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TMI Blog2008 (4) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rce 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 hus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nuously 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e evidence of plaintiff was believed and evidence of defendant and her witnesses was not reliable. In the light of all the facts, the Family 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 'oral as well as documentary' and can come to its own conclusion. 25. At the same time, however, the appellate court is expected, nay bound, to bear in min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions 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] 1 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 cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or properly weighed by the Trial Judge and such considerations including the 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 state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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