JAGDISH SINGHversusMADHURI DEVI

                         [2008] 6 S.C.R. 1176

                                                                      .
A                        JAGDISH SINGH
                                  v.
                           MADHURI DEVI
                  (Civil Appeal No. 2997 of 2008)

                          APRIL 28, 2008
B
              [C.K. THAKKER AND D.K. JAIN, JJ.]

        Hindu Marriage Act, 1955 - s.13 - Divorce - Husband
  filed divorce petition on grounds of desertion and cruelty -
c Family Court decided both issues in favour of husband and
  passed decree of divorce - High Court reversed the decree -
  Challenge to - Held: High Court not right in setting aside
  findings of fact recorded by Family Court without recording
  reasons for such reversal - It did not keep in view the scope of
  powers of first appellate Court - Order passed by High Court
D
  'cryptic' in nature and falling short of the grounds which would
  allow the first appellate court to reverse a finding of fact
  recorded by trial court - Hence, deserves to be quashed -
  Disregarding plea of appellant-husband to come to a
  conclusion one way or the other on basis of evidence led by
E the parties, Supreme Court remitted the matter to High Court,
  albeit with direction for expeditious disposal as parties
  (husband and wife) living separately since about a quarter
  century - Constitution of India, 1950 - Art. 136.

F        Appeal - First Court of Appeal -' Power and duty of -
    Discussed.                                                       .,

       Appellant-husband filed divorce petition in the Family
  Court under s.13 of the Hindu Marriage Act, 1955 on two
  grounds, (i) desertion and (ii) cruelty. The Family Court
G decided both the issues in favour of the Appellant and
  passed a decree of divorce granting dissolution of
  marriage. Respondent-wife preferred appeal in High Court
  which was allowed. The High Court reversed the decree
  of the Family Court and dismissed the divorce petition
H                               1176
               JAGDISH SINGH v. MADHURI DEVI                1177


      instituted by the Appellant-husband.                          A
           In appeal to this Court it was 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 the High Court without
      considering the evidence properly and ignoring the            B
:,.   conclusions of the Family Court and reasons recorded
      for coming to such conclusions, interfered with findings
      of fact and hence the order passed by High Court
      deserved to be set aside.
                                                                    c
           The question which arose for consideration in the
      present appeal is whether the High Court did not keep in
      view the scope of powers of the first appellate Court and
      erroneously set aside the findings of fact recorded by the
      Family Court without recording reasons for such reversal.
                                                                    D
           Allowing the appeal and remanding the matter to
      High Court for expeditious disposal in accordance with
      law, the Court
            HELD: 1. The High Court was not right in setting
      aside finding of facts recorded by the Family Court without E
      recording reasons for such reversal and without keeping
      in view the scope of powers of first appellate Court. The
      order passed by the High Court is 'cryptic' in nature. The
      Family Court considered the evidence in detail. The High
      Court, on the other hand, did not consider the evidence F
      at all. In fact, the High Court was wrong in observing that
      there were no specific instances of cruelty or desertion.
      The High Court al.so relied upon the defence evidence
      without considering the fact that the Family Court
      recorded reasons for not relying upon such evidence. G
      [Paras 22, 23, 39] (1194-H; 1195-A; 1187-D, H; 1188-A]
            2.1. No doubt 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
                                                                    H
    1178     SUPREME COURT REPORTS                [2008) 6 S.C.R.


A fact as well. An appeal is a continuation of suit. It 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. [Para 24] [1188-8-C]
B      2.2. 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
C 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
D 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. [Para
  25] [1188-0-F]
E      2.3. Three requisites should normally be present
  before an appellate court reverses a finding of the trial
  court; it applies its mind to reasons given by the trial
  court;it has no advantage of seeing and hearing the
  witnesses; and it records cogent and convincing reasons
F for disagreeing with the trial court. [Para 33] [1193-C-D]
        2.4. If the above principles are kept in mind, the
  decision of the High Court falls short of the grounds which
  would allow the first appellate court to reverse a finding
G of fact recorded by the trial court. 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
H having applied its mind, the appellate court is enjoined to
                JAGDISH SINGH v. MADHURI DEVI                1179


