Jharkhand High Court
Pankaj Kumar Sharma vs Vrs on 25 August, 2018
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 179 of 2017
Pankaj Kumar Sharma ............Appellant
Vrs.
Monika Sharma ............. Respondent
.......
CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH HON'BLE MR. JUSTICE RATNAKER BHENGRA For the Appellant : Mr. Girish Mohan Singh For the Respondent : Mr. Mithilesh Singh By Court:- Heard learned counsel for the parties.
2. Appellant husband instituted a suit for divorce on grounds of cruelty and desertion in terms of Section 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act against the Respondent wife. Learned Principal Judge, Family Court, East Singhbhum, Jamshedpur on the basis of rival pleadings of the parties framed additional issue i.e., "Whether the respondent has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that, the petitioner cannot reasonably be expected to live with her?"
Other 5 issues framed for adjudication inter alia were as under:-
1. Whether the suit, as framed and filed, is maintainable in its present form or not?
2. Whether the applicant has valid cause of action for filing the suit?
3. Whether the respondent treated the petitioner with cruelty after solemnization of the marriage/
4. Whether the respondent deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the suit or not?
5. Whether the applicant is entitled to get a decree of divorce against the respondent or not?
3. Parties consented to addition of the additional issue and did not express desire to adduce any additional evidence in that regard as they had led evidence on that issue during the course of trial. Learned Family Court decided all the important issues of cruelty, desertion and the additional issue no.6 against the petitioner husband/appellant herein in favour of the Respondent wife by the impugned judgment dated 31.05.2017, decree dated 15.06.2017 in Matrimonial Suit No. 09 of 2012 with which the appellant is aggrieved.
4. Petitioner husband through its pleadings sought to make out a case that immediately after their marriage on 01.07.2009 at Sonari, Jamshedpur parties stayed together for a scanty period of 4 days during which period, petitioner noticed Neuro Pshychopathic Congenital disease of nervous disability in the Respondent which was suppressed at the time of marriage.
2On discovery of such abnormality due to conduct of the respondent, she was taken to eminent Doctor, Neuro Psychiatrist, Neuro Scientist and Epileptologist Dr. B.K.P.Sinha. Due to these problems she left the matrimonial home on 05.07.2009, without any rhyme or reason. Petitioner tried to restore happy conjugal life but failed in his effort, which compelled him to seek dissolution of the marriage.
5. Respondent in her written statement alleged falsehood and denied allegation made in the plaint as being mischievous to legalize the fraud and other illegal acts of the petitioner and his men, played upon her. She admitted that marriage was short lived for 4 days only. She did not suffer from any such disease of Neuro Pshychopathic congenital type or nervous disability either before or after the marriage. Petitioner's father and brother- in-law had visited the house of relative of the respondent, at Sonari and they had a good conversation with the respondent and on being satisfied, agreed for the marriage. The family members of the petitioner also met her before the marriage was finalized. Petitioner and his friends had also met the respondent at Jublee Park and spent 4 hours with her. Only thereafter on being satisfied he agreed for marriage. She had no mental or physical disease and it was only due to mental torture by the petitioner and his family members, she was forced to leave the matrimonial house on 04.07.2009 by a vehicle arranged by the petitioner. She did not leave the matrimonial home on her own sweet will. Petitioner was not happy with her, for the reason best known to him. He never tried to take her back. On the other hand her father approached him and his guardian with a request to restore their conjugal life. Petitioner and his relatives were powerful men and the petitioner got an agreement signed by her father by threatening him. Therefore, she prayed for dismissal of the suit.
6. During course of trial, petitioner examined 4 witnesses namely P.W.1 himself, P.W.2 Shambhu Sharan Sharma, P.W.3 Sanjay Mistri and P.W.4 Indu Sharma. He proved three signatures on the agreement dated 04.07.2009 marked as Ext.1,1/1 and 1/2.
Respondent examined two witnesses namely O.P.W.1 Satya Prakash Sharma, her father and O.P.W.2, respondent herself.
7. Learned Family Court took up the additional issue no.6 first for adjudication in the light of the pleadings of the parties and material evidence on record and proceeded to answer it against the petitioner. P.W.1 denied suggestion that mental condition of his wife was good. In his cross 3 examination he stated that he does not want to keep his first wife, Monika Sharma. P.W.2 is the cousin of the respondent who stated on affidavit that he had knowledge before the marriage of the parties that respondent was mentally ill and suffering from neurological problem. Despite his best effort to restrain her father from getting her married, she was married. In his cross examination he admitted that petitioner's family members had seen the respondent at the time of negotiation and petitioner had also seen her at Jublee Park along with family members. He admitted during cross examination that they could not find that respondent was a mental case. He further admitted that respondent's father had transferred Rs.4 lakh in his account and thereafter filed money suit against him which is pending. P.W.3, brother in law of the petitioner supported petitioner's case. In his cross examination he admitted that before finalization of the marriage, respondent was seen twice. At the first instance, she seemed abnormal but marriage was finalized after seeing her again. P.W.4 wife of P.W.2 stated on affidavit that at the time of marriage she learnt about mental problem of the Respondent. She referred to an agreement signed on 04.07.2009, which mentioned mental state of the Respondent. On the next date she was taken by her father. In her cross examination, she admitted that respondent had stayed in her house for 2 days prior to the marriage and during those two days she could not find any abnormality in her behaviour. She further stated that she had not signed on the agreement.
