Jharkhand High Court
Sumit Kumar vs Surendra Kumar And on 12 July, 2018
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 68 of 2015
Sumit Kumar ....Appellant
Vrs.
Ranjeeta Gupta .....Respondent
With
F.A. No. 72 of 2015
Sumit Kumar Gupta ....Appellant
Vrs.
Ranjeeta Gupta .....Respondent
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CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant : Mr. R. S. Mazumdar, Sr. Adv.
Ms. J. K. Mazumdar, Vikas Kumar, Advs.
For the Respondent : M/s. Pandey Neeraj Rai, Rohit Ranjan Sinha, Adv.
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By Court: Heard learned counsel for the parties.
2. Both appeals are by the appellant-husband. First Appeal No. 68 of 2015 is directed against the judgment dated 13th April, 2015, decree dated 1st May, 2015 passed by learned Principal Judge, Family Court, Garhwa, in M. M. Case No. 44A/2014/MTS Case No. 144 of 2012, whereunder the suit of the petitioner/husband for declaration of marriage with the respondent as null and void and also for a decree of divorce on the grounds of adultery and cruelty in terms of Section 13(1)(i)(i-a) of the Hindu Marriage Act has been dismissed.
3. First Appeal No. 72 of 2015 is also by the appellant-husband directed against the judgment dated 17th April, 2015 passed in M.M. Case No. 55 of 2012 by same learned Court of Principal Judge, Family Court, Garhwa, whereunder the suit instituted by the wife/respondent herein for Restitution of Conjugal Right in terms of Section 9 of Hindu Marriage Act was decreed.
4. Both the cases were tagged together for being heard. Facts as pleaded by the petitioner-husband in the Matrimonial Suit No. 44A/2014/MTS Case No. 144/2012 are being first dealt with for convenience sake. Petitioner asserted that after the marriage between the parties on 21st November, 2011 at Ranchi they lived together only for 13 days, but he was not allowed cohabitation by the respondent for one or the other reason. She returned with her brother to Garhwa. One 2. Surendra, brother-in-law of respondent informed the petitioner on mobile on 7th December, 2011 about his relationship with the respondent. He also informed that his wife Anju Devi and respondent were own sisters. Respondent was living with him since 1996 upto 2008. She completed her education while living in his house and took admission in LLB Part-I. During her stay he developed illicit relationship with her in the knowledge of his wife, Anju Devi. Respondent also became pregnant and underwent abortion, which is confirmed by her elder sister, Anju Devi. Appellant alleged that respondent had avoided to talk despite his efforts. Petitioner had been subjected to physical and mental cruelty due to continuous cessation of marital intercourse. From December, 2011 to January, 2012 Surendra and his wife Anju regularly threatened the petitioner not to interfere in his relationship with the respondent. Respondent's father also filed a complaint case against his son-in-law Surendra Kumar being C-73/12, where he admitted marriage of respondent with Surendra Kumar in pursuance to agreement dated 1st August, 2007. A general meeting was called on 18th March, 2012 at Garhwa to resolve the illicit relationsip in presence of respected persons of society where respondent's father and Anju Devi were also present. Anju Devi had accepted in that meeting that she was ready to live with respondent in her matrimonial home along with her husband Surendra Kumar. Finally, it was asserted that due to adulterous relationship of respondent with Surendra Kumar it is not possible for him to live with her. Further statements have been made about the transfer of matrimonial suit to the Court at Garhwa by order of this Court in Transfer Petition (Civil) No. 47/2013.