       keep that fact in mind. It has to deal with the reasons      A
       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. In the instant case,     B
·I'-
       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,           c
       therefore, deserves to be quashed and set aside and is
       hereby set aside. [Paras 34, 35] [1193-E-H; 1194-A]
            Sara Veeraswami v. Talluri Narayya, AIR 1949 PC 32:
       75 IA 252; Sarju Pershad v. Jwaleshwari, 1950 SCR 781;
       Radha Prasad v. Gajadhar Singh, 1960) 1 SCR 663; T.D.        D
       Gopalan v. Commissioner of Hindu Religious & Charitable
       Endowments, Madras, (1973) 1 SCR 584 and Madhusudail
       Das v. Narayanibai, (1983) 1 SCR 851 - referred to.
            Coghlan v. Cumberland, (1898) 1 Ch 704 - referred to.
                                                                    E
            3.1. Since, there is non-consideration of the
       principles laid down by this Court, 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. [Para 36] [1194-B]                                   F
 :t
            3.2. The appellant-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 G
       to a conclusion one way or the other. In the considered
...    opinion of this Court, 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 H
    1180       SUPREME COURT REPORTS               [2008] 6 S.C.R.


A this Court to undertake that task. It would be better if the
  appellate court is allowed to exercise the power, discharge
  the duty and perform the function under the Code.
  However, since about a quarter century, the parties are
  staying separately, the High Court is requested to give
B priority to the case and decide it as expeditiously as
  possible. [Para 37] [1194-C-F]
         CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    29.97 of 2008.

c        From the Judgment and Order dated 29.9.2004 of the High
    Court of Judicature at Allahabad in FA No.1008/1999.
        Chandra Shekhar, Sanjay Kumar Tyagi, Atul Kumar,
    Saurabh Upadhyay, L.D. Sharma and S.K. Verma for the
    Appellant.
D
        R.D. Upadhyay, U.K. Shandilya, Vijay Kumar Pandita and
    Asha Upadhyay for the Respondent.
           The Judgment of the Court was delivered by
           C.K. THAKKER, J. 1. Leave granted.
E
          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
F   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
G 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
H the husband, however, he was the eldest son of his parents and
           JAGDISH SINGH v. MADHURI DEVI                      1181
                 [C.K. THAKKER, J.]

was not in a position to oblige the wife by living with her. He had   A
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      s
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       c
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 D
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 E
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 F
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 G
and mental cruelty to the appellant.
      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           H
    1182      SUPREME COURT REPORTS                  [2008] 6 S.C.R.


A 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
B 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
c 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
D 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.
E       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
F   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
G
  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
H
                          JAGDISH SINGH v. MADHURI DEVI                     1183
                                [C.K. THAKKER, J.]

               possible to arrive at a settlement and requested the Court to       A
               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 .         B
        .
                     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          c
               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
                                                                                    D
        -+
               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 cruelty. Her conduct of leaving minor daughter Seema was E
               also highly improper. On both the grounds, therefore, the plaintiff-
               husband was entitled to dissolution of marriage.

                     11. It was submitted by the learned counsel that being
               aggrieved by the above decree, the wife filed an appeal. The F
        t
               High Court persuaded the parties to settle the matter. The
-...-
 l.
   •,
   ,
             ---
               husband tried his best to arrive at an amicable settlement, but
               be-cause of attitude of the wife, the dispute could not be
               resolvecL The husband was not responsible for the situation and '
               yet the High Court blamed him. The High Court without
                                                                                  G
               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
                                                                                  H
    1184     SUPREME COURT REPORTS                    [2008] 6 S. C.R.


A   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
8 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,
C 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
D 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.

E        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
F 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 wa§._.. --
  responsible for creation of unpleasant situation which .w6uld
  amount to cruelty towards the husband and his family members.
G 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       t
  Court noted that it was the wife who left matrimonial home. The
H trial Court also stated that at the time of leaving matrimonial
                        JAGDISH SINGH v. MADHURI DEVI
                              [C.K. THAKKER, J.]

              home, the wife was aware that she had a minor child (Seema) A
              who was about 4-5 years of age al)d yet she did not care to
              con.sider 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 B
              did not attract her to attend the marriage of Seema and the
              marriage was performed by the father in absence of the mother.