8. On the part of the respondent, O.P.W.1, her father denied the suggestion that his daughter was mentally ill prior to the marriage. He further stated that several steps were taken to persuade the petitioner and his family members to allow her to resume conjugal life. O.P.W.2, respondent herself stated about the marriage with petitioner on 01.07.2009 and that she went to her matrimonial house on 02.07.2009 in the morning. She further stated that on 04.07.2009 she was sent to her father's house in the night in a car. She also stated that on the same date petitioner and his associates had forcibly got her father signed on a paper. Her father was not allowed to see the paper.
9. Evidences on record as discussed by the learned Family Court as well revealed that petitioner failed to adduce any material evidence of an Expert / Doctor to establish the charge of mental illness against the respondent. P.W.2 and P.W.4 who were cousin of the Respondent and his wife also during their deposition indicated that P.W.2 was facing a money suit 4 instituted by the father of the respondent and that Rs.4 lakh had been transferred in his account by O.P.W.1. P.W.4 had found no abnormality in the respondent during her stay in her house for 2 days prior to marriage during the course of marriage negotiation. P.W.2 was an interested witness. These material evidence on record were highly insufficient to arrive at a finding of such incurable mental illness in terms of Section 13(1)(iii) of the Hindu Marriage Act, which could be made the basis for dissolution of the marriage itself. Petitioner husband could not establish the allegation of cruelty as according to his own case respondent had stayed for 4 days in the matrimonial house after marriage. No such material evidence were adduced at all to support the charge of mental cruelty. Learned Family Court while discussing Issue no.4 relating to desertion observed that it was an admitted case of the petitioner that respondent had left her matrimonial home with consent of the petitioner. Father of the respondent had also specifically stated in his deposition that he was forced to sign on agreement paper on 04.07.2009. The suit was instituted in the year 2012. Father of the respondent had in his statement also stated that several attempts were made to persuade the petitioner and his family members to allow the respondent to resume her conjugal life which failed. The ingredient of desertion as laid down by the Hon'ble Apex Court in the case of Savitri Pandey Vrs. Prem Chandra Pandey reported in (2002) 2 SCC 73 was therefore not made out.
10. Learned counsel for the appellant husband has sought to press the appeal based on the material evidence and pleadings on record on each of the material issue i.e., mental illness / unsoundness of mind; cruelty and desertion. The evidences on record clearly lacks strength to record a finding in favour of the petitioner. Mental illness of such nature and extent, which could create an apprehension in the mind of the petitioner that he could not reasonably be expected to live with the respondent, were clearly missing. The allegation of mental illness is a stigma attached to any person. If such charge has remained unsubstantiated, the sacred thread of marriage cannot be dissolved on such allegation. We find that petitioner tried to establish the charge of mental illness with no expert evidence in support thereof, more so when the respondent had stayed only for 3/4 days in the matrimonial house just after the marriage. In such a short span of time, not even a medical expert would render a final opinion that persons suffers from such incurable mental illness. The only documentary evidence i.e., agreement dated 04.07.2009 Ext.1 relied upon by the petitioner cannot be accepted as an 5 admission of mental illness of the respondent, more so when her father had specifically stated that he was forcibly made to sign on the said paper. P.W.4 in her statement had stated that she had not signed on the agreement Ex.1. Statements of P.W.2 and P.W.4 cannot be taken on their face value in view of the reasons discussed by the learned Family Court.
11. Learned counsel for the respondent has supported the findings rendered by the impugned judgment in the light of the material evidence and pleadings on record. He submits that respondent is willing to go back to her matrimonial home. She was compelled to move out of the matrimonial home 4 days after marriage in a car provided by the petitioner himself. As such the appeal deserves to be dismissed.
12. We have given anxious consideration to the submission of the parties and gone through the material evidences on record. In the facts and circumstances discussed herein above and for the reasons recorded, we do not find any infirmity in the impugned judgment rendered by the learned Family Court. As such no grounds are made out by the appellant to allow this appeal. Accordingly, the instant appeal is dismissed. Decree accordingly.
(Aparesh Kumar Singh, J.) ( Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated -25th August, 2018, A.Mohanty-NAFR 6 7