5. Respondent through her written statement denied the allegations as baseless and asserted that the case was not maintainable. All allegations were false and concocted. She stated that marriage between the parties took place and she was brought to her in-laws place at Mandu and thereafter at Kokar (Ranchi) where physical relationship was established. However, on demand of a car she was tortured. She was taken back by her brother and sister-in-law at the instance of the petitioner; petitioner's own brother-in-law, Arvind Kumar also 3. accompanied them. Though a meeting of caste men was called in "Kushmi" of Chhatisgarh, but her father expressed inability to meet the demand. Information was given to Sukmi Police Station. Latter she filed M. M. Case No. 55 of 2012 for a decree of Restitution of Conjugal Right alleging that petitioner had deliberately deserted her to get a decree of divorce. She further alleged that Surendra Kumar her brother- in-law in collusion with petitioner had prepared a false and fabricated document of her illicit relationship with Surendra Kumar in order to get a decree of divorce. He wanted to extort money from the father of the respondent. The allegations contained in Paras- 4 to 6 of the plaint have been denied. It is further asserted that petitioner never made efforts to take her back to matrimonial home, rather he put a demand of car. She is willing for resumption of conjugal right. Her father had also filed a complaint case being Complaint Case No. 73 of 2012 against Surendra Kumar for producing false document. She further stated that the allegations made at Para-11 and 12 are false, fabricated and imaginary. A Panchayati was held, but it was in connection with illegal demands made by the petitioner and not in connection with alleged illicit relationship with Surendra. No paper was prepared in the Panchayati at Garhwa.
6. The following issues were framed for adjudication on the basis of rival pleadings of the parties by learned Family Court:
"(i) Whether cause of action arose in favour of plaintiff and against the respondent, on and from 21.11.2011?
(ii) Whether plaintiff is entitled to get declaration that marriage between the parties was void u/s 12 of the Hindu Marriage Act?
(iii) Whether plaintiff is entitled to get decree of divorce against the respondent u/s 13(1) of Hindu Marriage Act, on the ground of adultery and u/s 13(1) (ia) on the ground of cruelty?
(iv) Whether plaintiff is entitled to get any relief of reliefs, if any?
7. Petitioner adduced three witnesses. P.W.1, petitioner himself, P.W.2, Ashok Kumar Gupta, his brother-in-law and P.W.3, Rajendra Prasad, Secretary of Caste Community of Nagar Untari. He failed to 4. produce any documentary evidence in his support. Respondent examined herself as O.P.W.1 and adduced the following documentary evidence as recorded by the learned Family Court.
"Ext.A- Affidavit dated 03.02.2012 of Anju Devi, wife of Surendra Kumar sworn before the Notary Public, Jayanti Prasad of Garhwa, filed in complaint case no. 73/12 (Gouri Shankar Gupta Vs. Surendra Kumar and Chhotelal) for occurrence u/s 452, 468,471,384/120B/34 of I.P.C dated 05.01.2012 negates that her husband Surendra Kumar ever entered into agreement for marriage with Ranjeeta Gupta.
Ext.B- C.C of G.R. No. 170/12 (Gouri Shankar Gupta Vs. Chhotelal both sons of Mathura Prasad resident of Dudhi is also C.C of Ext. B in the misc. Case No. 44/2013 u/s 125 of the Cr. P. C between the parties and the same document is Ext. A in M.M Case no. 55/12.
Ext.C- C.C of Case No. 314/12 (Surendra Kumar Vs Gouri Shankar Gupta) in three pages u/s 406,420,504/34 of I.P.C for offence dated 22.01.12 without objection.
Ext. D- Information furnished by Regional Office of Central Bank of India Ambikapur dated 19.08.2014 without objection.
Ext.E- Order dated 18.03.2015 of Ld. C.J.M., Garhwa passed in C-1175/14 u/s 498A, 323, 406, 379 of the I.P.C and ¾ of D.P.Act Ranjeeta Gupta Vs Sumit Kumar directing the office to issue summon. Ext.F- Xerox-copy of para-5 of petition filed u/s 9 of Hindu Marriage Act vide M.M. Case No. 55/12 (Ranjeeta Devi Vs Sumit Kumar Gupta) dated 19.06.12 has been marked on admission. I.D. Mark 'I':- Audio C.D filed on behalf of the O.P in M.M. Case No. 55/12 (Ranjeeta Devi Vs. Sumit Kumar Gupta) u/s 9 of Hindu Marriage Act, in which the folder didi had not been proved by examining Didi, if any. Folder Jija has also not been proved by examining Jija if any nor any competent witness has been examined to identify the voice of conversation, hence it was not considered in evidence.