                  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 C
             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 D
               .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 •E
               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 F
               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 hus.band.
             ·According to the Family Court, the fact had been clearly G
              ·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 H
    1186       SUPREME COURT REPORTS                 [2008) 6 S.C.R.


A 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
8 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
C 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
0          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
E 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;
F
        '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)
G
           20. The High Court also observed;
           "There is nothing in the evidence to disbelieve the
           statement of the appellant (wife) and her brother OW 3. It
           is not disputed that Ourga Singh, OW 2 resident of the
H          same village as that of the respondent (husband) and is
                    JAGDISH SINGH v. MADHURI DEVI                       1187
                          [C.K. THAKKER, J.]

               his relation. He has also supported the case of the appellant     A
               (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     B
    ..,
          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              c
          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
                                                                                 D
    --+
          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 cruel. 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            E
          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           F

f         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        G
          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
                                                                                 H
    1188       SUPREME COURT REPORTS                    [2008] 6 S.C.R.


A   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
B 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
C 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 mind a finding recorded by the
  trial court on oral evidence. It should not forget that the trial court
0
  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.
E 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.                                                             l
F
          26. Before more than a century, in Coghlan v.
    Cumberland, (1898) 1 Ch 704, Lindley, M.R. pronounced the
    principle thus;
           "Even where the appeal turns on a question of fact, the
G          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
H          from, but carefully weighing and considering it; and not
             JAGDISH SINGH v. MADHURI DEVI                     1189
                   [C.K. THAKKER, J.]

        shrinking from overruling it if on full consideration the Court A
        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 B
        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, c
        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
                                                                        0
        from the Judge, even on a question of fact turning on the
        credibility of witnesses whom the Court.has not seen."
         [see also observations of Lord Thankerton in Watt v.
    Thomas, (1947) 1 All ER 582]
          27. In Sara Veeraswami v. Tal/uri Narayya, AIR 1949 PC       E
    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 F
         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 entitied to great G
         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, H
    1190        SUPREME COURT REPORTS                    [2008] 6 S.C.R.


A          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
B 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 case. In such cases, the
c          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.
D
           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
E          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.
F
         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
G          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
           finding." .
H
         JAGDISH SINGH v. MADHURI DEVI                     1191
               [C.K. THAKKER, J.]

                                          (emphasis supplied)     A
     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 B
    to consider what its decision on the question offacts 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 c
    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
                                                                   0
    reverse the findings of a Trial Judge even on the question
    of credibility, if such question depends on a fair
    consideration of matters on record. 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 E
    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 F
    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 G
    Judge is not justified".
     31. In TD. Gopalan v. Commissioner of Hindu Religious
& Charitable Endowments, Madras, (1973) 1 SCR 584, this
Court said;
                                                                  H
    1192        SUPREME COURT REPORTS                     [2008] 6 S.C.R.


A          "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
B          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
c          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
D
           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 Oas v.
E   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
F          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
G          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
H          opinion as to where the credibility lies ... The principle is
                    JAGDISH SINGH v. MADHURI DEVI                       1193
                          [C.K. THAKKER, J.]

            one of practice and governs the weight to be given to a 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 B
            and surmises the appellate court is entitled to
            interfere with the finding of fact.
                                                      (emphasis supplied)

           33. Three requisites should normally be present before an             c
      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
                                                                                 D
  1         (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
                                                                                 E
      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                 F
      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 ifit finds that the reasons
      whichy.1eighed with the trial Court or conclusions arrived at were         G
      not in consonance with law:
"1•        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, can(lot be endorsed and
                                                                                 H
    1194      SUPREME COURT REPORTS                    [2008] 6 S.C.R.


A 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 aside.
         36. Since, there is non-consideration of the principles laid
8 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.
c        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
0
  considered opinion, however, when th~ 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
E 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.
F
         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
G 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
H without recording reasons for such reversal and without keeping
               JAGDISH SINGH v. MADHURI DEVI                     1195
                     [C.K. THAKKER, J.]

     in view the scope of powers of first appellate Court. But we may    A
     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 us.                             ·                           B

>-         40. On the facts and in the circumstances of the case, the
     parties shall bear their own costs.

     B.B.B.                                         Appeal allowed.