2025:HHC:22692 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 402 of 2016 Reserved on: 13.3.2025 Date of decision: 15.7.2025 Subhashna Devi. ….Appellant. Versus Kalyanu Ram (deceased) through LRs. ….Respondents. Coram The Hon’ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting? For the Appellant : Mr.R.K. Sharma, Senior Advocate, alongwith Ms.Vidushi Sharma, Advocate. For the Respondents: Respondents No. 1(a) and 1(b) already ex parte vide order dated 24.8.2024. Mr.Goldy Kumar, Advocate, for respondent No. 1(c). Vivek Singh Thakur, Judge This appeal has been preferred by wife under Section 28 of the Hindu Marriage Act, 1995 against the judgment and decree dated 26.5.2016 passed by Additional District Judge-III, Kangra at Dharamshala, camp at Palampur, District Kangra, H.P. in petition RBT HMP No. 80-P/III/13/06, titled as Kalyanu Ram Vs. Subhashana Devi and Another, filed for dissolution of marriage by a decree of divorce under Section 13(1) (ia) (ib) of the Hindu Marriage Act, 1955, 2025:HHC:22692 …2… whereby marriage between Subhashana Devi (appellant) and Kalyanu Ram (respondent No. 1), was dissolved. 2. Kalyanu Ram filed a petition for dissolution of marriage on the ground of cruelty by alleging that his marriage was solemnized with Subhashana Devi on 20.2.2002 according to Hindu Rites and Customs and couple was blessed with two children namely Amandeep and Kamal Kumar. 3. The main ground for praying dissolution of marriage taken in the petition was that Subhashana leveled allegations on Kalyanu Ram of having illicit relations with his sister-in-law (Bhabi) and further that behavior of Subhashana Devi towards her mother-in-law, husband Kalyanu and children was not good, rather she had been insulting mother of Kalyanu Ram (mother-in-law of Subhashana Devi) and, resultantly, being fed up with the behavior of Subhashana Devi, mother of Kalyanu, who was residing with them left the house and was compelled to live with other family members in a separate house. 4. In the petition instances of cruelty like beating children, Kalyanu Ram as well as his father were narrated. It was also a ground that on 30.9.2008 Subhashana Devi had tried to assault Kalyanu Ram, when he was sleeping, with intention to kill him and pressed his private part and gave fist blows and also hit Kalyanu with scissors in his neck and hand. In this regard Kalyanu Ram had made complaints to Pradhan Gram Panchyat, Sungal; Pradhan Mahila Mandal, Matt (Ex. PW-1/B), whereupon Office bearers of Mahila 2025:HHC:22692 …3… Mandal endorsed ill-behavior of Subhashana Devi including beating and hurling abuses. 5. It was also alleged that due to ill-behavior of Subhashana, Kalyanu had filed two divorce petitions on earlier occasion also, but with interference of close persons and relatives, he compromised these petitions before Lok Adalat, but after even that, Subhashana did not mend her ways and continued to misbehave with Kalyanu and his other family members. 6. According to petitioner, he was also beaten by Guddo Devi, mother of Subhashana Devi and father Rajinder Kumar in SDM Court Complex, Palampur, and the matter was reported to the Police. Further that Subhashana and her parents occupied the house of Kalyanu and threatened him that in case he would force them to leave the house, Subhashana alongwith her children shall put the house on fire, and she further threatened that after killing the children she would commit suicide, whereupon petitioner forced to leave the house. 7. It is also allegation of Kalyanu that one Simar Chand, arrayed as party-respondent No. 2, was caught read handed with Subhashana in objectionable position, whereupon Sumar Chand was beaten by villagers and matter was proposed to be referred to the Police, but for the apology tendered by Simar Chand and pledging to not visit again to Subhashana, he was let free. 8. According to Subhashana when she joined company of Kalyanu after compromise in earlier divorce petition, Kalyanu did not 2025:HHC:22692 …4… pay any maintenance expenses to her despite giving birth by her to the second child and she was kept hungry and not given even single penny or necessities of life and the allegations leveled by Kalyanu were denied. 9. After framing issues on 31.12.2011, Kalyanu Ram examined six witnesses and closed his evidence. Whereas Subhashana had examined four witnesses. After taking into consideration deposition of witnesses and material placed on record, decree for dissolution of marriage, as prayed, by Kalyanu Ram was passed by the Trial Court. 10. It is Kalyanu Ram’s case that being afraid by ill-behavior of Subhashana Devi, he started living at station of his workplace at Jawali and even Subhashana came there on taking lift from two persons on a Motorcycle and started beating and abusing Kalyanu Ram. 11. In his deposition on affidavit Ex. PW-1/1, Kalyanu Ram has re- iterated the version stated in the divorce petition. In lengthy cross- examination nothing has been elucidated so as to doubt his integrity about correctness of averments made in the application for dissolution of marriage. Stand of Kalyanu Ram has been substantiated by four other witnesses. 