8. Learned Family Court proceeded to deal with Issue nos. 2 and 3, which are in relation to the allegation that consent of the petitioner was obtained by fraud and that respondent had indulged in adultery and 5. cruelty in marriage. Learned Family Court on analysis of the evidence in detail, decided these two issues against the petitioner in favour of the respondent -wife. It was held that (i) petitioner did not examine Surendra Kumar or his wife, who were allegedly source of his knowledge to the effect that there was already marriage between Surendra Kumar and the respondent either by an agreement or Court Marriage and that there was illicit connection between them. (ii) The allegation that marriage between the parties was solemnized under deception by concealing her previous marriage with Surendra, was also not proved. (iii) Ext.-C adduced by the respondent revealed that Gauri Shankar had borrowed Rs. 85,000/- from Surendra to meet the expenses of marriage of his daughter Ranjeeta. Petitioner had also not proved any Panchnama containing the deliberation of Panchayat held on 18th March, 2012. In the other two cases between the parties also no such paper of Panchnama was filed.(iv) Ext.-A , affidavit of date 3rd February, 2012 of Anju Devi wife of Surendra Kumar sworn before the Notary Public and filed in complaint case being Complaint Case No. 73 of 2012 negated that her husband had ever entered into agreement for marriage with respondent. (v) Surendra was inimical to the father of the respondent. As such, the allegations made by the petitioner claimed from the source of Surendra were not worth believing. (vi) Petitioner also failed to examine Arvind Kumar Gupta, resident of Garhwa, who was brother-in-law of the petitioner and admittedly mediator in the marriage between the parties. His examination was vital as he could have thrown sufficient light on the alleged fraud played. (vii) Learned Family Court further held that the suit for divorce was filed within one year without permission of the Court and was in teeth of Section 14 of the Hindu Marriage Act. On this score also the suit was fit to be dismissed. Other issues such as Issue no. 1 relating to cause of action and Issue no. 4 on the question of grant of any relief were also decided accordingly against the petitioner on the basis of findings rendered in connection with Issue no. 2 and 3. The suit was dismissed with a cost of Rs. 2,000/-.
6.9. Learned counsel for the appellant has laboured to question the findings of learned court on both the issues. She submits that respondent admittedly remained for only 13-15 days in the matrimonial house and left with her brother. There was no physical relationship between the spouses any time during this period. Brother-in-law of the respondent had on his own informed the petitioner about his illicit relationship with her. Criminal case instituted by father of the respondent and Surendra Kumar cuts both ways. Anju Devi being sister of the respondent, therefore, could not have deposed against her husband or her own sister. The husband of Anju Devi i.e, Surendra Kumar also may have been prevented from deposing because of the instances of criminal case. Learned counsel for the appellant has however not been able to explain as to why not even a chit of paper was adduced in support of such a serious allegation. Appellant had alleged that Surendra Kumar and respondent had entered into Court Marriage and there was an agreement between them. However, no such document was exhibited by him. Learned counsel for the appellant has not been able to explain as to why Arvind Kumar Gupta, who was the mediator not examined by the petitioner-husband in support of his case.
10. Per contra, learned counsel for the respondent has supported the findings of learned Family Court. He submits that the entire source of allegation the alleged, Surendra Kumar brother-in-law of respondent has not been produced as witness to support it. No other documentary evidence has been adduced by the petitioner to substantiate the serious charge of adultery on the part of the respondent. Learned Family Court has dealt with the evidence of the parties in detail and rightly arrived at the conclusion. Respondent has on her part always tried to resume the matrimonial relationship. She has successfully proved her case and got a decree of restitution of conjugal right by the same Family Court. She had filed execution case for enforcement of the decree which is also pending. Petitioner by hurling unfounded allegations cannot be allowed to take advantage of his own wrong. Learned Family Court has also rightly held that the suit was hit by Section 14 of the Act of 1955.
