page 6 she had failed to discharge her burden to prove that she had never treated him with cruelty or that it was he who had committed cruelty on her."

9. The material on record, therefore, was considered by this court; no doubt, putting emphasis on something that one witness or the other might have deposed, would lead to a conclusion that might be to the review petitioner's liking. Yet, the courts' duty to consider, all the materials - and depositions led before it. Broadly, the court - including this court, placed importance on objective material in the form of written complaints, criminal complaints, etc. which led it to conclude that the review petitioner treated her husband with cruelty.

10. In Parsion Devi v Sumitra Devi, (1997) 8 SCC 715, the Supreme Court outlined the scope of review jurisdiction in the following terms:

"....in Smt. Meera Bhanjia Vs. Smt. Nirmala Kumari Choudhury (1995 (1) SCC 170) while quoting with approval a passage from Abhiram Taleshwar Sharma Vs. Abhiram Pishak Sharma &Ors.

(1979 (4) SCC 389), this Court once again held that review proceedings are not by way of an appeal and have to strictly confined to the scope and ambit of Order 47 Rule 1 CPC.

Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has limited purpose and cannot be allowed to be "an appeal in disguise."

11. In the present case, this court is of the opinion that what the review petitioner (i.e. the appellant wife) asks is a wholesale re-appreciation of the findings rendered in the main judgment. This process- i.e. of re-appreciation sets the court against its own findings; it is therefore impermissible. Only manifest or egregious mistakes (such as omissions, wrong facts etc) fall within the remit of review jurisdiction. However, on an overall consideration of the arguments in the review petition, this Court discerns none in the main judgment, therefore, it is accordingly dismissed.

S. RAVINDRA BHAT (JUDGE)

A.K.CHAWLA (JUDGE) OCTOBER 31, 2018