12. Subhashana examined four witnesses to substantiate her plea. 13. Kalyanu Ram has been examined as PW-1 and Subhashana Devi has been examined as RW-1 on 6.5.2015. 2025:HHC:22692 …5… 14. Instances for filing earlier divorce petitions which were withdrawn by Kalyanu Ram as well as complaints made by Subhashana and FIR lodged by her against Kalyanu as well as other family members under Section 498A IPC, including present matter wherein compromise arrived between the parties and they are willing to amicably settle the matter, have not been disputed. It has also come on record that even father of Subhashana Devi had made efforts for amicable settlement, however, proposal to resolve the dispute between Subhashana and Kalyanu Ram was not succeeded. 15. Kalyanu Ram had examined himself as PW-1 and in his examination-in-chief filed affidavit Ex. PW-1-1/A, he explained each and every instance and happenings in detail, relevant for adjudication of present petition. In his lengthy cross-examination his veracity could not be impeached. 16. PW-2 Rekha Devi was Secretary Mahila Mandal Krishna. She was well conversant with the parties. She has stated that Subhashana is in habit of leveling false allegations including of illicit relations of Kalyanu Ram with his Bhabi (sister-in-law) and she had thrown Kalyanu Ram from the house after beating him and at the time of death of father of Kalyanu Ram, Subhashana did not allow Kalyanu Ram to enter his house and she used to hurl abuses and beat her father-in-law as well as mother-in-law, whereupon mother of Kalyanu Ram started living with her other son. She has stated that members 2025:HHC:22692 …6… of Panchyat and Mahila Mandal had tried to advise, but Subhashana used to quarrel with all persons. 17. PW-3 is Jeevan Chand, who has re-iterated the averments made in the divorce petition. 18. PW-4 is Keshav Ram, who remained Up Pradhan of Panchyat since 2001 to 2006. He has re-iterated the fact that marriage of Kalyanu had taken place in his Village and Subhashana used to level allegations of illicit relation of Kalyanu with his Bhabi and Kalyanu had also submitted a written document in this regard. This witness also stated that respondent No. 2 Simar Chand used to visit Subhashana in absence of her husband and other family members and Subhashana was caught red handed by PW-7 Jeena Devi, whereafter villagers and other persons had reprimanded respondent No. 2. 19. PW-5 Pardesi Ram remained Ward Panch since 2006 onward for 13 years. He has testified that Kalyanu Ram had filed various applications to the authorities for taking action. 20. PW-6, wrongly mentioned as PW-5, Kaushalya Devi has stated that she was Ward Member since last seven years and she had attended the marriage of parties. According to her, Subhashana used to quarrel with and harass Kalyanu Ram and other right holders of the family. 21. Other witnesses namely Simar Chand RW-2, has stated that he is well conversant with the family of Kalyanu Ram, but again stated that he only know about mother of Kalyanu Ram and he admitted that 2025:HHC:22692 …7… he visited the house of Kalyanu Ram 2-3 times, however, denied the allegations of adultery. 22. Subhashana has also examined RW-3 Amar Singh and RW-4 Rajinder Kumar. 23. Kalyanu Ram is resident of Village Matt and witnesses examined by him belongs to village Matt, whereas Subhashana Devi has examined witnesses who do not belong to the area. Even otherwise in her deposition on affidavit in examination-in-chief as well as in cross-examination, she has denied the allegations leveled by Kalyanu Ram. Though she has admitted visit of Simar Chand in her room with submission that he was God brother of her mother and thus was and is like her maternal uncle. 24. Simar Chand was represented by same Advocate, who was representing Subhashana. Simar Chand’s visit in the house of Kalyanu and village Matt are admitted facts. It was Subhashana who used to beat her children, husband, father-in-law. Her mother-in-law had to leave the house of Kalyanu Ram to stay with other son on account of ill-behavior of Subhashana. 25. During pendency of the appeal, Kalyanu Ram has expired, whereupon his natural legal heirs, i.e. his sons Kamal Kumar and Aman Deep were brought on record as respondents No. 1(a) and 1(b). They were proceeded against ex parte. 26. One Sunil Kumar filed an application claiming that he is maternal nephew of Kalyanu Ram and Kalyanu Ram had executed a 2025:HHC:22692 …8… registered Will in his favour with respect to estate owned and possessed by Kalyanu Ram. For the purpose of continuation of present proceedings, said Sunil Kumar was also arrayed as party respondent No. 1(c). 27. In Trial Court, Subhashana Devi was represented by one and the same counsel, who represent respondent No. 2 Simar Chand, however, in present appeal, despite service for 26.10.2016, he has not chosen to be represented and was proceeded against ex parte. 