11. We have considered the submission of learned counsel for the 7. parties in detail and also gone through the impugned judgment. We have taken note of the relevant material evidence on record and as relied upon by learned counsel for the parties. We find from the evidence of the witnesses of the petitioner-husband that petitioner was in regular conversation in connection with respondent after ring ceremony for six months before solemnization of marriage on mobile phone. His allegation of deception were therefore not supported by such conduct. His statement that Surendra Kumar informed him on the very date of Bidai on 7th December, 2011 about his illicit relationship with the respondent since before her marriage with the petitioner was also inexplicable. There was no reason why such deception was not communicated to the petitioner by the said Surendra Kumar either before marriage or after marriage till her Bidai. Petitioner though stated at para 8 of his deposition that respondent used to talk with Surendra Kumar every day during her stay in her matrimonial home, but neither was Surendra Kumar examined nor any print out of telephonic talk was brought on record to substantiate the point. He admitted that he had not inquired into the fact of Court Marriage though he had known about it from Surendra Kumar and the suit was filed after six months of the marriage. No documentary proof of Court Marriage was produced. Therefore, such statement was purely hearsay evidence which had no importance in the law. He admitted, in his cross-examination also that respondent had not explicitly stated on the first night that her marriage was solemnized by force, though, it was alleged by him that she had prevented him from consummating the marriage. He admitted that she had filed M. M. Case No. 55/12 for restitution of conjugal rights. Had she been bearing grievance against her marriage with the petitioner she could not file a case for restitution of conjugal rights. P.W.-2 though supported the case of the petitioner that respondent had stayed for 7 years with Surendra but he could not disclose any source of this knowledge. Petitioner had on his part not stated as such. This witness stated about the meeting held at Ambikapur in Garhwa where allegedly Anju Devi wife of Surendra had stated that respondent had been living in her house for last 7 years and had illicit relationship with her 8. husband. But this witness could not explain as to why Surendra or Anju Devi were not examined in support of their cases. Petitioner on his part had not stated about any meeting in Ambikapur on the point of illicit relationship of the respondent with the said Surendra Kumar. P.W.2 had further stated that petitioner had sent his wife to her father's house, which is contrary to the statement of the petitioner that respondent had voluntarily gone with her brother. This contradiction was elicited during the course of his examination. As such it was clear that he had hardly any knowledge of the family affairs of respondent. P.W.3 statement was also not credible as no other cogent evidence in relation to the allegation of illicit relationship between Surendra and respondent had been brought on record.
12. On the other hand, respondent in her statement made definite mention of demand of four wheeler by the petitioner and three sisters and wife of the brother. After her Bidai her husband had demanded a car as a condition precedent. Panchayat was held in Tiwari Rest House in connection with this demand of four wheeler and not in connection with her alleged illicit relationship. A suit for restitution of conjugal rights was filed by her as she wanted to live with her husband. She had also filed Miscellaneous Case No. 44 of 2013 under Section 125 Cr. P. C. She had filed a case of cruelty and demand of dowry which was pending in the Court of learned C.J.M., Garhwa. She stated having established physical relationship as husband and wife with the petitioner during her stay in the matrimonial home. She further stated that her husband had filed xerox copy of agreement revealing her marriage with Surendra which is also forged and fabricated and had been created for obtaining divorce. Agreement of marriage had not been brought in original and got proved by the competent witnesses. Learned Family Court took into note this fact and also held that had the original agreement been proved the onus would have shifted upon the respondent to explain it. The evidence on record brought by the respondent further showed that the father of the respondent filed G. R. Case No. 170 of 2012 under Sections 452,468,384,120B of Indian Penal Code, corresponding to Garhwa P. S. Case No. 30 of 2012 against 9. Surendra Kumar which arose out of one Complaint Case No. C-73/12 in which the affidavit was filed by Anju Devi marked as Ext.-A. Copy of F.I.R was marked as Ext.