Jharkhand High Court
Chaitali Dey vs Badal Kumar Dey on 12 May, 2004
Equivalent citations: AIR2005JHAR83, 2004(2)BLJR1484, I(2005)DMC126, [2004(3)JCR598(JHR)], AIR 2005 JHARKHAND 83, 2004 AIR - JHAR. H. C. R. 3092, (2004) 2 JCJR 75 (JHA), (2004) 3 JCR 598 (JHA), 2004 (2) BLJR 1484, (2005) 1 DMC 126, (2005) 4 JLJR 78
Bench: P.K. Balasubramanyan, Tapen Sen
JUDGMENT
1. This appeal is by the defendant in Matrimonial Suit No. 41/55 of 1997-2001 on the file of the Principal Judge, Family Court, Jamshedpur, Singhbhum East.
2. The defendant challenges the decree for divorce granted by the Family Court under Section 13(ia) of the Hindu Marriage Act.
3. In so far as it is relevant for the purpose of this appeal, the husband, the petitioner before the Family Court, came up with a case that his wife was behaving cruelly towards him; that she was not preparing and serving food to him; that she, was quarrelsome, that she left him without telling him and started living in her father's house and that she had behaved cruelly towards him, his mother and his widowed sister-in-law. Since, her conduct was such as to amount to cruelty within the meaning of Section 13(ia) of the Hindu Marriage Act, he was entitled for a decree for divorce.
4. The wife denied that she had behaved cruelty towards her husband. She, on the other hand, pleaded that her husband had ill treated her and that he was not entitled to a decree for divorce on the ground of cruelty. The Family Court granted a decree for divorce almost solely based on the assertions made by the husband in his evidence as A.W.3. This decree is challenged in this appeal.
5. We were taken elaborately through the pleadings and the evidence of the witnesses by counsel appearing in the case. The judgment under appeal was also read out to us. On the face of it, we find that the Family Court has ignored the elementary principle enunciated by the Privy Council in Siddik Mahomed Shekh v. Mt. Saren and Ors., AIR 1930 PC 57, that no amount of evidence can be looked into upon a plea which was never put forward. In our view, a reading of the plaint in this case would compel a Court to hold that there is no adequate pleading making out a case of cruelty so as to attract Section 13(ia) of the Hindu Marriage Act. Even apart from this, neither the evidence of the mother of the husband, examined as A.W. 2, nor the evidence of maternal uncle of the husband, examined as A.W. 1, is enough to find any cruelty. In fact, a reading of the evidence of A.W. 2, the mother of the husband, clearly shows that except some normal misunderstandings between a wife and as husband, there was nothing particularly wrong with the marriage of the appellant and the respondent in this case. The mother has stated that she does not want his son to divorce the lady. Of course, she has also stated that she was deposing as instructed by her son. The uncle as A.W. 1 has only stated that sometimes the wife was not very cooperative. He has also not referred to any specific act of cruelly on the part of the wife. The husband, examined as A.W. 3, has spoken to the fact that his in-laws, particularly the father and brother of the appellant before us, had assaulted him, on a previous occasion. He has also stated that the wife did not take pains to cook for him or to feed him and was not even inclined to live with him separately in a flat purchased for establishing the matrimonial home. He also gave evidence to the effect that she was behaving cruelly towards him and she was always subjecting him to cruelty. She was in the habit of going to her father's house even without his permission. He has also spoken to the fact that a prosecution under Section 498A of the Indian Penal Code was launched against him, his mother, sister and his sister-in-law and he had to remain in custody for a period on the basis of that complaint. He also stated in his evidence that the wife got pregnant, apparently, some time in April, 2000 and that she had an abortion on 20.7.2000 without his consent or volition.
6. What emerges from the evidence of the husband is that though there was, according to him, certain acts which amount to cruelty on the part of the wife, like not cooperating with him in establishing a matrimonial home, in not attending to his needs, not serving him food when he came back from office and launching of a prosecution case against him, it transpires that the husband and the wife resumed cohabitation in the year 2000 and as a result of which she became pregnant and that pregnancy was terminated. Of course, both sides accuse the other as responsible for the medical termination of that pregnancy; but the fact remains that this is a case where even assuming that there was any act of cruelty on the part of the wife, earlier, the same had been condoned by the husband when he took her back and resumed cohabitation. In any event, therefore, this is a case, where the husband cannot be granted a decree for divorce, based on instances and events that took place prior to 27.6.2000. We are also o£ the view that the acts he has attributed to the wife are-normal wear and tear of marriage and do not amount to cruelty in law.
7. As we have noticed, a mere reading of the plaint in this case shows that no cause of action for grant of a decree for divorce is made out in the pleadings. When pleadings are so vague, it is not open to a Court to proceed to grant a decree for divorce on the ground of cruelty by picking out instances from the evidence of the husband here and that of the wife to grant a decree. No doubt, there have been occasional misunderstanding between the spouses, but the Court should have kept in mind that in matrimonial life, such incidents are bound to occur.
8. On the whole, we are satisfied that no case of cruelty justifying the grant of a decree for divorce, is made out in this case. The decree granted by the Court below is found to be totally unsustainable. Hence, we allow this appeal and setting aside the decision of the Family Court, Jamshedpur, we dismiss the Matrimonial Suit filed by the husband, the respondent before us.
In the circumstances, we direct the parties to suffer their respective costs in both the Courts.