28. In impugned judgment and decree, though at one place Additional District Judge-III has recorded that Subhashana has not led any evidence in support her contention, but is is completely contrary to the record. However, on perusal of record, including evidence lead by Kalyanu Ram as well as Subhashana Devi, it is apparent that in later part, Additional District Judge has referred the evidence lead by Subhashana with observation that Subhashana Devi had failed to controvert/revert allegations leveled against her. I am in agreement with conclusion of Additional District Judge. 29. During pendency of present appeal, Kalyanu has died and his legal heirs, who are sons of couple and are stated to be living with Subhashana, were brought on record as respondents No.1(a) and 1(b). 30. Learned counsel for the appellant has submitted that on account of death of Kalyanu Ram, during pendency of appeal, present appeal preferred by Subhashana Devi against dissolution of 2025:HHC:22692 …9… her marriage with Kalyanu does not abate because right to sue survives in favour of Subhashana Devi against the legal heirs of deceased Kalyanu for determining her status as wife, either divorcee or as widow. In case of divorcee wife she would have right on the estate of deceased Kalyanu Ram for receiving maintenance, whereas as a widow she would be not only entitled for maintenance, but also for share in the property of Kalyanu Ram as Class-I legal heirs of her husband alongwith respondent No.1(a) Aman Deep and respondnet No.1(b) Kamal Kumar and, therefore, it has been contended that this appeal has to be decided on merits. 31. Respondent No. 1(c) Sunil Kumar is claiming right on entire estate of Kalyanu Ram on the basis of registered Will. After death of Kalyanu Ram, it was for his legal heirs to approach the revenue authority for attestation of mutation of property of Kalyanu Ram in their favour, but instead thereof one Sunil Kumar has come forward, claiming that he is entitled for the estate/property of deceased Kalyanu Ram on account of Will executed in his favour by Kalyanu Ram. 32. There is no petition preferred by Subhashana Devi for maintenance from Kalyanu Ram or from his estate. Her sons Kamal Kumar and Aman Deep are residing with her. Nothing has been placed on record to indicate that Subhashana Devi, Kamal Kumar and Aman Deep at any point of time have ever challenged the Will 2025:HHC:22692 …10… claimed to have been executed by Kalyanu Ram in favour of Sunil Kumar. 33. Therefore, in case estate of Kalyanu Ram devolves upon Sunil Kumar and appeal is allowed, Subhashana Devi as a widow can file suit challenging the Will and in case of dismissal of appeal, as a divorcee she can claim maintenance against the said property. Hoever, in any case, Kamal Kumar and Aman Deep have right to challenge the Will by filing suit before appropriate Court, but there is nothing on record to establish that Kamal Kumar and Aman Deep have ever challenged the Will, rather it appears that they have accepted the same. 34. In given facts, after death of Kalyanu Ram, even after setting aside the judgment and decree for dissolution of marriage by allowing the appeal, Subhashana Devi would not be getting any benefit as the estate of Kalyanu Ram has already been devolved, by way of Will, in favour of his nephew Sunil Kumar. No doubt being a widow or a divorcee wife Subhashana Devi may claim maintenance from the estate of Kalyanu Ram, but there is nothing on record that during life time of Kalyanu Ram, Subhsahana Devi had never filed any petition for maintenance from estate of Kalyanu Ram, thus now after death of Kalyanu Ram she cannot raise this claim, which was not earlier raised by her, to have maintenance from the estate of Kalyanu Ram, inherited by Sunil Kumar. 2025:HHC:22692 …11… 35. It is apt to record that Kamal Kumar and Aman Deep also have individual right to claim inheritance of the property of Kalyanu Ram being natural legal heirs, but their right is extinct for execution of a Will by Kalyanu Ram favour of Sunil Kumar. Therefore, Kamal Kumar and Aman Deep were having no other option except to assail the Will, if they were interested for inheritance of property of Kalyanu Ram. Further it is also apt to record that Will has been alleged to be executed and registered on 17.8.2021. Kalyanu Ram had expired on 23.1.2023, we are in 2025. Nothing has been brought on record to establish that Will executed by Kalyanu Ram was ever challenged by Kamal Kumar and Aman Deep or Subhashana Devi or any body else. 36. In aforesaid facts and circumstances, setting aside the judgment and decree dissolving the marriage of Subhashana Devi and Kalyanu Ram shall yield no result either in favour of Subhashana or Kamal Kumar and Aman Deep, because even if dissolution of marriage is set aside, the marital status of Subhashana Devi as wife of Kalyanu Ram could not revive on account of death of Kalyanu Ram. 37. In view of above, I find no merit in the appeal. Accordingly, the appeal is dismissed. (Vivek Singh Thakur), July 15, 2025 Judge. (sd/Keshav)