-B vide Para-31 of her evidence. Respondent in her suit for restitution of conjugal rights had admitted that petitioner was blackmailing her father by preparing a forged document of marriage. In Para-23 she had stated that her brother-in-law Surendra and his wife Anju Devi last visited her father's house in 2006. He was trying to extort money from her father. She denied that since before her marriage with the petitioner, Surendra was making claim of his marriage with her and that she incurred marriage with petitioner by concealing these facts. Learned Family Court took her denial in the light of the documents (Exts. A & C) both. There was no mention of the alleged agreement of Court Marriage or illicit relationship between the respondent and Surendra. Ext.-C was in connection with offence dated 22nd January, 2012 allegedly committed by father of the respondent. Respondent had also alleged collusion between the petitioner and brother-in-law Surendra by creating forged document to get a divorce. All these material evidence on record point out to a definite conclusion that serious allegation of adultery made by the husband-petitioner had not at all been established by any cogent evidence. The allegation of adultery or illicit relationship of the respondent prior to her marriage with her brother-in-law where of serious nature and would amount to casting a stigma upon the respondent for all times to come, if proved. Such allegations are easily made than proved. Learned Family Court has rightly not found any material evidence on the part of the petitioner to substantiate such a serious allegation. Marriage between the parties could not have been dissolved on such allegation alone. Appellant had also failed to establish that his marriage with respondent was arrived at by practising deception upon him.
13. Taking an overall view of the matter, we do not find any error in appreciation of evidence by learned Family Court which could render the findings perverse. The impugned judgment as such does not suffer from any error of law or facts which deserves interference. Accordingly, the present appeal is fit to be dismissed. It is accordingly dismissed.
10.14. We have also considered the submission of learned counsel for the parties in connection with challenge to the judgment and decree of restitution of conjugal right rendered by learned Family Court, Garhwa in M. M. Case No. 55 of 2012 instituted by the respondent-wife. On consideration of submission of learned counsel for the parties, perusal of the impugned judgment and the material evidence on record relied upon by them and as discussed by learned Family Court, we do not find any error to interfere in it. The case of the parties on the plea of divorce raised in M. M. Case No. 44A/2014/MTS Case No. 144/2012 had been dealt with in detail in the forgoing paragraphs. Appellant-husband had failed to substantiate the serious allegation of adultery or cruelty as against the respondent herein by any cogent proof.
15. Learned Family Court while deciding the suit for restitution had framed the following issues upon the rival pleadings of the parties which were germane to the controversy:
"1. Whether the petitioner has any cause of action for the suit and the case is maintainable or not?
2. Whether this case is barred by reason that respondent has already filed M.T.S case No. 144/12 on 15.05.12 u/s 12, 13(1)(i) and i(a) of the Hindu Marriage Act, 1955 in the Family Court, Ranchi
3. Whether this Court has jurisdiction to decide this case or not?
4. Whether petitioner did not allow consummation of marriage by the respondent at any time till date?
5. Whether petitioner was married with her brother- in-law Surendra Kumar, Dudhi (U.P.) since before the marriage of petitioner with respondent and she was leading adulterous life?
6. Whether petitioner is entitle to the relief claimed or any other relief or not?
16. Petitioner-wife/respondent herein examined three witnesses and adduced the following documentary evidence i.e, Exts. 1 & 2 in support of her case. Respondent-husband/appellant herein also examined three witnesses. Learned Family Court after discussion of the material evidence on record decided the Issue no. (V) relating to the alleged marriage of wife/respondent herein with her brother-in-law Surendra Kumar and whether she was living adulterous life in favour 11. of wife. These findings stand substantiated on the basis of the discussions made in the foregoing paragraphs in connection with the First Appeal No. 68/2015.. If the allegation of adultery or illicit relationship alleged by the appellant failed, there was no basis for the appellant to resist restitution of conjugal right sought by the respondent-wife herein. The instant appeal, therefore, is also without merit and fit to be dismissed.
17. Accordingly, both the appeals are dismissed. Decree accordingly.
(Aparesh Kumar Singh,J) (Ratnaker Bhengra,J) Jharkhand High Court, Ranchi Dated 12th July, 2018 JK/NAFR