Singh Vs. Madhuri Devi  INSC 716 (28 April 2008)
C.K. THAKKER & D.K. JAIN
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 parents. She was violent on petty issues and
small matters. She used to insult them on one pretext or the other and made the
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
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 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
Her conduct of leaving minor daughter Seema was also highly improper. On
both the grounds, therefore, the plaintiff-husband was entitled to dissolution
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 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
15. The Family Court observed that the grievance of the wife was against her
husband 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
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
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 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
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 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
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,
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 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
[see also observations of Lord Thankerton in Watt v. Thomas, (1947) 1 All ER
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
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 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 and it is
nothing more than a rule of practice 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
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
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 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
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 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.
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 and set aside and is hereby set
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
40. On the facts and in the circumstances of the case, the parties shall
bear their own costs.
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